Doctor Peter Roach v The General Medical Council

On a statutory appeal from a medical practitioners tribunal, the High Court conducts the prescribed rehearing by re-analysing the evidence, while recognising the tribunal’s advantages in hearing live witnesses and applying professional expertise.

A factual finding may be overturned for inadequate reasons, serious procedural unfairness, irrationality, material omission or reliance on irrelevant matters, or because no reasonable tribunal could have made it on the evidence. Mere disagreement is insufficient. The appellate court must respect the tribunal’s credibility assessments and the generous ambit of reasonable disagreement. Serious allegations remain subject to the ordinary civil standard of proof, although inherent probabilities may affect the evaluation of evidence.

The appellant, a trainee general practitioner, appealed against Medical Practitioners Tribunal decisions finding allegations of sexually motivated misconduct, impairment of fitness to practise and erasure from the medical register.

The principal challenge concerned the stage 1 findings that the appellant had made an inappropriate home visit, massaged the patient’s breasts for sexual purposes, and later contacted her for non-medical reasons. The appellant alleged errors in the assessment of credibility, the treatment of character and expert evidence, inadequate reasons, procedural unfairness and reversal of the burden of proof. The stage 2 and stage 3 appeals depended on the stage 1 challenge.

The central issue was whether the Tribunal’s factual findings were wrong or unjust because of a serious procedural or other irregularity.

1. The appeal was dismissed. The findings of impairment and erasure therefore stood. The statutory appeal was governed by Medical Act 1983 section 40 and CPR Part 52. The Court could dismiss, quash, substitute a direction or remit the case.
2. Although the appeal was by way of rehearing under PD52D, the Court did not hear all the evidence afresh. It re-analysed the transcript, witness statements and documents. The Court remained at a disadvantage when assessing witnesses whom the Tribunal had seen and heard, and had to accord appropriate respect to the Tribunal’s professional expertise.
3. Three substantive routes to showing that a factual decision was wrong were identified: inadequate reasons; Wednesbury unreasonableness, including irrationality, reliance on irrelevant matters or failure to consider relevant matters; and the more difficult gateway of a finding outside the generous ambit of reasonable disagreement. The latter required a sufficiently powerful reason which overcame the Tribunal’s expertise, its advantage in seeing live evidence and the permissible range of disagreement.
4. The duty to give reasons was flexible. Reasons were sufficient if, having regard to the issues and evidence, the losing party and an appellate court could understand why the decision had been reached. The Tribunal was not required to mention every item of evidence. Failure to mention evidence did not establish that it had been overlooked, particularly where the evidence and submissions had been before the Tribunal.
5. The Tribunal’s preference for the patient’s contemporaneous police account was rational. It had excluded later embellishments and assessed the account against the medical and telephone records. The appellant’s explanations were undermined by his failure to record the alleged mental-health concerns, home visit and calls, and by the absence of a proper clinical rationale for the visit.
6. The ordinary balance of probabilities applied. There was no heightened civil standard for serious allegations. Inherent probability or improbability could affect the weight of evidence, but seriousness did not itself require more cogent evidence.
7. The Tribunal had not reversed the burden of proof by asking whether the home visit was required. That was a shorthand way of evaluating the appellant’s claimed motivation. The character evidence was properly given limited weight because it concerned conduct in other settings and was not eyewitness evidence of the disputed events.
8. The appeal grounds concerning the alleged massage, credibility, character evidence, expert evidence, identification evidence and reasoning therefore failed. The impairment and erasure grounds were parasitic upon the unsuccessful factual grounds.

The judgment records an appeal to the High Court from three Medical Practitioners Tribunal decisions: findings of fact, impairment of fitness to practise and sanction. The High Court dismissed the appeal.