Muscat v Health Professions Council

Mr Stanley Muscat (“the appellant”) appeals against the decision of the Health Professions Council’s Conduct and Competence Committee (“the panel”) made on 5 June 2007 in which it found that the appellant’s fitness to practice was impaired and it then made an order striking him off the register.

The appellant was a radiographer and so his name was on the register of his profession and which was maintained by the Health Professions Council (“the respondent”), which was a body established pursuant to the Health Professions Order 2001 (“the 2001 Order”). The principal functions of the respondent are to establish standards of education, training, conduct and performance for members of the relevant profession and to ensure the maintenance of those standards (Article 3 of the 2001 Order).

By Article 27(b) (1) of the 2001 Order, the panel was required to consider any allegation referred to it that the fitness to practice of a registrant had been impaired by reason of, among other things, misconduct or lack of confidence. A number of powers are given to the panel to which I will return later.

This appeal concerns allegations made against the appellant who is an experienced Maltese radiographer and who in 2003 was employed by the Royal London Hospital as a Superintendent 3 Radiographer. He had been at that time a radiographer for 18 years and he was then Vice-President of the International Society of Radiographers and Radiological Technologists.

A number of allegations were made against the appellant which were dismissed by the panel and nothing more needs to be said about them except in relation to the issue of bias as will be explained later in paragraphs 58 and 64. The allegations which were made against him and which he strongly disputed were that the appellant’s fitness to practice was impaired by reason of his misconduct in that:-

It was common ground that there was no clinical justification or need for the appellant to carry out an x-ray or an MRI scan of a partly or wholly unclothed patient and so the panel had to resolve a factual issue. The issue before the panel was a factual one at whether the appellant acted in this manner alleged in the charges.

Having found the two charges specified in paragraph 5 were proved against the appellant, the panel then considered sanctions before ordering that the name of the appellant should be struck off the register. The present appeal is against both the findings that the allegations were made out as well as against the order striking the appellant’s name off the register.

It is common ground between the parties that on this appeal, all issues should be dealt with by way of consideration of the written evidence rather than by a re-hearing. As I will explain, the parties also agreed that the review of the panel’s decision should be much more intense than that which would normally be appropriate for judicial review.

At the outset of the appeal, Ms Barbara Hewson, counsel for the appellant applied to introduce new evidence in the form of:

The applications to introduce the new evidence specified in paragraph 9 (i) and (ii) were contested at the outset of the hearing and for reasons which I will explain in paragraphs 13 to 33 below, I held that this evidence could not be admitted.

In respect of the evidence relating to the misconduct of the panel member, this evidence specified in paragraph 9 (iii) was admitted on the basis that the respondent could put in evidence in response, which they did during the course of the hearing. This evidence included a witness statement from members of the panel, including the member whose conduct was being criticised (Ms Jacqueline Webb) as well as from others who could comment on the allegations made against Ms Webb.

The issues which have to be considered in this judgment are:-

The report of Dr. Taberner, which is dated 19 March 2008, explains that he is a Consultant Forensic Pharmacologist who is a Special Lecturer in Pharmacology in the School of Medical Sciences at the University of Bristol. He considered the likely effect on both complainants of the drugs which they had been given shortly before the incidents in question including the way in which the various different drugs given to NG would have interacted with each other.

His conclusion in respect of the complainant JB was that a single dose of 5mg morphine given intravenously would be likely to have produced some degree of sedation and mental clouding lasting for a period of up to one or two hours at least after the injection but no specific loss of memory or amnesia. He noted from JB’s witness statement that she said that she felt groggy as a result of the morphine and he added that:-

“it is possible, though much less likely, that she experienced delusional behaviour as a consequence of the morphine although she my have found it more difficult to understand more detailed instructions”.

With regard to the complainant NG, his conclusion was that the combination of Diazepam (an amnesic sedative and relaxant drug) with the sedative narcotic opiate analgesics Pethidine, Tramadol and possibly Propoxyphen (derived from the co-proxamol):-

“would be very likely to produce a state of mental clouding, confusional behaviour with some loss of memory and recall. In addition Pethidine does have delusional and possible hallucinatory side effects which could affect the perception of events which took place while under the influence of these drugs”.

His opinion was that on the balance of probabilities the cognitive-impairing effects of Pethidine, Tramadol and Diazepam should be taken into account when considering a statement concerning events which took place while under the influence of this combination of drugs.

The classic and frequently quoted principle for deciding whether to admit new evidence at an appeal hearing was explained in Ladd v Marshall [1954] 1 WLR 1489 at 1491 by Denning LJ who set out the test for introducing fresh evidence on an appeal as follows:-

“to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible though it need not be incontrovertible”.

Of course, that principle pre-dates the introduction of the CPR and in Hamilton v Mohamed Al Fayed (unreported – 21 December 2000), Lord Phillips MR giving the judgment of the Court of Appeal said that:-

“11… We consider that under the new, as under the old, procedure special grounds must be shown to justify the introduction of fresh evidence on appeal. In a case such as this, which is governed by the transitional provisions, we do not consider that we are placed in the straightjacket of previous authority when considering whether such special grounds have been demonstrated. The question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless remain powerful persuasive authority, for they illustrate the attempts of the court to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should receive the right results”.

Later in his judgment having set out the principles in Ladd v Marshall to which we have referred, Lord Phillips continued:-

“13.

These principles have been followed by the Court of Appeal for nearly half a century and are in no way in conflict with the overriding objectives. In particular it will not normally be in the interests of justice to re-open a concluded trial in order to introduce fresh evidence unless that evidence will probably influence the result”.

There have been a number of more recent cases in which the Court of Appeal has explained the continuing relevance and importance of the Ladd v Marshall principles. For example in Marchmont Investments Ltd v BFO SA [2007] EWCA Civ 677, May LJ in a judgment in which the Chancellor of the High Court and Lloyd LJ agreed said that:-

“the court has a discretion under the rules to admit fresh evidence on an appeal, the discretion to be exercised in accordance with and in the light of the established guidelines. The first Ladd v Marshall principle derives from a clear public policy that litigation should achieve finality; and that normally disappointed litigants should not have a second bite of the litigation cherry by relying on evidence which they ought, if they wanted to rely on it, to have brought forward on the first occasion”.

Similarly the continuing importance of the Ladd v Marshall principles and the overriding objective of the CPR have been expressed in other cases such as first Lifely v Lifely [2008] EWCA Civ 904 [14] per Ward LJ and second in Khetani v Kanbi [2006] EWCA Civ 1621 at paragraph 19 where Lindsay J said in a judgment with which Thomas and Chadwick LJJ agreed that the Ladd v Marshall test “has survived all changes since 1954”.

The Rival Submissions

It is not in dispute that the third limb of the Ladd v Marshall test namely that Dr. Taberner’s evidence must be “apparently credible” has been satisfied but Miss Jennifer Richards counsel for the respondent contends that the other two tests have not been satisfied and that in accordance with the overriding objectives of the CPR evidence should not be admitted. Miss Hewson, on the other hand, submits that in accordance with the overriding objectives, the evidence should be admitted and that all the necessary conditions have been complied with.

