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||Neutral Citation Number:  EWHC 2779 (Admin)
||Case No: CO/10939/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||18th October 2012
B e f o r e :
MR JUSTICE KENNETH PARKER
|| DR E Y
||- and -
||GENERAL MEDICAL COUNCIL
(Transcript of the Handed Down Judgment of
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Mary O'Rourke QC (instructed by Nabarro LLP) for the Appellant
Kate Gallafent (instructed by General Medical Council) for the Respondent
Hearing date: 5 October 2012
HTML VERSION OF JUDGMENT
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Mr Justice Kenneth Parker :
- This is an appeal of Dr E Y ("Dr Y") under section 40 of the Medical Act 1983 (as amended) ("the Act") against a decision of a Fitness to Practise Panel ("the Panel") of the General Medical Council dated 13 October 2011 that Dr Y's fitness to practise was impaired by reason of sexual misconduct in relation to a female patient, "Patient A", such that his name should be erased from the Medical Register and that he be suspended with immediate effect.
- The Appellant is an Egyptian doctor who moved to the United Kingdom in 1998. From October 2007 he worked as a salaried GP in Southall and for an out-of-hours service called "Westcall", based in Reading.
- Dr Y faced charges in relation to two incidents before the Panel.
- First, it was alleged that in January 2009 whilst on call at Westcall he knowingly misled Mrs F, the mother of patient DF, by stating
"Unfortunately we don't send a doctor with ambulance to see kids at home. This is a rule."
and that such action was dishonest.
- The second set of allegations concerned a patient known as "Patient A". At the relevant time Patient A was a 56 year-old woman suffering from a hereditary disability (spastic paraplegia), causing her to have weakness and spasticity of her lower limbs. She used a wheelchair or crutches to mobilise. She had been widowed approximately ten years earlier. Although disabled, she did voluntary work for Rehab Tech, a supplier of specialist equipment to the disabled, for the Civil Service Benevolent Fund, and for Link which involved visits to elderly disabled people who lived alone. She had also been involved with the Girl Guides for over 30 years. Patient A lived alone, but had a partner "Mr B" and, according to her evidence to the Panel, was supported by a network of friends.
- Dr Y made two visits to Patient A on Sunday 17 January 2010. The first was the result of a call by her to her local out-of-hours service, Westcall, to request a home visit as she was in pain following a fall. The call was taken by Dr Y, who confirmed that he would visit her home to carry out an examination. During the call Patient A told Dr Y that "the whole of [her] back ached from [her] neck, right, right the way down" and she wanted a physician to check that there was nothing seriously wrong with her back. Dr Y was driven to Patient A's home by a driver provided by Westcall and arrived about 11 minutes after the call at about 10 past 10 in the morning. He subsequently returned at approximately 7pm for a social visit, having called Patient A from his personal telephone to arrange the visit and driven his personal car to her address.
- Dr Y was charged with misconduct in relation to both visits.
- It was alleged that during the first visit Dr Y:
i) Touched Patient A's bottom,
ii) Put his hand between Patient A's thighs,
iii) Inserted his finger into Patient A's anus,
iv) Asked Patient A about her sex life,
v) Said to Patient A
a) "you have a beautiful back for a lady with a disability",
b) "sometimes doctors have to do things patients think aren't necessary",
c) people with disabilities didn't gain much from penetration and asked whether this was true for her,
or words to that effect.
- In relation to the second visit that evening it was alleged that Dr Y:
i) offered to bless Patient A with holy oil,
ii) made sexual comments and suggestions to Patient A,
iv) asked Patient A to touch his penis,
v) pulled Patient A to the floor,
vi) removed her trousers,
vii) attempted to vaginally penetrate Patient A,
viii) masturbated in front of Patient A,
ix) ejaculated on Patient A.
- It was alleged that these actions (save for that in relation to the blessing) were sexually motivated and indecent.
- The hearing of the case lasted for nine days (3-12 October 2011). The case was heard by a Panel consisting of two medical members and a lay member.
- So far as the allegations in relation to Mrs F were concerned, Dr Y did not dispute using the words alleged, and the Panel was satisfied that he had knowingly misled Mrs F by referring to a rule which he knew to be non-existent. It went on to find that that action was dishonest, applying the Ghosh test for dishonesty.
- In relation to the second set of allegations, the Panel heard from Dr Y and Patient A, the police officer who had interviewed Patient A following a call that she made to NHS direct on 26 January 2010 concerning Dr Y's visits to her, which had reported the matter to the police, and the police officer who subsequently met with Patient A and interviewed Dr Y in connection with the allegations. Patient A's evidence was heard in person, the Panel having refused the GMC's application for her to give evidence via video link on the grounds of her vulnerability on the basis that "the credibility of witnesses is likely to be central to its decision making process" and her physical presence would "enhance its ability to assess her demeanour and spontaneity and thus come to a just decision as to her credibility".
- Against the background of that analysis, the Panel found that during the first visit Dr Y had touched Patient A's bottom and put his hand between Patient A's thighs but not that he had inserted his finger into her anus. It found that he had said to her words to the effect that sometimes doctors have to do things patients think aren't necessary, and that he knew people with disabilities didn't gain much from penetration, was this true for her, but not that he had said that she had a beautiful back for a lady with a disability.
- So far as the second visit was concerned, the Panel found that, based on his own evidence, Dr Y had returned to Patient A's house and offered a blessing to her, that is, a picture of a Coptic Christian Saint with what he described as a smudge of oil on its reverse, rather than offering to bless her himself. It found that he had stayed in the house for a considerable period of time, during which he asked Patient A to switch off the television and remove a cat from her sitting room. He then undressed sufficiently to expose his penis, asked Patient A to touch it, removed her trousers and attempted to penetrate her vaginally. When he failed to do that successfully he masturbated in front of her, ejaculated on her, got dressed and left. The allegation that Dr Y pulled Patient A to the floor had been withdrawn by the GMC following Patient A's evidence.
