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Cite as: [2002] UKPC 37, [2002] Lloyd's Rep Med 415

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    Haikel v General Medical Council (GMC) [2002] UKPC 37 (04 July 2002)
    Privy Council Appeal No. 69 of 2001
    Dr. Mohamed Shaker Haikel Appellant
    The General Medical Council Respondent
    Delivered the 4th July 2002
    Present at the hearing:-
    Lord Slynn of Hadley
    Lord Steyn
    Sir Philip Otton
    [Delivered by Sir Philip Otton]
  1. The appellant, Dr Mohammed Shaker Haikel, appeals from a direction of the Professional Conduct Committee (“PCC” or “Committee”) of the respondent Council on 27 July 2001 that his name be erased from the Register in consequence of the proof of certain of the facts set out in the Notice of Inquiry and a determination that in relation to those acts he was guilty of serious professional misconduct.
  2. Background
  3. Dr Haikel was a registered medical practitioner in a single handed general practice at the Andover Medical Centre, Hornsey Road, London, N7. The charges against the appellant were broadly to the effect that he had conducted intimate examinations of female patients which were not clinically appropriate and that he had not offered chaperones to these patients. The specific charges which were found to be proved by the PCC were as follows:
  4. “That, being registered under the Medical Act
    1. At the material times you were practising as a General Practitioner at Andover Medical Centre, 270-282, Hornsey Road, London, N.7.
    2. At various times, the following patients were registered with you namely,
    a. Ms A
    b. Ms B
    c. Ms C
    d. Ms D
    e. Ms E
    f. Ms F
    3a. In the autumn of 1988 you were consulted by Ms A in relation to leg pains.
    b. At that consultation you
    i. questioned Ms A about her sexual experiences,
    ii. performed a vaginal examination,
    c. Your questioning of the patient as alleged in 3b(i) above was inappropriate,
    d. The vaginal examination referred to in 3b(ii) above was inappropriate in that it was not clinically indicated,
    e. The examination was performed in a manner that was:
    i. unprofessional and/or
    ii. improper.
    4a. Between November 1991 and December 1995 you were consulted by Ms B ..
    b. During such consultations you frequently performed vaginal examinations,
    c. Such frequent examinations were inappropriate in that they were not clinically indicated,
    d. The examinations were performed in a manner that was
    i. unprofessional and/or
    ii. improper
    e. At no stage during the consultations was the patient offered a chaperone,
    5a. Between December 1994 and December 1996 you were consulted by Ms C ...
    b. During such consultations you frequently performed vaginal examinations,
    c. Such frequent examinations were inappropriate in that they were not clinically indicated,
    d. The examinations were performed in a manner that was,
    i. unprofessional
    e. The patient was not offered a chaperone during the initial consultations.
    6a. On 9th December 1996 you were consulted by Ms C ...
    b. You carried out:
    (ii) a vaginal examination
    c. Neither examination was appropriate in that neither was clinically indicated.
    d. Both examinations were performed in a manner that was:
    i. unprofessional and/or
    ii. improper
    7a. Between 1992 and late December 1996 you were consulted by Ms D in relation to a number of medical complaints including abdominal pain,
    b. During such consultations you frequently performed vaginal examinations,
    c. Such frequent examinations were inappropriate in that they were not clinically indicated,
    d. The examinations were performed in a manner that was:
    i. unprofessional and/or
    ii. improper.
    e. The patient was rarely offered a chaperone.
    8a. On 16th and 21st December 1994 you had occasion to examine Ms D’s back.
    b. On each occasion the examination was carried out in an appropriate manner;
    9a. On several occasions including December 1996 you examined Ms D’s breasts,
    b. These examinations were performed in a manner that was:
    i. unprofessional and/or
    ii. improper
    c. The examination in December 1996 was also inappropriate because it was not clinically indicated;
    10a. Between December 1993 and 1996 you were consulted by Ms E on a number of occasions ...
    b. During a number of such consultations you performed vaginal examinations.
    c. Such examinations were inappropriate in that they were not clinically indicated,
    d. The examinations were performed in a manner that was:
    i. unprofessional and/or
    ii. improper
    e. On an occasion in November 1995 you examined Ms E’s back in a manner that was:
    i. unprofessional and/or
    ii. improper;
    11a. Between 1993 and 1997 you were consulted by Ms F. on a number of occasions.”
