Doctor Peter Roach v The General Medical Council

The Appellant was a trainee General Practitioner (GP). The Respondent is the body which regulates the professional conduct of GPs.

On the 17th of March 2023 the Medical Practitioners Tribunal Service (the Tribunal) made a determination of the facts on various allegations brought by the Respondent relating to the Appellant’s behaviour towards patient A (PA), which allegedly occurred on the 18th and 19th of March 2020. Four months later, the Tribunal determined that the Appellant had impaired fitness to practise and, two days later, on the 20th of July 2023 the Tribunal determined the sanction for the Appellant’s behaviour should be erasure from the register of doctors. These decisions are the normal three stages of the MPTS Tribunal process: stage 1, fact findings; stage 2, consideration of whether there is impairment of fitness to practise; stage 3, consideration of the sanction.

On the 14th of August 2023 the Appellant lodged a notice of appeal against the Tribunal’s decisions at all 3 stages and this judgment arises from the hearing of that appeal. No permission to appeal is needed for these statutory appeals.

The main issue on this appeal relates to whether the findings of fact made by the Tribunal at stage 1 were wrong or seriously procedurally unjust in relation to:

For the hearing I was provided with 2 professionally and carefully arranged digital bundles, with bookmarks and working hyperlinks, the first relating to the law and the second relating to the evidence. I was also provided with skeleton arguments from both parties and, after the hearing, with an agreed statement of facts and further short submissions on two points which I raised during the hearing.

There were six allegations of inappropriate behaviour (misconduct) laid against the Appellant, the third of which involved multiple factual sub allegations which I will broadly summarise now.

Before the Tribunal the Appellant’s case was a denial of all of the alleged sexual activity and sexual motivation. He asserted that he was concerned about PA’s mental health, she having attempted to commit suicide the week before. He asserted that he had written down her phone number on a piece of paper during the morning examination of PA and this reminded him to call her later in the day to check on her mental health. He asserted PA asked him in the examination to come for a cup of tea. He only used his mobile phone so that he could capture her number, should he need to make the home visit and need directions to get there. PA agreed to the home visit during his first call. He attended and she let him in. They discussed her mental health, impending redundancy, her rental expenses, about which she was worried and her physical ailments. Then he suggested a massage by a third party to help resolve her chest and left shoulder pain. It was PA who chose to go and get massage oil and this made the Appellant feel uncomfortable so he left, giving her a one armed hug before he did so. He only called her the next evening, after work on his mobile, to check that she was mentally well. He accepted that he made no medical notes of any of the events and this was unprofessional misconduct. He asserted that he had been busy the next day and that the impending COVID storm clouds of lockdown were already discharging the rain of chaos on the surgery and this contributed to his failure. He asserted that he was a trainee GP and was naïve about the risks he had taken in going on a home visit to a single woman, after hours, alone.

Section 1(1A) of the Medical Act 1983 provides that:

The Courts have summarised the approach and purpose of the Tribunal in such hearings as follows, per Sir Anthony Clarke MR in GMC v Meadow [2006] EWCA Civ. 1390:

The procedure

The right to appeal and the Court’s powers on appeal are set out in the Medical Act 1983 as follows (irrelevant parts are omitted):

The procedure on appeal is not set out in the Act but is set out in the Civil Procedure Rules. Part 52 governs appeals. In relation to whether the appeal is a review or a rehearing and the appellate Court’s powers, it says this:

There is a Practice Direction governing statutory appeals (PD52D). Ignoring the irrelevant provisions, para. 19.1 deals with appeals against decisions relating to healthcare professionals, which covers the Medical Act 1983 and states:

It is clear that the Court’s powers under CPR Part 52 to overturn a Tribunal’s decision are the same whether the procedure is a rehearing or a review. Both are tied to the grounds of appeal as well. However, PD52D gives rise to the question: what type of rehearing does the High Court carry out? Does it hear all of the evidence again? The answer is: no. What the High Court does is re-analyse the transcript of the live evidence and read the witness statements and the documents put before the Tribunal below. So evidentially and procedurally, it is not a rehearing, it is a re-analysis of the evidence without live evidence (generally). This is in contrast to an appeal by way of review, in which the evidence is limited to that relevant to the grounds of appeal and the parties are discouraged from putting before the appellate Court all of the evidence before the Court below. So PD52B at para 6.4 expressly requires the appeal bundle in a review only to contain witness statements and documents relevant to the appeal. A full transcript of the evidence is not required.

Where the appeal is against the findings of fact of the Tribunal, what are the tests, or gateways which the High Court is to apply to determine whether the Tribunal’s decision is “wrong”? There are 3 standard gateways to determining whether a decision is wrong. These are separate from the gateway for serious procedural or other irregularity.

Failure to give adequate reasons is a longstanding gateway for allowing an appeal. This was recently neatly summarised by Morris J in Byrne v GMC [2021] EWHC 2237 thus:

Thus, it is apparent that the scope of the duty to give reasons is a flexible one dependent on the complexity of the facts of the case and the need for fairness in explaining to the losing party the decisions of fact and the decisions on the credibility of the witnesses, so that the losing party on any point can understand why the decisions were reached and consider whether to appeal.

I start in 2007 with the judgment of Laws LJ in Raschid v GMC [2007] EWCA Civ. 46; 1 WLR 1460, an appeal against sanction case:

So, the Tribunal’s expertise and role is taken into account by the High Court in an appeal and deference and respect is given to that role and to the three purposes behind that role which the Tribunal is serving, namely: protection of the public, protection of the reputation of the medical profession, not punishment and maintenance of high standards. However, whereas the respect may be profound, the deference is not total. It is measured by reference to the test to be applied to determine whether the Tribunal’s decisions were wrong as to fact (or law).

The correct approach to the test in relation to appeals against findings of fact run by way of rehearing was considered by Sharp LJ and Dingemans J in the Divisional Court in General Medical Council v. Jagjivan [2017] 1 WLR 4438. The following principles were expounded (at paras. 39-40):

In Grizzly Business v Stena Drilling [2017] EWCA Civ. 94, the advantage which the trial Juge (or Tribunal) has over the appellate Court was summarised by Longmore, Lloyd Jones and Treacy LLJ. thus:

In relation to the Appellant’s appeal, which relates to alleged sexual misconduct, I take from this guidance that this Court must take into account that it is at a disadvantage when assessing the credibility of the witnesses who gave evidence in person at the Tribunal hearing. The members heard and saw them give evidence, I did not. All this Court can analyse is the transcript and the witness statements against the documentation. This is an obvious disadvantage when assessing honesty and credibility. I also take into account that, in relation to decisions of fact in sexual misconduct cases the deference to medical expertise may be less and in relation to inferences of fact (often called secondary findings of fact), the appellate Court’s “no live witness” disadvantage may be less of a hindrance.

The correct approach to appeals against stage 1 findings of fact was reconsidered by Warby J in R (Dutta) v GMC [2020] EWHC 1974 (Admin). This was a statutory appeal but Jagjivan was not cited before the Court. Warby J ruled as follows (I have put the long list of citations in the Appendix hereto):

The Dutta judgment shows how tricky it has been for appellate Courts to delineate the outer boundaries of the gateways, or the thresholds for an Appellant to satisfy, to succeed on rehearing appeals against findings of primary and secondary facts by tribunals. Clearly, if the Appellant proves that the Tribunal’s decision is Wednesbury unreasonable then the appeal will be granted. I say this despite what Warby J ruled in Dutta because I consider that when he said it is not the Wednesbury test, he was ruling that the test of “wrong” encompasses Wednesbury but goes beyond it. The Wednesbury test is used for judicial review and involves consideration of 3 classic gateways. Firstly, whether the Tribunal has made an irrational decision, in the sense that no reasonable Tribunal could have come to that decision on the evidence. Secondly, whether the Tribunal has taken into account matters which are irrelevant when reaching a material finding of fact (for instance skin colour, gender, religious beliefs, political allegiance). Thirdly, whether the Tribunal has failed to take into account a relevant matter when making a material finding of fact (for instance objectively independent documentary evidence stating the opposite). I set out Lord Greene’s classic ruling from Associated Provincial v Wednesbury Corp [1948] 1 KB 223, below:

This is settled law in judicial review. If the Tribunal’s decision is one no reasonable Tribunal could make then it will be held to have been wrong, but the courts have been trying to identify the boundaries of the 3rd gateway for what is “wrong” and how far beyond Wednesbury style unreasonableness they go.