- The Panel concluded that Dr Y's actions were sexually motivated and indecent, save in relation to the touching of her bottom during the first visit which could have been part of a proper medical examination of her spine.
- The Panel proceeded to consider whether Dr Y's fitness to practise was impaired by reason of his misconduct. It found that his dishonesty in relation to Mrs F was not so serious that it constituted misconduct capable of underpinning a finding of impairment, but that his misconduct towards Patient A amounted to gross violations of the fundamental rules relating to the professional relationship between doctor and patient, and concluded that his fitness to practise was impaired by reason of such misconduct.
- As a result, it felt that
"the only sufficient and proportionate way in which patients, the public and the reputation of the profession can be protected, is by directing the Registrar to erase [Dr Y's] name from the Medical Register."
and ordered that he be suspended with immediate effect
"as it would be inappropriate to allow [him] to practise medicine in any capacity pending the outcome of any appeal."
- The High Court's powers on an appeal by a doctor against a decision of a FTP Panel are set out in section 40(7) of the Act, which provides that:
"On an appeal under this section from a Fitness to Practise Panel, the court may -
(a) dismiss the appeal;
(b) allow the appeal and quash the direction or variation appealed against;
(c) substitute for the direction or variation appealed against any other direction
which could have been given or made by a Fitness to Practise Panel; or
(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court."
- By virtue of paragraph 22.3(2) of the Practice Direction to Part 52, the appeal is by way of re-hearing, but "it is a re-hearing without hearing again the evidence" (Fish v GMC  EWHC 1269 (Admin) at  per Foskett J).
- This Court will allow an appeal where the decision of the lower tribunal was "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings" before the lower tribunal (CPR r.52.11(3)). In considering whether the decision of a Panel was wrong particular deference is given to its decisions for two reasons: the expertise of the Panel members, and the Panel's role as the primary fact-finder in the proceedings.
- In relation to the first of these features, the principles were summarised by McCombe J, as he then was, in Azzam v General Medical Council  105 BMLR 142 at :
"(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;
(2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession;
(3) The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment;
(4) The court's function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it."
- In relation to the second feature, courts have often emphasised the Panel's advantage of having seen live evidence. As a result, "where the conclusion of the FTP is largely based on the assessment of witnesses who have been "seen and heard", this court will be very slow to interfere with that conclusion" (Fish v GMC  EWHC 1269 (Admin) at  per Foskett J).
- This follows the approach set out in Gupta v General Medical Council  1 WLR 1691:
"[T]he obvious fact [is] that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect, these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability or the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas  A.C. 484, 484488."
- The passage from Lord Thankerton's opinion is as follows:
"I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."
- In Southall v General Medical Council  2 FCR 77, Leveson LJ confirmed that:
"findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd  AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer)  1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it "can be shown that the findings ... were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread" (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council  AC 217 at 221F more recently confirmed in R (Campbell) v General Medical Council  1 WLR 3488 at  per Judge LJ)." (at paragraph 47)
- So far as the giving of reasons are concerned, Girvan LJ (sitting as a judge of first instance) summarised the position as follows in Casey v GMC  NIQB 95 at paragraph 6(c):
the authorities establish that in most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why, thus satisfying the duty to make it clear to the losing party why he had lost. Where the issue is not straightforward the practitioner is entitled to know why his evidence in the case had been rejected. A few sentences dealing with salient issues may be essential. While a finding of fact based on the assessment of witnesses will only be interfered with if it can be regarded as plainly wrong or so out of tune with the evidence properly read as to be unreasonable, the relevant issues must have been properly addressed (see Leveson LJ in Southall v GMC  EWCA 407). In Selvanathan v GMC  59 BM Lord Hope stated that in practice reasons should now always be given by the panel in their determination. Fairness requires that this be done so that the losing party can decide in an informed way whether or not to accept the decision. In Selvanathan however the Privy Council concluded that there were no grounds for thinking that the appellant had suffered any prejudice due to the absence of reasons, the matter being relatively straightforward. In Gupta, the Privy Council finding that there was no duty in that case to give full reasons than had been given, declined to give further guidance though it reiterated what had been stated in Selvanathan namely that in cases where fairness requires reasons they should be given. In Southall v GMC Leveson LJ concluded that in straightforward cases setting out the facts to be proved and finding them proved or not proved will generally be sufficient to demonstrate why the party lost or won and to explain the facts found. When the case is not straightforward and can properly be described as exceptional the position is and will be different. In such cases at least a few sentences dealing with the salient issue is essential. In that case having regard to the rejection of the doctor's evidence and her defence, she, the doctor, was entitled to know why, even if only by reference to demeanour, attitude or approach to the specific questions posed to the doctor. In that case it was nothing to do with not being wholly convincing it was about honesty and integrity and if the panel were impugning her in those regards it should have said so."
Grounds of Appeal
- By the time of the hearing of this appeal, the issues were in essence:
i) Were the Panel's findings of fact perverse?
ii) Did the Panel fail to give adequate reasons for its findings of fact?
iii) Did the Legal Assessor fail to direct the Panel appropriately on the evidence?
Patient A's accounts of what happened on 17 January 2010
- At the heart of this appeal is the contention, strongly advanced by Ms Mary O'Rourke QC on behalf of Dr Y, that, contrary to the finding of the Panel, Patient A was plainly not a credible witness, and no reasonable Panel could have found otherwise. That contention in turn was founded on a critical examination of how her complaint of sexual misconduct on the part of Dr Y had evolved over time, to the point that in her live oral evidence to the Panel she stated that on the second visit Dr Y, either using and/or impliedly threatening to use, significant force, had twice attempted with his penis to penetrate her vagina from the front, and had then succeeded in penetrating her from the rear with his penis. It is very difficult, therefore, to avoid the conclusion that before the Panel Patient A was saying that Dr Y had attempted to rape her and had then actually raped her, allegations in effect that he had, in gross breach of trust and taking advantage of her as a vulnerable disabled woman, committed on her sexual offences of the highest gravity, that must have been utterly shocking and deeply traumatic.