At the end of the argument on this issue, I explained that the new evidence would not be admitted for the reasons which I would set out in this judgment. There are two separate reasons which individually and cumulatively have satisfied me that this evidence should not be admitted. The first reason is that the appellant cannot satisfy the requirement in Ladd v Marshall that “it must be shown that the [new] evidence could not have been obtained with reasonable diligence for use at the trial”. The appellant has not put in any evidence on this issue or given any explanation as to why the evidence of Dr. Taberner could not have been produced at the hearing. I therefore infer that there is no reason or no acceptable reason.

In my view this is fatal to the application to adduce the evidence for the reasons which were explained by May LJ in the Marchmont Investments case and which I must quote again and which are that there is a clear public policy that litigation should achieve finality and that:-

“35..normally disappointed litigants should not have a second bite of the litigation cherry by relying on evidence which they ought, if they wanted to rely on it, to have brought forward on the first occasion”.

The second reason (which fortifies the first as well as being a free-standing reason) why this evidence should not be admitted is that I do not believe that the second requirement in Ladd v Marshall would have been satisfied because the evidence of Dr. Taberner would not “probably have an important influence on the result of the case, though it need not be decisive”. At the hearing in front of the panel, the fundamental issue was whether the evidence of the complainants was accurate and credible.

As I have explained the decision of the panel inevitably depended on its views on the credibility and the reliability of the complainants and of the appellant. The way in which Miss Hewson, who then also appeared for the appellant, sought to challenge the evidence of the complainants was by challenging their credibility and reliability as witnesses by showing that the effect of the drugs administered to them at the hospital meant that they could not have had an accurate or a reliable recollection of what the appellant did or may have done to them.

This is clearly apparent in the cross-examination of the complainants, the detailed written closing submissions of Miss Hewson and her detailed final oral submissions. Indeed at all times the case for the appellant was that the ability of the complainants to recollect the events in this case was impaired by the drugs taken by the complainants. The complainants accepted that they could not recall certain matters which happened about the time when the appellant is alleged to have acted in the manner set out in the charges. As I will explain in paragraphs 109 and 133 below, the panel found that the drugs had adversely affected the ability of each of the complainants to recollect many of these matters but nevertheless the panel found both complainants to be reliable witnesses in relation to the matter alleged in the charges set out in paragraph 5 above.

The evidence of Dr. Taberner does not take matters very much further especially as he had not examined the complainants and this probably explains the cautious nature of his findings in which he explains what is likely to be the position rather than what was the actual position. In those circumstances his evidence would not have reached the threshold of probably having an important influence on the result of the case. For those reasons his evidence could not be admitted.

These guidelines, which the appellant sought to have admitted, are derived from a review of scientific study of human memory and a detailed consideration of relevant legal issues. Their purpose was said to be:-

“to provide those involved in legal work (criminal and civil) with accessible and scientifically accurate basis from which to consider issues relating to memory as these arise in legal settings”.

This material was not published until after the hearing in front of the panel. Miss Hewson contends that it should be admitted because it satisfies each of the Ladd v Marshall conditions and that in any event its admission would be consistent with the overriding objectives of the CPR. Miss Richards disagrees and I stated at the end of the application that I would not permit this evidence to be admitted.

My first reason for this decision is that I do not consider that this evidence is properly admissible. It would not have been admitted at the original hearing or indeed by any court. Evidence on how a fact-finding body should reach conclusions relating to the reliability of witnesses is not a proper subject for expert evidence. What is important is how the fact-finders should look at the evidence using their common sense and the composition of the panel is intended to be a form of jury with only one member medically qualified. It would be inconceivable that at a criminal or a civil trial this BPS material would be admitted.

Second, I do not think that the admission of this evidence would probably have had an important influence on the result of the case. The task for the panel was to determine in the light of what they had seen themselves who they would believe. Having read the BPS material I cannot believe that it would have had that effect.

Indeed and this is not the basis of my decision if this evidence was to be admitted, it would mean that similar evidence would have to be admitted in every case in which a decision was made prior to the publication of the BPS material in which the fact-finders had come to a conclusion on the reliability of evidence. That would no doubt apply not merely to bodies dealing with professional conduct but also to tribunals and to courts. As I have explained I do not consider that this evidence would have been admissible.

Introduction.

Miss Hewson contends that the Radiographer member of the panel Ms Jacqueline Webb misconducted herself during the hearing in that she proceeded to cross-examine the appellant in a very hostile way when it was the panel’s time to ask questions of him by:-

“shaking her finger at him in an aggressive manner and suggesting that she had a licence to challenge his veracity because his defence counsel had challenged the veracity of NG the previous day, and accusing him of giving misleading evidence. By her conduct towards the appellant, she showed actual bias or at least gave the appearance of bias”” (paragraph 4 (4) of the Notice of Appeal).

It is clear that these are very serious allegations of actual or of apparent bias against a panel member and so I will consider them in some detail. There is no dispute as to what Ms Webb said as a transcript of the evidence is available and I will shortly refer to the relevant parts of it but there is no longer a tape because that was destroyed after the transcript had been prepared. There is also a dispute about the actual behaviour of Ms Webb and the conflicting accounts are set out in witness statements to which I now turn.

The appellant’s evidence

The appellant said in his witness statement that he recalls that Ms Webb became increasingly hostile in her questions to him and the way she put them. He then says:-

“I recall she turned her chair to face me directly and shook her finger at me when the issue of lone working came up. I was really taken aback as she had not treated [either complainant] like this”.

The appellant also said that Ms Webb got very annoyed when the appellant said that he was a Consultant Forensic Radiographer to the International Criminal Tribunal for the former Yugoslavia. He then referred to Ms Webb’s accusation which was that he had been misleading the panel and he said that he did not know why she had suddenly became so hostile towards him but he did not think that it was fair.

Mr Andrew Conway, who is a partner in the litigation department in the firm of Lawrence Stephens who are the appellant’s solicitors, also made a witness statement in which he noted that Ms Webb’s manner towards the appellant was becoming increasingly hostile. He stated that Ms Webb raised her voice when speaking to him and he said that “I specifically recall that at one point she turned her chair towards Mr Muscat and shook her finger at him”. Mr. Conway’s conclusion was that his overriding recollection of Ms Webb’s treatment of the appellant was that “she had been predisposed against him from the outset. Certainly I have never seen such behaviour before or since from a Tribunal member or judge towards a witness”.

The respondent’s evidence

The respondent relied on witness statements made by members of the panel. Mr Christopher Matthews-Maxwell, who is a Chartered Secretary and was a lay member of the panel, explained that Ms Webb is Scottish and that his experience was that Scottish people can be very direct in their style of questioning but he believed that Ms Webb asked pertinent questions and that when she did not receive a clear or full reply, she then either amplified the question or sought clarification. He considered that such a course was necessary as the case itself was complex.

Mr Mathews-Maxwell stated that he did not observe Ms Webb turning her chair towards the appellant and shaking her fingers to him while she was questioning him. In his opinion, Ms Webb conducted herself “in a professional manner”. He explained that none of the issues which have been alleged against Ms Webb “affected the panel’s decision making process”.