For this gateway, which may exist at an evidential level below the level at which the evidence on appeal reaches Wednesbury unreasonable, I conclude that there are four threshold principles set out in the case law which make the gateway difficult to open: (1) the “deference and respect” and the “professional experience in the field” principle; (2) the “Tribunal heard and saw the live evidence” principle; (3) the “generous ambit of disagreement” principle. What is very clear to me is that this Court is not permitted to allow the appeal just because this Court disagrees with the Tribunal’s findings on one or more facts. Lawyers (and perhaps doctors) may honestly disagree over almost everything, but that is not a ground for allowing an appeal. These principles are what I think was behind the Privy Council’s thinking when ruling that appellate courts are “slow to interfere with findings of fact”. For instance, as Lord Rodger said in Gupta v GMC [2002] 1 WLR 1691, at para. 10:

So, does gateway 3 exist? If so, what are the boundaries of gateway 3 and how can the Appellant open this slow to open gateway? Warby J defined it as: “the test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible.” But what does that mean? All findings which resolve issues are a choice between conflicting evidence. Morris J considered the boundaries in Byrne v GMC [2021] EWHC 2237, an erasure case with sexual misconduct findings against the doctor. He tackled the gateway 3 boundaries head on thus (I have put the many case citations into the Appendix hereto):

I take away from this helpful summary of the case law and the previous high appellate case law, the following guiding principles. For gateway 3 of “wrong” to be opened, in relation to findings of fact, the appellate court must be satisfied on the balance of probabilities by the Appellant, on whose shoulders the burden of proof falls, that the findings of fact were wrong. I don’t think the word “plainly” adds anything myself and so will follow the guidance in Jagjivan. The burden of proof is the same for severe allegations as it is for less severe allegations. The “wrong” test, when dealing with cases not concerning: (1) a failure to give adequate reasons, and not involving (2) Wednesbury unreasonableness, (my gateway 2) is not easy to define. There are some clear steps necessary to get through. Firstly, the reason why the Tribunal was wrong. The appellate Court must decide that the finding of fact was wrong for a reason. That reason may that there was no evidence on which to make the finding or that there was a failure to give any weight to a piece of evidence which the appellate Court considers was weighty, or a failure to find a piece of evidence was relevant, when the appellate Court considers that it was directly relevant to making the factual finding. So, the existence of evidence and the weight and relevance are potential reasons. That reason may be that the Tribunal has misread, misunderstood, overlooked or forgotten a relevant and material piece of evidence when making a factual finding. Secondly, if there is a reason identified by the appellate Court, it must be a sufficiently powerful reason for the Court to decide that the Tribunal’s decision was wrong, such that it surmounts all of the three threshold principles set out above: (1) the “deference and respect/professional experience” principle; (2) the “Tribunal heard and saw the live evidence” principle; (3) the “generous ambit of disagreement” principle.

In this case the main issues involve findings which were based on a clash of evidence between two witnesses, the GP and the patient (PA), one of which was preferred over the other by the Tribunal. The assessment of the credibility of a witness’s evidence overall and on any core issue, by a Tribunal and by the Appellate court, involves using well known methods. By comparison with the contemporaneous medical notes. By assessing whether the chronological accounts given by each of the witnesses have been internally consistent or are contradictory or have been embellished. By assessing whether the accounts are consistent with external evidence and are corroborated by other witnesses or by objective documentary evidence including the medical notes. By assessing the witnesses’ behaviours peripheral to the asserted core evidence to see if they support the asserted core evidence. By assessing the witnesses’ motivations, personality, mental health and past history. By assessing the witness’ demeanour and way of giving evidence live in the hearing. In cases where there is no medical record and no third party contemporaneous note, the credibility of the protagonist and the antagonist may be more difficult to assess. Post event words and actions may be indicative or determinative and throughout all of these filters, the Court will take into account that memory is not perfect, it stores only what the witness saw, heard, smelt or read, it degrades with time, it may be manipulated quite honestly by the witnesses’ desire to be right or justified and it may be manipulated consciously or unconsciously when it is accessed by questioning for the purposes of writing witness statements.

Where a witness’ evidence (for instance the Appellant’s in this case) is not corroborated by any or any credible contemporaneous documents and where, despite any understandable inconsistency in the detail of the witness’ memory, the evidence is determined by the Tribunal as unreliable, or the evidence is rejected as lacking in credibility, the rationale and reasons for that decision by the Tribunal need to be considered by the appellate court and analysed in the context of all of the evidence. It is for this reason that the gateway 1 – the duty to provide adequate reasons - exists. For, if the parties and the appellate court cannot determine at least the basic reasons why one key clashing witness’ evidence was preferred over the other key witness, the function of the appellate court may be undermined. However, as was made clear in the authorities on the requirements laid down for the scope of and details required to be given in the reasons, the law does not impose too high a standard on the first instance Tribunal when giving its reasons after a hearing. Not all evidence is required to be summarised or analysed. Not all details are required to be set out.

The latest Court of Appeal authority cited by counsel in this appeal was Volpi v Volpi [2022] EWCA Civ. 464. In that case the Court was dealing with an appeal from a High Court Judge in a loan and property dispute. The appeal was on a pure question of fact. It was not a statutory appeal so PD 52D did not apply to the appeal. The appeal was not a rehearing, it was a review, but the same test, set out in CPR r.52.21, applied to the Court’s power to overturn. Lord Justice Lewison ruled thus:

I note that the word “plainly” has crept back into use in paras. (i) and (ii) having been disavowed by the Divisional Court in Jagjivan. That might have been a matter of form rather than substance, however I note that in the same sub-paragraph, Lewison J folded what I have called gateway 3 back into part of the Wednesbury unreasonableness test (my gateway 2) – namely that in relation to findings of fact, wrong means that no reasonable judge would reach the factual conclusion which the trial judge did. The guidance clearly covers reasons given by tribunals as well as Courts. Paras. (iii) and (vi) restate the well established guidance on the relatively undemanding requirements for the contents of a judgment or tribunal’s reasons. Para. (iv) restates the generous ambit of disagreement principle. The irrationality test, which is part of the Wednesbury unreasonableness criteria, is then recited in (v). Para. 5. then sets out the appellate court’s power in relation to secondary findings by inference. I do not read these guidance paragraphs as containing the whole scope of the test for what can be determined as wrong in relation to findings of fact. For instance, there is no reference to the other two parts of the Wednesbury reasonableness test, failing to take into account a relevant matter or taking into account an irrelevant matter. I take this guidance to be a reminder that the four threshold principles require this Court not to overturn the Tribunal’s findings of fact without a good and clear reason to determine it was wrong which justifies the ground of appeal passing over those thresholds.

I end this analysis with the judgment of Lord Briggs in Perry v Raleys [2019] UKSC 5.

This guidance is clear and firm. The three threshold principles are set out. Where the appeal is against a finding of fact, and it is not made on the grounds of lack of reasoning in the judgment (gateway 1), or procedural unfairness (a different gateway), the test for the appellate Court to apply is to determine whether no reasonable judge would have made the finding of fact or whether there was no evidence to support the finding of fact. In my judgment this amounts to the same thing, because no reasonable judge could make a finding of fact on no evidence. This formulation clearly encompasses gateway 2: Wednesbury unreasonableness, but does it go further? Two oft used phrases in grounds of appeal, which were used by the Appellant in the appeal before me, are that the Tribunal “misread” the evidence and/or that the finding was “against the weight” of the evidence. Lord Briggs included examples of where the tribunal “misunderstood” material evidence or overlooked it. It seems to me that the question whether such a ground comes within gateway 3 depends on the circumstances and whether the misreading of or the weight of the contra-finding evidence is sufficient to satisfy the three threshold principles and lead to the appellate Court concluding that the finding was wrong. So, for instance, misreading a witness statement as asserting a traffic light was “red” when in fact what was written was that it was “green”, would amount to a finding which no reasonable Tribunal could make. But that is within gateway 2. However, preferring the evidence of one eye-witness over another, may fall foul of the three threshold principles and be insufficient to make a finding that the Tribunal was wrong. If a Tribunal makes the challenged finding of fact on the live or written evidence of a witness, that is some evidence, it is not “no evidence”, so powerful reasons are going to be needed for the appellate Court to find that “no reasonable” Tribunal could have reached that finding. With the above guidance in mind I now turn to the facts.

Before I consider the evidence in relation to the disputed facts, I shall set out the many facts which were not in dispute and the facts which were admitted. PA attended the surgery on the 18th of March 2020 as the Appellant’s first patient. During the attendance, which lasted for more than half an hour, he took notes of her symptoms and examined PA with her top off in the presence of a chaperone (Michelle). He made notes in relation to her past history, his examination findings, his plan and the recommended treatment. The notes made were not disputed. I have already set them out above. The Appellant admitted making a handwritten note during the morning examination of the address and mobile phone number of PA and using that to make the evening phone calls. The Appellant also admitted to working in the surgery until 4.30 on patients’ case files, then thereafter on his own learning matters and then leaving the surgery and making a phone call to PA at approximately 7.15 pm for less than a minute whilst he was in the surgery car park. She consented to him making a home visit. Then, he drove over and a little later, he admitted making a second phone call for about 6 minutes during which he asked for and received directions to PA’s apartment. Both calls were made on his personal mobile phone. The Appellant admitted entering PA's flat with her consent, having a conversation with her, touching a part of her back to indicate where massage would be best focused, giving her a one armed hug and then departing because PA, having left the room for a few seconds returned with massage oil. The Appellant also admitted calling PA the following evening after 7:00 pm and having a further conversation with her. The Appellant admitted wholly failing to make any notes of the home visit or the three mobile phone calls with PA.