- It is, therefore, convenient immediately to set out how Patient A's account did evolve.
(a) NHS Direct
- Patient A did not straightaway raise a complaint concerning Dr Y with any external agency. In her evidence to the Panel she said (for the first time on record) that, after Dr Y's initial visit in the morning, a friend had called round to collect a prescription (made out by Dr Y) for the pain killer Tramadol, and that the friend had obtained the drug for her, which she then took and which had made her "dozy" by the time of Dr Y's second visit in the evening. In an earlier statement to the police Patient A had said that Dr Y had not prescribed any painkillers (she had, she said, already taken sufficient painkillers and did not require more), and there was furthermore no evidence that Dr Y had in fact prescribed any medicine for Patient A. Be that as it may, Patient A said that she did not tell her friend about any untoward conduct by Dr Y on the morning visit. Asked before the Panel whether in reaction to Dr Y's behaviour she had contacted Mr B, she said that she could not do so because he was working on 17 January 2010 (it was a Sunday, and although it might have been unlikely that Mr B was working, that circumstance was not further explored before the Panel). However, later in evidence she said that in fact Mr B had telephoned her on 17 January, but she had not told him about Dr Y's conduct. In evidence she stated that some days later she did discuss with Mr B the conduct of Dr Y.
- On 26 January 2010 (that is, about 9 days after Dr Y's visits) Patient A telephoned NHS Direct. This was a fairly lengthy call, and it is clear that, at one point certainly, Patient A became very distressed. Patient A first spoke with a male operator at NHS Direct but was quickly passed on to a female health adviser and later to a female nurse. Helpfully, the nurse at the end of her conversation with Patient A sought to summarise Patient A's complaint regarding Dr Y, and to obtain Patient A's confirmation that she had recorded the complaint accurately:
"GRACE: Okay. You know, its just the fact that you've managed to explain everything to me, you know, especially something as traumatic as this, and, you know, I can understand you not wanting to talk about it further. So what I will do, with your permission, is I'm going to contact the police. I'm going to explain things as you explained them to me and I'm just going to read back what I'm going to say to them so you can correct me if I'm saying anything wrong.
PATIENT A: Uh-huh.
GRACE: The doctor came to see you about three or so weeks ago. This was a GP out of hours that you called because you had pain in your neck and in your shoulder. When the doctor came you don't know what his name was but he was dark skinned. The doctor was asking you inappropriate sexual questions.
PATIENT A: Yeah.
GRACE: And then he attempted to touch your private parts. You told him not to. He told you that you were an attractive woman and he couldn't help himself. The doctor left and then he came back and then he asked you to have sex with him and you refused, and you told him to leave.
PATIENT A: He told me I was an attractive woman and that it was a shame I was a widow and that most widows probably weren't getting any sex.
PATIENT A: Okay?
GRACE: Okay, I'll just change that. Okay, fine. Okay. So, what I'll do is I'll contact the police for you. I just need to make sure I've got the right doctors. Which GP practice are you registered with?"
- At an earlier point, in conversation with the female health adviser, Patient A had indicated that she did not want to report the matter to the police, and explained why she had decided to contact NHS Direct:
"[Patient A]: I don't want to you know, I don't want to have to report it to the police, and I know you're asking me to hold on so you can go and get some information and what have you now, but what I want to know is, if I'm ever ill again and need to ring my doctor, doctors on call again, would you mind, could I ask that I get a female doctor?"
- There is no doubt that Patient A was reporting to NHS Direct serious sexual misconduct on the part of Dr Y, namely, that he had made inappropriate sexual allusions, had harassed Patient A about having sexual relations with him, and had, during the course of a physical examination of her back, attempted to touch her private parts. Given the scope of what she was telling NHS Direct, it was readily understandable that she was not minded to set in train a criminal investigation, for the sexual harassment, although grossly unethical, was not obviously or seriously criminal, and a complaint about an attempt at sexual touching during an examination of the back could well be contentious, distressing and inconclusive. However, Patient A did not on this first occasion say that Dr Y had in fact digitally penetrated her anus on the morning visit and had then on the second visit stripped practically naked, had attempted from the front to rape her vaginally, and had gone on to rape her from the rear, pulling her trousers off to do so, before masturbating in front of her and ejaculating on her jumper. She did not mention any condom wrapper that she had found at the scene, nor did she refer to any possible symptoms of sexually transmitted disease originating from sexual contact with Dr Y. If she had mentioned such matters, her reluctance to involve the police would, of course, have been less intelligible.
(b) The Police Interview
- The police were informed and did investigate. On 30 January 2010 (that is, about 13 days after Dr Y's visits) a female police officer interviewed Patient A for about three hours, summarised what Patient A told her, and asked Patient A to confirm that the written summary was accurate, which she did. As to the first visit on 17 January 2010, Patient A told the police officer, as she had told NHS Direct, that Dr Y had made sexually inappropriate allusions and had "put his hand between my thighs near against my bottom".
- However, in respect of the second, evening visit, Patient A told the police officer that not only had Dr Y asked to have sexual relations with her but also that he had tried to kiss her, had run his hands over her body, feeling her breast, and had then taken his trousers off, exposing himself, and asking Patient A to masturbate him. When she refused, he masturbated and ejaculated over Patient A's jumper. The police officer took away a jumper for forensic testing.