    The PCC found that allegations in relation to Ms F were not proved.

  5. The PCC then considered whether these findings amounted to serious professional misconduct and what penalty to apply. The appellant was ultimately found guilty of serious professional misconduct and the Chairman announced the determination and direction of the Committee in the following terms:
  6. “Mr Hockton, the Committee have received a great deal of evidence in this case. It has been established that the Doctor has been a thorough and conscientious GP. Two expert witnesses have confirmed that they considered the Doctor’s record-keeping to be good, and agreed that he readily undertakes referrals. There is no doubt that he retains the confidence of many of his patients.
    We have heard and found proved the testimony of five female patients, all of whom initially held the Doctor in high regard and trusted him, that between 1988 and 1996 he undertook a number of unprofessional and improper examinations of those patients. In some instances, while the Doctor accepted the fact of the consultations, he denied the witnesses’ accounts of them; in others he maintained that the consultations had never taken place. These latter consultations he had not recorded in the medical notes. He claimed that the patients who have complained about him lied to this Committee or misinterpreted their experiences.
    The Committee did not accept that the poor memory of these patients for inconsequential details of their visits to the doctor undermines their clear memory of unnecessary examinations performed in an improper manner. The conduct of these examinations, and in one instance inappropriate questioning, abused the trust of vulnerable patients in their Doctor. Nor do the committee accept that the failure of these patients to complain at the time of these events undermines the impact of their evident distress at what he did. They described their confusion, fear and embarrassment. Nor do the Committee accept that failure to change their Doctor immediately denies the reality of their distress. Some were very dependent upon him and were reluctant to take that step having been his patients for many years. Others had their entirely reasonable explanations, which we accept.
    The Committee was concerned at the many occasions on which some of these patients were not offered a chaperone, but they accepted that the evidence overall indicated that his practice generally in this regard was rapidly moving with or even ahead of General Practice at the time. Accordingly, the Committee have not found the findings concerning failure to offer a chaperone as a material factor in determining serious professional misconduct. Interest (sic) his case.
    The Council’s published guidance, Good Medical Practice, makes is clear that successful relationships between doctors and patients depend on trust, and that doctor must respect the privacy and dignity of patients. The doctor has repeatedly failed in this respect. Unprofessional and improper behaviour by a doctor towards patients is always a matter of grave concern to this Committee. Such behaviour undermines the trust which members of the public need to have in the medical profession. The Committee find Doctor Haikel guilty of serious professional misconduct.
    The Committee have noted the testimonials from patients and fellow professionals submitted on his behalf. Patients have testified as to their respect for him. Even those who have complained have indicated in their accounts that they have confidence in his ability as a doctor. Nevertheless, the findings against him reflect such a major breach of the principals of Good Medical Practice that the Committee are obliged to take action in the public interest. The Committee have considered carefully what action they should take in relation to his registration. Taking account of the seriousness of his misconduct and their duty to protect the public, they have concluded that it is necessary in the public interest for his name to be erased from the Register.
    The effect of the foregoing Direction is that, unless he exercises his right of Appeal his name will be erased from the Register 28 days from today. It is the Committee’s present view that it should exercise its power under Rule 33(a)(i)(c) to impose conditions on his registration for so long as it remains in force. The conditions would be exactly those which were imposed by the Interim Orders Committee on 20th October 2000 and under subsequent Orders currently remaining in force.” [D7-16C to D7-18A].
    The Appeal
  7. It is the appellant’s case that the Committee’s decision should be overturned for any of the following reasons:
  8. (1) The Assessor decided the issue of delay for the Committee;
    (2) The decision on delay was wrong;
    (3) The Assessor’s advice on the use of propensity evidence (similar fact) was inadequate;
    (4) The penalty was too severe.
    Ground One – The Conduct of the Legal Assessor
  9. At the commencement of the hearing before the Committee counsel then appearing for the appellant submitted that the heads of charge should be dismissed on the grounds that there had been an abuse of process and a breach of the appellant’s right to a fair trial within a reasonable time under Article 6 of the European Convention of Human Rights. In support of his submission Mr Hockton set out in detail the periods of delay in bringing the proceedings before the Committee.