Certain other facts were not disputed. So, it was not disputed that the Appellant was born and brought up in Barbados, qualified as a teacher and worked as a secondary school science teacher. He was married and had two children. He then changed to qualify as a medical doctor in Cuba. This took seven years and involved some hospital work in the last two years. He then moved to the UK in 2007 with his wife and children. He had a visa as a spouse of a British citizen. He then passed the PLAB exams for foreign doctors to transfer to work in the UK and between 2007 and 2016 (9 years) worked as a locum SHO in various hospitals around the East of London whilst his visa was sorted out. When he became a British Citizen he was allowed to specialise and he chose to specialise as a GP. He started a four year traineeship in August 2016. He was coming to the end of his last five months of being a trainee when the events occurred. He qualified fully in August 2020.

In relation to PA and her health and history, very little evidence was put before the Tribunal. Her GP notes from her previous GP surgery were not requested. The undisputed facts were that she was aged 57, divorced and in work but operating under a cloud of redundancy at the relevant time. She was renting an apartment and lived alone. She registered at the surgery in Waltham Abbey on 3.1.2020, where the Appellant had been working since August 2018. That surgery was run by Doctor Dabas who was also the training supervisor for the Appellant. She attended at the surgery on multiple occasions from January through to 18th March 2020. According to her medical notes, on 8.1.2020 she had an alcohol screening and informed the surgery that she did not smoke. On 17.1.2020 she was allocated Doctor Dabas as her accountable GP to co-ordinate her care and was so informed. On 23.1.2020 PA was examined by the nurse who recorded her heart rate, blood pressure and history. She had transferred from Holywell and Attenborough Surgery. She had no allergies. She had a history noted of stomach pain but no vomiting. On examination her abdomen was soft and non-tender, but she had generalised abdominal discomfort and hyperactive bowel sounds. The tentative diagnosis was gastritis. She requested medication. Results were to be chased in a week. On 28.1.2020 PA came to the surgery and met a GP called Doctor Tanna. Dietary advice was given (weight 62.7kg, BMI 23). She was issued with an unfit to work certificate. Her complaint was worsening gastritis. A stool sample had been sent off. No diarrhoea or vomiting was noted. She complained of ongoing nausea and heartburn in the past few days. No chest pain and no shortness of breath were noted. On examination she was alert and was not febrile. ENT examination showed: nothing abnormal, “abdo snt” (I do not know what that meant). She was advised to switch her PPI medication (proton pump inhibitor). “d/c red flags” were noted. If there was no improvement in symptoms in 2 weeks she was advised to go for private referral. Her test results came back on 28.1.2020 showing no Helicobacter Pylor detected from her stool sample.

On 3.2.2020 PA attended and was examined by the Appellant for the first time. Her history was noted as: having stomach pains for 2 weeks; nausea but no vomiting; had been taking Omeprazole (a PPI) for 15 years and had the pills changed 1 week ago; normal stools and regular as compared to normal (constipated); reduced appetite; denied weight loss; her *** and *** had died of lung cancer and her *** had current prostate cancer. On examination she weighed 63.4 kg. A chaperone was noted as present for the examination (Helen). The diagnosis was gastritis, but the cause was unknown. The plan was that the patient wanted a private referral for faster treatment. She was advised to continue to take her PPI medication and to return if her symptoms worsened. Seven pieces of correspondence were thereafter entered on the system relating to her private tests and results for a gastroscopy and gastroenterology examination. On 10.2.2020 PA returned and saw the Appellant. The history was that she brought in a letter and was due to be seen for discussion of biopsy results on 25.2.2020 in the private system. She was complaining of a cough and hoarse voice. On examination (without chaperone) her chest was clear and the diagnosis was gastric polyps, viral “URTI” (upper respiratory tract infection). The plan was to take Paracetamol as needed, eat on time, stay erect after meals for 1 hour, to avoid eating spicy food. There was further correspondence noted in particular on 25.2.2020 about a duodenal adenoma found on gastronomy and referral for endoscopy.

On 27.2.2020 PA attended and saw the Appellant for the third time. She brought in a report, she was due for colonoscopy and asked for more PPI (Omeprazole). I note that this was a reversion back to the PPI she used to take before Doctor Tanna changed the PPI. The diagnosis was duodenal adenoma. Further correspondence with the private system took place on 28.2.2020.

On 2.3.2020 PA attended and saw Doctor Barai complaining of stomach cramps. She had no temperature. Her history was that she had had a colonoscopy and had suffered no nausea and vomiting since. No blood in stool. The colonoscopy had been challenging because she had undergone hysterectomy previously and her colon was contorted. A query was raised as to an adhesion which may have caused some bruising during the colonoscopy. She was reassured and advised to return/seek urgent medical attention if her symptoms increased or she found blood in her stool. The results came in soon thereafter and the colonoscopy, done on 29.2.2020, found everything to be normal. She was diagnosed with gastric and duodenal polyps. PA was to be reviewed on 17.3.2020 by the gastroenterologist.

On 13.3.2020 the surgery received a call and noted it was from “George”, a counsellor at Lifeworks, who was concerned for PA who had taken 4 paracetamol and 1 amitriptyline in her attempt to “take her life”. The Surgery called PA and noted she was going away for a few days.

On 18.3.2020 PA attended for the disputed examination. The notes made are set out below with the typing/printing errors:

There were no medical notes made by the Appellant relating to his phone calls to PA in the evening of 18.3.2020, or his home visit or his phone call to PA on 19.3.2020. PA contacted the police on 20.3.2020 and complained that the Appellant had given her a massage at her flat and massaged her breasts. The police took a witness statement on 20.3.2020. They contacted the surgery on 23.3.2020 and asked them not to investigate the allegations until the police had done so. They took a statement from the Appellant and the police closed the investigation in around June 2020.

On 1.7.2020 the Appellant made retrospective entries in the notes after the police investigation had been closed with no charges laid. It stated as follows:

The Tribunal heard evidence live from PA, Doctor Dabas, the Appellant, K Baluja, M Mullally, and Mr. Allum. They read the evidence in witness statements from S Green, K Brooks-Brown, E Huckstep, K Barford and H Houghton.

The Tribunal had a bundle before them of documents. That was copied into the appeal bundle.

The Tribunal set out some of the basic facts. I have summarised more above. They described three applications which had been made, only one of which is relevant to the appeal. They refused the Appellant’s application to permit one of the Appellant’s witnesses, Michelle Mullally, to try to identify PA by looking at a photo taken from her Facebook page. The Tribunal then set out the allegations and the admitted facts, listed the evidence they had considered and set out their approach to proof, clearly stating that the burden was on the GMC and the standard used was the balance of probabilities. In relation to credibility, they stressed that they did not just assess the witnesses’ demeanour. They recognised that credibility was divisible and they took into account the Appellant’s good character. When considering sexual motivation they relied on Basson v GMC [2018] EWHC 505, which defined sexual motivation as conduct in pursuit of sexual gratification or future sexual relationships. They then analysed the evidence of the two key witnesses. They identified the major disagreement related to the events at PA's apartment and that they needed to prefer one account or the other.

Pausing there, I do not consider that this was the correct approach in law. Firstly, they needed to assess whether the GMC had discharged the burden of proof that the events at the apartment occurred by considering whether to accept that the evidence of PA was sufficiently credible in itself and when compared with all the other evidence. If her evidence was insufficiently credible, there was no need to go further. Then they needed to consider whether the evidence from the Appellant and all the other evidence was to be preferred such that they preferred her evidence over his.