Miss Elizabeth Carmichael, of HM Revenue and Customs who chaired the panel, explained that Ms Webb had some concerns about the appellant’s description of himself as a “consultant” when undertaking forensic work in the former Yugoslavia. According to Miss Carmichael, Ms Webb was trying to clarify for herself and for the panel just what the description “consultant” meant in the context in which the appellant had used to describe his work in the former Yugoslavia. Miss Carmichael said that Ms Webb was “quite robust in her questioning” but she [that is Miss Carmichael] did not feel that it required her intervention. She could not recall any indication of bias or predisposition on the part of any of the panel to find for or against the appellant.

Ms Jacqueline Webb, who was the radiographer member of the panel, said in a witness statement in respect of the appellant’s criticisms of her that she was “completely shocked and astounded by these claims” relating to her demeanour and to her finger pointing when questioning the appellant. She also stated first that she was unaware that she had moved her chair and second that she cannot remember if she pointed or shook her finger at the appellant. She “utterly disputes the statement that [she] was predisposed against the [appellant] from the outset”.

Miss Kelly Johnson who is the Director of Fitness to Practice for the respondent explained that she had circulated copies of the statements of the appellant and Mr Conway to those who were present at the hearing. She pointed out that she had then contacted Mr Simon Russen (a barrister who was the legal assessor to the panel), Mr John Harding (the respondent’s solicitor at the hearing) and Mr James Bryant (who was the hearing officer at the hearing). Miss Johnson’s evidence was that each of them had informed her that they had not witnessed Ms Webb wagging her finger at the appellant or Ms Webb moving her chair towards him while she questioned him.

Conclusions on the factual dispute

I offered both counsel the opportunity to apply to cross-examine any of the makers of the witness statements but they both declined. Having given the matter, careful attention I have come to the conclusion that I cannot be satisfied on the balance of probabilities that Ms Webb did in the words of the Notice of Appeal “shake her finger at [the appellant] in an aggressive manner” or that she moved her chair towards the appellant while she questioned him. There is no reason why I can reject the evidence adduced by Miss Johnson and more importantly the members of the panel that they do not remember any aggressive behaviour on the part of Ms Webb.

At the end of the day I concluded that in the absence of cross-examination I cannot be satisfied to even the lowest civil standard of proof that Ms Webb either wagged her finger in an aggressive way or moved her chair towards the appellant. Moreover although the appellant and his solicitor stated that Ms Webb moved her chair towards Mr Muscat, this important allegation did not appear in the Notice of Appeal.

I have dealt with this matter at some length because it was a matter to which Miss Hewson attached great importance but, as I will explain, it makes no difference to the outcome of this appeal. So I will assume that the appellant’s evidence is correct and that Ms Webb did turn her chair towards the appellant and shake her finger at him.

The offending comments of Ms Webb

I have already explained the way in which the Notice of Appeal specifies the complaint against Ms Webb and it is noteworthy that it does not suggest that the appellant was in any way precluded from pursuing or presenting his case or giving his evidence. Ms Webb together with the other members of the panel adopted the procedure of in turn questioning the witnesses after they had given their evidence and after they had been cross-examined.

Miss Hewson stresses the point that Ms Webb was the only member of the panel who was medically qualified and also that she like the appellant was a radiographer. No objection is taken to the initial stages of her questioning of the appellant but the first subject in respect of which a complaint is made by Miss Hewson relates to the questioning of the appellant about whether there was a lone working policy which precluded a radiographer from carrying out work without having a chaperone. The appellant explained that he had not received a warning regarding a violation of that policy and he explained that there was no protocol in place. This related to the charge that there ought to have been some chaperone present when the appellant was examining the complainants but this was rejected by the panel. There is no reason why this questioning or any other of her probing and unobjectionable questioning of the appellant can possibly be criticised. The basis of the appellant’s complaint relates to Ms Webb’s aggressive behaviour to which I referred in paragraphs 36 to 38 above and when she was questioning the appellant about the fact that he had called himself a consultant in relation to what he did in former Yugoslavia.

The thrust of Miss Hewson’s complaint relates to the way in which Ms Webb dealt with this matter. The questioning then proceeds as follows:-

“Q. OK, The consultant title, I feel, is very, very misleading.

A. I can show you the certificate. I can bring it with me tomorrow which was issued by the ----.

THE LEGAL ASSESSOR: I wonder to what extent this is going to help the panel.

MS. WEBB: No, it is just for my own satisfaction.

THE [APPELLANT]: I can bring in the certificate.

THE LEGAL ASSESSOR: The panel is engaged upon an investigation of these quite specific allegations.

MS. WEBB: Yes, surely, but I am aware of 10 Consultant Radiographers UK-wide. One would certainly feel if you would mislead the panel in this detail.

MISS HEWSON: I am sorry, I do object to that. You do not know on what basis he was invited. He says he is happy to bring in ---

THE [APPELLANT]: I can bring in the certificate which says “Consultant” which is issued by the International Tribunal”.

The appellant’s case on bias

Miss Hewson’s case is that by her conduct towards the appellant (including the matters set out in the witness statements of the appellant and Mr. Conway to which I referred in paragraphs 36 to 38 above). Ms Webb showed actual or at least the appearance of bias as in the words of the appellant’s skeleton:

“she took it upon herself to cross-examine him as though she were counsel for the prosecution and showed an animosity towards him”.

Miss Hewson seeks to derive assistance from a number of cases in which a judge was asking too many questions in criminal cases and taking over the role of a prosecutor (see for example R v Simbodyal – Times 10 October 1991; R v Whybrow and Saunders – Times 14 February 1994 and R v Copsey and Copsey [2008] EWCA Crim 2043).

I do not consider that these cases assist the appellant for three separate reasons. First, these were cases where the real complaint was that the decision-makers, namely the jury, were being led to believe that the judge thought that there was no merit in the case for the defendant. In the present case, the position was totally different as Ms Webb was one of the three decision makers and the correct analogy between those cases relied on by Miss Hewson and the present case would be if the legal assessor was asking so many questions that it was thought that he believed that there was no merit in the claim.

A second reason why those cases do not assist the appellant is that in each of those cases there was prolonged and much more extensive questioning than that of Ms Webb. In Copsey’s case, (supra) for example, the judge engaged in prolonged questioning asking one defendant 110 questions and the other defendant 93 questions. In the present case, the criticism is not of asking too many questions but just of one comment. Third, none of these cases are concerned with the issue with which this ground of appeal is concerned which was actual or apparent bias but they were primarily concerned with whether the amount and nature of the judicial interventions undermined the fairness of the trial.

In her submissions Miss Hewson places emphasis on the decision of the Court of Appeal in Howell, Thompson and Robinson v Millaisand others [2007] EWCA Civ 720 in which it was held that a judge should have recused himself because of a previous and pre-existing hostility to one of the parties. There was no such previous relationship between Ms Webb and the appellant but Miss Hewson relies on the statement by Sir Anthony Clarke MR that:-

“19.

I am bound to say that to my mind it is not appropriate for the Judge to cross-examine [one of the witnesses] rather as if he, the Judge, was fighting his own case”.

In that case, there had been sustained cross-examination of the witness by the judge but in this case the only passage to which serious complaint could be made is that which I set out in paragraph 49 above which shows that the word “consultant” was being used by the appellant in the way that had been described by those retaining him for his work in former Yugoslavia. What is important is that this had a different meaning from the normal use of “consultant” as being a status in the United Kingdom.