  10. The applications were opposed by Ms Jane Sullivan on behalf of the Council. Following submissions of counsel there was a short adjournment and when the Committee re-assembled the legal assessor stated:
  11. “THE LEGAL ASSESSOR: Chairman, as I said when I invited you to adjourn for a short while, the relationship between the Legal Assessor and the Committee does pose certain problems at this stage and I say now that, notwithstanding what I am about to suggest, the ultimate decision about how this matter further proceeds must be for the Committee and not for me.
    My advice to the Committee at this stage however is that in relation to the arguments advanced by Mr Hockton on behalf of the doctor on his first ground that, if looked at in the round, the whole of these proceedings are an abuse of the process of the court, they would not make me, if I were the sole judge, invite the Council to respond to that. I will explain why, but in very headline form, in a moment. [emphasis added]
    However, in relation to that argument advanced by Mr Hockton on behalf of the doctor which relates entirely to Ms C, then again if I were in that position I would be looking for a response from Miss Sullivan on behalf of the Council. Let me explain so that you may make your own decision, very shortly, why I would have taken that course in relation to the overall argument. [emphasis added]
    and later

    “There are detailed matters of course raised by Mr Hockton in the course of his argument as regards, for example, Ms A and so forth but, as I was indicating at the beginning, having regard to that background and the appropriate approach to these issues, were I the sole arbiter at this stage, I would not be asking the Council to respond and, even wearing my slightly different hat, I would be advising this Committee that the basis for making a decision that the further conduct of these proceedings by the Council would be an abuse of process may not exist unless of course the Committee take the view that, as a consequence of the delay without qualification, it does not believe this defendant can obtain a fair trial. Unless the Committee thinks otherwise, I question whether there is anything further that can be obtained from the Council which will assist in that decision. [emphasis added]
    In summary, I repeat, my advice is that there is nothing to be gained and indeed no need, looked at from a lawyer’s point of view at any rate, in calling for the Council to respond to the first argument advanced by Mr Hockton but an essential requirement that Miss Sullivan should be asked to respond to the second.” [emphasis added]
  12. In the event, the Committee did not invite Ms Sullivan to address them on the first ground but did on the second.
  13. Ms Cherie Booth QC who appeared for the appellant on the appeal, submitted that the Assessor over-stepped the mark in giving his personal opinion and effectively decided the issue for the Committee. He advised the Committee that there was no need to call on the General Medical Council and that if he were the judge he would rule against the appellant on the delay point. The Committee can have been in no doubt as to the decision the Assessor thought they should reach. The decision to be made by the Committee was highly discretionary and fact-sensitive. It was not part of the Assessor’s role or function to give such an opinion to the Committee. Doing so opened up the risk that the Committee would adopt the Assessor’s view as its own without giving the matter the careful attention and weighing of fact it required. In support she cited Crosdale v The Queen [1995] 1 WLR 864, 875F-876B, Mears v The Queen [1993] 1 WLR 818.
  14. Their Lordships have concluded that there was no substance in this complaint. They accept that the Assessor might have expressed himself in a manner so as not to create the perception that if he were the decision-maker as to how he would have determined the matter. However reading the context as a whole it is abundantly clear that the Assessor was indicating that this was an issue for the Committee to decide. It was open to the Committee to rely on the Assessor’s personal view or to reject it or to give such weight to it as they considered fit. Their Lordships have concluded that this was not a material misdirection or flawed advice such as to cast doubt upon the integrity of the decision which the Committee reached.
  15. The Second Ground – That the Decision on Delay was Wrong
  16. Ms Booth submitted that the Committee erred in rejecting the preliminary submission by counsel that the proceedings should be stayed because of the prejudice arising from the delays which had occurred. She referred to the history of delay. She emphasised the period between December 1996 when the initial complaint was made by way of letter from the practice nurse and 23 September 1999 when the General Medical Council wrote to Dr Haikel for the first time setting out the allegations in general terms. She concentrated upon the period from the 1 July 1999 when the Health Authority wrote a letter of complaint to the Council and the 5 June 2001 when the charges were served. From this chronology, it was submitted, the following points arose. The oldest complaint was in relation to Ms A where the incident complained of was said to have taken place on an unspecified date in the autumn of 1988, almost 12 years before the hearing. Other complaints were also stale in the sense of not being recent events. In some instances heads of charge referred to unspecified incidents over a 4 year period (e.g. Ms B and Ms D). The appellant had not been notified of any of these complaints until the intervention of the police in March 1997 when he was arrested. The appellant was later advised that no action was to be taken by the Crown Prosecution Service following his arrest. The decision to bring proceedings came about as a result of a complaint made by the Health Authority in January 1999, some 6 months after the conclusion of the police inquiry. It was not until May 2001 that the evidence to be put before the PCC was disclosed to the appellant. There had been a series of serious and unacceptable delays for which there appeared to be no good reason. The appellant was not responsible for any part of the delay. The chronology strongly suggested that delays had occurred on the part of the Council in bringing matters to a hearing.