The Tribunal considered the medical records and the phone records and the Appellant’s retrospective note. In relation to Michelle Mullally’s evidence, which had been provided in a witness statement dated 18 months after the event, they considered it was vague and the best she could say was that in reference to a patient where she was chaperoning an examination by the Appellant the patient seemed “odd”. They noted that PA complained to the police on the 20th of March, two days after the events at the apartment and one day after the last phone call and they compared PA’s witness statements to the police with that made to the GMC. In relation to the first consultation on the 3rd of February 2020 the Tribunal noted that PA asserted that the Appellant said that he had worries about PA having cancer which led to a gastroscopy and a colonoscopy. In relation to the 18th of March 2020 consultation PA had said the Appellant had told PA he would “call her later to see how she was getting on”. Whereas the Appellant had asserted that he had concerns for her mental health and that PA had asked him to come for “a cup of tea” later. The Tribunal noted the call from the Lifeworks counsellor to the surgery expressing concern that PA had attempted suicide. The Appellant had recorded that PA was losing her job and had felt suicidal. She complained of pain in her chest and shoulder and he diagnosed a strain to her intercostal muscles and left shoulder. He recommended gentle stretches, massage and taking Paracetamol. He did not note that PA was either tearful or obviously depressed and he did note a “good rapport”. He asserted he was due to end seeing patients at midday but worked on later into the afternoon and then called her to see if she needed a visit and she agreed. He stated he left the surgery and explained he had used his mobile phone, not the work phone, to ensure he had PA’s number so he would not get lost. The Tribunal noted the supportive witness evidence that the Appellant was a “cautious” GP and used chaperones during examination. They noted the evidence of Doctor Dabas that home visits were usually for patients with mobility problems but ultimately it was a matter for clinical judgment. They noted no medical notes were made of the home visit or of the patient’s mental health issues. They noted the police safeguarding unit contacted the surgery on the 23rd of March, by which stage there was still no note made by the Appellant relating to the 18th or 19th of March, despite him having been in work since those dates. The Tribunal accepted as a fact that PA had mental health issues but noted that no note had been made of those in the Appellant’s consultation record on 18.3.2020. They were not persuaded that a home visit was “required” and also noted that, despite the Appellant's concern about the suicide attempt using Paracetamol, he himself prescribed more of it. They rejected the Appellant’s submission that the alleged assault was unlikely because the Appellant had been told by PA that a visitor was arriving later. The Tribunal considered the evidence of Mr. Allum, in relation to the Appellant’s Osgood-Schlatter’s disease, which he asserted made it impossible for him to kneel. They accepted Mr. Allum’s evidence that kneeling would cause symptoms but noted that the Appellant had told Mr. Allum that he used knee pads when kneeling and the Tribunal found that crouching or kneeling was not impossible for the Appellant. They found that on the 19th of March the Appellant called PA and asked “have you found the oil yet?” and that it “would be good to hook up again”. They accepted PA’s evidence that the Appellant stated he was calling from a supermarket and was acting as if they were in a relationship. They noted a discrepancy in PA’s evidence in that she asserted this call happened in the afternoon, whereas the phone records confirmed it was in the evening. The Appellant asserted the call confirmed that PA was coping and she raised no concerns about the previous home visit. He asserted he advised her to call the surgery if she had any problems. They noted the contradiction in the Appellant’s evidence when he said he was concerned that PA might be making an advance during the home visit, yet he still called her the next day and failed to make any report to his surgery or make any note in her medical records of his concerns. Therefore, the Tribunal considered it was unlikely that the Appellant had called PA for clinical reasons on 19.3.2020. In relation to PA’s witness statements, they considered there were inconsistencies, but they considered them to be understandable. On the core events they found her evidence to have been consistent. They compared her evidence with the Appellant’s evidence and explanations and they found his explanations to be “implausible”. They considered the witness statements and evidence supporting the Appellant’s good character and good behaviour at work in the surgery, but discounted this because it did not occur outside the surgery. They found PA’s evidence to have been specific and consistent on the core allegations and they were persuaded by her very timely complaint to the police. Therefore, they preferred PA's evidence in all aspects and relied upon the evidence she set out in her police witness statement, but not the evidence she set out in her later GMC statement.

In relation to the findings on each of the five allegations, the Tribunal found three not proven. They did not find that the Appellant had a sexual motivation at the time of the examination on the morning of the 18th of March when he was writing down PA's phone number. They did not find that that the Appellant asked PA, whilst on the home visit, about her bedroom and they did not find that the Appellant pushed his penis against PA’s hand during the massage. However, they found all of the other allegations proven. They accepted that the Appellant told PA to take off her bra and gave PA a breast massage, which they held was inappropriate inter alia because she was a vulnerable patient. They found that he hugged her twice at the flat and they found that on the next day he called PA for reasons other than clinical or medical. In relation to consent, they took into account section at 74 of the Sexual Offences Act 2003, which defined consent as agreeing by choice with freedom and capacity to choose. They noted that PA accepted that she let the Appellant into her flat and did not resist the suggestion of massage or the taking off her bra. Her explanation was that she believed it was medical. The Tribunal found that she did not provide true consent because she had a sense of confusion, fear and duress and because she trusted the doctor as his patient. Therefore, they found that PA did not consent to the actions. They found that the Appellant’s actions were all related to sexual motivation and were inappropriate behaviours. On the Appellant’s admission they found that he breached professional standards by failing to make any medical notes.

The Appellant sets out 10 paragraphs in support of his appeal in relation to the finding of sexual motivation. The first three come down to an assertion that the Tribunal failed properly to consider that the Appellant was a trainee GP who grew up in Barbados and was trained in Cuba. However, no submission or foundation for satisfying an appeal gateway is set out in those paragraphs. The next submission relied on the evidence of Doctor Dabas who, it was submitted, gave evidence that the decision whether to make a home visit was one for the doctor concerned based on the information available. It was submitted that her evidence was to the effect that, although home visits would usually be made for patients who were unable to attend the surgery, doctors could use their own judgment without any specific request. It was submitted there was no evidence from any medical expert witness to the effect that it was inappropriate for the Appellant to consider a home visit to PA in all of the circumstances. It was submitted that the Tribunal put the bar too high firstly by reversing the burden of proof and secondly by requiring the Appellant to prove a need or a requirement for a home visit. Further, the Appellant submitted that, according to Doctor Dabas, as a trainee GP, who was very conscientious, he had simply committed an error of judgment. It was submitted that the Tribunal was not bound to accept Doctor Dabas's view but instead should have considered the possibility that his relative inexperience and his concern that PA might be more comfortable opening up about her mental health issues in her own home, justified the visit. The Appellant asserted the Tribunal did not even consider the Appellant’s evidence on this issue. It was submitted that the Tribunal clearly misled itself as to the proper legal approach. They should have considered and excluded all other possibilities first before concluding that sexual motivation was present. Further, it was submitted that having reached the decision on the after work phone call on the 18th of March being unjustifiable, save for sexual motivation purposes, the Tribunal then went on to prefer PA’s account and that approach was flawed. In relation to the post event phone call on the 19th of March the Appellant submitted that, on his own evidence, his phone call was justifiable to see how she was getting on. The Appellant submitted the Tribunal did not explain why that call was unlikely to be for clinical reasons, save to say that there was no credible explanation for it. He again relied on being a trainee GP and his lack of experience. Finally, the Appellant explained his failure to make notes was due to being busy and due to COVID yet the Tribunal failed to mention this in the reasons for the decisions.

The Tribunal acknowledged the Appellant’s good character but the Appellant complains that the Tribunal decided to place limited weight on the character evidence because the complained of events took place away from the surgery. The Appellant relied on the character evidence coming from female patients and female colleagues and asserted that the Tribunal’s decision to give no weight to the evidence about his wholly appropriate behaviour with female patients and colleagues was wrong.

The Appellant submitted that the Tribunal failed to deal with the real issue arising from Mr Allen's expert evidence and reversed the burden of proof. They focused on whether it was possible or impossible for the Appellant to kneel.

In this ground the Appellant asserts that the Tribunal should have put more weight on Miss Mullally’s live evidence and should have permitted her to identify PA from a photograph from PA’s Facebook pages. After the GMC objected to photograph identification the Tribunal refused permission for that form of identification. The Tribunal's findings on her evidence, that a patient seen by the Appellant while she was chaperoning was “odd” was criticised. It was asserted that the Tribunal confused admissibility with the weight of the evidence. The Appellant conceded that the in Court identification might properly be treated with caution, but submits that being denied the opportunity to explore the identification and present his best case was wrong.

The Appellant put forward a long list of inconsistencies in PA’s evidence, in her witness statements and her live before the Tribunal. It was asserted that PA was wrong on a wide range of issues and that the Tribunal should have found her to be an unreliable witness on the core issues as a result. The Appellant prayed in aid the Tribunal's rejection of PA's evidence that he pressed his penis onto her hand. In particular the Appellant relied on PA’s errors recalling the length of the appointments with the Appellant; the number of times she saw the Appellant; whether she saw any other doctors at the surgery; her psoriasis; the discussion of her suicide attempt at the consultation on the 18th of March; her inconsistent accounts about the time when her friend was due to arrive at her apartment; her inconsistent accounts of whether the Appellant was kneeling or crouching during the massage; her plainly wrong evidence that she had never received a letter from the practice following her complaint, setting out the Appellant's version of events, despite a clear record by the practice of a conversation with her in which she confirmed receiving it; her denial that she had ever been told of the contents of the Appellant’s original denial after the allegations arose and his assertion that she had invited him over for a “cup of tea”. For these reasons the Appellant asserted that the Tribunal misread the evidence. I work on the basis that that means the Appellant is submitting that the Tribunal was wrong to accept that PA’s evidence on the core issues was credible and their findings on that should be quashed.