In my view it was unfortunate that the Ms Webb used the words “mislead the panel” but it is important to bear in mind five matters. First, as the legal assessor pointed out this issue was not a matter of significance to the issues which the panel had to resolve as he said that it was questionable whether the questioning on the issue of the appellant’s title while working in the former Yugoslavia “was going to help the panel”. Second, the questioning finished with the appellant explaining that he would bring in a certificate and Ms Webb then moved on to another topic, from this it must be assumed that the appellant would have disabused Ms Webb of any of her fears that the appellant had been misleading the panel. Third, although the language used by Ms Webb was unfortunate, it did not in my view show a predisposition to be biased or actual bias because of her misunderstanding of the true position which the appellant showed was incorrect as he was entitled as he was in fact known as a “consultant” in respect of the work that he was required to do in the former Yugoslavia. Fourth, Ms Webb did not repeat this point during Miss Hewson’s closing oral submissions on behalf of the appellant. Finally the issue of the appellant misleading the panel about his use of the term “consultant” was not referred to or alluded to by the panel in its decision.

Miss Hewson also sought to derive assistance from a number of civil cases in which decisions of judges sitting alone have been overturned because of judicial interference. She referred to cases such as Yuillv Yuill [1945] P15, 20 and the Mayor of the London Borough of Southwark v Kofi Adu [2006] EWCA Civ 281 in which appeals were allowed on the basis of excessive judicial interference. In the Southwark case Jonathan Parker LJ giving the judgment of the Court of Appeal explained with the emphasis as it appears in the original judgment that :-

“104…It is, we think important to appreciate the risk identified by Lord Greene MR in Yuill v Yuill does not depend on appearances or what an objective observer of the process might think of it. Rather the risk is that the Judge’s descent into the arena (to adopt Lord Greene MR’s description) may so impair his ability properly to evaluate and weigh the evidence before him as to impair his judgment and may for that reason render the trial unfair”.

In my view the questioning by Ms Webb does not reach that point because in my view all her questioning was fair and unobjectionable save for the use of the words “one would certainly feel if you would mislead the panel in this detail”. Those words that were as the appellant explained clearly in his evidence based on a misunderstanding and I have no reason to believe that the panel reached its decision on the basis of that comment. It is noteworthy as I have explained that the panel reached its decision upon its belief that both the complainants were honest and reliable witnesses whose evidence they could accept. The panel also dismissed other charges against the appellant and the criticism made by Ms Webb was not repeated either during the remainder of her cross-examination or during Miss Hewson’s final oral submissions or in the panel’s reasons for accepting the evidence of the complainants.

As I have explained none of the cases relied on by Miss Hewson support the case relating to Ms Webb’s conduct. It remains necessary to consider the case of bias. Actual bias needs no explanation while apparent bias does because it has a special meaning. It is clearly established settled law and well known that apparent bias:-

This challenge based on actual or apparent bias has to be rejected for four reasons even if the allegations in the witness statement of the appellant and his solicitor set out in paragraphs 36 to 38 were correct.

First, in considering Miss Hewson’s complaints, there have been frequent references to judges and that must include decision-makers in civil cases being much more proactive and interventionist than their predecessors (see for example paragraph 145 of the Southwark case and the approach of the Judicial Committee of the Privy Council in Almida v Opportunity Equity Partners Limited (3 October 2006) in which Lord Walker of Gestingthorpe approved the approach of the Court of Appeal of New South Wales in Galea v Galea (1990) 19 NSW LR 263 in which Kirby A-CJ at page 281 and 282).

This point concerning what is now recognised as the role of decision makers has a particular resonance to members of professional disciplinary tribunals because as the Court of Appeal noted in Ruscillo v Council for Regulation of Healthcare Professionals [2005] 1 WLR 757 at paragraph 80:-

“The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure it is properly presented and the relevant evidence is placed before it”.

Second, a judge and indeed a member of a disciplinary tribunal is quite entitled to express a provisional view of some evidence based on his or her understanding of it even if that understanding is wrong without there being any possibility of that member being regarded as being biased. It is noteworthy that after the appellant offered to bring in his certificate to disabuse Ms Webb of her mistaken opinion that the appellant was not entitled to describe himself as a “consultant”, she did not make any further adverse comments relating to the appellant either then or during the final oral submissions of the appellant’s counsel. These factors would further refute the claim of actual bias and would satisfy the fair-minded observer that there was no real possibility that Ms Webb might be biased.

Third, the cases show that cases of bias or apparent bias depend on showing either (a) some pre-existing relationship between the person said to be actually or apparently biased and the victim of the bias or (b) at least behaviour during the entire proceedings which establishes actual or apparent bias. As to (a), there is no allegation that this case falls in that category. Condition (b) is not satisfied by one comment first which was not repeated by Ms Webb, second which the appellant disabused her of by offering to bring in the certificate, third which was not repeated either during Miss Hewson’s closing submissions or at any other time and fourth which did not prevent the panel from finding some of the allegations against the appellant not proved. These factors would fortify my conclusion that the fair-minded observer would conclude that there was no real possibility that Ms Webb might be biased.

Fourth and finally, I have until now been assuming (contrary to my findings in paragraph 45) that I had accepted the assertions in the witness statements of the appellant and his solicitor set out in paragraphs 36 to 38 above but if I ignore those witness statements and the allegations contained in them, then the case for rejecting the appellant’s claims of bias and apparent bias becomes even stronger.

Applying the well-recognised principles, I reject the appellant’s case on the bias point which is totally inconsistent with those established principles.

Miss Hewson contends that the standard of proof that should have been adopted was the criminal standard of proof and not the civil standard of proof. Miss Richards disagrees and she contends that the appropriate standard should be the civil standard and in support of that contention, she relies on the decision of this court in Gage v General Chiropractic Council [2004] EWHC 2762 (Admin) in which Jackson J (as he then was) stated that:-

“26 In my view, it is clear on the authorities that a Tribunal such as the PCC of the General Council of Chiropractors must apply the civil standard of proof subject to one qualification. The one qualification is this that the more serious the allegation of professional misconduct is the stronger must be the evidence before that allegation is proved on the balance of probabilities”.

In response, Miss Hewson contends that the case is distinguishable because chiropractors are a branch of complimentary medicine while radiography is not because it is integral to mainstream medicine. I am unable to accept that submission because the reasoning of Jackson J did not depend on the nature of the profession but on the nature of the powers conferred on the professional body. Indeed it is difficult to understand why the nature of the profession can be a material factor let alone a crucial factor.

Jackson J explained that in the case of chiropractors section 23(2) of the Chiropractors Act 1994 empowered the Professional Conduct Panel to impose a penalty if “the committee is satisfied that the allegation is well founded”. The test of whether a complaint is well founded also appears in article 29 (3) of the 2001 Order which governs the complaint against the appellant. Thus I have to construe an identical provision to that considered by Jackson J and I find his reasoning compelling.

