When is the right time to question a medical decision?
Bale v General Medical Council  EWHC 804 (Admin)
The Appellant, Dr Bale, was a specialist doctor in obstetrics and gynaecology. The Appellant contested a decision of the Medical Practitioners Tribunal (MPT) concerning events that arose during two consultations he held while training to become a General Practitioner in March 2013. The consultations involved two separate female patients, known as Patient A and Patient B. The consultation with Patient A took place on 13 March 2013, and the consultation with Patient B took place on 26 March 2013.
Both Patient A and Patient B alleged that the Appellant became irate, raised his voice and, when they wanted to leave, required that they should not do so and instead continue the consultation.
Specifically, Patient A alleged that the Appellant raised his voice at her and got up when she was leaving the room to try to persuade her not to leave, and then telephoned her subsequently.
The allegations made by Patient B were more serious. Patient B alleged the Appellant raised his voice at her, became irate and followed her when she tried to leave the consultation room. Patient B further alleged that she could not close the door behind her as the Appellant’s body was in the way, and that he grabbed hold of her arm. In one statement Patient B alleged that on at least one occasion the Appellant tried to forcibly drag her back into the room; in another statement Patient B said this happened on two occasions. Patient B made a complaint shortly after she left the surgery, resulting in her complaint being linked with the complaint made by Patient A.
A police investigation followed and the Appellant was charged with two offences: one of assault in relation to Patient A, the other of assault and battery in relation to Patient B. A magistrates’ court acquitted the Appellant of the offence in relation to Patient A, but convicted him of the offences charged in relation to Patient B.
The Appellant successfully appealed his conviction, but the reasoning of the Crown Court was different to the Appellant’s consistently stated case, which was that he did not touch Patient B let alone grab her by the arm and attempt to pull her back into the consultation room. The court decided that the Appellant did grab hold of Patient B’s arm but that did not amount to an assault in the circumstances, because he lacked the necessary hostile intent for the offence to be made out. In the view of the court, it was apparent that the Appellant was concerned that Patient B should not leave because she needed further discussion and possible treatment of her condition.
In his judgment, the circuit judge on three occasions referred to the Appellant as having told lies, in that he had, in the court’s view, wrongly asserted that he had never touched Patient B. These comments would be re-visited in the MPT proceedings that followed.
The charges found proved by the MPT can be summarised as follows:
In relation to Patient A, the Appellant behaved inappropriately by:
In relation to Patient B, the Appellant behaved inappropriately by:
With regards to Patient B, the MPT found that the Appellant had taken hold of her arm. This was on the basis of evidence provided by a cleaner at the clinic, who said she had heard Patient B say words to the effect of “Get off me, don’t touch me”. One of the Appellant’s colleagues, Dr C, also reported that the Appellant had said immediately after the incident that he “tried to stop her from leaving as she was trying to walk away but denies having any intention to hurt her”.
The MPT did have reservations regarding the evidence provided by Patient B, and only accepted her evidence where they considered it was corroborated by the cleaner and Dr C.
The MPT also considered charges in addition to the Appellant’s conduct during the consultations, in that he had:
There was no dispute regarding the content of the statements given by the Appellant, as he had consistently denied ever touching Patient B. The MPT were satisfied that the Appellant had not given accurate evidence, as they determined he had taken hold of Patient B. The MPT considered whether the Appellant’s denials that he had touched Patient B were dishonest, applying the test set out in R v Ghosh. The MPT recorded the test as follows:
"The Tribunal heard that it should apply both an objective and a subjective test. The objective test is whether your conduct, at the time, would be considered dishonest by the ordinary standards of reasonable and honest people. The subjective test is whether you realised, at the time, that your conduct would be considered dishonest by the ordinary standards of reasonable and honest people."
Given that the MPT had found that the Appellant had taken hold of Patient B’s arm, it found that the reasonable person would find the Appellant’s subsequent denials to be dishonest. The MPT was also satisfied that the Appellant knew he had taken hold of Patient B’s arm but denied doing so in order to protect his career, and that in these circumstances he was deliberately misleading and dishonest.
In reaching its decision, the MPT noted the circuit judge’s comments on the Appellant’s dishonesty but stated they gave them no weight, and relied entirely on the evidence heard and received at the hearing.
The MPT considered that the Appellant’s behaviour towards both patients fell below the standards expected of a medical practitioner, as set out in Good Medical Practice (April 2013). In particular, it noted the following paragraphs:
‘1. Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy, and act with integrity and within the law.
