Razak v General Medical Council

MR JUSTICE STANLEY BURNTON: This is an appeal by Dr Ali Abdul Razak from a direction of the Professional Conduct Committee of the General Medical Council given on 30th July 2003 that his name be erased from the Medical Registrar. That direction was made following a finding by the Professional Conduct Committee that Dr Razak was guilty of serious professional misconduct, in respects specified by it in relation to the charges that had been placed before it. The hearing took place between the 28th and 30th July 2003 following which the decision was announced.

The charges against Dr Razak were that being registered under the Medical Act:

As appears from what I have already said the period covered by paragraph 4 of the charges included the events referred to in paragraph 3.

Paragraph 5 charged that Dr Razak's conduct was:

Following the hearing the following charges under paragraphs 3 and 4 were found proved: 2a, 2b, 3a, 3d, 3f, 3g i and ii, h iii and iv, Ii and ii, ki and ii and iii, m and n. The charge in paragraph 4 was found proved, having been conceded by Dr Razak.

On the basis of those findings as to Dr Razak's conduct the Committee found that the charge set out in paragraph 5 had been proved and the sentence to which I have already referred was passed.

It has not been suggested by Mr Dunning, on behalf of Dr Razak, that if the charges contained in paragraphs 3, 4 and 5 were found proved by the Committee the sentence that was passed was excessive. Nor has it been suggested that the specific charges contained in paragraph 3, which were found to be proved, did not justify the conclusions made by the Committee in finding that the charge in paragraph 5 was proved; that is to say, for him to have indecently assaulted and had sexual intercourse with Miss A, who was a psychiatric patient, and to have committed the other matters referred to in paragraph 3, which were approved, his conduct, was improper, unprofessional and potentially detriment to the care of Miss A, not in the best interest and likely to bring the medical professional into disrepute.

The challenge in this statutory appeal is as to the specific findings made by the Committee. Again, it goes without saying that, if those findings were shown not to have been findings properly available to the Committee, they would have to be set aside and with it the direction that Dr Razak's name be erased from the medical register. It also goes, almost without saying, that, if the most serious of those charges were found not to be justified, it would follow that the direction of the Committee would have to be reconsidered.

The basis of this appeal is that the Committee were wrong to have accepted the evidence, principally of Miss A, to the effect that Dr Razak had committed the specific acts of which he was found guilty. It is said on his behalf that the case depended almost entirely on the testimony of Miss A before the Committee; that that testimony was, to a substantial extent, inconsistent and lacked credibility and, therefore, should not have been accepted by the Committee. In addition, it is pointed out that the Committee did not accept certain of the allegations made by Miss A and by the GMC and it is submitted that there is an inconsistency between the decisions of the Committee in relation to those charges which it found proved, in particular in paragraph 3, and those which it found not to have been proved.

It is, in addition, contended in the notice of appeal that the case against Dr Razak should have been stopped at half-time, that is to say after the completion of the evidence for the GMC, on the basis that no Committee, properly instructed and acting reasonably, could have come to the conclusion that Dr Razak was guilty of the matters alleged against him on the evidence as it then was.

Happily, there is no significant difference between the parties as to the legal test to be applied in the case such as the present. So far as the contention that the case should have been stopped at half-time, effectively on the basis that there was no case to answer, Mr Dunning accepts that there is a distinction between the jurisdiction of the Committee and the criminal jurisdiction. The jurisdiction of the Committee is primarily regulatory. Its object is to protect the public, and indeed the medical profession from those, who by reason of their lack of competence, lack of qualification or misconduct, should not be permitted to practise in the medical profession in this country, or are deserving of censor or some other appropriate punishment such as an admonition.

In my judgment, on an appeal in a case such as the present, the Court should take into account all the evidence that was before the Committee and not restrict itself to the evidence as it was at the close of the case for the General Medical Council. This jurisdiction differs from the criminal jurisdiction, the object of which is, of course, to some extent, to protect the public, but is primarily a jurisdiction exercised for the purpose of punishing crimes. This is a regulatory jurisdiction. It would be surprising if the Court, on an appeal such as this, were required to quash a decision of a Disciplinary Tribunal in circumstances where, although the case might have been stopped at half-time and perhaps could have been on the basis that there was no case to answer, the evidence given on behalf of the respondent supported, in material respects, the case against him.