It was submitted that the Tribunal was wrong to reject four submissions made by the Appellant. At the Tribunal hearing he had asserted that: because he knew a friend was visiting PA, at about the time he was there, it would have been unlikely he would have massaged her breasts for fear of being discovered. It was further asserted that the Appellant was entitled to believe PA was comfortable with him carrying out a home visit because she agreed to it on the phone and directed him to her apartment. It was asserted that a guilty man would have made notes of the home visit to cover up his sexual activities, whereas an innocent man might not through being busy and because of Covid. It was asserted that the Tribunal failed to give weight to his testimonial evidence that he was a conscientious and dedicated trainee GP.

These two grounds of appeal really flowed from the earlier 6 grounds. The Appellant submitted that if this appeal Court quashes one or more of the core findings of fact then these grounds of appeal are triggered.

Overall, the Appellant submitted that the factual findings were wrong and could not be sustained on a fair reading of the evidence before the Tribunal. In his skeleton the Appellant relied on the judgement of laws LJ in Rashid at paragraphs 19 and 20 and the judgment of Auld LJ in Meadow at paragraph 197. The Appellant therefore submitted that the Tribunal failed to assess PA's credibility by reference to the contemporaneous documents, namely the medical records, about which she was inconsistent and contradictory.

Ground 1. The Respondent submitted that the Tribunal had been well aware that the Appellant was a trainee and addressed his explanation for the home visit in their reasons. The Respondent submitted his cautious nature in surgery was to be compared with his lack of caution on the unchaperoned home visit. He had always required chaperones when examining PA in clinic. The Respondent relied on the complete absence of medical records made on the morning of the 18th of March, during the examination, to support the Appellant’s asserted worries about PA's mental health. It was not mentioned in the diagnosis or in the suggested treatment plan. The Tribunal took into account that the Appellant did not use his work phone for what he said was work and they rejected his assertion that PA had asked him to come for a “cup of tea” inter alia because he made no record of that request. He also made no record of his phone calls on the 18th and the 19th of March relating to the home visit. The Respondent asserted that this was suspicious. The Tribunal therefore rejected the Appellant’s post event reasons, expressly applying the correct burden of proof.

Ground 2. The Respondent submitted that the Tribunal was right to consider that the Appellant's conduct at work was less relevant, in view of the fact that the alleged events occurred outside work.

Ground 3. The Respondent submitted that the Tribunal’s reasons showed they had carefully considered the evidence of Mr. Allum and they were correct to rule that kneeling was not impossible for short periods. The rest of his evidence was not really material.

Ground 4. Miss Mullally was the surgery reception manager. The Respondent submitted that one reason why her suggested ID by photograph in Court would be unfair was that it was so long after the event. The Respondent submitted this was a case management decision and was not a serious procedural error. In any event Miss Mullally's evidence was nothing more than that she couldn't recall the examination and all she suggested was that an unknown patient had behaved “oddly” during one chaperoned examination which she observed, which evidence had no significant probative value.

Ground 5. The Respondent submitted that the Tribunal had expressly found various inconsistencies related to the details and the logistics of PA’s attendances at the surgery, but did not find inconsistencies in her core evidence about the massage. The Respondent pointed out that the penis allegation was not in the police witness statement and so the Tribunal did not accept it. PA had also said that she had assumed that it was the Appellant's penis against her hand, she did not say that she was sure. Therefore, it was right for the Tribunal to find that this was not either dishonest or an embellishment.

Ground 6. The Respondent pointed out that the Appellant’s submissions failed before the Tribunal as submissions often do. The Tribunal rightly rejected the logic behind the submission that the Appellant would not have carried out the breast massage in the knowledge that a guest was coming round. Likewise, that a guilty man would have made medical notes. The Respondent submitted both were pure speculation about what dishonest or guilty men would do.

Grounds 7 and 8. The Respondent submitted that these grounds were parasitic upon the result of the earlier grounds of appeal.

PA’s evidence. In her witness statement to the police, made a mere 2 days after the alleged events, PA asserted that she had seen the Appellant about four times at the surgery. She asserted she had suffered stomach pain since mid-February 2020. According to the medical notes that was inaccurate because she first complained in mid-January 2020. She recalled one of the earlier surgery visits when she saw the Appellant and he set out her options. Then she went to private hospitals and had blood scans. She went back to see the Appellant but saw another doctor. Later she saw the Appellant. She complained that he would take 45 minutes with her each time and would walk her out to reception to get her letter. That was a very odd complaint in view of the evidence that the examinations did not take 45 minutes. Why would it be wrong for a GP to spend more time with a patient rather than less? or to be kind and walk her to reception? About the 18th of March consultation, PA asserted she was at the hospital the night before and went to get her medication from the Appellant. He checked her over and he “always” used a chaperone. At the end of the consultation, he checked the last three numbers of her mobile phone number and wrote them on a piece of paper and he said he would give her a call later to see how she was getting on. She said he seemed “very caring.” She asserted she had arranged for a friend to visit at 8:15 pm and at 7:15 pm the Appellant called, asked whereabouts her flat was, said he was round the corner and could come round and she agreed to him doing so. He called back 10 minutes later for directions, she saw his car out of the window and gave directions, he buzzed the intercom and she let him in. They sat down. She asserted he asked whether one of the rooms was her bedroom, looked at it and said it looked like a show bedroom and she found this really strange. He asked how many bedrooms and she answered two. He said he should rent a room there and she found that inappropriate. Pausing there, as a 57 year old divorced woman with capacity, she was perfectly capable at that stage of saying that she was uncomfortable or that he should not speak like that, but she did not. Likewise, she was perfectly capable of saying no to his suggestion of a home visit, but she did not. PA went on to suggest that the conversation turned to her physical pain and he said she had tense muscles. He asked what she was doing for the rest of the evening. She mentioned her friend was coming round. The Appellant suggested the friend could give her a massage and she replied he wasn't that type of friend. The Appellant then said that he could give PA massage quickly before her friend arrived. He asked if she had oil. Pausing there, PA as an adult woman with capacity, in her own home, with a friend who was coming round soon, could have said “no you're not giving me a massage”, but she did not. She went to get the baby oil. This was undisputed and a wholly voluntary act, save that it was done in the context of a doctor/patient relationship. The Appellant rearranged the sofa and the coffee table and the cushions and she lay face down on her own sofa. She asserted that he crouched beside her and asked her to take her top off, which she did. Pausing there, she made no objection to this suggestion. The Appellant then massaged her back and undid her bra strap, which she says made her feel uncomfortable. Pausing there, she did not ask him to stop. He moved her leggings slightly but didn't touch her bottom. He asked her to turn over and she did. She held the bra to her chest then, because he said he had “seen it all before”, she placed her bra to one side, exposing her breasts. She explained this by saying that she trusted him. It is difficult, objectively, to understand what trust has to do with her taking her top off and allowing him to massage her and then taking her bra away, save to understand that she trusted him only to massage her naked top half. If she did not wish to take off her bra she could have refused to do so. She says he massaged her neck and shoulders, then breasts, then under her breasts and then her stomach. The total time taken was about 5 minutes, then he got up and moved away. She put on her bra and shirt and he offered to help with her bra. He bear hugged her and said that he would bring oil next time and the massage could be longer. They hugged again and on his way out he said she would never get treatment like that at the surgery and left. PA asserted that she told her friend afterwards. However, it should be noted that she did not call her friend (Geoff) to give evidence and in cross examination said that her friend had fallen out with her and she no longer knew where he was. Therefore, that corroboration (or undermining evidence) was not available to her. In the police witness statement she went on to say that the Appellant called her in the evening on the 19th of March and talked to her, as if they were friends and asked whether she had oil and whether they could “hook up”. She asserted she was in shock. She said that he said he would call her again the next day. She asserted to the police that she was currently unemployed, recently redundant, financially stressed and had decided previously to take her own life because she felt so low, however she was given a helpline and given advice. She explained that she trusted the Appellant and that he had abused her trust and she was afraid because he knew her phone number.

