R (Dr Harish Doshi) v Southend-on-sea Primary Care Trust
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOLMAN |
| Judgment Date | 03 May 2007 |
| Neutral Citation | [2007] EWHC 1361 (Admin) |
| Date | 03 May 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4392/2006 |
[2007] EWHC 1361 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Holman
CO/4392/2006
MR A MOON QC ( MISS S SIMCOCK for judgment only ) (instructed by Radcliffes Le Brasseur, London SW1P 3SJ)appeared on behalf of the appellant
MR R BOOTH (MISS J ROGERSON for judgment only ) (instructed by Capsticks, London S15 2TT) appeared on behalf of the respondent
Introduction and background
This is a statutory appeal to the High Court "in point of law" pursuant to section 11 of the Tribunals and Inquiries Act 1992 from a decision of a panel of the Family Health Service Appeal Authority (FHSAA) dated 28 April 2006.
I will, for convenience, refer to the panel as the tribunal, the term they themselves used.
The appellant, Dr Harish Doshi, says that this decision of the tribunal was wrong in law in that: (i) they adopted an unfair procedure in the timing and manner in which they dealt with, decided, and announced their decision as to an issue as to the appropriate standard of proof; and (ii) they adopted and applied the wrong standard of proof. A completely separate ground of appeal, under ground 2 of the Notice of Appeal, was expressly abandoned.
There is also an appeal from the later decision of the FHSAA to make the appellant's disqualification national, but that stands or falls with the outcome on the primary appeal, and I need not make separate reference to it.
The appellant is a registered medical practitioner, who practised as a GP in the area of the Southend-on-Sea Primary Care Trust (the PCT). In order to do so under the NHS he had to be, and was, registered on their "Perfomers List". In April 2005 the PCT removed him from that list on the grounds that he is unsuitable and inefficient. He exercised a statutory right of appeal to the FHSAA. As the tribunal later said at paragraph 7 of their written decision:
"It is the function of this tribunal to consider and make findings upon the evidence which it hears; it is a rehearing."
The heart of the case against Dr Doshi, and the reason why he was removed, was that it was alleged that on a number of occasions over many years, from about 1985 until 2003, Dr Doshi had "exhibited sexualised behaviour towards", or otherwise behaved improperly (in an essentially sexual manner) towards, a number of adult female patients and some staff. The precise allegations varied considerably, but included such matters as touching a patient's breasts or vaginal area sexually rather than medically; placing a patient's hands upon his erect penis (through clothing); and rubbing himself clothed, but with his penis erect, against a patient's body.
It was not, and is not, seriously in issue that if the allegations, or a number of them, were true, his name should remain removed from the Perfomers List. As the FHSAA said in paragraph 8 of their written decision:
"It was implicitly accepted by both counsel that in the present case the issues were factual ones and if the respondent's allegations were accepted there was no submission that such would not amount to unsuitability and/or inefficiency … neither party would disagree that inappropriate sexual behaviour by Dr Doshi towards either patients or to staff could in principle be properly held to make him unsuitable and to amount to prejudice to the efficiency of services provided."
So the issues for the tribunal were pure questions of fact. To what extent, if at all, did the alleged behaviour happen?
I make plain that there was no allegation of lack of consent on the part of any patient or staff member. Accordingly it was not alleged that any act was actually criminal, and although prosecution was considered the prosecuting authorities have made it express that there will not be any prosecution. However, all the acts alleged amounted to reprehensible behaviour by a doctor (in contrast to incompetence or mere lack of efficiency) and for the purpose of the issues in this appeal, which are entirely to do with the standard of proof, the behaviour alleged was clearly "akin to" criminal behaviour and/or was "quasi-criminal" in character.
The Panel consisted of a legally qualified chairman, Mr Christopher Limb, who is a barrister; a professional member (a doctor); and a lay member. Both sides were, as I understand, represented by the same counsel throughout. Both of them were experienced in this field. Mr Richard Booth represented the PCT. Mr Charles Foster represented Dr Doshi. (On this appeal, however, Mr Foster has been replaced by Mr Angus Moon QC).
The tribunal conducted several directions or interlocutory hearings. They heard the substantive hearing over about 12 days in December 2005 and January and March 2006. The first day was 12 December 2005. The last hearing date was 21 March 2006, upon which day all submissions were concluded. The tribunal then formally retired to consider the evidence and submissions and announced their decision orally on 22 March 2006. They gave their written reasons, which extend to 20 fairly closely-typed pages, on 28 April 2006.