Mr Dunning did not dispute this analysis of the jurisdiction of the Appeal Court. It follows that I have to consider all the evidence that was before the Committee in determining whether or not this appeal should be allowed and, if so, to what extent.

Secondly, this Court cannot, on the appeal, rehear the evidence that was before the Tribunal. The object of this appeal is to determine whether or not the Committee acted reasonably and lawfully in arriving at its decision. It is the Tribunal of fact. It is the Tribunal which must determine the credibility of the evidence put before it on both sides. The role of the Court, on an appeal such as the present, is very similar, if not identical to the role of the Criminal Division of the Court of Appeal on an appeal from a finding of guilt or findings of guilt by a jury. If it is suggested that the evidence before the Tribunal of fact was inconsistent and could not justify the decision which was arrived at, the question of the Court is whether, on the evidence that was before the Committee, a reasonable Committee, properly instructed as to the law, could have arrived at the decisions it did.

So far as the allegations of inconsistency are concerned, it is trite law that the fact that a tribunal of fact does not accept some of the evidence of a witness does not lead to the conclusion that other evidence of the same witness was not evidence on which a finding of guilty could be based. It is possible and lawful and reasonable for a tribunal of fact to decide that certain statements made by a witness are so credible that it can be sure that they are true, whereas other statements, although made in relation to the same defendant or respondent and in relation to similar matters, are such that it is not sure that they are true, in which case, of course, there is a finding that if it is not proven that the defendant in the criminal case or the respondent in a case such as the present did not commit the acts alleged.

The difference in decisions may arise because of differences in surrounding facts, the existence or absence of other evidence supporting allegations made by a witness. It may arise because of improbabilities in certain parts of a witness's testimony. It may arise because of concessions made during the course of the live evidence of the witness. It may arise as a result of the manner in which the witness deals with questions put to him or her. Whether the entirety of the evidence of a witness is so credible that the Tribunal of fact can be sure that it is true, or whether only parts are, or none are, are eminently matters for the tribunal which hears that evidence and is the tribunal of fact.

So far as jury trials are concerned and the role of the Court of Appeal, the law is set out in R v Durante (1972) 56 Cr App R(S) 708 at 714 by Edmund-Davies LJ. To succeed, an appellant must show that verdicts are logically inconsistent and, in addition, that they are so inconsistent as to demand interference by an appellate court. It must be shown that there is no sensible way in which the inconsistent verdicts can be explained. An example of logical inconsistency would be a criminal case in which a defendant is charged with possession of a firearm and with wounding by shooting a victim. It would be logically inconsistent to convict him of wounding with a firearm and to acquit him of possession of a firearm. On the other hand, it does not follow that where there are two allegations of, for example, rape, and a jury accepts one and finds a defendant guilty of it while acquitting him of the other, that the two verdicts are inconsistent so as to require interference by an appellate court. There may be rational reasons for the distinction. It is only if a defendant/appellant can show that there is no rational explanation for the difference in decision that an appellate court can and must interfere.

The present appeal depends to a significant extent on inconsistencies in the evidence of Miss A before the Committee. It is evident that the consideration of evidence by a witness such as Miss A calls for considerable care and caution on the part of a tribunal of fact. I say that for a number of reasons. The principal is that this case concerned a lady who had, as is common ground, a psychiatric condition and was being treated for that condition. Inconsistencies in evidence, differences between different accounts of alleged incidents may, of course, be due to the fact that they are fiction. However, a Tribunal must take into account the mental condition of the witness and the subject matter of her evidence. The present subject matter relating of course to alleged improper sexual relations and an improper relationship having a sexual element between herself and a psychiatrist.

It is for the Committee to determine, in the light of all the evidence before it, including the evidence of Dr Razak, whether those inconsistencies were due to the fact that the allegations were false or to other matters, such as the mental state of Miss A or the length of time since the alleged events and the date of her testimony and, indeed, the dates when she first made a statement in relation to the alleged events. Inconsistency of itself does not necessarily lead to the conclusion that the Committee could not have been sure that what was being said by Miss A was true.

