“Inappropriate Protracted and Hostile Questioning” – From the Panel: Beard v General Osteopathic Council  EWHC 1561 (Admin)
Ms Beard saw Patient A over the course of two appointments. Shortly afterwards Patient A sent a written complaint to Ms Beard. As the court commented, “it is difficult to convey its tone; it was inappropriately long, opinionated, personal, over-familiar, with a false bonhomie covering an underlying aggression.” Ms Beard, in her reply, described it as “verging on harassment“. After Ms Beard refused to accede to his request for a refund Patient A brought a complaint to the GOsC. This covered allegations of inappropriate clinical care, a failure to obtain consent and unprofessional behaviour in the way Ms Beard spoke to him during the appointments.
In the hearing Ms Beard’s representative cross-examined Patient A. The panel then asked a few questions. They did not choose to explore his unpleasant correspondence to Ms Beard. In due course Ms Beard gave evidence. She was properly cross-examined by counsel for the GOsC. However, during subsequent panel questions, Ms Neville, the lay member of the panel, used the opportunity to indulge in an inappropriate, irrelevant, protracted and unnecessary examination of Ms Beard. On the basis principally of her conduct Ms Beard brought an appeal against the panel’s ultimate findings, Unprofessional Conduct and sanction.
In resisting the appeal, the GOsC relied – inter alia – on the fact that the panel’s function was inquisitorial and they were not there “to referee an adversarial hearing in the manner of a contested court case“. The High Court accepted that submission “only up to a point“. It made the following qualifications. Firstly, the rules provide for an earlier investigative stage to proceedings. If there is a case to answer the rules applicable to the hearing “are of the standard kind for an adversarial hearing” and closely resemble those for civil proceedings. Secondly, the function of the panel in the instant case was to decide the contested factual matters. It had to decide who was telling the truth, not examine any issue of policy or clinical judgment. In those circumstances “the contest was forensic and, by its nature, adversarial“. Thirdly, the Court of Appeal in the earlier case of R (Ex p Banerjee) v GMC  EWCA Civ 78 did not differentiate disciplinary proceedings from other civil proceedings when examining the appropriateness of panel interventions and the relevant principles.
In Banerjee the doctor had faced significant questions from the panel. However, this arose because the GMC had failed to cross-examine at all on a particular point which was troubling the panel. In this case counsel for the GOsC had appropriately put the case against Ms Beard.
Kerr J considered the number of questions in itself was surprising, given this full cross-examination, “but it is the content and tone of Ms Neville’s questions that trouble me“. Whilst Patient A’s complaint letter had attracted no comment from the panel, Ms Neville asked Ms Beard questions as if its tone was normal. She “asked Ms Beard many questions, again and again, on the subject of why Ms Beard did not regard it as normal.” By so doing she showed a hostility to Ms Beard and an “indulgence” to Patient A. She was allowed to ask questions “the unstated relevance of which was nil or so tenuous as to amount to vexing the witness rather than illuminating the factual issues.” Questioning then extended to Ms Beard’s CV and past career, which was humiliating to Ms Beard without being of any relevance to the case.
This all impacted on the fairness of the hearing. Whilst the bar is set high for allowing an appeal on such a basis, Kerr J considered it had been met:
“The credibility of Ms Beard, measured against that of Patient A, was the crucial issue in the case. It was therefore of the utmost importance to the fairness of the proceedings overall that this critical issue was treated in an even-handed and balanced manner, not marred by inappropriate protracted and hostile questioning.”
No doubt this is an extreme example, but is perhaps a welcome reminder that panels should exercise restraint in their questioning. The mantra that the a panel is inquisitorial in nature does not of itself excuse excessive or irrelevant questioning.