In reaching that conclusion, I have taken into account, but rejected, the submission of Miss Hewson that the statement in Gage was per incuriam and that it should not be followed because the authorities cited in the case do not support the conclusion which Jackson J reached on the appropriate standard of proof. She says, for example, that the case relied on by Jackson J of R v Hampshire County Council ex parte Ellerton [1985] 1WLR 749 concerned an employer’s internal disciplinary hearing which was in essence a contractual matter. Miss Hewson submits that this makes it a different hearing as it was before a regulator which is quasi-penal.

I am unable to understand why there is a difference of any relevance on the issue of the appropriate standard of proof between the present case and the Ellerton case merely because the party carrying out the disciplinary hearing was the employer in Ellerton’s case while it is a professional body which is carrying out the disciplinary hearing in the present case. In Ellerton’s case, the issue was whether a wrongful act by an individual has been committed and that is what has to be considered in the present case.

It is noteworthy that in Ellerton’s case, the Court of Appeal rejected the notion that the criminal standard of proof should apply and O’Connor LJ explained at page 753 E that the proceedings with which the court was concerned were:-

“not criminal proceedings. The disciplinary tribunal and the fire authority are domestic tribunals, and in the absence of any express provisions in the Act or regulations prima facie the civil standard of proof is appropriate”.

Those words together with the approach of Jackson J and the absence of any contrary authorities show that the case against the appellant did not have to be proved to the criminal standard of proof but to the civil standard although the nature of the complaints against the appellant meant that strong and compelling evidence would be needed to reach that standard for the reasons which I will explain in paragraph 78 below.

In reaching that conclusion, I have not overlooked the fact that some professional bodies such as doctors and midwives adopt disciplinary procedures which require proof beyond reasonable doubt but that does not mean that the same procedure should be adopted in the present case. Significantly no authority has been cited which shows that allegations before those or any other professional disciplinary bodies have be proved to the criminal standard.

Miss Hewson contends that even if the panel was correct to adopt the civil standard of proof, it should have applied a far more exacting approach to the evidence bearing in mind the seriousness and the peculiarity of the allegations against the appellant. She contends that the panel failed to have proper regard to the decision of the House of Lords in In re H & Others (Minors) (Sexual Abuse: Burden of Proof) [1996] AC 563 and in particular to the passage in the speech of Lord Nicholls of Birkenhead in which he explained at page 586 D-F that:-

“The balance of probability standard means that a court is satisfied with events occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.”

Lord Nicholls proceeded to state at page 586G that:

“Although the result is much the same, this does not mean that where a serious allegation is an issue the standard of proof required is higher. It only means that the inherent probability or improbability of an event is in itself a matter to be taken into account when weighing the probabilities deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did not occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow’s Will Trust [1964] 1WLR 451, 455:-

“The more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”.

The argument of Miss Hewson is that the complainant’s allegations were peculiar and very unusual bearing in mind that the complaints relating to NG concerned the appellant’s conduct while conducting an MRI scan. I consider that in this case as there were very serious allegations against a professional man, the panel could only find each of the allegations proved against the appellant if there was strong and compelling evidence against him.

The panel appreciated the significance of the allegation and the need for clear and cogent evidence when it explained in paragraph 2 b of its decision that:-

“In approaching the issues to be established the panel has throughout remembered:...(b) that the standard of that burden [of proof] is the civil standard of the balance of probabilities namely whether something is more likely to have occurred than not. However, as these are very serious allegations the panel has adopted the approach that strong and compelling evidence would be required to prove them.”

Miss Richards contends that the panel had only to comply with the recent decision of the House of Lords In re D [2008] UKHL 33 in which it was explained that there is a civil standard of proof, namely proof on the balance of probabilities - a standard that is “finite and unvarying” (per Lord Carswell [28]). Miss Richards pointed out that Lord Carswell in that case recognised that in some contexts, a court or tribunal has to look at the facts more critically or anxiously than others before it can be satisfied to the requisite standard but then he explained that:-

“28... These are all matters for ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriate and careful consideration by the tribunal before it is satisfied of the matter which has to be established”.

I need not decide how to resolve any difference between the approaches advocated by Lord Nicholls and by Lord Carswell because the panel adopted an approach which was completely consistent with both of them.

The case for the claimant is that the panel failed to look for evidence corroborating the evidence of complainants. It is noteworthy that Miss Hewson accepts that she did not submit to the panel that they should have looked for such evidence. Her case is that corroboration was necessary given that both complainants were under the influence of powerful opiate analgesics at the time of the incident.

I am bound to say that I regard this submission as misconceived as it proceeds on the basis that the panel was not entitled to be satisfied on the evidence of the patient complainants alone and that additionally some corroboration was required. No case relating to a disciplinary matter or any civil claim has been cited which gives any support whatsoever to Miss Hewson’s submission that corroboration is needed in cases of misconduct where there were weaknesses in the complainant’s evidence.

In reaching that conclusion, I have considered the relevance of the statement of Lord Taylor CJ in R v Makanjuola [1995] 1WLR 1348 on which Miss Hewson relies. The court in that case was considering the effect of the abrogation of the mandatory requirement to warn a jury in a criminal case about acting on the uncorroborated evidence of among other groups the complainants of sexual offences. Lord Taylor CJ said at page 351 :-

“(2)

It is a matter for the judge’s discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s evidence. (3) In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestion by cross-examining counsel.”

There are five reasons why this statement does not mean that the panel erred. First, it has no relevance to a disciplinary tribunal because the Court of Appeal Criminal Division was concerned with the circumstances in which a judge in a criminal trial should provide guidance to the juries, who were the decision makers about the reliability of witnesses and that is far removed from disciplinary proceedings. Second, the Court of Appeal Criminal Division did neither deal with nor purport to deal with the role of panels in disciplinary proceedings. Third, it should also be stressed that Lord Taylor made it clear that judges have a broad discretion as to whether to make any comment or to provide any guidance to the juries in circumstances where there may be concerns about the reliability of a witness. Fourth, Lord Taylor’s statement falls a long way short of imposing any requirement for corroboration even in the criminal justice context and certainly not where there is a disciplinary body who have been warned by the advocates of the weaknesses in the evidence of the complainants. Finally, the panel noted and took into account when deciding whether to accept the complainant’s evidence the drugs which had been administered to them and which had made them drowsy (see, for example paragraphs 5 and 16 of the panel’s reasons).

It is also appropriate to explain at this stage why I cannot accept the allegation of Miss Hewson that the panel wrongly treated the complaints of the two complainants as corroborative of each other. This contention is not correct because the panel explained at paragraph 2f of its decision that:-

“The panel has looked at the allegations concerning the two patients quite separately. To approach the issue on the basis that the allegations in some way supported one another would be illogical and unfair. The panel consider the only way in which it could properly resolve the disputed factual issues was to look at the evidence in each of them in isolation”.

Indeed it is clear from the way in which the written decision of the panel was structured with different sections dealing with the complaints of JB and NG that the panel looked both separately and also in turn at the separate complaints of these two patients and the appellant’s defences to each complaint such as the witness who was present when NG was treated as I explain in paragraph 127 below. So I also reject these challenges made by the appellant as being inconsistent with established legal principles.