The further point to bear in mind is this. All of the specific allegations contained in the charges, that is to say in paragraphs 3 and 4, were relevant to the Committee's consideration of each of them. Clearly, for example, if there had been indecency between Dr Razak and Miss A on an occasion, and the Committee were sure that that had taken place, that matter would be relevant to the allegation that there had been sexual intercourse between them. Conversely, if there had been sexual intercourse between them, that said much about the nature of their relationship.

One of the matters which the Committee were entitled to take into account was that alleged in paragraph 4 of the charges and conceded by Dr Razak. The Committee were entitled to consider whether there was a good explanation for the failure of Dr Razak to document his interventions with Miss A other than that there had been an improper relationship between them.

Mr Dunning has, sensibly, focused his attention on the more serious allegations against Dr Razak, namely the allegations of sexual conduct. It nonetheless remains the case, as we have already stated, that in considering those allegations it was for the Committee to take into account all of the evidence before it, including the evidence relating to the other charges.

The first of the specific allegations addressed by Mr Dunning in the course of his able submissions was paragraph 3i of the charges. That related to an allegation that Dr Razak had collected Miss A from the Peacock Public House, driven to Drax Power Station and, while there, indecently assaulted her. As I have already stated, the Committee found that allegation to have been proved. The relevant evidence begins with paragraph 9 of the witness statement of Miss A. She stated this:

On a first reading of the witness statement Miss A was referring to two incidents at Drax Power Station at least two visits, two or near Drax Power Station. The witness statement, however, is not entirely clear and the reference to the other occasion, at the same spot, at Drax Power Station could conceivably have been a reference to an occasion other than when Dr Razak had visited Miss A at home.

Miss A gave evidence before the Committee and was asked in her evidence in chief about the incident, which formed the subject of this charge. She mentioned that she had gone for a meal with Dr Razak. She was asked when. She could not remember the month. He said he had picked her up outside the public house in Goole. The name of the public house was The Peacock. He knew that she was there at the Peacock because they had spoken on the telephone and had arranged to pick her up from the pub. She said that she had been collected by him at about five-ish. She said she had been drinking and she would describe herself as quite merrily drunk. She referred to a friend coming out and verbally abusing Dr Razak when she was collected. She then said she had gone to the place where she worked with Dr Razak, to call in and have a few words with a colleague. She said she went to a restaurant in Scunthorpe with him and, after going to the restaurant in Scunthorpe she said when asked where she went with him, she said: "I seem to remember I could not figure out to begin with. It was some waste ground near Drax Power Station." She said that it was a long drive from Scunthorpe, and that his behaviour became inappropriate. When asked to state what he did, she said: "He tried to put his hand down my top and down my trousers". Asked whether he had touched her she said he had. Asked where, she said: "He touched my breasts". She was asked about her statement, that he had tried to put his hand down her trousers and asked whether he actually touched her. She said "no". She was asked whether when he touched her breasts it was under or over her clothing and she said: "under my clothing". Asked how she reacted, she said she was very shocked. She told him to get off her. He carried on being persistent. She demanded that he take her home, which he did but not straightaway before doing so he "just carried on, carried on trying to try it on." He was touching her under her clothing. She was asked: "You pointed to your breast area, the top half of your body. Did he try to touch you anywhere else?" She said: "He tried to put his hand down my trousers but I pushed him away." That description of the alleged indecent assault at the Drax Power Station is broadly consistent with her witness statement.

She was cross-examined about the incident. She was taken to her witness statement. When asked about the meal in Scunthorpe, she said: "That was on another occasion." Mr Lofthouse, who appeared for Dr Razak, asked her:

There was an inconsistency there between that account and what occurred and her earlier account in that it referred to two incidents at Drax Power Station. She was re-examined on that incident. She was asked this:

She was there, it seems, reverting to the evidence given in her evidence in chief and in her witness statement. She was asked what happened on the evening she went to Drax power station. Had she gone for a meal first? She said No. She was asked: "Was there ever a time when you went for a meal with Dr Razak" and she said "yes". She was asked: "Was that before or after you had been to Drax Power Station?" She said: "Before, possibly a week before."

