Y v General Medical Council

On an appeal from a Fitness to Practise Panel, the High Court must respect the Panel’s advantage in seeing and hearing witnesses, particularly on credibility. It may nevertheless intervene where the Panel’s findings are unsupported or its reasons do not show that it properly addressed a central evidential difficulty.

Where a complainant’s account develops from relatively limited misconduct into allegations of the gravest criminal sexual conduct, the Panel must confront that fundamental change expressly. It is insufficient to characterise the change merely as the provision of further detail. In an exceptional case, fairness requires sufficiently developed reasons explaining why it is safe to rely on the later account.

Dr Y appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision finding that his fitness to practise was impaired by sexual misconduct towards a patient and directing erasure from the Medical Register.

The Panel had rejected some allegations but accepted others, principally on the evidence of Patient A. Her account had developed over time from allegations of inappropriate sexual language and attempted touching during a medical examination, to allegations of attempted and actual rape, together with other serious sexual conduct.

The appeal raised whether the Panel’s factual findings were perverse, whether it had given adequate reasons for accepting Patient A’s evidence, and whether the Legal Assessor had properly directed the Panel.

1. Appeal and appellate approach. The appeal was a rehearing without hearing the evidence again. Under section 40(7) of the Medical Act 1983 and CPR rule 52.11(3), the Court could intervene where the Panel’s decision was wrong or unjust because of serious procedural or other irregularity. Appropriate deference was required because the Panel had professional expertise and had seen and heard the witnesses.
2. Perversity. The perversity ground failed. The Panel had a sufficient evidential basis for its essential findings. Patient A had consistently described inappropriate sexual language and grossly indecent conduct on the second visit, and Dr Y’s own evidence gave the Panel reasonable grounds for rejecting his account. Inconsistency about detail did not necessarily invalidate the core allegations, and a tribunal could accept some allegations while rejecting others.
3. Reasons. The reasons ground succeeded. This was a very exceptional case. Patient A’s account had not merely acquired additional detail; it had fundamentally changed in nature, culminating in allegations of actual rape. Some of her later evidence was also objectively contradicted or unsupported by the medical and physical evidence. The Panel’s statement that the complaint had emerged piecemeal did not sufficiently recognise or address that radical shift. It did not explain why, notwithstanding the shift and the objectively problematic evidence, it was safe to accept the account given at the hearing.
4. Legal Assessor. The challenge to the Legal Assessor’s advice failed. The Assessor correctly directed the Panel on the civil standard of proof, inherent improbabilities, inconsistencies, credibility, reliability and the need to give reasons. A legal assessor advises on law but does not direct the Panel as a judge directs a jury, and the Panel remains master of both law and fact.
5. The Panel’s decision to find Dr Y guilty of sexual misconduct towards Patient A could not stand. The judgment invited submissions on the specific orders to be made.

• High Court (Administrative Court): appeal under section 40 of the Medical Act 1983 against the Fitness to Practise Panel’s decision of 13 October 2011. The Court held that the Panel’s reasons were inadequate and that its decision concerning sexual misconduct towards Patient A could not stand.