Introduction

The complaint made by Miss Hewson is that the panel’s approach to the evidence was selective and one-sided and that its conclusions were against the weight of the evidence. She has carried out a detailed analysis of the evidence in which she repeatedly criticised the panel first for failing to give adequate explanations of how it arrived at its conclusions and second for reaching conclusions which failed to take into account cogent factors or which were inconsistent with the evidence.

Miss Richards disagrees and she contends that the decision of the panel has to be looked at in light of the fact that the panel, unlike me, has seen the witnesses and was able to appraise them. Furthermore she submits that the panel was not under any obligation to give details for its reasons and that any failure to provide full reasons should not and cannot lead to the decision being quashed.

It seems clear that at the heart of the dispute between counsel is the approach that this court on appeal should adopt to the reasoning and conclusions of the panel as well as the appellant’s criticisms of them. This entails considering what degree of deference is owed to the decision of the panel and also how detailed its reasons have to be.

The Degree of Deference Owed to the Panel.

It is clear law as was explained by Auld LJ in Meadows v General Medical Council [2007] 2WLR 286,345 (with his emphasis retained) that this court when dealing with an appeal from a disciplinary panel:-

“197…must have in mind and give such weight as is appropriate in the circumstances to the following factors (i)The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expect of its members in matters of medical practice deserve respect; (ii) The Tribunal has the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; (iii) The questions of primary and secondary facts and the overall value judgement to be made by a Tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers”.

This echoes to some extent what Stanley Burnton J (as he then was) said in Threlfall v General Optical Council [2004] EWHC 2683 (Admin) which was that:-

“21….This court appreciates that such a Disciplinary Committee is better qualified to assess evidence relating to professional practice, and the gravity of any shortcomings, and it therefore accords the decision of the panel an appropriate measure of respect, but no more..”.

Nothing was said on behalf of the appellant to show that this approach is incorrect and I will therefore adopt it as being correct.

The reasoning required of the panel

Miss Hewson is very critical of the panel’s written reasons which she says do not deal with many aspects of the case including its failure to express its views on the credibility of the appellant while the panel merely stated that it accepted the evidence of the two complainants. It is the appellant’s case that the reasoning of the panel is defective as it did not deal with the appellant’s credibility and many other aspects of the appellant’s defence so that it should be set aside.

Miss Hewson submits that given the nature of the allegations, which were a peculiar form of sexual harassment, the panel should have met the standards which Employment Tribunals are required to meet in discrimination cases. She says that the appropriate standards were those adopted by the Court of Appeal in Anya v University of Oxford [2001] ICR 847 at paragraphs 23-26 in which Sedley LJ said that:-

“23... The totality of the evidence in a case like this has to be evaluated; and there was in this case no useful way of approaching the totality except through its parts...

24.

The difficulty is not answered by the decisions of this court relied upon by Mr Underhill... to the effect that tribunals are not required to do more than make findings of fact and answer a question of law. In race relations fields this principle does no more than beg the question; what findings, what law?

..25.. it is simply the job of the tribunal of first instance not simply to set out the relevant evidential facts as this industrial tribunal consciously and lucidly did, but to follow them through to a reasoned conclusion except to the extent that they have become otiose; and if they do become otiose, the tribunal needs to say why”.

It is necessary to appreciate the critical factor that the decision in Anya related to a decision of the Employment Tribunals as their decisions are fundamentally different from those of professional disciplinary panels because every Chairman of an Employment Tribunal is legally qualified. Furthermore, the Employment Tribunals have rules which state what information has to be set out in their reasons as Tribunals (Constitution etc) Regulations 2004 Schedule 1 paragraph 30 specifies the information which must include the findings of fact relevant to the issues which have been determined and how the facts have been applied in a particular case.

This fact and the decisions to which I will refer in paragraphs 100 to 106 below show very clearly that very limited reasons are required of a disciplinary panel which unlike an Employment Tribunal first does not have to comply with any statutory rules about the contents of its reasons and second does not have a legally qualified chairman.

Miss Hewson also referred to and sought to derive assistance from Lord Bingham’s famous essay “The Judge as Juror: The Judicial Determination of Factual Issues” reprinted from Current Legal Problems (1985) in The Business of Judging (2000) (pages 3-24). This sets out the standards to which judges should aspire but Lord Bingham did not state what is the minimum reasoning which is required of a professional disciplinary body. Those standards for a disciplinary panel have been the subject of the authorities upon which Miss Richards relies and to which I now turn.

The Respondent’s Submissions

Miss Richards contends that it is not incumbent upon a professional disciplinary panel to give reasons for its decisions on matters of fact, particularly where its decisions depended essentially on resolving questions of credibility of witnesses and she relies on a series of cases which she contends support that contention in respect of professional disciplinary tribunals.

In Selvanathan v General Medical Council [2001] Lloyd’s Report Med 1, the Judicial Committee of the Privy Council affirmed the existence of a duty to give nothing more than a general explanation of the panel’s decision on the issues of whether the complaint is proved and the appropriateness of any penalty imposed but very significantly it rejected the contention that there was greater duty to give any more detailed reasons for the panel’s decision.

That decision was followed by the important decision of the Privy Council in Gupta v General Medical Council [2002] 1 WLR 1691 in which there were allegations of professional misconduct which were strongly resisted. In its decision the General Medical Council had merely stated that:-

“Dr Gupta having carefully considered all the evidence, the panel have made the following findings of fact in your case. Heads 1, 2 and 3 of the charge have been admitted and found proved. Heads 4(a) and 4(b) have not been found proved. Heads 5(a) and 5(b) have been found proved. Heads 6(a), 6(b) (i) and 6(b) (ii) have been found proved. Heads 7(a) and 7(b) have been found proved”.

The only other indication of the panel’s reasons was that when giving its decision on the sanctions, the panel explained that the appellant’s evidence was inconsistent and in some respects untruthful. The basis of the appeal to the Judicial Committee was that the decision of the General Medical Council was defective and that it should be set aside because the panel could have and should have given reasons explaining why it had reached its conclusions especially as in the light of the conflicting evidence of the witnesses, the issue in that case depended on the credibility of the reliability of the witnesses before the panel. The argument of the appellant doctor in that case was that further reason had to be given so that the appellant could understand the reasons for the panel’s decision.

Lord Rodger of Earlsferry giving the decision of the Judicial Committee rejecting those submissions explained that:-

“12.

…The form of notice given to practitioners was amended in 1988 so as to ensure that they would be given considerable detail about the conduct on which the respondent council was basing their complaint. In its determination the committee finds a particular charge or head of a charge proved or not proved. The practitioner is therefore able to see, in the same detail, which allegations had been established. This in turn will usually mean that the practitioners will have a very good idea what evidence the committee has accepted. In some cases, such as the present, the committee’s decision will show it has felt able to find one allegation proved on the basis of evidence of a particular witness, while feeling unable to find another allegation proved on the basis of some other part of the evidence given by the same witness. In this way in cases involving issues of credibility and reliability the structured determination of the committee dealing with the heads of the charge will in itself reveal much about its reasons for reaching its decision. As the European Commission of Human Rights noted in Wickramsinghe v United Kingdom [1998] EHRLR 358 the fact that a practitioner can study a transcript of a hearing, including not only the evidence but the submissions on the evidence by the respective parties, further assists the practitioner in understanding not only which witnesses’ evidence the committee accepted and which it rejected but why it did so.