Mr Dunning submits that, on the basis of that contradiction, a reasonable Tribunal of fact could not be sure that the indecent assault took place. As I have already indicated, in my judgment, it would be wrong to assess the evidence in relation to that incident in isolation. Even viewing it in isolation, the question for the Committee was whether the contradiction, which clearly there was between the two accounts, that is to say: was there one incident at Drax or two? was due to genuine confusion on the part of the witness, or was due to the fact that her evidence was untrue, or at least that the contradiction was such as to render her evidence so unreliable that it could not be sure that the incident charged took place. In my judgment, a reasonable Tribunal, properly directed, could determine that the contradictions were not such as to render Miss A's evidence so unreliable that they could not be sure that the incident took place. Her account of what did occur, in terms of the indecent assault, when she gave her oral evidence, was entirely consistent, so far as is material, with her original account in her witness statement.

I would say, further, that the matters to which I shall refer in due course were relevant to the Committee's assessment of the evidence of Miss A and its acceptability. In my judgment, together with the consistency of her account, that meant that a reasonable Tribunal could be sure that the facts alleged were proved. That is not to say that a reasonable Tribunal could not have found that they were not proved. But it was for the Tribunal itself to determine whether or not it could be sure, on the basis of the evidence I have referred to, against of course the fact that Dr Razak entirely denied the allegation in question.

I turn to the second matter to which Mr Dunning referred and on which he relied, that is to say the allegation that there had been sexual intercourse between Dr Razak and Miss A at the Stewart Hotel in Scarborough. It goes without saying that, if that were proved, it would be clear that there was an improper relationship between Miss A and Dr Razak.

Miss A's evidence in chief on this begins at page 63 of the trial bundle. She was asked what had happened when she got to the hotel in Scarborough. She said they had unpacked, had a cup of tea and went straight out to the Pizza Hut. She said that she did not want to be there. The only reason she went with Dr Razak was because she was under a lot of stress with the lady with whom she lived, whose name was Elaine, and she thought about getting away for a weekend. She was asked whether when she had, when they had their meal they had gone straight back to the hotel and she said:

In his evidence, to which I have just referred, Dr Razak referred to his witness statement. What is said about Scarborough in the witness statement was this:

The fact that Miss A was able to identify the Stewart Hotel as a hotel in which, as was admitted, Dr Razak had stayed, was a material fact to be taken into account by the Committee. It had to decide whether or not it was reasonably possible that Dr Razak's account of his visit to the hotel in Scarborough and of the means by which Miss A had learnt of the name of the hotel and that he had stayed there might reasonably be true. On one view of his evidence it was evasive. I refer to his repeated references to his witness statement, where another witness might have given his account of his going to Scarborough, and his evidence of its purpose and with whom he spent the weekend. His reluctance to identify those with whom he had spent the weekend and the vagueness of his description of the purpose of his visit to the hotel were relevant matters to be taken into account. Looking at the evidence as a whole, I see no basis on which it could be concluded that the evidence of Miss A was such that the Tribunal could not be sure that she had spent a weekend in Scarborough at that hotel, with him, and, if they did so, that the purpose of their going to Scarborough together was that they should have sexual intercourse, as indeed they did.

The third allegation referred to by Mr Dunning was that during a visit by Dr Razak to Miss A at her home he had touched her leg for a sexual purpose, that is to say not in order platonically to comfort her but in order to further a sexual relationship with her. In considering that allegation it is right to bear in mind that Dr Razak admitted that he had visited Miss A at home. He also admitted that his visits to her home had not been documented by him as they should have been. The fact that he had visited her at home and the fact that his visits had not been documented were matters which were relevant to the Committee's consideration of all the evidence and could be taken by them to support the allegation that there had been an improper sexual relationship between Dr Razak and Miss A. He admitted that, during a visit to her home, while they were both sitting together on a sofa, he had taken her hand out of friendship. The allegation that he had touched her leg was not in Miss A's witness statement. As a result, it did not appear as an allegation in the charges. It was referred to during her evidence in-chief, from page 55 of the trial bundle. Elaine, the lady with whom Miss A lived, was present in their home at the time. Miss A was asked:

Mrs A's partner did give evidence. She had not been present when Miss A's evidence was given. She said this:

Mr Dunning refers to the fact that the account of the touch there is not quite consistent with that of Miss A. In my judgment, looking at the matter broadly, the evidence of Elaine was supportive of that of Miss A on this incident. There remains the fact that the incident was not referred to in the witness statement. That could be due, as in other cases, to the fact that it was or was possibly a late invention, in which case the credibility of Miss A would have been significantly affected. However, having regard to the evidence of Miss A's partner, it would not be surprising if the Committee came to the conclusion that the incident had taken place, notwithstanding that it was not referred to in the usual witness statements or in the charges or, more importantly, that the evidence in relation to that incident, which was not the subject of a charge, was not such as to lead them to the conclusion that any of the evidence of Miss A which they were minded to accept was evidence on which they could not safely rely in determining a charge.

There were other inconsistencies referred to such as that as to the duration of physical relationship between Miss A and Elaine. Miss A's evidence was that the relationship was physical for about a year, Elaine's for something like 2 years. Having regard to the passage of time since the relationship had ceased to be physical, it seems to me that there is no real inconsistency between those two accounts of a kind which ought to lead a reasonable Tribunal to reject the evidence of either of those persons.

Lastly, there was a reference to a lie admittedly told by Miss A, when she telephoned Dr Razak at home, saying that she was a CPN (community psychiatrist nurse) rather than divulging her real identity. It seems to me that is precisely the kind of lie one might have expected if indeed there was a sexual relationship between Miss A and Dr Razak.

Looking at the evidence generally, bearing in mind the fact that the hotel in Scarborough was identified by Miss A, bearing in mind that Dr Razak accepted that he had visited Miss A at home on a number of occasions which were not documented, it seems to me impossible for me to conclude that a reasonable Tribunal could not have concluded that it could safely rely on Miss A's evidence in relation to the charges that were proved so as to conclude that it was sure that they had been committed.

There were a number of charges, as I have already indicated, which were found not to have been proved. I see no necessary inconsistency between the decisions on the charges which were not proved and the decisions that were proved as to justify inference by this Court. A number of them are to be explained by the fact that they were not proved by Miss A when she gave her evidence or by the fact, when referring to statements that were she said made by Dr Razak, she had not treated them seriously. If she had not treated them seriously; in other words they were said facetiously and, if that evidence was accepted by the Tribunal, it was entitled to find that the making of those statements did not constitute a disciplinary offence because they would not be improper and professionally potentially detrimental to her care, not in her best interest or likely to bring the medical profession into disrepute.

All in all, I have come to the conclusion that there is no good ground to interfere with the decision of General Medical Council so far as it findings of guilt are concerned. That being so, there is no basis to interfere with the direction it made and this appeal must be dismissed.

MR JUSTICE STANLEY BURNTON: This is a tragic case in a number of respects. There is substantial evidence before me that Dr Razak was and is an excellent psychiatrist, whose services are required by the community. There is evidence that all of his family suffer from illness; in two cases very serious illnesses. It is evident that someone so qualified cannot, in any obvious way, earn his living except in his profession. He has given good service for some 26 years. This is an isolated blemish on an otherwise fine professional career. It is right that the allegations against him relate to only one patient and that there have been many far worse cases that have come before the General Medical Council and indeed the courts. The question for me, however, is whether erasure, which is the most serious of the determinations which may be made in a case such as the present, can be said to be an excessive and possibly manifestly excessive penalty.

The penalty was, as Mr Dunning accepts, in line with the indicative sanctions guidance for the Professional Conduct Committee published by the General Medical Council. I refer to paragraphs 21 and 27 and in particular to paragraph 27 which refers to sexual misconduct.

