Christopher Geering
Editor
Foreword
Welcome to the 2 Hare Court Professional Discipline spring newsletter!
Stephen Brassington triumphed in the High Court in GMC v Shah earlier this year. The case concerns the relevance of the Equality Act when it comes to assessing misconduct. Since I had some involvement in assisting with this appeal, I have provided a short review. Ben Rich summarises the important case of Hindle v NMC where the appellant overturned factual findings due to the inadequacy of the panel’s reasons and reasoning. Christoher Gillespie reflects of the principles of cross-admissibility in PSA v GMC and another. Paul Renteurs analyses Senguta v GMC and considers when an appellant’s right to apply for restoration should be suspended indefinitely. Vivienne Tanchel addresses the correlation between criminal sentencing and sanction in Adebayo v NMC. Jack Gilliland provides a short note on Demanya v GMC. Finally, I review the decision in EQ v DBS, where I successfully overturned a barring decision on the basis, in part, that an allegation was insufficiently particularised.
Stephen Brassington recently represented Dr Shah (with some assistance from myself) in the High Court and scored a signal triumph. At the heart of the case was this question: can a doctor’s harassment of a female colleague in the workplace – contrary to the Equality Act – nonetheless fall short of the threshold of misconduct?
Yes it can, according to Kerr J.
Dr Shah faced a number of allegations from Colleague A and B. The Tribunal rejected much of Colleague A’s evidence. Dr Shah did, however, admit he had called her “a good girl” on occasions, and that he called one or more female colleagues “bird”. This constituted harassment related to sex. In relation to Colleague B, the Tribunal found the Respondent inappropriately touched her without consent. In October 2014, he put his arm around her shoulder, leaned in to hug her, and squeezed her bottom. In October 2019, he brushed his body against her breasts, put his hand on her hip and squeezed her bottom. This constituted sexual harassment and was sexually motivated. Of course, the Tribunal considered these acts did amount to misconduct, justified impairment, and ultimately led it to imposed a sanction of 12 months suspension with review.
On appeal, the GMC argued that the findings at misconduct were wrong. It noted “The tribunal failed to appreciate the seriousness of the finding of breach of the Equality Act 2010 and the importance of eliminating sexual harassment from the workplace”. This legislation “sets a standard for workplace behaviour, breach of which – in this case – could not be fairly characterised as other than serious”.
Kerr J was unimpressed. He observed,
“Where a tribunal has sat for 13 days, considered hundreds of pages of documents, heard detailed oral evidence, heard erudite submissions and makes no error either when directing itself on the law or in finding the facts, it is doing its job rightly, so far. That does not, of course, exclude errors of principle or approach or the drawing of unreasonable inferences or failure to draw necessary inferences, but it is a good start.”…
For most of its history, the common law legal system has regarded live answers from the witness box as the ultimate form of evidence, looking down its nose at other sources, above all the often-despised hearsay. Cross-examination of witnesses was the gold standard method of testing evidence, jealously guarded particularly in criminal trials. The process of an accused confronting their accuser, with the tribunal of fact judging the witness’s honesty or reliability, was invested with almost magical powers of revelation.
Modern scientific research has undermined faith in that process. Experiments in lie-detection reveal that human beings deciding, from an oral presentation, whether a person is lying would do only slightly worse if they simply guessed. In October 2022, Lord Leggatt JSC gave a lecture based in part on the book ‘Duped’ by the psychologist Timothy Levine. Lord Leggatt’s talk warned, among other things, of over-reliance on demeanour, and overconfidence in our lie-detecting abilities. He referred to his own 2013 judgment in Gestmin v Credit Suisse which reminded fact-finders of these issues. Gestmin itself was then extensively cited in R (Dutta) v GMC which elevated contemporaneous documents to the status of gold standard evidence, and endorsed Gestmin in relegating oral cross-examination to an “opportunity … to subject the documentary record to critical scrutiny and to gauge the personality, motivation and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events” [Dutta at 39].
This idea that questioning at a trial was fundamentally a secondary process to test documentary evidence was questioned by Lord Popplewell in his November 2023 Combar lecture. He argued that Lord Leggatt’s comment in Gestmin that judges should place “little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations” went too far. Contemporaneous documents are also often subject to the same distortions of memory as later accounts and in his view the accuracy of human memory had suffered an unjustifiably bad press…
In this case, the Registrant had examined two female patients who were unknown to each other at different A & E Departments nine months apart. Both patients complained of a degree of mental disorder. Each described the Registrant chanting in a “hypnotic” fashion or speaking in a “soothing” voice with a “weird” tone. Patient A’s evidence was that the Registrant had said that when she woke up she would “lust for me” and “love me and kiss me.” He asked her to remove her top before touching her breast and squeezing her nipple. Patient B’s evidence was that the Registrant had said that her boyfriend was the source of her problems and that she should wait at a bus stop for him so he could pick her up to take her home. He also repeatedly asked her to remove her clothes including her vest and sports bra.
The Registrant’s defence was that both complainants were unreliable because of their mental disorders and/or the side effects of the medication they were taking.