- The account that Patient A gave to the police officer was, therefore, radically different from what she had told NHS Direct, for it now involved a serious sexual assault and unambiguous grossly indecent actions (as distinct from language) on the part of the Dr Y. However, notwithstanding the length of the interview, the very grave nature of the allegations that she was now making, and her confirmation that the written note of the interview was accurate, Patient A did not tell the police officer that Dr Y had on the first visit digitally penetrated her anus, and that he had on the second visit practically stripped naked, and had attempted twice from the front to achieve vaginal penetration with his penis, before penetrating her from behind with his exposed penis. In other words, she made to the police officer no allegation of attempted rape or of actual rape. Nor did she tell the police officer that Dr Y had ejaculated into a tissue; or that she believed that she might have contracted a sexually transmitted infection from him (such an allegation not being easily reconcilable with her description of Dr Y's misbehaviour); or that she had found the wrapper of a condom at the scene. As to Patient A's jumper that the police officer naturally took away, subsequent forensic examination did not reveal anything that would incriminate Dr Y.
(c) GMC Interview and Witness Statement
- For the purpose of the proceedings before the Panel, Patient A was interviewed by a solicitor employed by the GMC, and a witness statement dated 2 August 2010 was made and served on Dr Y and his legal representatives. In that statement patient A now said that on the first morning visit Dr Y "started feeling my bottom and slid one of his fingers inside my rear", an allegation that she had not previously made to NHS Direct or to the police. As to the second visit, Patient A now described what had occurred as follows:
"11. I sat on one sofa and directed Dr Y to sit on the opposite sofa. He kept shifting about on his sofa and when I asked him why he was doing that he said that he would prefer to sit next to me. My cat was next to me on the sofa and he said that he wanted me to put the cat out as he did not like cats. During the time we were seated in the living room, he kept steering the conversation to my sex life but I was not forthcoming with the answers that he wanted.
12. The next thing I knew, he began undressing. I asked him what he was doing. He said he wanted to show me his penis and asked if I wanted to touch it. When I refused, he pulled me onto the floor and took my trousers off. I tried to fight him off but because I was not feeling well and because of my disability I could not fight him. I was frightened and did not want to hurt myself anymore.
13. Dr Y then tried to have sex with me. I tried to push him and said that I was not into whatever it was he was doing. He had completely undressed by now. He lifted my legs and pulled them apart. I am sure he put a condom on because I found a condom wrapper later which I had put in the bin. I had discarded the bin bag later on. Dr Y could not get my legs in a position that would allow him to have penetrative sex with me. He took two cushions which were on the sofa and placed them under my bottom. When this failed, he suggested that I should go on my knees and bend over the sofa. Dr Y was still unable to penetrate me but he did stand in front of me and ejaculated all over me.
14. I was not happy at all and kept saying that I did not want this. When he finished I wanted him out of the room. I directed him to the bathroom and quickly got dressed before he returned.
15. He came back into the living room, picked up his clothes, condoms, tissue which he had used (I have a roll of tissue under the coffee table) and part of the condom wrapper. He said that he will see me soon after and left."
- It is difficult to avoid the conclusion that Patient A in her witness statement was now saying that Dr Y on the second visit had attempted to rape her with his exposed penis. Furthermore, she was saying that he had used substantial force (pulling her to the floor, taking her trousers off), that she had tried to resist him and had made plain to him that she was not consenting to sexual intercourse of any kind. She also gave the further detail that Dr Y had used a condom and that she had found a condom wrapper which she later placed in the bin. Furthermore, Patient A now described Dr Y as naked when he attempted to rape her. None of this, of course, had been mentioned in her initial conversation with NHS Direct or in her police interview. In her witness statement she did not refer to any sexual assault as having occurred on the sofa attempts at kissing, running hands over her body and touching of her breast which she had described to the police officer. In her witness statement she also said that Dr Y had prescribed medication, and that a friend later in the day called to pick up the prescription and obtain the medication for Patient A, an account that was inconsistent with what she had told the police officer, that introduced a potentially significant element a visit from a friend after Dr Y's first attendance and that was, in the light of evidence given at the Panel hearing, almost certainly untrue.
- Her witness statement did not refer to the substance of what she had told NHS Direct or the police officer in interview and did not, therefore, seek to offer any explanation of how the account that she was now giving of Dr Y's visits was fundamentally different from, and far more serious than, her account to NHS Direct, and very substantially different from, and again more serious than, her account to the police.
(d) Evidence to the Panel
- In her evidence to the Panel Patient A described the two visits made by Dr Y. She described that he had used sexually inappropriate language on the first visit, a description that was consistent with what she had told NHS Direct and the police. However, in describing the physical examination made by Dr Y, she now said that Dr Y had actually put his hand directly on the skin between her anus and vagina (her perineum) (transcript of Panel hearing, 9E-10A). Consistently with her witness statement, she said that he had during the examination penetrated her anus with his finger. In her evidence she also elaborated that Dr Y had obviously inspected her medical records before his first visit, because without prompting he had raised aspects of her medical history (such as a hysterectomy), and she had thought that Dr Y "had no business whatsoever to be poking around my medical records when he had just been called out for one thing that it did not relate to" (transcript, 11F 12A). It was demonstrated at the hearing that Dr Y had had no access to Patient A's medical records (and in any event, given his almost instantaneous response to her call, would barely have had any opportunity to examine any such records), so that Patient A's elaboration in this respect of the conversation at the first visit was almost certainly untrue.