The conduct of which Dr Razak was found guilty was serious, not only by reason of the fact that it was sexual conduct between a doctor and a patient, but by reason of the fact that the patient in question was a vulnerable person who was receiving psychiatrist treatment. It is not possible to identify any material fact which the Committee failed to take into account in considering the appropriate determination to make. It took into account the references which have been provided in respect of Dr Razak and his personal position, his career as well as the indicative sanctions guidance.

I regret to say that I have to come to the conclusion that the Committee's decision cannot be described as an excessive determination of the appropriate step to take in relation to conduct of this kind, that is to say, the pursuing of a sexual relationship with a psychiatric patient, including sexual intercourse with her by a psychiatrist.

I have taken into account the tragic and drastic effects of the sentence on Dr Razak but I have to bear in mind the importance of severe steps being taken in cases where it is necessary both to protect the public and to maintain the public's confidence in the profession, and its confidence that there will be no inappropriate conduct by doctors, who face serious sanctions in the event that they are guilty of such. In those circumstances, as I indicated earlier, it seems to me that the determination cannot be described as excessive. It was clearly one open to the Committee, and I must reject the appeal against its sentence. Thank you both very much.

MISS BAXTER: There is one outstanding matter, I do not know whether it is appropriate to deal with it now, the question of costs.

MR JUSTICE STANLEY BURNTON: If you do not deal with it now when will you deal with it?

MISS BAXTER: I do raise it now. As I understand it, given this is an appeal listed for a day, it is appropriate to deal with it now.

MR JUSTICE STANLEY BURNTON: You are talking about summary assessment. Has a schedule been served?

MISS BAXTER: It was and it is in the bundle.

MR JUSTICE STANLEY BURNTON: Have I seen it, I am not sure?

MISS BAXTER: It should be in the bundle of documents.

MR JUSTICE STANLEY BURNTON: I saw it was there but I did not look at it. The total of £7,868.

MISS BAXTER: My Lord, yes.

MR JUSTICE STANLEY BURNTON: Including VAT. Does the GMC reclaim its VAT?

MR JUSTICE STANLEY BURNTON: Are you asking for an order inclusive, you are asking for £7,868 and not £6,696. Is that right?

MISS BAXTER: My understanding of the position is notwithstanding its reclaimable from the Customs and Excise it still has to be claimed at this stage but if I can take specific instructions. My understanding of the position, those fees chargeable for VAT therefore I have to claim it at this stage. It does include that VAT.

MR JUSTICE STANLEY BURNTON: Mr Dunning, do you say anything first of all about the principle?

MR DUNNING: Costs usually follow the event. Mr Razak is legally aided. I do not know whether these days that makes a difference. Certainly it used to.

MR JUSTICE STANLEY BURNTON: He is in receipt of community funding.

MR DUNNING: A representation order.

MR JUSTICE STANLEY BURNTON: I am not sure that is the same thing. There is nothing on the file. Assume for the moment it does not make a difference. If your researches discover that it does, I give you leave now to make submissions in writing and I shall, if I do make an order for costs against Dr Razak as I apprehend I shall, I shall direct that it is not to be drawn up for 14 days to give you both an opportunity to consider whether it is appropriate to take into account the funding. What about the amount?

MR DUNNING: The schedule is here. They having had the schedule there is really very little I can say about it. It does seem a large amount but there we are.

MR JUSTICE STANLEY BURNTON: Just looking at it, I cannot see any item which hits me in the eye as being excessive. I see much larger bills for much shorter hearings frankly.

MR DUNNING: Yes. Certainly I suppose my submissions would have to be directed not at the principle but at the practicabilities of the ability to pay.

MR JUSTICE STANLEY BURNTON: That comes in, I am afraid, at another different stage, yes.

The GMC is entitled to its costs. It has put in a schedule showing costs of £7,868. I see nothing unreasonable in that schedule. I therefore summarily assess its costs in that sum and order they be paid by Mr Razak, presumably as he is now. I direct that the order shall not be drawn up for 14 days. I give leave to both parties to make written submissions, if it is considered, on behalf of the appellant, that his legal assistance requires or justifies some different order. Those are to be addressed to me at the Court. I shall deal with them on paper. That seems to me to be the cheapest way of dealing with it. If I do not hear from you the order will be drawn up.