At the conclusion of the evidence, the GMC confirmed its position that the evidence of the complainants was cross-admissible to rebut any suggestion of coincidence. Notwithstanding this, the LQC directed the MPT predominantly on the issue of propensity. As a result, in its written determination, the MPT dealt with the evidence of Patients A and B separately. Prior to setting out its factual findings the MPT made no reference to any consideration it had given to the extent to which the allegations were similar, to having excluded collusion or contamination as an explanation for the similarity of the complainants’ evidence, to having considered the allegations of the one patient when determining the findings in respect of the other patient or to having considered the improbability that the complaints were the product of mere coincidence or malice. Instead, the Tribunal dealt with the question of the relationship between evidence provided by Patients A and B only after it had already set out its factual conclusions…
In what must surely be one of the longest running cases in medical professional discipline (and the hardest to summarise pithily), the High Court has recently given some guidance in cases where an erased doctor applies multiple times to be restored to the register.
Dr Rinku Sengupta was erased from the register at the conclusion of fitness to practise proceedings in March 2010. The panel’s decision was essentially based on two grounds. First, there had been findings of dishonesty made against Dr Sengupta, as she had given incomplete and misleading information to a prospective employer about her training, and had taken credit for the work of another doctor on a report submitted to an academic journal. Second, the doctor’s clinical skills were found to be unacceptable in several respects.
Under section 41 of the Medical Act 1983, a practitioner whose name has been erased by a fitness to practise panel may, no sooner than five years after the erasure, apply to the Medical Practitioners’ Tribunal to be restored to the register. Dr Sengupta availed herself of this provision promptly in 2015, but her application was refused.
Section 41(2)(b) of the 1983 Act allows a practitioner to make further applications for restoration, but not before 12 months have elapsed since the last application. Perhaps taking more time to remediate the MPT’s concerns as to her fitness to practise, Dr Sengupta made her second application for restoration three years after her first unsuccessful application. That second application, also, was refused…
Mr Adebayo was a nurse who, whilst working at Greater Manchester Mental Health NHS Foundation Trust, received payment for shifts he had not worked. He was investigated for this and ultimately fired from the Trust. He was also interviewed under caution by the NHS Counter Fraud Authority and ultimately charged with offences under the Theft Act 1968.
In between being interviewed and charged, Mr Adebayo successful applied for a job at the Pennine Care NHS Foundation Trust. When he applied for this role, and despite being asked for a full employment history, he did not declare his role at the Manchester Trust. Further, despite a contractual requirement to do so, he did not inform the Pennine Care Trust after he had been charged with the criminal offences in December 2020 but waited until the end of January 2021 to do so.
He appeared before Greater Manchester Magistrates Court in February 2021 where he pleaded guilty and was sentenced to 8 weeks imprisonment suspended for 12 years. He was subsequently fired by the Pennine Care Trust and referred to the NMC.
The fitness to practise proceedings brought against him involved a series of dishonesty allegations relating to his failure to declare what had happened at the Manchester Trust and his criminal charges. Mr Adebayo accepted all the allegations and was struck off.
On appeal Mr Adebayo argued that the Panel was wrong to find him impaired on public interest grounds and in support of this set out that the fact that he was not sentenced to an immediate sentence of imprisonment…
The Tribunal found that Dr Demanya had failed to diagnose sepsis in a 75-year-old woman whilst working as a locum at a hospital. He then acted dishonestly by falsifying medical records to suggest that he had acted promptly when he had not. He attempted to conceal the falsifications by crossing out entries on the medical records, and then persisted in his dishonesty by making false representations at an inquest into the patient’s death.
The Tribunal concluded that his conduct was fundamentally incompatible with continued registration.
Dr Demanya challenged the Tribunal’s decision on the ground – amongst others – that the Tribunal had placed “undue weight” on maintaining public confidence in the medical profession and proper professional standards. Unsurprisingly, Dias J rejected this argument, reaffirming the strategic importance of section 1 of the Medical Act 1983. As he rather poetically put it:
“The high ambitions set down in the over-arching objective achieve nothing if they merely remain fine words. They must be respected, taken seriously and given full effect as living breathing guarantors to members of the public vulnerable through illness that the medical professionals who treat them can be trusted without a second thought. That cannot be said of Dr Demanya”…
Regulators – for all their faults – appreciate the need to particularise allegations adequately. The same cannot always be said of the DBS. Whilst its decisions can ruin a professional’s life as effectively as any FTP process, it operates with about half the procedural rigour.
EQ received a minded to bar letter from the DBS which included (among others) an allegation that she had made medication errors in the course of two days whilst working at a care home. The DBS did not specify the medications, the patients or the number of errors. It provided documentation in support of its case, which included minutes of a meeting at the Care Home, representations made on EQ’s behalf in relation to an Enhanced Criminal Records Check, and an anonymous referral to the NMC. No medication administration records were provided. This allegation was ultimately found proved and – in conjunction with another finding – EQ was placed on both barred list.
On appeal before the Upper Tribunal, I argued that this medication allegation was hopelessly particularised, and the evidence in support of it was contradictory in places. The lack of particularity not only impeded EQ’s ability to respond, but it also made it impossible to judge whether the decision to bar was reasonable or not. The allegation as drafted would be made out if one or one hundred drug errors had been committed, or if the errors involved hay fever or heart medication. The decision letter did not make clear what the DBS had ultimately found proved. How then could the seriousness of the conduct be judged? The DBS disagreed and argued that the underlying evidence did allow EQ to understand the case against her with reasonable specificity. The Upper Tribunal rejected that contention. Endorsing the need for particularisation, as set out in Johnson and Maggs and B v Independent Safeguarding Authority, it noted…
SUMMARY In 2017 a 24-year-old woman, Louella Fletcher Michie, died at the Bestival Music Festival,…
On the 3rd November 2020, Kadian Nelson abducted and raped a 13 year old girl…