  17. Ms Booth further contended that given these lengthy delays, preceded by a thorough police investigation, it was reasonable to infer prejudice from the perspective of the appellant and the Committee should have so concluded. Under Article 6 of the ECHR the appellant had a right to a hearing within a reasonable time, and that this should be measured from when he was first notified of the charge, namely, September 1999. Moreover his common law right to a fair trial had been undermined by the substantial and unreasonable delay which had occurred. No response or explanation was given by the respondent as to the reasons for the delay on the part of the complainants in making their complaints to the police or the reasons for the delay on the part of the Health Authority in referring matters to the GMC, or for the delay on the part of the GMC, the late service of evidence and the late formulation of charges. The respondent was not called upon to give any such explanation, largely because of the intervention of the Legal Assessor. His advice was simply that the issue was whether a fair trial was possible and that there were many cases that went through the courts despite lengthy periods of delay. This was inadequate. The Committee should have examined (and should have been directed to examine) the effect of the delay on the fairness of the trial, on the particular type of evidence being presented, on the ability of the doctor to assemble evidence he needed for his defence and properly to put forward his defence. None of this was suggested to the Committee by the Assessor, and in the absence of any such direction there is no reason to assume that the Committee did in fact give the matter such due consideration. The Committee should also have been given specific advice as to delay in terms of Article 6. They were not so advised.
  18. Leading counsel referred to a Preliminary Proceedings Committee (“PPC”) decision in Rogers v GMC where a doctor’s right to a fair trial within a reasonable time was recognised where the delay was two years and 10 months from the date when the GMC informed Dr Rogers that his case was being referred to the PPC with an anticipated trial date in February 2002. The Professional Conduct Committee held that the time scale was unreasonable and that there had been a breach of Article 6(1). In the decision it was stated:
  19. “The Committee then moved to consider and balance their duty to protect patients, the interests of the public and the interests of the doctor. In doing so, they considered all the circumstances of the case, submissions of Counsel, the allegations contained in the charges, and the findings of the Tribunal. On balance the Committee considered it would be disproportionate to continue with the proceedings.”
    Leading counsel submitted that their Lordships should show appropriate deference to the views of the PCC as the expert body. The Rogers decision should be taken as reflecting the PCC’s views on the issue of delay and reasonable time in medical disciplinary cases. The Judicial Committee should reconsider the matter, conclude that the decision was an abuse of process and set aside the determination.

  20. In reaching their conclusion, their Lordships recognise that the PCC is a public authority for the purposes of the Human Rights Act and as such must act in a way which is not incompatible with a convention right. The proceedings against a registered practitioner for professional misconduct are hybrid, having the criminal burden and standard of proof and largely, although not exclusively, criminal rules of evidence and procedure, but they also involve a determination of the practitioner’s civil rights and obligations. Accordingly they attract the protection of Article 6(1) (see Ghosh v General Medical Council [2001] 1WLR 1915).
  21. In order to determine whether there has been a breach of the right to a hearing within a reasonable time, it is first necessary to establish the period of time over which the protection of Article 6(1) applies. It is well established in the jurisprudence of the European Court of Justice and the Human Rights Act that Article 6(1) is concerned with procedural delay in the course of proceedings. It is not concerned with the delay between the commission of the allegedly wrongful actions and the commencement of the proceedings. Hence the material period for consideration is the time during which the administrative and judicial authorities were dealing with the case. Ms Sullivan realistically conceded that the relevant period in the instant case was the time that elapsed between the 23 September 1999 letter from the General Medical Council to the appellant outlining in general terms the nature of the allegations and the 19 July 2001 when the hearing commenced. Their Lordships consider that an explanation for this lapse of time might have been illuminating and helpful to the PCC. However in the absence of an explanation it was still open to the Committee to determine whether or not the delay was such as to amount to an abuse of process. There was no evidence or suggestion by the appellant that he had suffered any material prejudice in addition to the lapse of time. There was no complaint that witnesses were no longer available who would have been but for the delay. The records of the patients were available and full and even those of Ms A were eventually produced, albeit incomplete. In the absence of any such assertions it was open to the Committee to reach the decision it did and to proceed to hear the complaints.