13.

To go further and to insist in virtually all cases raising issues of credibility and reliability the committee should formally indicate which witnesses it accepted and which it rejected would be to require it to perform an essentially sterile exercise”.

Lord Rodger also explained that the Judicial Committee accepted that there might be some cases where there might be a general duty to give reasons but it is difficult to see why the appellant’s case is not covered by the general rule. The decision in Gupta was followed by Elias J in R (on the application of Sandeep Luthra) v General Medical Council [2004] EWHC 458 in which he explained that:-

“22.

However, there is no doubt, as Mr Mayes realistically accepted that in the context in decisions of professional disciplinary bodies of this nature, at least given the particular procedures that they employ, it will often be unnecessary to do little, if any, more than to make the specific findings of fact with respect to each of the specific charges made, and then summarise why it is considered that these amount to gross professional misconduct. It will not generally be necessary for the panel to identify why in reaching its findings of fact, it has thought to accept some evidence and to reject the other evidence”.

In the more recent case of Anthony Chyc v General Medical Council [2008] EWHC 1025 (Admin), Foskett J was concerned with an appeal of improper behaviour by a doctor towards a patient and his Practice Manager. It is noteworthy in respect of one of the complaints the panel found the allegation proved and its reasons were that:-

“33….[The complainant’s] evidence was entirely convincing and cogent and its credibility supported by the doctor’s recognition that she appeared to be uncomfortable. The panel accepted her evidence that the nature and the proximity of this encounter differed from any previous embrace between the doctor and [the complainant]”.

The grounds of appeal include contentions that the panel did not explain why it rejected the evidence of the doctor and why it did not deal with the defence that the complainant was mistaken but not lying. Foskett J rejected these submissions by applying the approach in Gupta which I respectfully regard as correctly representing the correct approach and which I will apply to the appellant’s criticisms concerning the panel’s decision. Indeed many of Miss Hewson’s criticisms of the decision of the panel are similar to those of the doctor in the Chyc case which Foskett J rejected.

I should add that although Miss Hewson did not accept that these authorities were correct, she did not put forward any cogent or detailed reasons why I should not follow them. I unhesitatingly consider that I must apply the reasoning in Gupta, Luthra and Chyc.

In my view, the position after Gupta and the other cases to which I have referred is that:-

It is appropriate at this stage to set out the reasoning of the panel in upholding the complaints against the background that it was accepted that there was no clinical reason why the gown worn by JB should have been lifted to just below her chest. The reasoning of the panel was that:-

I will comment on the allegations of errors in respect of the treatment of JB by going through the grounds of appeal of the appellant in his Notice of Appeal. Before dealing with the specific complaints, it is necessary to stress again as I explained in paragraphs 100 to 108 the very limited obligation on the panel to give detailed reasons for their findings of fact or to deal with every argument that has been put forward.

First, it is said that the panel failed to have any proper regard to the effects on JB of extreme pain which she described as being “worse than childbirth” and which Accident and Emergency staff thought might be caused by kidney stones. This point was considered by the panel who said in paragraph 5 of their reasons:-

“There is also no doubt but that JB had been in extreme pain on the day of the examination and had been given morphine as a result, medication which led her later to acknowledge that she felt very drowsy”.

Indeed this point had been made forcefully by Miss Hewson in paragraph 19 of her detailed closing written submissions to the panel and also in her closing oral submissions. Thus I am unable to accept this complaint as the panel clearly considered it.

The second complaint that is made is that the panel failed to have any or any proper regard to the factsfirst “that [JB] had been given morphine.. some thirty minutes before the X-ray in question”, second that morphine made JB drowsy (“like being drunk”) and third that JB could not remember most of what happened such as that during her X-rays, for example, that she had signed a consent form, that the appellant explained to her what he planned to do and that she had stood when given a chest X-ray.

The panel clearly considered these matters and took them into account because in paragraph 5 of its reasons it explained that JB:-

“had been given morphine as a result medication which led her later to acknowledge that she felt very drowsy. JB signed a consent form on the day of the examination and a chest X-ray was undertaken whilst she was in a standing position. JB had no recollection of either”.

It is noteworthy that these points were made forcefully by Miss Hewson in her closing submissions and no criticism can be made of the approach to these matters by the panel in its decision.

The next complaint that is made is that the panel treated JB’s medical history as tending to show that she was a reliable witness where no such inference could have been drawn on the material before it.

In paragraph 25 of her closing written submissions to the panel, Miss Hewson drew attention of the panel to the fact that JB was “not a very good historian” but the panel explained that after many hours of careful deliberation including the assistance by Miss Hewson’s “very helpful written submissions”, it had come to the conclusion that the evidence of JB should be accepted as reliable. That was a conclusion which the panel was entitled to reach as it had seen and heard the witnesses giving evidence and therefore enjoyed a position that I having to consider the matter on paper without seeing and hearing the witnesses do not also have. In any event this is no suggestion that JB’s medical history was a factor taken into account as showing she was reliable. For those reasons I reject that criticism.

The final criticism in the Notice of Appeal concerning JB’s complaint was that the panel failed to have proper regard to the documentary and other evidence which showed that the raising of JB's complaint was in some way precipitated by or related to the investigation of NG’s complaint. This was a point set out in paragraph 28 of Miss Hewson’s written submissions but the panel rejected that. It is true that when the panel rejected this point in paragraph 9 of its decision, it did not give reasons but as I have explained there was no particular obligation on them so to do for the reasons which I have already explained in paragraphs 100 to 108 above.

During the course of her oral submission, Miss Hewson complained that the panel had made no attempt to appraise the evidence of the appellant. The panel concluded that having regard to all matters they had accepted the evidence of JB to be accepted as credible “and it follows that the evidence of [the appellant] in relation to this evidence is rejected”.

I must stress that the authorities show clearly that there is no obligation on the panel to explain why they preferred the evidence of one witness as opposed to the other. That would be sufficient to justify the rejection of that point but a further factor is that the panel unlike me had the opportunity of seeing and hearing the witness. That is an advantage and, in the words of Stanley Burnton LJ which I have quoted in paragraph 92 above the panel are entitled to “an appropriate measure of respect but no more”. It therefore follows that I must reject all the criticisms of errors made in respect of JB.

For the purpose of completeness, I should explain that I have considered whether any of the other complaints of Miss Hewson whether considered individually or cumulatively undermined the decision of the panel but I have concluded that established principles lead to the clear conclusion that they do not.

The panel’s reasoning in respect of NG’s complaint was that the real issue was whether the appellant requested NG to remove her gown once she was positioned inside the scanner. The panel noted that during the cross-examination of NG which it described as “lengthy, comprehensive and…robust”, in which it was suggested that NG was deliberately telling untruths, NG maintained her account.

The panel considered at some length and rejected for reasons explained in its decision two particular points raised by Miss Hewson; they were first that it would have been physically extremely difficult if not impossible for NG to have removed her gown once in the scanner and second the evidence of Ms Piret Vahramae a friend and colleague of the appellant which I will return to consider in paragraph 127 below. The panel also took into account the fact that the medication given to NG had made her drowsy but they accepted her evidence.

