Dr Udodiri Okpara v General Medical Council

Hearing dates: 12 June 2019

Approved Judgment

The Honourable Mr Justice Julian Knowles

Introduction

This is an appeal pursuant to s 40 of the Medical Act 1983 (the MA 1983). The Appellant, Dr Udodiri Okpara, appeals against the decisions of the Medical Practitioners Tribunal by which it (a) found proved a number of allegations against him of sexual misconduct towards a nurse, and held that his fitness to practise was impaired as a consequence; and (b) imposed the sanction of erasure from the register of medical practitioners kept by the Registrar of the General Medical Council (the GMC) pursuant to s 2 of the MA 1983.

The Respondent to the appeal is the GMC, which is the statutory regulator for the medical profession established by s 1 of the MA 1983.

The Tribunal made its fact-finding determination on 19 September 2018. The sanction was imposed on 9 January 2019.

The Appellant appeals both decisions on the following grounds:

a. The Tribunal erred in law on the burden and standard of proof in that it reversed the burden of proof, and failed to conduct a sufficiently critical and anxious scrutiny of the evidence to the requisite standard of proof on a balance of probabilities (Ground 1).

b. The Tribunal erred in law by failing to take into account and/or give sufficient weight to the prejudice arising out of delay in making the complaint (Ground 2).

c. The Tribunal was wrong to impose the sanction of erasure when the lesser sanction of suspension was reasonable and appropriate (Ground 3).'

The factual background

The GMC accused Dr Okpara of misconduct between 2014 and 2016 when he was a Locum Registrar in the Accident and Emergency Department at the University Hospital of Wales (UHW) in Cardiff. The complainant in each case was Ms A, a staff nurse at the hospital. The allegations against the Appellant are set out at [2] onwards of the Tribunal's fact-finding determination. They relate to a number of occasions when Dr Okpara was said to have made inappropriate sexual and other remarks to Ms A and/or to have made unwanted sexually motivated physical advances to her.

The allegations were as follows. I have numbered the allegations per the paragraph numbers of the fact-finding determination where they are set out.

Allegation 2 (the touching incident)

Dr Okpara was alleged to have said to Ms A that he liked her bottom, or was obsessed with her bottom, or words to that effect. It was also alleged that he pulled suggestive faces at Ms A, touched her bottom with his hands, tried to link his legs with hers whilst sitting next to her at a desk, stood closer to her than was necessary, and made unnecessary physical contact. All of this is said to have happened in the period covered by the following dates: 19 May 2014–16 May 2015, 2 December 2015–12 December 2015 and 4 May 2016–9 August 2016.

Allegation 3(a) and (b) (the drinks invitation)

It was alleged that on an occasion prior to 16 May 2016, Dr Okpara invited Ms A out to ‘drink champagne’ and then gave her his telephone number.

Allegation 3(c)-(d) (the incident in a relatives' room)

Shortly after the drinks incident, Dr Okpara was alleged to have led Ms A into a relatives' room in the hospital after asking to speak to her confidentially about a patient. That was a pretence. He then shut the door, stood in front of it, pressed his hand against the door, told Ms A that he wanted a hug, or words to that effect, ignored Ms A's comments that she felt threatened, and said ‘if you give me a hug I'll let you out’, or words to that effect.

Allegation 4 (the blood sample incident)

On an occasion prior to 16 May 2015, whilst Ms A was in the process of taking blood from a patient, Dr Okpara was said to have walked in and drawn the curtain around the patient's bed, stood behind Ms A, and remained standing with his groin touching Ms A's bottom.

Allegation 5 (the underwear incident)

Dr Okpara was alleged to have offered to buy Ms A underwear. Ms A was said to have ‘laughed it off’ by ‘walking away’ saying ‘the way to a girls heart isn't through underwear its through diamonds and channel [Chanel]’ ( sic).

Allegation 6(a)-(b) (the Facebook incident)

Ms A alleged that during a night shift on 10 – 11 June 2016, the Appellant came and sat next to her whilst she was using a computer and sent her a ‘friend request’ on Facebook (the well-known social networking website). He is then alleged to have said ‘Are you not going to accept ?’ It was not in dispute that Ms A accepted that request. However, Ms A alleged that the Appellant watched, and waited for her to go to her phone and accept the friend request he had just sent to her.