  22. Their Lordships have not been persuaded that on the facts of this case it can be said that the reasonable time requirement has been violated. To stay proceedings on the ground of abuse of process is a rare step only to be taken in exceptional cases. There was undoubtedly an important countervailing public interest that allegations of such a serious nature should be heard and determined rather than stayed.
  23. A further argument was advanced that in the circumstances it was incumbent upon the Legal Assessor to give a careful direction as to how the PCC should consider the evidence against the background of delay. He did so as follows:
  24. “I turn to the passage of time and associated matters. The spread of time covered by this case is well illustrated by the table; from the autumn of 1988 to December 1996, that is, between five and thirteen years ago. It does not require much thought to realise that time impacts upon memory: it degrades it. Time affects recall of detail, of date, of place and of sequence. Common sense suggests that, even in those cases where there is no suggestion of malice with regard to the evidence that a witness has given, caution should be exercised by a trier of fact when deciding whether to accept a witness’s evidence of events which fall into that sort of time frame. But you may think that common sense also suggests that, in circumstances which suggest that a witness’s recollection of date, place and sequence may be unreliable, that unreliability may not extend to the substance of what the witness says happened on the occasion of which evidence is being given.
    Since I am dealing with elements which may affect recollection, I should refer to the possible impact of emotion and the risk of misunderstanding.”
    Ms Booth acknowledged that the advice was appropriate for the complainants but she contended that it was also necessary to give clear advice as to how the Committee should consider the evidence of the appellant and his witnesses which he relied upon. As she put it in her written case:

    “All of these directions were appropriate. They focus principally on the witnesses for the Respondent. However it was also necessary for the Legal Assessor to go on to give a clear direction as to how they should consider the evidence of the Appellant and the witnesses which he relied upon. In particular the Legal Assessor should have identified the danger of real prejudice to the Appellant’s case in the light of the delays which had occurred. He should have advised them to make allowances for the fact that from the Appellant’s point of view, the longer the time since an alleged incident the more difficult it would be for him to answer it. This was particularly so in the case of a doctor with thousands of patients compared with patients who only have one doctor. The Committee should have been advised that even though they believe the delay was understandable, if they feel that because of this the Appellant had been placed at a real disadvantage then they should take this into account in his favour when deciding if the case against him has been proved.”
  25. The advice for which Ms Booth contends bears a marked resemblance to the directions which are called for by a judge to a jury in a criminal trial as promulgated by the Judicial Studies Board in its model directions. Their Lordships are satisfied that it was not incumbent upon the Legal Assessor to give the same elaboration as if he were a judge. The role of the Legal Assessor was considered in Libman v General Medical Council 1972 AC 217. At page 221 Lord Hailsham LC said that the Legal Assessor was not a judge and his advice to the Committee was not a summing up. What might amount to a misdirection in law by a judge in a criminal trial did not necessarily invalidate the Committee’s decision. Where criticism was made of the Legal Assessor’s advice the question was whether it could fairly be thought to have been of sufficient significance to the result to invalidate the decision.
  26. Accordingly, their Lordships have reached the conclusion that they must reject the criticism levelled against the advice. Moreover the passage complained of must be read in conjunction with a further passage towards the end of his advice which was as follows:
  27. “There is one further feature of the case to which I must refer under this general heading: delay; delay, that is, by the alleged victims in bringing their concerns or allegations to the notice of the authorities by making a complaint. That feature may have a significant impact on your approach to the basic question: ‘Can you rely on the evidence of the alleged victims?’
    When you are considering delay, indeed when you are considering each of the issues about which you have to make decisions, do not leave aside your knowledge and understanding of people in general, and, where it exists, of patients in particular. You may want to think about, and you would certainly be entitled to, the refrain that ran through so much of the evidence of the alleged victims: ‘He was my doctor. I trusted him to be doing the right thing for me.’”
    This passage was clearly to the advantage of the appellant and draws much of the sting of the criticism. Their Lordships are satisfied that any omission from the advice was not of sufficient significance to invalidate the decision. They are also satisfied that the advice taken as a whole was both appropriate and helpful to the Committee. The second ground of appeal cannot be sustained.

