AT v Disclosure and Barring Service

This is an appeal against the decision (the “decision”) of the Respondent (“DBS”) dated 22 March 2023to include AT in the children’s and adults’ barred lists.

The decision was made under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (the “Act”). These provide (in very similar terms as regards both children and vulnerable adults) that DBS must include a person in the relevant barred list if

Under paragraphs 4 and 10, “relevant conduct” includes, amongst other things, conduct which endangers a child/vulnerable adult or is likely to endanger a child/vulnerable adult, or which, if repeated against or in relation to a child/vulnerable adult, would endanger them or would be likely to endanger them; and a person’s conduct “endangers” a child/vulnerable adult if he (amongst other things)

The letter conveying the decision (the “decision letter”):

Section 4(2) of the Act confers a right of appeal to the Upper Tribunal against a decision by DBS under paragraphs 3 and 9 of Schedule 3 (amongst other provisions) only on grounds that DBS has made a mistake

The Act says that “the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact” (section 4(3)).

Permission to appeal on grounds that DBS had made mistakes both in findings of fact on which its decision was based, and on points of law, was given by the Upper Tribunal in a decision issued on 12 February 2024.

Both AT and his wife submitted witness statements and, at the hearing, gave oral evidence, including under cross examination. More is said about their evidence in the discussion below.

Most of the documentary evidence about what happened in the incidents in question was contained in an investigation report by the NHS foundation trust for which AT was working at the relevant time, dated 22 July 2022.

The following background facts were not in contention:

The NHS trust’s investigation was carried out under the “Managing Performance Concerns for Medical and Dental Staff Policy”.

As part of the investigation, the following were interviewed (between 13 and 27 June 2022): three people who had spoken with Patient A (the NHS trust’s ‘patient experience manager’, Patient A’s GP, and the NHS trust’s ‘nurse consultant safeguarding lead’); a consultant cardiologist (as an expert and as someone who had worked with AT); and AT.

Patient A spoke (anonymously at that point) with the NHS trust’s ‘patient experience manager’ by phone on 15 and 16 February 2022 voicing concerns about what had happened (on 14 February) and “making allegations of sexual assault”.

Patient A’s GP contacted the NHS trust on 7 April 2022 to say that Patient A had (that day) spoke to her about what happened with AT; at this point, AT was identified.

The NHS trust’s ‘safeguarding lead’ spoke with Patient A’s about what happened, on 14 April 2022.

The GP and the ‘safeguarding lead’ both thought Patient A was being honest, both observing that they had no reason to doubt her.

Patient A indicated (by email on 26 April 2022) that she was unwilling to be interviewed in relation to the allegations about AT; she cited the impact on her health and a feeling that she had already reported her allegations on a number of occasions.

In our view, the principal issue in this appeal is whether DBS made mistakes in the findings of fact on which its decision to bar AT was based. The point of contention is whether AT examined Patient A’s breasts, groin and/or buttocks at the hospital cardiology clinic, or during the home visit, on 14 February 2022.

DBS’s findings of fact, to the effect that AT did so examine Patient A, were made on the basis of the documentary evidence before DBS at the time of its decision; essentially, the NHS investigation report of 22 July 2022 and AT’s written representations to DBS of 10 March 2023.

We had, in addition to this, AT’s witness statement and oral evidence at the hearing (as well as that of AT’s wife), including under cross examination.

This tribunal’s jurisdiction in “mistake of fact” cases, where (as here) “new” evidence has been put before the tribunal that was not available to DBS, has recently been clarified in DBS v RI [2024] EWCA Civ 95. What follows is our assessment of all the evidence, following the principles as clarified in that case.

AT’s witness statement and oral evidence was broadly the same as his earlier, documented evidence (in the NHS trust’s investigation report and in his representations to DBS): in all his evidence, he said that he had examined Patient A from a cardiological point of view, which had not required touching her breasts, her groin, or her buttocks – and that he had not done so.

AT’s witness statement and oral evidence did include “new” evidence about the unusual level of scrutiny he felt he was under at work and how he had started to practice what he called “defensive” medicine and “over investigating”: he was being “hammered” (by colleagues) at work, was how AT put it in his oral evidence; AT gave this evidence in the context of his trying to explain why he took the unusual step of arranging the home visit. The reason for going into such matters was that DBS’s case, expressly or implicitly, was that the “unusualness” or “illogicality” of AT’s making the home visit was evidence supportive of the finding that AT did touch Patient A’s breasts, groin and buttocks (the implication being that AT ‘engineered’ the home visit to create an opportunity to touch Patient A inappropriately (as, per the allegations, he had done in the hospital clinic earlier that day)).

AT’s witness statement contained a number of other details, including about the layout of the hospital cardiology clinic, and about how doctors conduct cardiology clinics with patients. In terms of his physical contact with Patient A at the clinic, AT said he listened to her heart and lungs using a stethoscope over her clothing; he then applied gentle pressure on her sternum and chest with the forefingers of his right hand to determine if her pain was “reproducible”.