- Her description of Dr Y's misconduct at the second visit was significantly different from that set out in her witness statement. She said that when Dr Y had been sitting on the other settee he had already begun to "sort of feel the front of the trousers and like massage round the penis, and what have you" (transcript 21EF). Patient A said that, while sitting together on a settee, Dr Y had tried to undress her, and that she had moved down onto the floor to move away from him (as distinct from Dr Y pulling her to the floor, as she said in her witness statement). Patient A said that she had tried to prevent Dr Y from removing her trousers, but that, owing to her condition, her legs had gone into spasm, an aspect not mentioned in her witness statement. She said that, having failed to penetrate her from the front and with her legs in spasm, Dr Y "turned me over and leant me against the settee so he could try doing it from the back". (In her witness statement she had said that Dr Y had suggested to her that she should get on her knees and lean over the sofa.) Contrary to her witness statement Patient A then said that Dr Y had succeeded in penetrating her from the back but he could not keep his penis hard, before he masturbated in front of her (transcript, 22A 24F). Asked where the ejaculate went, she said "on some tissues" and on her bare stomach. After prompting by counsel for the GMC she recalled that she was wearing a jumper at the time but could no longer remember whether the ejaculate had gone on to the jumper (which she had of course given to the police to allow forensic analysis). In cross-examination she was reminded of her interview with the police officer and of what she had said about the jumper, and she explained that after the visit she had on two occasions between 17 January and 30 January 2010 washed the jumper with biological detergent.
- Patient A also said in her evidence that, as well as telling Mr B what had happened, she had had to make an appointment to see her GP "because I had got an infection and I knew it had not come from my partner because we just have not had sex at all, okay" (transcript 27A). It has to be said that this evidence, potentially very prejudicial to Dr Y, was very hard to reconcile with her medical record: she had seen her GP on 12 February 2010, saying that she felt "something was wrong down below", and it was "her husband" (presumably Mr B) who had been complaining of soreness to his penis when he had in fact been having sexual intercourse with Patient A. On referral to a consultant gynaecologist, the notes referred to a "9 month history of dryness and the feeling of something dropped in the vagina". There was, therefore, no evidence of any sexually transmitted disease or of treatment for such disease.
- In cross-examination Mr Hugh-Jones QC, who was then appearing for Dr Y, questioned Patient A about her different and inconsistent accounts of the events in question. In his final submissions to the Panel Mr Hugh-Jones methodically tabulated these differences and inconsistencies, and sought to emphasise them on the issue of Patient A's credibility. The Legal Assessor (Lord Hailsham QC) in his legal advice to the Panel also dealt with the matter, as follows:
"I now proceed back to my advice. You can act on the uncorroborated evidence of Patient A. There are clearly differences between what she told you in evidence and what she said in previous statements, both oral and in writing; the significance of these is a matter for you. If you feel that these differences are sufficient to make her an unreliable witness as to the main elements of her evidence, which is Mr Hugh-Jones's case, for example, that is to say that you feel that albeit she is intrinsically an honest witness, it would not be safe because of the differences between what she has said on previous occasions and her in evidence, and as highlighted by Mr Hugh-Jones. It clearly would not be safe to rely on the accuracy of the evidence that she gave you. You will proceed with great caution. Therefore, if you treat her as an unreliable witness, you should proceed with great caution. In support of his proposition that she is unreliable, Mr Hugh-Jones has identified a variety of ways in which her evidence has evolved, from the moment when she first spoke to NHS Direct ultimately to her evidence given in this hearing. That is itemised more specifically on page 6 of his skeleton argument.
If you were to adopt a more extreme position and conclude that she is essentially a dishonest witness, then you would be looking for supporting material and you would be very slow to convict on the basis of her unsupported evidence, and in this case her evidence is indeed unsupported by corroborative evidence. If, however, you felt that Patient A is essentially an honest witness and the differences between what she told you and what she has said on previous occasions do not point to unreliability in the sense mentioned above or to dishonesty, then you are entitled to proceed on the basis of her otherwise unsupported evidence. Ultimately, it is a matter for you."
The Panel's Treatment of Patient A's Credibility
- Given the grounds of appeal, it is important, in my view, to set out in full how the Panel addressed the question of Patient A's credibility:
"1. The Panel benefited from Patient A attending in person to give evidence in front of the panel. It found her to be a generally credible witness whose evidence was largely reliable. It accepted that there were inconsistencies in the various accounts she has given relating to the events of which she complains.
2. For example, she did not disclose the full details of her complaint from the start and the details have escalated over time.
3. However, Patient A is consistent in many aspects of what she says took place. She was clear from the outset that she did not want to involve the police, saying that she did not wish to be dragged through the local courts but maintained that she "wanted the doctor stopped".
4. Patient A was and is clearly capable of expressing her opinion with some force. On the telephone to NHS Direct, when a referral to social services was suggested, Patient A was emphatic in rejecting that idea. She accepted that she could be a vulnerable adult due to her disability but knew how to contact social services if required. She was clear that she did not need a "social work referral". Under cross-examination at this hearing she was ready to challenge any questions which she thought were not relevant and to seek clarification of matters which she did not fully understand.
5. Patient A has a long-standing physical disability. Your visits took place just after she had fallen down and when she was in considerable pain. She was alone with you in her home. Her description of "giving up" during your second visit and of subsequently feeling "dirty and violated" as a result of what she said you did to her, carried the ring of truth. She explained to the Panel that, initially, she had felt that she may have been to blame for what happened in some way because, at the time of your first visit, she was not wearing any underwear beneath her nightdress.
6. The Panel did not find it surprising that the detail of Patient A's complaint was made on a piece-meal basis and that she did not provide exactly the same account to each of the individuals who have interviewed her. Her purpose in telephoning the NHS Direct call line was to talk to someone and to establish that she could in future request a female doctor. She was persuaded to complain to protect other patients. She did not want to involve the police and told the NHS Direct nurse that she was not sure she want[ed] to keep reliving the events but agreed to be interviewed if NHS Direct approached the police on her behalf. Her full account has emerged over time and as these disciplinary proceedings have moved closer commencement. The Panel considers that her readiness to admit a lack of recall at times enhanced rather than diminished her essential credibility. There is no room for an innocent interpretation of the events as described by Patient A as occurring on your second visit to her house and the Panel found it incredible that Patient A would invent such a story."