In PA’s GMC witness statement, dated November 2021, she asserted that the first appointment at the surgery with the Appellant was an hour long. She changed her evidence to accept the chest pain started in January 2020 and stated that she couldn't work. She accepted that she was advised by the Appellant in the earlier examinations that she might have cancer in the light of her family history. Contradicting her earlier statement in relation to chaperones, she asserted that she had not had a chaperone the first time the Appellant had examined her. The medical notes clearly show she was wrong about that. At para. 10 she asserted that she was “shocked” on receiving the first phone call on 18.3.2020. That was clearly untrue. Firstly, because on her own evidence he had said to her that morning that he would call her. Secondly, because she did not say that in her police witness statement and thirdly, because there was nothing in her evidence about the contents of the conversation which was shocking. Fourthly, because she agreed to him dropping by. Later, during the events at the flat, she asserted that she had told the Appellant that her friend was coming at 7:30 pm contradicting her police witness statement which was that her friend was coming at 8:15 pm. She raised, for the first time, that she had a crumbling disc in her neck and that was the reason for her neck and shoulder pain. That was wholly absent from her police statement or her medical records. She asserted, contradicting her police statement, that the Appellant was kneeling during the massage rather than crouching. She asserted, for the first time, that she felt what she assumed was an erection pressing against her hand on the sofa and that he massaged her nipples. She further contradicted her earlier witness statement by saying that the call on the 19th of March was at lunchtime not in the evening.

Reading the transcript of PA’s evidence to the Tribunal it is clear that her recollection of events before the Appellant entered her flat on the 18th of March 2020 was wholly unreliable and full of contradictions. Under careful, professional, cross examination by Mr. Jenkins, she accepted that in her GMC witness statement she was incorrect to assert that the first time she met the Appellant was in March 2020. She accepted that she was wrong to assert that she had met the Appellant only three times when in fact it was four. She asserted that she was in the first examination for about an hour. It was put to her that in fact it was 20 minutes or less. She asserted that two of the consultations with the Appellant were about an hour long, when they clearly weren't. She could not remember whether she had seen another doctor at the practice. She asserted again that there was no chaperone the first time he examined her, which is flatly contradicted by the medical notes made at the time (the named chaperone was Helen). Later she asserted she was actually made redundant at the end of April 2020 but accepted that she had told the police in her witness statement on the 20th of March that she was unemployed. She could not remember how she made appointments at the surgery. She could not remember that she had been to hospital on the day before the examination on the 18th of March. She did not know whether she had seen Doctor Barai at the surgery. In relation to her attempted suicide, the questions and answers were as follows:

An objective reading of that evidence about PA not taking any tablets, then admitting she did take some tablets, then asserting she found it hard to swallow tablets, when her notes show that she had taken PPI tablets for 15 years, leads me to conclude that PA was objectively unreliable in relation to this evidence. PA later asserted that she couldn't remember whether she made the appointment on the 18th of March 2020, could not remember why she went to the appointment, could not remember whether she still had tummy problems, could not remember whether she had tenderness around her chest and refused to accept that her left shoulder was sore, despite the clear notes made by the Appellant that it was. She accepted the Appellant’s note that she had psoriasis but asserted she had never had it on her chest or on her back, denying his record that he saw it there. She then denied that he examined her for psoriasis. This is the next passage of questions:

PA did not recall seeing Doctor Tanna at the surgery earlier on. She went on to say that she did not recall any discussion about medication during the 18.3.2020 examination however, she accepted such a discussion would have been reasonable. She asserted that the Appellant was always talking about other things during examinations, like her family history with cancer and she thought this was “irrelevant” because it scared her. However, she immediately contradicted herself and accepted that it was relevant if he was concerned about her having gut cancer. She couldn't remember having chest or left shoulder discomfort. She again denied that she had ever had a chaperone in a consultation with the Appellant before the 18th of March, which was clearly wrong. Finally, she stated that:

Despite this assertion she went on to assert that the Appellant stated, during the conversation on 18.3.2020, that he would like to “give her a call later” and took down her number and put it on a post it note in front of his computer. She then stated that she may herself have written it down on the piece of paper. It was in that context that PA denied that she had asked him to come round for a cup of tea and a chat.

Later in her evidence she asserted that she did not get a letter from the surgery on the 6th of July 2020 explaining what the Appellant said had happened on 18 March and during the home visit. She asserted as follows:

Looking at that evidence objectively and dispassionately, it does not make any sense and is contradictory. PA asserted that she never invited people round unless they were very, very close friends. Yet that very evening she had invited a guest called “Geoff”. But, within 2-3 years she was no longer friends with Geoff and she had lost contact with him. PA also asserted that the Appellant rang her when he was outside her flat which was untrue. The agreed evidence was that the first time he called he asked if he could come to her flat and she agreed and 10 minutes later he called again when he was lost outside her flat. If PA was so against visitors she could have said no then. In addition, her assertion that she was shocked was clearly not true. She had not asserted that to the police and she herself accepted that he had told her in the consultation that he would call her later that day.

The next piece of evidence which PA gave which was contradictory is set out below and concerned a letter sent by the surgery to PA in July 2020 setting out the Appellant’s denial of the massage and his evidence on what happened.

By any reasonable, objective standard this series of answers by PA was unimpressive and incredible. The Tribunal had, in their bundle, the note taken by Sara Green which set out the conversation she had had with PA on 14.7.2020 about the Appellant’s version of events which had been sent to her in the letter. Ms. Green’s witness statement supported the note and it was accepted without the need to call her. PA accepted, in the phone call in July 2020, that she had received the letter. Yet in evidence she denied receiving the letter and asserted she had never previously known that the Appellant’s case involved asserting she had asked him to come for a “cup of tea”. In evidence she could have apologised for forgetting this letter but she did not. She never conceded the point. This has troubled me greatly.

Doctor Dabas. Her witness statement was dated January 2022. She saw the Appellant as his supervisor almost every day and provided 3 hour weekly tutorials. In relation to the home visit policy at the surgery she accepted there was no written policy but stated the Appellant shadowed her and learned the policy. The Appellant had been doing home visits for about a year by the time of the events. Home visits were mainly for elderly or housebound patients who requested them, so they were request driven. After requests there would be a telephone triage and then a visit, if justified. Mainly, they occurred between midday and 3:00 pm and were rare after 4:00 pm. Home visits were listed on the appointments screen. Doctor Dabas stated that the Appellant had been investigated by the Health Education Board and given a final warning. In her live evidence she confirmed her witness statement and in cross examination did not move from it. She confirmed that she wrote to the MPTS asking them not to pursue the disciplinary proceedings. She stated that during the time at her practise there had been no complaints or concerns about the Appellant’s professional conduct. She asserted that this was an isolated incident of lack of judgment in which the Appellant put himself in a vulnerable position. She considered that the Appellant had been naive. In answer to questions from the Tribunal she said this:

The Appellant’s evidence. The Appellant provided a witness statement to the police and the Police/CPS did not prosecute him. The tribunal were not given that statement. He provided the Tribunal with a statement dated 17.11.2022, drafted with the assistance of the MDU. He set out his background and went through the medical records for PA. His evidence on the examination on the 18th of March was in line with his medical notes. He added that he had read her prior medical notes and the note of the telephone call from the counsellor about her suicide attempt. He stated Michelle Mullally was the chaperone. He added in his evidence further factual assertions to what was set out in the medical notes. He asserted that PA asked him to pop over “for a cup of tea”. He asserted that she had low mood so he thought she would “open up” more. He asserted he needed to see other patients, but he thought the information from the counsellor and PA were potentially significant and, despite the fact that she was not obviously depressed, tearful or struggling to engage and despite the fact that she entered into the examination with good report, he responded that he would “try to come” and he made a note to call her later. He denied that he asked for her mobile number. He admitted he called her in the evening and stated that he then left the surgery. He admitted the second phone call to get directions. He accepted that he complemented her flat during the visit and was told she had a guest coming later. He stated she expressed concern about her monthly rental cost of £1150 pcm, talked about her boss and receiving two months’ pay for redundancy and that she had to train up someone else to do her job. He asserted they spoke about her chest pain and then that she said “wait”, left the room and returned with massage oil. He asserted, in the witness statement, that he did not recall saying that she needed a massage but this was “possible”. He denied offering the massage. He denied asking for the oil. He asserted he was anxious because he thought that PA was making an advance to him, so he decided to leave. He suggested she asked her friend to carry out the massage with gel or a cream and touched her back to show where, through her clothing. He asserted that his knee condition caused significant discomfort if he kneeled and that therefore he tried to avoid doing so. He said that he called the next day to make sure she was coping. He apologised for failing to make medical notes. In his reflection document he accepted he had to improve his record keeping and needed to be more careful with home visits. He had done courses on boundaries and record keeping. His retrospective entry dated the 25th of June 2020 is set out above. I note in relation to that entry that he made no mention of massage oil, or any concerns about her behaviour, he did not record the mobile phone calls he made to PA at all.