There were altogether 19 allegations, which related to 11 different patients, lettered A to K (the allegations in relation to L were not pursued). The tribunal found proved seven allegations in relation to five patients. They were not satisfied that other allegations were proved, and their reasons and reasoning demonstrate careful discrimination.
The procedural history in relation to the standard of proof
In preparation for the substantive hearing Mr Booth produced a skeleton argument, dated 11 December 2005, now at bundle pages 23 to 44. This effectively summarised the PCT's case and the evidence in support of each allegation. At paragraph 5, now bundle section 2(ii), pages 25 and 26, Mr Booth wrote:
"The respondent understands that this hearing will proceed with the respondent first calling all the witnesses upon whose evidence it wishes to rely. Witness statements have previously been served in respect of each of those witnesses … The appellant, who will be represented by experienced Counsel, will have the opportunity to cross-examine each witness. The appellant will then call such witnesses upon whose evidence he wishes to rely, with the respondent having the opportunity to cross-examine those witnesses. The appellant has chosen not to give evidence himself. The hearing will conclude with closing submissions on behalf of, first, the respondent and, finally, the appellant."
Pausing there, I asked Mr Booth how he had been able to state at that early stage: "The appellant has chosen not to give evidence himself". He told me that there had been amicable liaison between himself and Mr Foster, and that from first to last Mr Foster had indicated to him that Dr Doshi himself would not be giving evidence. Further, at no stage did Dr Doshi make any witness statement dealing with any of the matters alleged.
Mr Booth's document continued at paragraph 6, now at bundle page 26, as follows:
"Notwithstanding the fact that this is the appellant's appeal, the respondent proceeds on the basis that it has the burden of proof. Further, it is accepted that the allegations are serious and that, accordingly, the respondent must prove the allegations to a high standard, effectively beyond reasonable doubt."
In the preliminary stages of the hearing itself, on 12 December 2005, the following exchanges took place. I read from the official transcript at page 23, line 12 to page 24, line 25, now at bundle pages 341 and 342:
"MR FOSTER: That has been somewhat foreshadowed I know by what Mr Booth said to you on Friday. These are serious allegations. The rules are silent as to the standard of proof which you are to apply. As a general principle, the standard of proof varies according to the magnitude of the allegations. I would invite you to follow the advice given by Mr Booth in his skeleton argument, which is to apply the standard of criminal proof in these proceedings.
It is interesting that the draftsman of the rules was coy about that crucial matter. Given such silence, the only principle which can properly be applied is the general one, the sliding scale, which is the rule applied in comparable proceedings.
THE CHAIRMAN: Is there anything you want to say on that?
Mr BOOTH: Sir, you heard me on Friday on the point. I am in accordance with Mr Foster.
THE CHAIRMAN: We will retire and consider the first matter, [viz an unconnected point] and that [viz the standard of proof] though on that [viz standard of proof] I suspect it is not something we will be announcing a decision on. It is not a preliminary decision it appears to me. It will appear in our overall decision.
Mr FOSTER: And of course it is something we would ask for a determination on before we make final submissions. It would determine the way we put things.
THE CHAIRMAN: Because my initial response is that a sliding scale is not quite the same as a straightforward criminal burden. But in any event, I am not at all convinced it is the sort of thing that is a preliminary matter. It is part and parcel of the final decision.
Mr FOSTER: Sir, I cannot properly make submissions to you at the end of this case unless I know what burden [sic, but the correct reference is clearly to standard] of proof you will be applying.
As to the sliding scale, if this is a sliding scale, then I do not think anybody would seek to contend that allegations of this nature are allegations to which...
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Care Standards Tribunal, 2008-03-27 (NJ v Secretary of State)
...against the appellant was a very serious one with grave consequences, if proved. In the cases of R(Doshi) v. Southend-on-Sea PCT [2007] EWHC 1361 (Admin) and the earlier case of R(McCann et.al) v. Manchester Crown Court [2003] 1 AC 787, the criminal standard was held to be appropriate (in t......
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14279 - DR P HIRSCHOWITZ and NORTH YORKSHIRE & YORK PCT - Appeal against removal from the Performers List
...that the standard of proof which they intended to apply would be the criminal standard following Doshi -v-Southend-on-Sea PCT 2007 EWHC1361(Admin). The Relevant Law 15. (i) This Appeal proceeds by way of a re-determination of the PCT’S decision (Section 49M(3) and Regulation 15(1) of the 20......