    The Third Ground – Similar Fact Evidence and Corroboration
  28. Ms Booth contended that the Legal Assessor failed to give clear directions to the PCC when dealing with similar fact evidence and corroboration. The respondent relied upon similarities in the accounts given by the complainants, individuals who it was suggested were independent of each other and had made their individual complaints without reference to the others. It was the respondent’s case that it was unlikely that the allegations were pure coincidence and that the similarities could not be explained by collusion between individual patients. The appellant’s case was that the complainants were not telling the truth. It was an important part of the appellant’s case that there had been a conspiracy against him, fuelled largely by his receptionist Ms Moir or, failing that, at least collusion between the complainants. There was also the possibility of confusion on the part of patients, to the extent that they may have honestly believed that what was a perfectly proper examination was, to them, improper. Against this background it was important that the Legal Assessor should deal comprehensively with how the “similar facts” evidence should be considered.
  29. The issues of similar fact and corroboration were dealt with separately by the Legal Assessor. As to similar fact he addressed the Committee as follows:
  30. “I turn therefore to similar facts. All these alleged victims were patients of Dr Haikel at material times. There are said to be clear similarities between the allegations made by them as to (1) the manner in which internal examinations were conducted, and you could apply that also, where appropriate, to other intimate examinations; (2) whether they were clinically indicated; and (3) whether Dr Haikel offered a chaperone or a chaperone was present.
    Provided you find them to be similarities, you would be entitled to have regard to the similarities referred to when dealing with the stage one question in respect of any one of the alleged victims, but only if first, you consider that the detail and the pattern of what happened in the case or cases of another one or more of the alleged victims are credible, and assist to prove that the detail and the pattern deposed to by the alleged victim being particularly considered are accurate and not mere coincidence or the subject of misunderstanding by the witness; second, that you consider that the assistance is obtained not merely from the fact – if you so find it to be – that Dr Haikel had behaved wrongly with regard to another one or more of the other witnesses.
    Thus, it is the detail and the pattern which may assist you, not just the fact of improper behaviour. My advice to you is to be careful if you go down this route. It is fraught with danger and is best followed with great caution.
    In this case, there is an additional reason for treading carefully; the allegation of collusion.” [D7/AM 5G-6]
    and as to corroboration he said:

    “Classically, until the common law on this topic was abolished by statute, you would have had to be warned in a case of this kind that you ought not to find any one of the allegations proved unless you found that there was some evidence independent of the particular alleged victim which corroborated what she was saying. That rule has gone by statute. But the question arises whether in any particular case, and therefore in this case, there are special reasons why you should be cautious about accepting the evidence of any of these alleged victims in the absence of some evidence supporting their story. With some hesitation, I think I should advise you along those lines. It is partly because of the passage of time, it is partly because of the issues I have discussed with you over consistencies and inconsistencies, it is partly because of the fact that there are clear battle lines between those opposed to and those supporting Dr Haikel and it is partly because of the issue of collusion. [D7/AM 7G-8A]
  31. Leading Counsel was severely critical of these two passages. The Assessor warned the Committee to “be careful going down this route. It is fraught with danger”. However he neither explained the route the Committee was in danger of going down, nor the danger in going down it. He should have advised the Committee to resist reasoning that, because the accused had a disposition towards bad conduct of a particular kind, he was more likely to have committed the offence in issue. He should have warned them that as there were a number of charges, they should not reason that there can be no smoke without fire and that it is right to convict. The correct approach was to look closely to establish whether or not guilt really was made out on each particular charge. As Ms Booth succinctly put it in her skeleton argument:
  32. “He should have alerted the Committee to the dynamic of reasoning from propensity, i.e. that because there were so many allegations present, the doctor was ‘a sort of person’ to do this and therefore was likely to have done it in the instant individual cases.”
  33. As to the direction on corroboration, although the Legal Assessor was not obliged to give such a direction, having decided that he should do so he should have identified the potentially supporting evidence. Moreover he specifically declined to identify or assist the Committee as to what could be capable of providing corroboration or support:
  34. “Decisions about what is capable of providing support and whether it does provide support are entirely for you. I am not obliged to identify particular aspects of the evidence which I suggest to you are capable of affording support. I can do it if I think it may help you to focus on the issues which arise.”