The Appellant’s evidence to the Tribunal. He was a biology and chemistry teacher in Barbados at secondary school level. The rest of his evidence leading up to cross examination on the home visit is unremarkable, although he accepted he was trained in respect of home visits by Doctor Dabas. He accepted that there was a triage process before home visits were listed in the surgery diary. He refused to accept that home visits were for housebound patients and asserted that it was wholly up to the doctor's discretion. Pausing there, that was not the tenor of Doctor Dabas’ evidence at all, in my judgment. The Appellant’s evidence in cross examination on his justification for carrying out an evening home visit, without using the surgery’s established procedure, was evasive. The following question and answer gave, perhaps, an insight into the tone of his evidence:

The Appellant was asked about his “cup of tea” evidence and his rationale for making the home visit, which he had discussed in July 2020 with Doctor Dabas and which she recorded in a note. He answered as follows:

Later, in cross examination, he accepted that the attempted suicide did not appear to him to have been a serious attempt, due to the low number of pills swallowed. He asserted that it was a red flag but that there had been no other red flags since that note. He accepted that he did nothing about the red flag on the 18th of March 2020, during the examination. He could have invited PA back to the surgery in a few days’ time to review her, but he did not. He did not have any special interest in mental health problems. He accepted that he made no plan, in the medical notes, to deal with her mental health issues. He accepted he did not refer her to psychiatric or psychological services. He did not provide any crisis line number. When asked about Michelle Mullally’s evidence, that a patient who was examined by the Appellant while she chaperoning, had behaved in an “odd manner” he stated that he could not say whether her manner was odd or not and that Miss Mullally’s perception was her own. He accepted that he had made no reference to any further consultation, especially a home visit, in the medical notes. In answer to questions from the Tribunal, the Appellant admitted that his first phone call to PA, on the 18th of March, was made when he was practically out of the surgical compound. He accepted that, if he had decided to call PA later in the day on the 18th of March, he could have written that in the medical notes, but he did not. He accepted that he did not triage PA for a home visit. In further cross examination the Appellant accepted that PA was not obviously depressed during the examination on the 18th of March or tearful and that he could have asked her to return to the surgery the next day or later in the week. Then he said this about the turning point in the home visit:

Character witnesses were called. Ms. Baluja was a female, senior administrator in the surgery. She was very supportive of the Appellant’s good behaviour. She stated he was calming and had never behaved in a flirtatious manner at work. He was hardworking and caring and devoted to his children. No complaints had been received by the surgery about him and none of the staff who had chaperoned patients during his work had any concerns. Karene Brooks-Brown was a patient who attended the surgery and was treated by the Appellant. She gave a testimonial in the knowledge of the allegations. She knew the Appellant through her church and attested to him being polite, sociable and down to earth. She considered him to be genuinely compassionate. Relatives of hers had also been patients of the Appellant and he had been articulate, provided good follow up and was reassuring. EH (anonymised) gave evidence in writing. She was a nurse practitioner at the previous surgery where the Appellant worked in Epping. She attested to him being extremely professional, diligent and courteous, alongside being calm. She herself had suffered rape in the past and yet felt very safe around the Appellant. Karin Barford gave written evidence. She was a healthcare assistant at the surgery in Waltham Abbey and had known the Appellant for three to four years. She attested to him being highly professional, kind, pleasant and well liked. She had routinely chaperoned for the Appellant and his behaviour had been exemplary and entirely appropriate. Helen Houghton gave written evidence to the Tribunal. She was a receptionist at the surgery. She had chaperoned patients with the Appellant and gave evidence that he had never shown inappropriate behaviour. Michelle Mullally was a reception manager at the surgery and had huge experience, having worked for 18 years in other surgeries. She had acted as chaperone for the Appellant and had never seen the Appellant behave in an inappropriate or flirtatious way. None of her colleagues had any worries about his behaviour and she stated he was particularly popular with elderly female patients. He was approachable, helpful and knowledgeable. She recalled one chaperoning event with the Appellant in room 8 where the female patient, who was slightly older than herself (age 56 ), with long black hair, seemed to have a “rather odd manner” and has chest and stomach pains.

Grounds 1, 2 and 5. I am going to consider these Grounds together because they cover the main issues in this appeal. To determine whether the Tribunal was wrong to accept and find as a fact that PA was massaged by the Appellant, naked from the waist up, in her own home, I must ask myself firstly whether that finding was made on any evidence. Clearly it was. The direct eye-witness, it-happened-to-me, evidence from the Claimant. The next questions I must ask are: (1) whether any reasonable Tribunal would have accepted PA’s evidence on the core facts; (2) whether the Tribunal omitted to take into account relevant contrary evidence; and (3) whether the Tribunal took into account irrelevant matters or evidence when making that decision. (4) whether there is any other reason for finding that the Tribunal were wrong in relation to their findings on the core issues. What the Tribunal did was fillet out and discard all matters which were not in PA’s contemporaneous witness statement to the police, made 1-2 days after the events. By that process they discarded the incredible, or late introduced assertions and helped themselves to focus only on the core assertions from PA which she made contemporaneously. They also made their findings more robust because the witness statement which they accepted was given to the police, who have experience in taking unpolluted victim evidence. The Tribunal clearly compared that evidence with the medical notes and it married up to a substantial extent. PA certainly got some details wrong in the police statement (as set out above), but many right. The Appellant was not the first doctor at the surgery to see her and she did not start getting stomach pain in February 2020. The Appellant’s consultations did not last 45 minutes. But she did recall seeing other doctors and some of the examination on 18.03.2020 and the presence of the chaperone. Her recitation of the events leading to his arrival and the events in the flat was full and chronological. It flowed logically. It did not have an inherent, obvious defect within it (for instance in that statement she did not assert that she was shocked by his phone calls on 18.3.2020). It did not contradict any medical notes for 18/19 March 2020, because there were none. It was supported by the Appellant’s phone records, which he himself disclosed. By accepting her contemporaneous account, the Tribunal excluded and did not take into account various less reliable and hence potentially irrelevant matters. So, for instance, PA’s later witness statement to the GMC and her live evidence. Those were both objectively less reliable. The GMC witness statement contained contradictions with her earlier statement on peripheral matters and an embellishments on two core matters (the “shock” at his phone calls and the penis-hand push).

As for PA’s live evidence, by any objective standard it was lacking in accurate detail, lacking in weight and lacking in credibility for the pre-core-event occurrences at the surgery, including the suicide attempt and her alleged inability to swallow pills and the 18^th March 2020 examination. It was unimpressive about the “shock” at his phone calls on 18.3.2020. It was also deeply unimpressive in relation to post event matters, namely the 6^th July 2020 letter setting out the Appellant’s version of the facts and the subsequent conversation PA had with Ms. Green about that letter. PA’s initial sworn testimony in relation to that letter was plainly wrong and untrue. When she was shown that she had in fact read the letter setting the “come for tea” offer out, she still denied ever seeing the letter. When shown the attendance note evidencing that she had called the surgery later in July and accepted that she had received the letter, she still denied that. This part of her evidence therefore lacked credibility and no reasonable judge would have accepted it. The Tribunal made no mention of this evidential and credibility land mine in their reasons. Instead, they made the general comments in para. 47 about factual inconsistencies in her evidence, mainly in relation to details and logistics. But this denial by PA may be said to have had a wider effect on her credibility than forgetting mere details and logistics. She was here denying she had ever been told that the Appellant asserted that she had asked him over “for tea”. So, does this evidence, combined with the other contradictions and incredible assertions (being shocked by his phone calls on 18.3.2020) undermine her core evidence, such that no reasonable Tribunal would accept her core evidence? In my judgment this evidence was relevant and material to her credibility, but whether it undermined her core evidence was a matter of assessment of PA’s evidence against all of the evidence. That was primarily a matter for the Tribunal, not for this Court. Further, I ask myself, would I be right to find that the Tribunal failed to take this into account, despite the fact that they listened to this evidence? I do not think it would be right to do so. The guidance given in Volpi covers this in my judgment. Just because it was not specifically mentioned does not mean it was overlooked. I note that credibility and the July letter were specifically raised by Mr. Jenkins in his submissions before the fact finding decision, so I consider that it will have been in their minds. Next, I have carefully considered the fact that Geoff did not give evidence. The police apparently found him and took a statement, according to Mr. Jenkins’ submissions. The GMC did disclose the statement to the Appellant (by email to his solicitor on 8 September 2022), but the Appellant did not rely on it. It could have been evidence of immediate post event complaint by PA (or may not have supported her). In any event PA made her complaint to the police less than 48 hours later.

