Judgment date: 18 October 2012

Mr Justice Kenneth Parker

In this “very exceptional case”, where the evidence of the complainant witness had changed in important respects over time, the Panel’s reasons for preferring her evidence over that of the Registrant, were not “legally adequate” on this “crucial issue”.

The Registrant successfully appealed to the Administrative Court against the finding of impairment made against him by the Fitness to Practise Panel of the General Medical Council (the Panel), based on allegations of misconduct concerning sexual impropriety towards a female patient, A.

The complainant had given several accounts of the conduct alleged against the Registrant to a number of agencies during the 18 months or so following the incidents in question, including to NHS Direct, the police and ultimately in the form of her live evidence to the Panel.  Essentially, her account had evolved from a complaint of sexually inappropriate words, through sexual impropriety and an act of gross indecency to an allegation of grave criminal sexual conduct.

The Registrant failed in his challenge to the Panel’s findings on the ground of perversity.  The Court held that there was sufficient evidence to support the Panel’s findings, applying Mubarak v GMC [2008] EWHC 2830 (Admin) which emphasised that the task for the Panel was to consider whether the core allegations are true, and that it was commonplace for there to be inconsistency and confusion over details of varying importance.  Nevertheless, the Court allowed the appeal on the ground that the reasons provided by the Panel for preferring the evidence of A over that of the Registrant, were, in the circumstances of this case, insufficient.  Following the approach in Gupta v General Medical Council [2001] UKPC 61, that where fairness requires reasons they should be given, it held that “justice required somewhat more developed reasoning on the central issue of Patient A’s credibility than would ordinarily be required”, such that the Panel should have explained why it had deemed it safe to accept Patient A’s account before it notwithstanding the radical shift from previous accounts.

The Court also rejected an argument that the Legal Assessor’s advice was defective on the ground that he had not drawn the attention of the Panel to In re D [2008] 1 WLR 1499 (where the phrase “heightened examination” is found) in circumstances where he had advised the Panel of the proper approach to assessing the balance of probabilities by referring to In Re H (Minors) [1996] AC 563 and In Re B [2009] 1 AC 11.

The Court declined to remit the case to the Panel in order to amplify its reasons (an option found to be open in principle in Southall v General Medical Council [2010] EWCA Civ 484) and remitted the case to the General Medical Council to consider whether or not it was appropriate to refer the complaint to a fresh panel.  The Court rejected the submission that the Court should exercise its discretion simply to quash the Panel’s decision on the grounds of the adverse impact on the Registrant of the proceedings to date and the possible difficulties with any future hearing, which it held would be matters for any fresh Panel to consider in due course rather than reasons to decline to remit the case to the General Medical Council.