As for the ‘immediate’ reasons for his undertaking the home visit, AT said that, at the end of his hospital clinic for that day, reflecting on the day’s patients, he became concerned that he had not responded to Patient A having expressed concerns about a skin rash. AT said he became worried that he might have missed a “differential diagnosis” about “sarcoidosis”: Patient A’s “palpitations” could be symptoms of “cardiac sarcoid”, he thought. Due to those concerns, AT telephoned Patient A, saying he wanted to have another look at the rash. He said he could see her on a home visit on his drive home for work; or he could book her another appointment. AT’s evidence was that he considered referring Patient A to the ‘same day emergency clinic’, but he did not do this as he thought the “junior” doctors, and nurses, on duty there would not be able to address his concern about Patient A’s rash and “sarcoidosis”. AT’s evidence was that he now regretted arranging the home visit: he said his arranging it was because of the stress of work colleagues scrutinising his work – he did not want to “get something wrong”. AT’s evidence was that, during the home visit, he examined Patient A’s hands and concluded that the rashes were not “sarcoidosis” but rather dry skin (and so not, as he feared, related to Patient A’s heart medication, propranolol). He said that Patient A asked him again about her chest pains; in response, he gently pressed on her sternum area using his right-hand finger over her clothing, and noted this made her pain slightly more intense, so confirming (he said) that it was a muscle tenderness problem (as opposed to something more cardiologically serious).

AT was cross examined about the reasons for the (unusual) home visit; why no chaperone had been offered for the home visit; why there was no documentation of the home visit; what “options” he had given Patient A on the telephone, apart from the home visit. It seemed from the questioning that the panel was being invited to infer that the true reason for the home visit was to enable Dr AT to carry out inappropriate sexual touching. AT was also questioned as to why he had not mentioned the point about being “hammered” by colleagues at work, earlier (to the NHS trust investigator or to DBS) – it seemed this was aimed at inviting the panel to conclude that this element of AT’s evidence was “made up”. There was also questioning about how “closed” the door was to the hospital clinic room where AT had examined Patient A (as AT had been suggesting that nurses and other staff could, and did, fairly easily “walk in” on cardiologists during their clinics with patients).

AT’s wife’s evidence was largely on matters that were not in dispute (essentially, that she drove with AT to the home visit and stayed outside in the car whilst it was going on). She was cross examined on why, if she knew about AT being subject to unusual scrutiny at work (being “hammered”, as he put it), she did not urge him to tell the NHS investigators, and DBS, about this.

The evidence before the UT (in its totality) was contradictory as regards the issue in contention: did AT examine Patient A’s breasts, groin and/or buttocks, in the course of the hospital cardiology clinic and home visit on 14 February 2022?

There was no direct, third party evidence of what happened: no film or recording; and only AT and Patient A were present at the time.

We found AT to be a straightforward witness who was not seeking to mislead the tribunal. We do not think it necessary to make findings on every topic pursued in the evidence and cross examination, as much of it was quite removed from the core question before us, and was aimed at giving us some indirect reason either to believe, or to disbelieve, the evidence on the key point. It suffices to say that we are satisfied that the home visit was not a ploy to enable AT to be alone with Patient A in order to touch her inappropriately; rather, it was a clinical decision, albeit, quite possibly, a wrong one. Similarly, in not documenting the home visit (properly or at all), we are satisfied that AT was not trying to “cover up” the fact that he had touched Patient A in the course of the home visit, though it is certainly possible that the reason for not documenting it was that AT wanted to “cover up” (i.e. hide from his colleagues) the whole episode of AT having doubts after the hospital clinic about Patient A’s rash, setting up a (very unusual) home visit, and then concluding there was no reason for (medical) concern about the rash.

We are also satisfied that AT’s wife was being straightforward and thus that she was able to corroborate the point about AT being “hammered” at work.

As Patient A was not presented as a witness, we were unable to hear her version of events first-hand and ask questions about the elements of it that were strange or incongruous. These elements included: why she consented to AT coming to do the home visit, if he had touched her, sexually and inappropriately, earlier in the day at the hospital clinic (we were aware of the written evidence that Patient A had not at that point “clicked” that the doctor was behaving wrongly – but that would have been a point about which we would want to hear more from Patient A); and, from a similar angle, why she sent away the dog-walking neighbour, just as AT arrived for the home visit (did it not occur to her to ask them to stay, perhaps in the next room, as a safeguard?). Apart from these sort of queries we ourselves had, we also did not have the opportunity to hear Patient A being cross examined by counsel, and assess her answers.

It follows that, upon balancing the strengths and weaknesses of all the evidence before us, we have concluded that DBS’s factual findings were mistaken: on the balance of probabilities, AT did not examine Patient A’s breasts, groin or buttocks, either in the hospital or at patient A’s home.

As an aside, we note that we asked DBS’s counsel at the hearing, why DBS had not arranged for Patient A to attend and give evidence to the tribunal; we were told the reason was a very general one, that DBS had concerns that if such patients or victims are brought to the tribunal to give evidence, it might be a deterrent to others “coming forward” (i.e. informing employers and/or DBS of events giving rise to safeguarding concerns). This seemed to us no answer at all, as regards this (or really any) particular case. It also seemed surprising in the light of the many (and well-publicised) things that the tribunal can do to ensure (in a case like this) that women can feel safe in participating in the judicial process and are protected against unjustified intrusive questioning: see the Equal Treatment Bench Book at paragraph 92 and following, and the references there to “tools” available to tribunals such as the Advocate’s Gateway Toolkits; the making of anonymity orders; the giving of evidence by video link; and having hearings in private.

Given our finding that DBS’s factual findings were mistaken, it seems to us the only decision that DBS could lawfully reach would be to remove AT from both barred lists. Indeed, this case is on all fours with the example given by the Court of Appeal in DBS v AB [2021] EWCA Civ 1575 at [73]

It follows that we have directed DBS to removed AT from the barred lists.

In light of this result, it seems to us unnecessary to consider the mistakes on points of law contended for by AT’s counsel; we therefore forbear from doing so.