- It is also important to cite the Panel's consideration of Dr Y's credibility:
"7. The Panel considered your own standing as a witness. It had regard to the fact that you are of good character. That supports your credibility as a witness and the Panel had taken your good character into account in deciding whether it accepts your evidence. The Panel has also had in mind that the fact that you are of good character means that you are less likely to have done what is alleged than would otherwise be the case. However, it has also noted that, in itself, good character is not an absolute defence to what is alleged; it is a matter to be considered by the Panel in its appraisal of all the relevant evidence, including such evidence as undermines your credibility and honesty.
8. For example, your evidence was that, in examining Patient A, on your first visit, you wished to exclude stroke and injury as a differential diagnosis. You told the Panel that you conducted a very full neurological examination. Some of this Patient A remembered. However, you did not record key elements of such an examination which casts some doubt on your version of events. Furthermore, your clinical notes included the entry "no equina sign" in "Examination Details". This would mislead another clinician into assuming that you had excluded cauda equine syndrome by carrying out a physical examination which you had consistently denied doing.
9. The Panel rejected your reasons for returning to visit Patient A. Your evidence was that, having worked a full week, you had taken Saturday off. You had then risen at 05:00 on Sunday morning and driven around 40 miles to Westcall to work. You worked two, six hour shifts back to back and, despite the presence of snow and ice and an injury to your ankle, drove a short distance in the opposite direction to your home, to call on Patient A. You acknowledged that you were tired and in pain. You have a number of reasons for why you wished to give her the gift of a blessing. The Panel found that there was no need for you to give a gift to Patient A. It did not find any of your explanations for returning to her house to be credible.
10. When assessing your account of the events that occurred when you visited Patient A, the Panel kept in mind that there was no plausible reason why she should have manufactured a story.
11. Additionally, in assessing your credibility, the Panel noted that you evidence to the Coroner regarding Patient F was somewhat misleading with regard to how forcefully you told Mrs F that there was a no home visit rule. Finally in your oral evidence to the Panel, you opined that your words to Mrs F ensured that she understood the need for F to be seen by a doctor. The Panel disagreed.
12. The Panel did not find you to be a credible witness and it generally preferred the evidence of Patient A where her account conflicted with yours."
The First Ground of Appeal: Perversity
- In essence Ms O'Rourke QC, on behalf of Dr Y, submitted that, given the marked differences in the various accounts that Patient A gave, and the inconsistencies between the various accounts, no reasonable Panel could have found her credible, and no reasonable Panel could have had sufficient confidence to conclude that Dr Y had behaved, on either of the two visits, in a sexually inappropriate manner.
- In the light of the authorities referred to earlier, Ms O'Rourke faced a very high hurdle on this first ground of appeal. Ms Kate Gallafent, who appeared on behalf of the GMC, submitted that the Panel had the considerable advantage of seeing and hearing how Patient A responded to questioning. She suggested that the present case was analogous to Chyc v General Medical Council  EWHC 1025 (Admin), which concerned an allegation that during a home visit a doctor had behaved improperly and abused his position of trust by fondling the patient's breast during an examination and asking if he could kiss her.
- The Court (Foskett J) recognised that the matters raised on behalf of the Appellant raised questions about the account given by the patient, and were legitimate areas for investigations before a tribunal of fact determining the truth or otherwise of what is alleged,
"but it is almost always [
] how the witness against whom these kind of matters are raised deals with them in evidence that will shape the decision of the tribunal." (at paragraph 23)
- He noted that the points raised on the appeal going to the patient's credibility had been put to the patient in cross-examination and the Panel would have had the opportunity to observing how Ms P dealt with them, and that all members of the Panel (including the Chairman) took advantage of the opportunity to ask the patient questions at the conclusion of her questioning by counsel (at paragraph 27). In particular, they would have seen her reaction when it was put to her that nothing improper took place at the examination, and plainly took
"proper advantage of ... having seen and heard the witnesses (per Lord Thankerton)." (at paragraph 29)
- In the present case Patient A was examined in chief for the entirety of a day, and then cross-examined by Counsel for Dr Y until mid afternoon the following day after which she was questioned by all three members of the Panel and further cross-examined by Counsel for Dr Y. During that questioning the Panel had the opportunity to see how she dealt with points going to her credibility based on her various statements and as well as her reaction when it was put to her that nothing improper took place during either visit.
- In my view, there was in these circumstances sufficient evidence, arising from what Patient A had said in examination in chief and under cross-examination, to support the essential findings of the Panel that were adverse to Dr Y. Patient A had consistently maintained from the outset that Dr Y had used inappropriate sexual language during both visits, and, on the basis that he had done so, it was a justifiable inference that his conduct was an attempt at sexual grooming of Patient A. Patient A had furthermore told a police officer that on the second visit Dr Y had performed an act of gross indecency in her presence, and she maintained that particular complaint both in her witness statement for the Panel proceedings and in her oral evidence to the Panel. She also said in her witness statement, and affirmed in her oral evidence, that on the second visit Dr Y had sought to have sexual intercourse with her without her consent.
- I am not, in particular, impressed by an argument that the fact as such that certain details of Patient A's description of the act of gross indecency varied over time or that the Panel declined to find that Dr A had digitally penetrated Patient Y on the first visit fatally undermined her evidence. On the first element, as was stated in Mubarak v General Medical Council  EWHC 2830 (Admin):
"The task [for the Panel] is to consider whether the core allegations are true. It is a commonplace for there to be inconsistency and confusion about details of varying importance." (at paragraph 20)
- On the second aspect, it is again not unusual for a tribunal of fact (including a jury in a criminal trial who must be satisfied so that they are sure of guilt) to reject one allegation of misconduct by a complainant but to find that other allegations have been proved.
- In considering the first ground of appeal, it is also very important to bear in mind that the Panel did not find that Dr Y was a credible witness, and in this appeal it was not suggested that the Panel had no reasonable basis for such a conclusion.
