AK v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may correct a material factual mistake on which a barring decision was based. It may consider fresh evidence, including tested oral evidence, when deciding whether such a mistake was made.

Where the evidence relied on by the Disclosure and Barring Service consists substantially of untested second- or third-hand hearsay, the Tribunal must assess its weight against the evidence as a whole. If the alleged sexually motivated conduct is not established and the conduct found was a clinically appropriate examination, there is no relevant conduct and no basis for inclusion on either barred list.

AK v Disclosure and Barring Service was a statutory appeal against the DBS decision of 27 March 2023 to include a doctor on the adults’ and children’s barred lists. The DBS found that he had sexually touched two female patients during emergency-department examinations. Criminal charges concerning those incidents had been discontinued, although the police investigation remained live.

The appellant ultimately relied only on a material mistake of fact. The Upper Tribunal heard his oral evidence, which was tested in cross-examination, considered an agreed emergency-medicine expert report, and considered the documentary material available. The central question was whether he had sexually touched the two patients.

1. Appeal allowed. The DBS decision was based on material mistakes of fact. Under section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006, the Tribunal directed the DBS to remove AK from both barred lists.

2. The relevant-conduct gateway required the DBS to be satisfied that AK engaged in regulated activity, engaged in relevant conduct, and that inclusion was appropriate and proportionate. AK accepted that his work as a doctor was regulated activity. The issue was whether he had engaged in relevant conduct by sexually touching the patients.

3. The Tribunal was entitled to consider fresh oral evidence when assessing whether the DBS had made a material factual mistake. It gave little weight to the untested hearsay on which the DBS had heavily relied, particularly as the complainants’ ABE interviews were unavailable. It found AK a compelling witness. Apart from his uncertainty about gloves, his account was consistent with his contemporaneous records, his report on the day, and his police interview.

4. The Tribunal rejected the proposed binary choice between a dishonest conspiracy by the patients and a lie by AK. It found a third explanation more likely: the patients may honestly have regarded a systemic examination, including contact near the breasts and pubic bone, as inappropriate or sexual because its nature and purpose had not been adequately explained.

5. AK performed clinically appropriate examinations, motivated by professional concern and not sexual interest. He did not touch the patients’ genitals or bottoms, massage their breasts, or make the other alleged sexual contact. Although he should have sought a chaperone when examining the patient who was not wearing a bra, that shortcoming did not establish relevant conduct. There was therefore no lawful basis for barring.

• Upper Tribunal (Administrative Appeals Chamber): allowed the statutory appeal and directed removal from both barred lists under section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006.

• Disclosure and Barring Service: on 27 March 2023 decided that inclusion on the adults’ and children’s barred lists was appropriate and proportionate.