Next, I ask: was the Appellant’s evidence so persuasive and credible, that no reasonable Tribunal would have rejected it in favour of PA’s evidence? As the Tribunal set out in their reasons, his assertions were unimpressive and uncorroborated. True it is that the Appellant was a trainee GP, but he had years of experience as a doctor. He had worked in medicine for two years in Cuba, for 9 years in hospitals as a locum SHO in the UK after completing his PLAB and for 3.5 years as a trainee GP in two different surgeries. He knew what he had been trained to do for home visits by Doctor Dabas, whose evidence was not just that the decision for a home visit was a matter for the doctor concerned. Her evidence was that home visits were generally considered after a patient request, triaged by a phone call and then fitted in, if justified and if possible. They were listed on the surgery’s schedule. By definition home visits take more time out of a GP’s work day than surgery consultations. Instead of getting through one patient every 15-20 minutes in surgery, a home visit will take much longer for travel and then the examination for just one patient. Furthermore, the Appellant’s notes of the consultation on 18.3.2020 did not support his assertion that he was worried about her mental health and so did not support his assertion that he really called her to discuss her mental health. The attempted suicide (by taking 4 Paracetamol and one Amitriptyline tablets) was not regarded as the most serious attempt by the Appellant, as he admitted in cross examination. He noted it under the history, but none of his examination findings suggested that he found current depression, let alone severe depression. He accepted that PA was not tearful but had good rapport. Under his diagnosis he made no reference to her mental health or any diagnosis of depression. Under his plan he made no reference to seeing her again or the need for a home visit and he made no referral to any community psychiatric or psychology support services or any crisis line and he did not prescribe anti-depressants. He prescribed her more Paracetamol (the very drug she had attempted suicide with) and cream for her psoriasis. He accepted that he took a handwritten note of her phone number. The Appellant’s alleged concern about PA’s mental health did not result in him calling her whilst he was at work up to 7:00 pm or using the work phone. Instead, he used his personal mobile phone from outside work in the car park. The Tribunal also took into account what happened on 19.3.2020. The Appellant made no note of what he says was an “advance” by PA with the baby oil, which he said made him uncomfortable. He made no note of the home visit at all, or the calls. His explanation for this was being busy and the chaos of Covid, but why would those prevent him making a note if PA and her mental health were in his mind? He chose not to call PA from the surgery phone on 19.3.2020 all day, but instead made the call after work hours from a supermarket. All of that behaviour undermined his assertion that this was a work call focussed on depression and it supported PA’s account that it was not. The Appellant placed great weight on his character references. They were indeed impressive. It is correct that the Tribunal placed lowish weight on these when determining the core factual issues. I do not find that to have been wrong. These witnesses (other than Miss Mullally) were not eye-witnesses to the events. They were character witnesses. Their evidence was secondary and of a general nature. The Tribunal was factually correct to find that they gave evidence as to his behaviour in work, in the surgery, or at church, not generally his behaviour out of work. The two fields of behaviour are different. The history of human relations show us that some people work well at work, but are troubled by drink, drugs, violence or turbulent or irrational relationships outside work.

The Appellant submitted that the Tribunal misdirected itself on the burden of proof by asking whether a home visit was “required” and by deciding that the Appellant had not proven that it was. In my judgment, this was just a turn of phrase, it was not a misdirection in law. The Tribunal were expressing whether they believed what the Appellant was asserting about his motivation for the calls and the visit. They rejected the Appellant’s evidence on his reason for calling. They gave reasons for doing so which were logical. His clinic notes undermined his own evidence on the point.

Having carefully considered the Tribunal’s reasoning, I do not consider that this appeal on Grounds 1, 2 and 5, satisfies the test for holding a finding to be wrong under gateway 2. It was not irrational to accept PA’s core evidence relating to the massage and to reject the Appellant’s evidence. I do not find any material evidence was ignored nor do I find that any immaterial evidence was taken into account. As for gateway 3, I do not consider that the Appellant has crossed any of the three limiting thresholds to get near to a ruling that the Tribunal was wrong as to a finding of fact. As for each of the threshold: (1), in relation to the “deference and respect” and the “professional experience in the field” principle, whilst none of the Tribunal were GPs, one had long medical experience to which some deference is due. As for (2), in relation to the “Tribunal heard and saw the live evidence” principle, I am unable to find that I am in a better position to assess the credibility of PA or the Appellant, having not heard their evidence or indeed the whole of the evidence at the hearing. (3) As to the “generous ambit of disagreement” principle, whilst I confess that have found the decision on whether PA’s evidence was credible enough to discharge the burden of proof on the core issues difficult and troubling, I have also found, in this paper rehearing, that the Appellant’s evidence was undermined by his own notes and lacking in credibility, as the Tribunal did. I do not find that the Appellant made out the submissions that the Tribunal misread the evidence or that their findings were against the weight of the evidence. Thus, I am unable to find that the Tribunal’s decision was outside the generous ambit of disagreement and I do not find that the Tribunal were wrong by reference to Grounds 1, 2 and 5.

Ground 3. The Tribunal accepted Mr. Allum’s evidence, but that did not take the Appellant home on the issue of whether to accept his evidence or PA’s evidence on the core issues. It would have been painful for the Appellant to kneel, but he denied the massage. The issue was whether the massage occurred not whether he kneeled. The accepted fact that knee pain would have been caused if he knelt, was not a forceful reason for accepting the Appellant’s evidence instead of PA’s evidence. PA’s statement to the police involved her asserting that he crouched, not kneeled. Her evidence that he kneeled was rejected by the Tribunal. In any even she was facing away from him, lying on her front initially and then when she turned over had her eyes shut. It was an L shaped sofa. There was no evidence about whether he may have sat on the edge thereof. I do not find that the Tribunal was wrong in failing to take into account or misreading Mr. Allum’s evidence.

Ground 4. Michelle Mullally. The weight to be given, if any, to a dock ID, by way of presenting one photograph to this reception manageress, in February 2023, three years after the events, was highly questionable. This was a case management decision which was within the reasonable ambit of the judgment calls afforded to the Tribunal over peripheral evidence. As for her eye-witness evidence, which the Appellant quite reasonably relied upon, that she was present during a top off examination of a patient. Even taken at its highest, she said no more than that a patient had “a rather odd manner”. There were various ways to prove that this witness was the one who chaperoned PA on 18.3.2020. Firstly, her first name was in the notes as the chaperone. All the Appellant had to do was prove that no one else worked in the surgery called Michelle on that day. No such evidence was called. Secondly, she should have been shown PA’s medical notes of 18.3.2020 and asked directly and her response put into her witness statement. Such evidence was not in it. Cross examination disclosed she had not been shown the notes and did not know what the Appellant had been accused of when she gave her statement. What she could not do was tie her “odd manner” consultation to the one with PA on 18.3.2020. On that evidence I do not see what possible ground of appeal could be based on her evidence.

Ground 6, reasoning. This ground was not premised on gateway 1, namely that the Tribunal failed to provide any adequate reasons to enable the Appellant to understand the rationale behind their decisions or to enable appeal. Instead, it was premised upon four submissions made by the Appellant to the Tribunal which were rejected. The first submission was a logic point. There was no time for the massage because PA’s friend was arriving soon. This falters on various bases. Firstly, the timing of the arrival was 8:15 (according to one version of the timing provided by PA) and the Appellant arrived at around 7:30, so there was ample time for a talk and 5 minute massage. Secondly, there is no suggestion that the friend had a key so he would have needed to be let in. Thirdly, the logic of what risk a GP with sexual motivation would or would not take in any particular timescale is mere speculation. The second submission was based wholly on the Appellant’s version of events. The Tribunal rejected that. In reality, what this submission was really saying, was that PA consented to the massage, so what’s the issue? The issue was that the Appellant was her Doctor and was there for medical purposes only. Offering to massage a patient and then massaging her breasts for personal sexual gratification was improper professional behaviour, as so found by the Tribunal. The third submission related to the failure to make notes and was based on an assertion that guilty men would not omit to cover their tracks by writing dishonest notes. Whilst this may have traction for some medical sexual predators, it was pure speculation and carried no persuasive weight in my judgment. The fourth submission was based in the Appellant’s character witnesses and I have dealt with the relevance of those above.

Grounds 7 and 8. These Grounds were parasitic on the earlier grounds and so are not made out.

Notes. No appeal was made on the basis that the Tribunal was wrong to find that PA had not consented to the massage. No copies of PA’s medical records from her previous GP at the Holywell and Attenborough Surgery were sought by either party or requested by the Tribunal. The Appellant’s witness statement to the police was dated 4 June 2020 and was not relied upon by either party because it was accurately summarised in the notes made by Doctor Dabas.

This appeal will be dismissed. It is no doubt a matter of considerable regret to the Appellant, his wife and children that this family man has lost his medical career as a GP because of a finding that a 5-minute, upper body massage with a patient who did not demur or object at the time. Women must be protected from men in positions of trust and power in the medical field who seek sexual gratification in breach of and in spite of their professional obligations, rules and responsibilities. The Tribunal decided the facts and I do not find, on the Grounds presented, that they were either wrong or that there was any serious procedural unfairness.