- That conclusion was based primarily on Dr Y's own account, including his evidence concerning the first visit taken against his clinical notes of it, the reasons he gave for returning to visit Patient A, none of which the Panel found credible, his evidence to the Coroner regarding Patient F, and his evidence to the Panel regarding Mrs F.
- Those findings were reached after Dr Y had been cross-examined by Counsel for the GMC for half a day and the Panel members questioned Dr Y for a further hour. Thus, the Panel had the opportunity to see how Dr Y responded to questioning, particularly when it was suggested that something improper had occurred.
The Second Ground of Appeal: Inadequate Reasons
- In respect of this ground, Ms Gallafent, relying on the authorities referred to earlier, emphasised that, even in exceptional cases, no more than brief reasons need be given why the account of a particular witness has been accepted or rejected. In this case, she contended, the Panel did give reasons for finding Patient A credible as to her core allegations against Dr Y, and these reasons were adequate. This Court, she forcefully argued, should be slow indeed to find that the reasons given by the Panel were legally inadequate.
- However, notwithstanding the power of Ms Gallafent's advocacy, I have remained deeply troubled by this aspect of the case. In my judgment, this was not just an exceptional case (within the language of the authorities) but a very exceptional case, where justice required somewhat more developed reasoning on this central issue of Patient A's credibility than would ordinarily be required. I say that essentially for two reasons. First, this was not a case where, on close analysis, the details of Patient A's account had varied over time. This was a case where Patient A, over time, had developed a fundamentally different description of what she said had happened to her. When she reported the matter at first to NHS Direct she had said that Dr Y had, on both visits, used inappropriate sexual language and had, on the first visit, tried to touch her private parts during the examination of her back. At that stage Patient A's sole concern, as expressed to NHS Direct, was that in future only female doctors should be sent to her. She herself did not want to involve the police. There was no hint that Dr Y had performed an act of gross indecency in her presence and certainly no suggestion whatsoever that he had tried to rape her, let alone that he had in fact raped her.
- Then, following a lengthy interview with the female police officer, Patient A alleged that both a sexual assault and an act of gross indecency had occurred on the second visit, an account essentially different from what she had told NHS Direct. However, there was still no mention of attempted rape, or of actual rape. However, in her witness statement, and in her evidence to the Panel, Patient A alleged that Dr Y had tried to rape her, but went on, before the Panel, then to allege actual rape. Looked at another way, as I have noted, her account had radically shifted from a description of conduct that was only at the margins of criminality through to conduct that constituted the gravest criminal sexual offences.
- Secondly, this was a case where on some occasions Patient A's evidence, tending to incriminate and to prejudice Dr Y, could be objectively tested, and, when it was so tested, it did not then stand up well to scrutiny. For example, Patient A in her evidence maintained that Dr Y must have pre-read her medical notes, with the implication that he had then used the information to open up discussion of matters of her private life that had no legitimate purpose. Patient A also said in evidence (inconsistently with her statement to the police officer) that Dr Y had prescribed Tramadol, that a friend had obtained the medicine for her, and that she had taken the medicine (as well as painkillers before Dr Y visited), as a basis for saying that she was in a "dozy" state on the second visit, obviously making her even more vulnerable. Patient A in her evidence furthermore said that she had contracted a sexually transmitted disease which, on her account, could only have resulted from sexual relations with Dr Y, a potentially very damaging and prejudicial allegation that did not appear in any of her other statements. For the reasons explained earlier, none of this evidence stood up well to objective scrutiny. The Panel itself found that it was inherently improbable, on physical and medical grounds alone, that Dr Y had digitally penetrated Patient A on the first visit. That rejection of her account had then to be weighed, with the other matters to which I have referred, in evaluating Patient A's credibility. It was also notable that where, on Patient A's developed account, physical evidence might have been available that could potentially have strongly reinforced her grave allegations, she herself had done things that removed such physical evidence: washing the jumper twice in a relatively short period, and throwing away the condom wrapper. Patient A in cross-examination acknowledged that, as a long time helper in the Girl Guides, she well knew the importance of retaining any physical evidence that could throw light on a complaint of sexual misconduct.
- The crucial issue, therefore, is whether against this background the reasons given by the Panel for finding Patient A a credible witness were adequate. In my view, they were not. The Panel stated that Patient A did not disclose "the full details" of her complaint from the start, and that "the details have escalated over time". With great respect to the Panel, this was not a case of changing "detail". I have already explained that I was not impressed by any argument that her description of an act of gross indecency alleged to have been performed by Dr Y in her presence varied to some extent over time. However, for the reasons that I have already set out, what occurred here was that Patient A fundamentally changed, over time, the nature of the sexual misconduct on the part of Dr Y, culminating in her evidence to the Panel that he had actually raped her on the second visit. In my view, the treatment of her evidence by the Panel does not with sufficient clarity and precision indicate that the Panel truly recognised the difficulty posed by such a fundamental shift, particularly in the light of the second set of matters that I have mentioned in paragraph 61 above. It appears to me that the reasons had squarely to address that difficulty and to explain, even if briefly, the basis upon which the Panel deemed it safe, notwithstanding the radical shift, to accept the account as developed by Patient A and as given in her evidence to the Panel. On this latter aspect the Panel simply stated that it was "not surprising" that "the detail of Patient A's complaint was made on a piecemeal basis and that she did not provide exactly the same account to each of the individuals who have interviewed". Again, that would suggest that the central core of Patient A's account remained basically consistent, and that only the "detail" was developed and varied over time. However, that was not the position here.
- As I have said, I have anxiously considered this aspect of the case and, recognising that the duty upon a tribunal to give adequate reasons is ultimately underpinned by the need to secure justice, I do not find that the Panel's reasoning on what was a crucial issue was in all the circumstances legally adequate.
