Dr. Parag Bhatt v General Medical Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 01 April 2011 |
| Neutral Citation | [2011] EWHC 783 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 April 2011 |
| Docket Number | Case No: CO/9556/2010 |
[2011] EWHC 783 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court
1 Oxford Row
Leeds West Yorkshire LS1 3BG
Before : MR JUSTICE LANGSTAFF
Case No: CO/9556/2010
WILLIAM COKER Q.C. (instructed by Ryan Solicitors Manchester) for the Appellant
CATHERINE CALLAGHAN (instructed by GMC Legal) for the Respondent
Hearing dates: 1, 2 March 2011
Mr Justice Langstaff—:
On 12 th August 2010 a Fitness to Practise Panel ("FTPP") of the General Medical Council ("GMC") found Dr.Bhatt guilty of charges brought against him relating to 6 female patients of his at the Rosehill Medical Centre in Rotherham where he had been in general practice. These were serious findings in that in respect of four of those patients the Panel accepted that he had been sexually rather than medically motivated when he intimately examined them. In consequence, the Panel determined that his name be erased from the Register.
He appeals to this court under s.40 of the Medical Act 1983. The grounds relate entirely to the findings of sexual motivation. Although the erasure is also challenged, this is predicated upon the basis that but for the findings of sexual motivation this would not have been imposed. If those findings stand, the appeal against penalty falls.
A central feature is that Dr. Bhatt was tried before the crown court on seven counts alleging unlawful sexual interference with the same six patients, and was acquitted by verdict of the jury on all. This has given rise to assertions that he should not have been exposed to jeopardy before the GMC, and arguments that the criminal investigation was so flawed or contaminated that the evidence arising from it should not have been admitted before the FTPP. Mr. Coker Q.C. (for Dr.Bhatt) has focussed on the role of Detective Constable Froggett, of whose conduct he is highly critical, and the way in which the FTPP dealt with it.
The Court's Approach
An appeal under s.40 of the 1983 Act is by way of rehearing ( CPR Part 52, PD 22.3). This court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the lower tribunal ( CPR Part 52.11).
In Dr. Bhupinder Sacha v General Medical Council [2009] EWHC 302 (Admin) Lloyd-Jones J. reflected at paragraph 8 on what this implied:
"In considering these matters, I bear in mind, and I give appropriate weight to, the fact that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect, and that it has had the advantage in this case of hearing the evidence from live witnesses. (See the observations of Auld LJ in Meadow v General Medical Council [2007] QB 462, [2006] EWCA 1390 at paragraphs 125 and 197). I also have in mind the observation of Laws LJ in Fatnani and Raschid v General Medical Council [2007] 1 WLR 1460, [2007] EWCA Civ 46 at paragraph 20, that on an appeal under section 40: "… the High Court will correct material errors of fact and of course of law and it will exercise a judgement, though distinctly and firmly a secondary judgement, as to the application of the principles to the facts of the case."
In Southall v General Medical Council [2010] EWCA Civ 407, Lord Justice Leveson gave further guidance (at paragraph 47):
"First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it "can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread" (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council [1972] AC 217 at 221F more recently confirmed in R(Campbell) v General Medical Council [2005] 1 WLR 3488 at [23] per Judge LJ). Finally, in Gupta v General Medical Council [2002] 1 WLR 1691, Lord Rodger put the matter in this way (at [10] page 1697D):
"In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. ." "
All that said, it nonetheless remains for a court – in "appropriate cases", and if "necessary" —to come to its own view and substitute that for the decision of a disciplinary body (per Auld L.J. in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, at paragraph 120, albeit that he too recognised that the courts should accord disciplinary bodies assessing evidence of professional practice in their respective fields an appropriate measure of respect). At paragraph 128 he added:
"Given the structure of CPR 52.11, the difference between a "review" and a "re-hearing" is clearly thin and variable according to the circumstances and needs of each case, not least in the stipulation in CPR 52.11(2) of the norm for both processes of no oral evidence or evidence not before the lower court. The analysis of May LJ in E.I. Du Pont Newmours & Co v S,T, Du Pont [2003] EWCA Civ 1368, CA, at paragraphs 92–98, is instructive on the overlap between the two, namely that a "re-hearing" in rule 52.11(1) may, at the lesser end of the range, merge with that of a "review", and that "[a]t this margin, attributing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal". But even when a review is a full re-hearing in the sense of considering the matter afresh, if necessary by hearing oral evidence again and, even admitting fresh evidence, the appellate court should still, said May LJ at paragraph 96, "give to the decision of the lower court the weight that it deserves". This elasticity of meaning in the word "re-hearing" in CPR 52 11 should clearly apply also to the same word in the PD. It all depends on the nature of the disciplinary tribunal, the issues determined by it under challenge and the evidence upon which it relied in doing so, how the High Court should approach its task of deciding whether the decision of the tribunal was, as provided by CPR 52.3(a) "wrong", and, whether on the way to reaching such a conclusion, it draws, pursuant to CPR 52.4 "any inference of fact which it considers justified on the evidence". "
Mr.Coker QC relied on these words when he came to argue that this court, with its experience of criminal procedures and of issues which turned on fairness in the context of allegations of abuse of process, should give less weight to the views of the FTPP as a body whose particular expertise lay in professional practice and regulation, and correspondingly greater weight to its own experience, and thereby "stretch the elastic" further in these areas than if it had been considering matters of public confidence in the profession.
I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:
i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;
ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;
iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;
iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;
v) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair. To this extent I accept and adopt the submissions of Mr. Coker Q.C.
The Background Facts in Outline
The appellant qualified for general practice in November 2005, having reached the minimal standard of...
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