    This failure left open the possibility of confusion in the reasoning of the Committee.

  35. Their Lordships are unable to accept these criticisms. The Assessor, having dealt with the detail and pattern in the similar fact evidence unequivocally advised the Committee “to be careful if you go down this route. It is fraught with danger and is best followed with great caution”. In other words, the Assessor was indicating that it was preferable to consider each case separately and not to rely upon the similarities when assessing the reliability of the other complainants’ evidence. It is clear that the Committee accepted the advice and acted upon it. When their decision was announced the Chairman said at the outset:
  36. “Dr Haikel, the Committee have carefully considered all the evidence presented to them over the course of this hearing. They have applied the burden and standard of proof to the required degree. They have not found it necessary to consider similarity of fact and have found no evidence of collusion between witnesses or of contamination of their testimony, as has been suggested might be the case.”
    Thus it is clear that the PCC considered each case independently of any similar fact principles. This approach cannot be faulted. It is not without significance that the Committee found that the allegations in respect of one of the complainants, Ms F, had not been proved. They might have relied on similar fact evidence and found the case proved but they declined to do so. Thus in the light of the Committee’s approach and conclusions Ms Booth’s argument on the similar fact advice falls away.

  37. The Legal Assessor is not to be criticised for the manner in which he dealt with corroboration. He was not obliged to but he exercised his discretion to give such a direction on account of the particular circumstances of the case. He warned the Committee to be cautious about accepting the evidence of the complainants in the absence of some evidence supporting their story. There was no obligation to elaborate in the manner contended for. He was entitled and justified in taking this approach and it is obvious that by doing so he acted to the appellant’s advantage and not to his detriment.
  38. Accordingly we have come to the conclusion that this ground of appeal cannot be sustained.
  39. Finally we have considered Ms Booth’s submission that the criticisms of the Legal Assessor and the procedural decisions, in the context of a hearing of six complainants and the staleness of their evidence of the events should, when considered in aggregate, cause the Judicial Committee to conclude that in substance the appellant did not have a fair trial and that the findings of the Committee should be set aside. Their Lordships are unable so to conclude. Each of the grounds advanced has been rejected and there is no cumulative residue of doubt which causes their Lordships to doubt the integrity of any of the matters found to be proved.
  40. The Sanction of Erasure
  41. It is submitted that the PCC’s decision should be overturned as the sanction of erasure was unduly severe and a lesser sanction should be imposed. Leading counsel advanced several reasons. First, there was no allegation regarding the appellant’s clinical competence. In contrast, the appellant had a wealth of clinical and community support for his practice. Second, the PCC failed to take account of or should have given more weight to, the delay in the proceedings. The last allegation was of events in 1996. The appellant had not committed any wrong-doing since then and, indeed, had continued to practise successfully with a chaperone for a number of years prior to the hearing. Moreover the appellant had been prejudiced by the delay. Prior to the 3 August 2000 he could have applied to be re-admitted to the Register after a period of 10 months, following erasure. The position has subsequently changed and he cannot now seek to apply to be re-admitted until a period of five years has elapsed. Finally, the appellant is now 57 years of age. It is likely to prove very difficult in practice for him to maintain his level of knowledge and training to such a level as to be eligible to be reinstated to the Register five years hence and the chances of his reinstatement are remote. Accordingly the sanction of erasure is unreasonable, excessive and disproportionate to the appellant’s conduct.
  42. It is well established that it is open to the Judicial Committee to consider all the matters raised by Dr Haikel on this appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event, either to substitute some other penalty or to remit the case to the Committee for consideration (per Lord Millett in Ghosh v General Medical Council supra at 1923 and see Hossain v General Medical Council, 2nd October 2001, PC Appeal No. 77 of 2000).
  43. Their Lordships have reviewed the evidence and considered the impressive submission. They are satisfied however that this was a serious case. The PCC found (with one exception) that the intimate examinations were not only unprofessional but improper. The public, and in particular female patients, must have confidence in the medical profession whatever their state of health might be. The conduct as found proved against Dr Haikel undoubtedly undermines such confidence and a severe sanction was inevitable. Their Lordships are satisfied that erasure was neither unreasonable, excessive nor disproportionate but necessary in the public interest.
  44. Conclusion
  45. Their Lordships will humbly advise Her Majesty that this appeal should be dismissed with costs.

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