The first complaint made in respect of NG is that the panel failed to appreciate the task of assessing her reliability correctly and misinterpreted the evidence. Miss Hewson refers to a number of matters which show that NG was not a reliable witness and that on her admission to casualty the Senior House Officer observed that she was not a good historian. The approach of the panel was that NG had been subjected to a cross-examination which it described as “lengthy, comprehensive and can fairly be described as having been robust – it was suggested that she was deliberately telling untruths about the removal of her gown”. The panel explained that it had considered all the evidence and as I have already said they had reached their decision :-

“aftermany hours of careful deliberation during which a review of the whole of the documentary evidence and the notes of the oral evidence was undertaken”. (Paragraph 3)

Nevertheless at the end of its deliberations, the panel accepted the evidence of NG and rejected that of the appellant. As I have already explained, there was no reason for the panel to go through each of the issues which had been raised in cross-examination and to say what weight if any they gave to each of them. The task of the panel was to ascertain as was explained in Gupta whether the accusation against the practitioner had been made out. For a judge to criticise the panel for not giving any further detail would be inconsistent with the authorities to which I have referred in paragraphs 100 to 108 above.

It is also said that the panel failed to have regard to matters particularly relating to NG such as first that she was in extreme pain, second that she had had regular doses of Pethidine an opiate analgesic whose known side-effects include confusion and dysphoria and third that there were inconsistencies in the account of NG. These were all points which had been made clearly by Miss Hewson in her written submissions and indeed if they had not been made, there could not be any criticism of the panel for not considering them. Again it is a complete answer to these complaints for the reasons which I explained in paragraph 100 to 108 above that the panel were under no obligation whatsoever to give detailed responses to each of these points. They had to look at the matters in the round before explaining if the complaints were proved and that is what they did.

Perhaps the most potent point put forward by Miss Hewson is that the panel heard and then rejected evidence from Ms Piret Vahramae who is now the President of the Estonian Society of Radiographers and who was present for part of NG’s scan. She said in evidence that she saw NG on the closed circuit television in the control room and that NG was wearing a gown. It is said by Miss Hewson that this evidence should have led to the charges against the appellant being rejected.

The Panel considered this submission but reached the conclusion that they did not accept Ms Vahramae’s evidence that she was able to see that NG was wearing a gown while she was in the scanner. The panel explained first that the image on the monitor screen would have been “of poor quality”, second that NG was already in the scanner before Ms Vahramae arrived, third that NG did not emerge before she (that is Ms Vahramae) had left, fourth that there was no reason why Ms Vahramae would have been interested to observe NG as her interest was not in her as a patient and fifth that Ms Vahramae:-

“demonstrated very little general recollection and recall of what she saw in the department other than what she focused on specific details by Mr. Muscat”.(Paragraph 15)

Those were factual findings which the panel was entitled to reach especially after bearing in mind their understanding of and approach to the evidence. Even with the degree of scrutiny required of me, I am unable to conclude that the panel erred. It therefore follows that I also reject these complaints.

Miss Hewson made a number of other criticisms of the panel’s reasons. She contended in respect of both JB and NG that the panel failed to refer in its reasons to points in the evidence which supported the appellant’s case or which undermined that of JB or NG. Another complaint was that the panel reached wrong conclusions in respect of the evidence of both these complainants as it must have failed to consider points in the appellant’s favour. All these points have to be rejected whether considered individually or cumulatively in the light of the authorities to which I have referred in paragraphs 100 to 108.

Miss Hewson contends that the sanction imposed of striking-off the appellant was disproportionate and unfair. She argues that these were discrete episodes which have to be looked at in the light of the appellant’s previous career of having been a Radiographer for 18 years. She also submits first that it was never suggested to the appellant during the hearing that he had acted for the perverse purpose of sexual gratification and second that the panel erred in its conclusion that by defending the charges and failing to acknowledge fault the appellant should suffer the most stringent penalty available.

In response Miss Richards points out correctly first that it was never suggested to the appellant during the hearing that he had acted for the purpose of perverse sexual gratification and second that it was not a reason put forward by the panel to support its sanctions.

I also agree with Miss Richards that there is no factual basis for the assertion that the committee approached this upon the basis that somebody who defends charges and who fails to acknowledge his fault should therefore because of this suffer the most stringent penalty available. What the panel said at paragraph 25 in its reasons was that it was “mindful of the fact that [the appellant’s] behaviour was extremely serious, constituted a deliberate breach of trust and has never been acknowledged by him”. In my view, it is a relevant factor that a person against whom a charge of professional misconduct is proved after he or she has denied it does not have the credit of admitting his offences.

A court’s approach to an appeal against a sanction is based on three important principles which are:-

Bearing those principles in mind I now turn to consider the approach adopted by the panel. It started by explaining that it:-

“24... has reminded itself that the purpose of a sanction is not to punish. Rather, it is to protect the public and maintain the confidence of the public in the profession and in the [respondent’s] regulatory process”.

It then considered but rejected the choice of taking no action, mediation and a caution but concluded that those options were inappropriate “in a case as serious as this”.

The panel then went on to consider in ascending order of seriousness the other penalties which were available namely, first imposing conditions of practice, second suspension and third striking-off. It rejected as inappropriate a conditions of practice order where there had been “deliberate and unacknowledged breaches”. The panel also explained that such an order would require close supervision by a radiographer with clinical knowledge of the particular patient if there was to be a meaningful regime to prevent the appellant from taking inappropriate action.

The panel considered such close supervision not to be practicable. It considered, but rejected, imposing a suspension order because it would not address the problems shown by its findings and nothing would be served by it because at the end of the period of suspension, the appellant would present exactly the same risk to patients as he did at the time of the hearing. The panel then concluded:-

“28.

The panel have therefore arrived at the decision that a striking-off order is required. It should be added that having reached this option by a process of elimination of all other, less draconian sanctions, it is nevertheless the sanction the panel considers to be appropriate for this serious, deliberate breach of trust. No other sanction would, in the opinion of the panel, adequately protect patients or ensure confidence in the regulatory process. For these reasons the panel is satisfied that it is proportionate to make an order in the circumstances”.

I readily accept that some people might consider the sanction imposed on the appellant as being too harsh but bearing in mind the principles to which I have referred in paragraph 134 above, I cannot interfere with the decision arrived at by the panel which indicates that they had carefully explained why they had concluded after thoughtful consideration that striking-off was the only option sanction open to them on the facts of this case. I should add that if (which is not the case) I had been in any doubt about this conclusion, I would have been fortified in reaching it by the fact that both complainants were obviously vulnerable because they were drowsy when the matters complained of occurred and that this would constitute an aggravating factor. Thus the appeal against the sanction is refused.

For the reasons which I have sought to explain and in spite of the detailed and sustained submissions of Miss Hewson, this appeal must be dismissed because the established principles of law show that there are no grounds for allowing the appeal. The appellant will have the consolation that Miss Hewson has taken all possible points on his behalf but the accepted legal principles mean that they must all be rejected.

In order to avoid any unnecessary cost being incurred when the Approved Judgment

Miss Richards agreed with my provisional view and Miss Hewson made no submissions. I therefore order that the appeal be dismissed and that the appellant should pay the respondent’s costs to be assessed in default of agreement on a standard basis