The Third Ground: The Adequacy of The Legal Assessor's Advice
- On this ground it is important to bear in mind what Tuckey LJ (with whom Jacob LJ and Sir Anthony Clarke MR, as he then was, agreed) stated in Gopakumar v General Medical Council  EWCA Civ 309:
"29. The presence of a legal assessor at proceedings before a Fitness to Practise Panel now derives from Schedule 4 paragraph 7 of The Medical Act 1983 (as amended). By 7 (1) such an assessor is required for all such proceedings "for the purpose of advising
on questions of law arising in the proceedings
". 7 (4) enables rules to be made for, among other things, securing that where the assessor advises the Panel on any matter all parties will be informed if the Panel do not accept his advice. By contrast juries are required to follow the directions of the judge on any question of law.
30. The General Medical Council (Legal Assessors) Rules 2004 have been made under paragraph 7 (4). By rule 2 the legal assessor is required to advise on any question of law referred to him and to intervene to advise the Panel where there is a possibility of a mistake of law being made or where he learns of any irregularity in the conduct of the proceedings.
31. So the differences between judge and jury in a criminal trial and members of a Panel and its legal assessor are obvious. The Panel is not a jury. They take legal advice from the assessor but they are not bound to follow it. The assessor is not a judge. He gives legal advice but does not give directions as such and does not sum up the evidence to the Panel.
32. These differences alone show that the analogy with criminal proceedings is not a good one. But this conclusion is confirmed by the two cases relied on by the Judge. Libman v GMC  AC 217 was principally concerned with the test to be applied by the Privy Council (then the appellate body) when considering whether to upset a finding made by the then Disciplinary Committee of the GMC. But at page 221 when summarising the general propositions to be drawn from earlier decisions of the Privy Council Lord Hailsham said:
"4. The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee
on points of law
The committee under its president are masters both of law and of the facts and what might amount to mis-direction in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee's decision. Where a criticism is made of the legal adviser's
advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision
In R (Campbell) v GMC  EWCA Civ 250 this court approved Lord Hailsham's propositions as still governing the approach that any court should adopt to decisions made by the then Professional Conduct Committee of the GMC. Mr Wilby argued that things have changed, at least since Libman was decided, because at that time the Disciplinary Committee was comprised entirely of doctors. As a result of the Human Rights Act a lay element has had to be introduced so the committees are now more like juries than they used to be. I do not think this makes any difference. It assumes that doctors have a greater knowledge of the law than the lay members who are now selected to sit on the Panel."
- I find no force at all in any of the criticisms of the Legal Assessor's advice, and I can deal with this ground quite shortly.
- First, the Legal Assessor properly advised the Panel that the standard of proof was the civil standard, that is, the balance of probabilities, and that when assessing the probabilities the Panel
"may keep in mind as a factor and to whatever extent you consider appropriate in any particular case the consideration that the more serious the allegation, the less likely it is that the event occurred and hence the stronger should be the evidence that the allegation is established on the balance of probabilities"
referring to In Re H (Minors). The Legal Assessor also referred to In Re B in which Baroness Hale had indicated that
"the inherent improbabilities are simply something to be taken into account where relevant in deciding where the truth lies", and concluded that "in a case of this gravity you should not convict on the basis of slight or insubstantial evidence."
- Although the Legal Assessor did not draw the authority of In re D (where the phrase "heightened examination" is found) to the Panel's attention, the Legal Assessor had drawn its attention to the relevant factors referred to in that case. The only additional matter raised by Lord Carswell in In re D was the possible relevance of the "seriousness of the consequences of the proceedings". However, this was doubted by Lord Brown in that case:
"If the evidence satisfies a tribunal [
] that an allegation against A is more likely than not to be true [
] it would be quite wrong for that tribunal to decide the question in A's favour merely to save him from the serious consequences of a finding against him." (at paragraph 47)
- In any event the potential consequences of Fitness to Practise proceedings "are serious either way" (in the words of Baroness Hale in R B at paragraph 71) a doctor may be allowed to continue unrestricted practice while being a risk to the public or he may be prevented from practising his profession in the future.
- Secondly, the Legal Assessor did specifically direct the Panel on the need to address inconsistencies in Patient A's evidence and the effect of those inconsistencies in evaluating reliability and credibility as follows:
"there are clearly differences between what she told you in evidence and what she said in previous statements, both oral and in writing; the significance of these is a matter for you. If you feel that these differences are sufficient to make her an unreliable witness as to the main elements of her evidence, which is Mr Hugh-Jones' case, for example, that is to say that you feel that albeit she is intrinsically an honest witness, it would not be safe because of the differences between what she has said on previous occasions and here in evidence, and as highlighted by Mr Hugh-Jones. It clearly would not be safe to rely on the accuracy of the evidence that she gave you. You will proceed with great caution. Therefore, if you treat her as an unreliable witness, you should proceed with great caution. In support of the proposition that she is unreliable, Mr Hugh-Jones has identified a variety of ways in which her evidence has evolved, from the moment she first spoke to NHS Direct ultimately to her evidence given in this hearing. That is itemised more specifically on page 6 of his skeleton argument.
If you were to adopt a more extreme position and conclude that she is essentially a dishonest witness, then you would be looking for supporting material and you would be very slow to convict on the basis of her unsupported evidence. If, however, you felt that Patient A is essentially an honest witness and the differences between what she told you and what she has said on previous occasions do not point to unreliability in the sense mentioned above or to dishonesty, then you are entitled to proceed on the basis of her otherwise unsupported evidence. Ultimately, it is a matter for you."
- The Legal Assessor also directed the Panel on the need to give reasons, stating:
"oddly, the rules do not require the giving of reasons at this stage, but the courts have frequently emphasised that fairness requires the giving of reasons and you should do so."
- The second ground of appeal has succeeded. In my view, that means that the decision of the Panel to find Dr Y guilty of sexual misconduct towards Patient A cannot stand. I would then invite counsel to consider and to submit what specific orders should be made on this appeal in the light of my judgment.
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