2. To fulfil your role in the doctor-patient partnership you must:
(a) be polite, considerate and honest
(b) treat patients with dignity
(c) treat each patient as an individual…’
The MPT also considered that the Appellant’s dishonest conduct constituted a departure from the standards expected, as reflected in Good Medical Practice. In particular, it noted the following paragraphs:
‘56. Probity means being honest and trustworthy, and acting with integrity, this is at the heart of medical professionalism.
65. You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession.’
In all the circumstances, the MPT determined that the Appellant’s conduct fell far below the standard expected of a doctor, and amounted to serious professional misconduct. In light of this, the MPT determined to suspend the Appellant’s registration for a period of nine months.
The matter came before Mr Justice Collins on 15 March 2017.
Mr Justice Collins disputed the MPT’s findings that Patient B’s words, reported by the cleaner, of “Get off me, don’t touch me”, were entirely consistent with the Appellant having touched her. Mr Justice Collins opined that these words could have been spoken out of Patient B’s concerns that the Appellant was going to try to prevent her from leaving; it did not necessarily mean he had already got hold of her (though this could have been true).
In addition, Mr Justice Collins suggested that the fact that the Appellant initially “denies having any intention to hurt her” could have resulted from Patient B’s case that she had been hurt. When this was put to the Appellant, it would have been natural for him to say he had not hurt her. Mr Justice Collins pointed to the reservations the MPT had about the evidence Patient B had given, namely inconsistencies in when she said she had contacted the police after the appointment and that, contrary to Patient B’s assertions, she had not suffered any injury. This, along with the possible alternative explanations for the words reported by the witnesses, did not support the MPT’s findings that the Appellant must have grabbed Patient B.
Moving onto the issue of dishonesty, My Justice Collins expressed “the strongest of doubts” as to whether the Appellant’s denials, assuming that he had touched Patient B (as the MPT had found), could be regarded as dishonest. Mr Justice Collins considered the Appellant’s alternative case that if he had touched Patient B (though the Appellant never went as far as to even admit that), he certainly did not use any force and never had any intention other than seeking to persuade Patient B to continue the consultation. Coupled with the Appellant’s consistent denials of any touching ever taking place, Mr Justice Collins noted that the Appellant’s view was that he had done nothing wrong and that he would have quickly convinced himself of such. The MPT itself acknowledged that since 2014 the Appellant had convinced himself he had not touched Patient B. In such circumstances, it was wrong of the MPT to find that the Appellant’s actions were dishonest.
Looking at the overall finding of misconduct, Mr Justice Collins noted that the MPT married in all of the issues, including the question of dishonesty. However, independently of dishonesty, Mr Justice Collins found that the way the Appellant dealt with his patients did fall below the standard which was to be expected and so amounted to misconduct. Mr Justice Collins noted that the Appellant was faced with two difficult patients, but that there was no doubt that the patients were upset with the treatment they received. With hindsight, the Appellant accepted he did not deal with the matters in the way he should have done.
Mr Justice Collins decided that, given the Appellant had demonstrated insight and that the two incidents with Patient A and Patient B were isolated, if the MPT had decided on the incidents alone it is unlikely that they would have found that a sanction was necessary. Whether they would have found the Appellant’s misconduct to have been serious, Mr Justice Collins was unable to say. However, given that the Appellant had already served 8 months of the 9 month suspension imposed by the MPT, Mr Justice Collins could not see what would be achieved by referring the matter back to the MPT for re-hearing.
Accordingly, Mr Justice Collins allowed the appeal.
The factual findings of the MPT in relation to the Appellant’s conduct during his appointments with Patient A and Patient B were largely upheld. The substantive issue on appeal was the MPT’s findings on dishonesty. My Justice Collins himself provided useful commentary on this topic in the body of his judgment:
“Of course, if a Tribunal on the facts concludes that something which is denied has taken place, then the question arises as to what should follow from that. There are often factual disputes which may be resolved against a doctor. The Tribunal must be very careful in such circumstances not to regard that as in any way necessarily indicative of dishonesty, because otherwise any denial which was, in the view of the Tribunal in due course, not substantiated could on one view indicate dishonesty.”
The case underlines the high threshold needed for dishonesty to be made out. Tribunals should take extra care when applying the Ghosh test, especially the subjective limb of whether the subject believed their actions were dishonest at the time. There needs to be cogent evidence of dishonesty for this to be successfully made out. Otherwise decisions could be reached that incorrectly penalise individuals for merely responding to the allegations put before them.
This blog was written by Christopher Boughton, Legal Assistant in the Regulatory team.
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