Allegation 6(c)-(n) (the sluice room incident)

Later the same night, the Appellant was alleged to have sent a message to Ms A stating ‘thanks gorgeous’ following her acceptance of his invitation to become friends on Facebook. He then followed her into a sluice room (where bodily fluids and other bio-waste is disposed of). He was said to have stood behind her, placed his arms around Ms A's waist trapping her arms by her sides, and placed his groin against her bottom, and then placed his one hand down the waist of Ms A's trousers and touched the right side of her bottom with the cup of his hand and commented on her underwear. He was then alleged to have smelled her neck, made groaning noises and ignored her request for him to desist. He was alleged to have said ‘please just a little longer’ and ‘it's ok you just have this effect on me’ (or words to that effect).

Allegation 7 (the staff room incident)

It was alleged that during a night shift at 3am on 8 August 2016 when Ms A was eating her meal in the staff room Dr Okpara came in and stood behind her and placed his hand on her shoulder and his groin against the back of her torso. He ignored her request to stop, and said, ‘Why ? I'm just standing here. When you like someone it's hard not to be this close’, or words to that effect.

Allegation 8

This was an over-arching allegation that the conduct in [2]–[6] and [7(b)-(e)] was sexually motivated.

The Appellant's case at trial

The Appellant's case is set out at [15] et seq of the Tribunal's fact-finding decision. He denied all of Ms A's specific allegations about his behaviour towards her; he also denied that most of the encounters she described where the conduct took place, happened. For example, he said that he could be sure that he would never have been present when Ms A was taking blood from a patient.

As well as denying the truth of Ms A's allegations, Dr Okpara made a series of allegations about Ms A's behaviour which the Tribunal said mirrored in some respects her account of his behaviour. These included:

a. That Ms A had behaved flirtatiously towards him from when they first met;

b. That it was Ms A who had asked him to invite her as a ‘friend’ on Facebook;

c. That Ms A had, for no obvious clinical reason, sought help from him to take blood from a patient;

d. That Ms A wanted him to buy her an expensive Louis Vuitton handbag, which he resisted;

e. That it was Ms A who was constantly making physical contact with him, and not the other way around.

The Tribunal's fact-finding determination

The Tribunal found all of the allegations proved except for Allegation 6(a)-(b) (the Facebook incident). Its decision can be summarised as follows.

The Tribunal addressed Allegation 2 at [23]–[35]. It set out the competing accounts from Ms A and Dr Okpara, including his denial of the allegations. It set out his evidence that she would intentionally bump into him in the corridor, and that she had made flirtatious comments about the size of his arms when they first met. At [28] the Tribunal said that given the competing evidence from Ms A and Dr Okpara, it took into account evidence from witnesses (all of whom were hospital employees) about Ms A's character. This was to the effect that she was ‘timid’ and ‘prudish’ and ‘quite religious with strong values’. It said his account of her behaviour, including that she had been flirtatious towards him from the beginning, was ‘wholly inconsistent’ with the picture of her painted by these witnesses. It said he had provided no ‘plausible’ response to this allegation. Accordingly, taking all of the evidence into account, the Tribunal said that it found Allegation 2 proved on the balance of probabilities.

In relation to Allegation 3(a)-(b), having set out the competing versions, the Tribunal said at [42] that it found Ms A's accounts in her statement and evidence of what occurred consistent, and that it rejected Dr Okpara's ‘generalised denials’. Accordingly, it found this allegation proved ([43]).

The Tribunal dealt with Allegation 3(c)-(d) at [44] onwards in its decision. It found the allegation proved. It said Ms A's account was supported by complaints about it she had made to two colleagues, Craig Davies and Vicki Brown.

Allegation 4 was addressed by the Tribunal at [51] and following. It set out the competing accounts from Ms A and Dr Okpara. It noted that Ms A had told Vicki Brown that when she was taking blood from a patient, he had stood behind her and rubbed his crotch against her back. It said that Dr Okpara had said he had never taken a patient's history whilst a nurse was taking blood. However, the Tribunal said that his reason for never having been present was not mentioned in his statement. On the other hand, it said Ms A's...