Bale v General Medical Council  EWHC 804 (Admin)
This case provides a reminder that a local denial of allegation which is subsequently found to be proved does not necessarily amount to dishonesty on behalf of a Registrant and highlights the need for motivation charges to be supported by strong and cogent evidence.
The Appellant faced criminal allegations of assault arising from complaints raised by two patients in respect of separate consultations undertaken whilst the Appellant was training to be a General Practitioner in 2013; it was alleged that the Appellant had become irate and raised his voice and ultimately prevented both patients from leaving their consultations. In respect of patient B, it was alleged that he had grabbed her arm causing injury; the Appellant denied ever touching patient B.
At trial the Appellant was acquitted of the allegations in respect of patient A, but convicted of the assault on patient B and duly appealed his conviction to the Crown Court. On appeal it was determined that the Doctor's account in which he denied having touched patient B had been a lie, although ultimately the appeal was successful as the Court found that he had lacked the relevant men's rea to commit the assault.
Despite his conviction being overturned, regulatory proceedings commenced and the Appellant was charged with his irate behaviour in respect of both patients and in relation to patient B, taking hold of her arm. The Appellant was further charged with dishonesty in respect of each occasion on which he had denied touching patient B, namely, in a conversation with his colleague, in his police interview and in criminal proceedings.
At the commencement of proceedings before the Medical Professionals Tribunal Service an application was made to admit the criminal appeal Judge's determination regarding the "lies" told by the Appellant into evidence; this application was allowed, however ultimately the tribunal afforded it no weight.
The tribunal also concluded that the Appellant had been dishonest in his denial about touching patient B, they based their findings that he had touched her on the testimony of an ear-witness outside of the consultation room who had heard patient B state "get off" and "don't touch me". Further, they took into account the statement of a fellow Doctor at the practice to whom the Appellant stated that he had tried to stop patient B leaving the room but had not hurt her.
The Appellant appealed against the findings of fact in relation to touching patient B and dishonesty as well as the subsequent finding of current impairment and sanction. The findings in relation to the irate behaviour were not the subject of appeal.
Mr Justice Collins determined that the disciplinary tribunal were wrong to have concluded that the words overheard along with the Appellant's representations to his colleague made it more likely than not that he had touched Patient B and was therefore dishonest in his denials of the same, he concluded that the words in issue were equally consistent with a concern by the patient that the Appellant may try and prevent her from leaving the room.
The tribunal had noted inconsistencies in parts of patient B's evidence, most seriously that she had not suffered an injury at the hands of the Appellant as she claimed. The existence of an alternative explanation for the words said coupled with concerns over the credibility of patient B's evidence raised sufficient doubt as to whether the Appellant had touched the patient at all.
In relation to dishonesty the Collins J. determined that:
"…there are often factual disputes which may be resolved against a doctor. The Tribunal must be very careful in such circumstances not to regard that as in any way necessarily indicative of dishonesty, because otherwise any denial which was, in the view of the Tribunal in due course, not substantiated could on one view indicate dishonesty".
Collins J. considered that the tribunal had gone on to marry the question of dishonesty with a finding of misconduct/impairment; without a finding of dishonesty it was not clear whether a finding of current impairment would have been made in relation to the residual behaviour complained of which was not the subject of the appeal; this took into account the acceptance that his behaviour was far below the standard required and the insight shown by the Appellant in to the aspects of his irate behaviour towards his patients.
In light of the 8-months spent subject to an interim suspension pending resolution of the appeal, Mr Justice Collins deemed that no further substantive order was necessary.
Whether a previous denial can amount to dishonesty will depend upon the facts of an individual case, however in the instant matter it transpires that the tribunal had failed to consider any other explanation in relation to the words in issue that did not involve dishonesty. This oversight is analogous to the failings of the tribunal in the case of Lavis v Nursing and Midwifery Council  EWCH 4083 (Admin) in which it was found by Mr Justice Cobb that the panel had misapplied the second stage of the Ghosh test for dishonesty. These cases reiterate the accepted position that in order to prove dishonesty; strong and cogent evidence is needed alongside the requirement for the panel to at least consider whether there could be any other credible explanation for the behaviour complained of.
In taking in to account the time spent subject to the interim suspension order the Judge seemingly applied the rationale set out in Kamberova v NMC  EWHC 2955 (see our February 2017 update) which sets out the need for Regulatory panels to take any period of time served by a Registrant under an interim suspension order into consideration when considering the proportionality of sanction.