2 Hare Court Professional Discipline Newsletter
Welcome to the latest edition of the Professional Discipline Newsletter.
Christopher Geering
Editor
Foreword
Welcome to the new 2 Hare Court newsletter.
Ben Rich looks at Freeman v GMC and considers what is the impact of a witness storming out of proceedings during cross-examination? Alexandra Tampakopoulos returns to the vexed issue of demeanour in sexual assault cases in Joseph v GMC. Ever industrious, she also reports on an unusual judicial review examining the proper scope of an inquest in a case of possible unlawful killing – Leeson. Finally, Lewis MacDonald considers the requirements for appealing out of time in Stuewe v HCPC and throws in some gratuitous literary references for good measure.
Freeman v General Medical Council [2023] EWHC 45 (Admin) 16th January 2023
Absent witnesses: how the former British Cycling and Team Sky Doctor lost the appeal against his doping erasure
Cycling has for many years been a sport marred by doping accusations, many of which have subsequently been proved or admitted. The latest chapter in this story concerns Dr Richard Freeman, formerly Team Doctor for both British Cycling and Team Sky. Dr Freeman was struck off in 2021 after an MPTS tribunal lasting 72 days. Now his appeal against that decision has been rejected by the High Court.
The UK Anti-Doping Agency referred Dr Freeman to the GMC in 2017, following an investigation into allegations that, in 2011, he had ordered a banned testosterone supplement – Testogel – with the intention that it should be used by some of his athletes as a performance enhancing drug. Dr Freeman claimed he had ordered the Testogel for Shane Sutton, the British Cycling and Team Sky Head Coach, to help him with erectile disfunction.
The appeal revolved around how the Tribunal should have dealt with the fact that, in the middle of his evidence, Mr Sutton stormed out of the hearing and refused to attend for the remainder of his cross-examination. Mary O’Rourke KC, for the doctor, contended that his evidence should have been excluded, but that application was rejected by the Tribunal. It was also argued on his behalf that the Tribunal erred in treating his evidence as “credible and consistent”…..
Joseph v General Medical Council [2022] EWHC 3345
Corroboration, Credibility and Demeanour: High Court rejects appeal in erasure case concerning serious sexual abuse by a doctor
The rather appalling facts of this case concern the double rape and sexual harassment (over a period of a year) of a female doctor by another male doctor. A particularly harrowing aspect of the case was that the Complainant had been given a ‘date rape drug’ and was unconscious at the time of the sexual assault in her home and had no memory of it.
The complainant gave evidence to the MPT that on the evening in question, whilst she had drunk no more than half a glass of wine when in the company of Dr Joseph, she suddenly felt very ill (nauseous, dizzy and faint) and then lost consciousness. Her evidence was that when she regained consciousness, she was naked and immediately aware of numerous signs and injuries resulting from a double rape. Dr Joseph’s account was the complainant had abruptly left and gone to her bedroom without explanation and that he had left 10 minutes later.
The MPT found the complainant’s evidence “consistent, credible and reliable” whereas Dr Joseph’s was found to be inconsistent and less compelling as to the events. It concluded Dr Joseph had drugged the complainant’s wine and that he had raped her whilst unconscious….
R (on the application of Leeson) v HM Coroner for Manchester South, Donald McPherson, Scottish Widows & Others [2023] EWHC 62 (Admin)
The Relevance of Motive where there is Evidence of Foul Play
Facts
The facts of this unusual and unhappy case concerned the drowning of Ms Leeson in an indoor swimming pool in remote holiday accommodation in Denmark where she had been holidaying with her husband, Donald McPherson.
The medical evidence showed that Ms Leeson had drowned but also identified blunt force injuries on her body. These injuries appeared to be consistent with either unlawful force being applied to Ms Leeson causing her to drown or by attempts at rescue and resuscitation made by Mr McPherson after he found her in the swimming pool. In other words, two starkly different scenarios appeared possible.
Criminal Trial
Mr McPherson was subsequently prosecuted for his wife’s murder. It was the Prosecution’s case that Mr McPherson was the beneficiary of excessive life and travel insurance policies which he had taken out in relation to Ms Leeson in the sum of about £3.5 million. Whilst the Crown accepted that the medical evidence was consistent either with accident or the unlawful killing of Ms Leeson, the fact of the excessive life insurance policies, and other circumstantial evidence, meant that the jury could be sure that Ms Leeson had been murdered. Mr McPherson’s defence was that Ms Leeson had drowned accidentally while he had been asleep in the bedroom resting before they started their journey back home, and that her injuries had been caused by his attempts to resuscitate her…..
Lars Stuewe v Health and Care Professions Council [2022] EWCA Civ 1605
“Time and tides [a statutory time limit without provision for extension] wait for no man”
Geoffrey Chaucer may not have been contemplating time limits under the Health and Professions Order 2001 when he wrote his Clerk’s Tale, but as ever his words prove relevant even to modern professional discipline lawyers.
As in the above order, almost all of the statutory regulators’ founding legislation includes a right of appeal to the High Court against fitness to practise decisions, but with a strict 28-day time limit, with no specific provision for discretionary extension.
Since R (Adesina) v NMC [2013] EWCA Civ 818, following Pomiechowski v Poland [2012] UKSC 20, it has been well established that such time limits can be extended, but only in exceptional circumstances, in order to read the legislation compatibly with Article 6(1) of the ECHR.
The Court of Appeal has now clarified the approach the court should adopt to the question of what constitutes exceptional circumstances….
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