E-Regulator: Casey v General Medical Council [2011] NIQB 95

2 December 2011

CASE COMMENTARY

The giving of proper reasons when rejecting a Registrant’s evidence in favour of a witness who has been inconsistent on key issues.

Casey v General Medical Council was an appeal by the registrant, a general medical practitioner, who sought to set aside the determination of a Fitness to Practise Panel that he had placed both his hands inside Patient A’s bra and a stethoscope onto her nipples during an examination when this had not been clinically indicated but instead sexually motivated.

The Panel did not find that the doctor had pulled Patient A’s knickers away from her body to expose her pubic area nor that he had placed his hand below the line of her knickers when this was not clinically indicated.

In giving its reasons the Panel stated:

“The Panel found Patient A to be a consistent, reliable and credible witness who gave her answers without embellishment and openly admitted when she could not remember detail...Patient A was subjected to detailed cross-examination and maintained her account throughout.”

 The registrant argued that the Panel was in serious error in finding that Patient A was a consistent, reliable and credible witness. In addition, Dr Casey contended that the Panel had failed to explain its rejection of his defence and also why it found him to be incredible and unbelievable, a conclusion they must have made to reach their overall decision.

Patient A had initially reported the alleged incident to the police and gave a signed statement which differed from the account given to the Panel in a number of significant respects. For instance, she had not alleged, as she had done in her police statement, that the registrant had pulled her bra out to expose her breast and cupped her breast nor that the stethoscope had remained on her nipple for as long as 30 seconds. The sequence in which the alleged events took place also differed significantly between the two accounts.

Recognising that a Court should be slow to interfere with a lower court or tribunal’s finding of fact, Lord Justice Girvan of the Queen’s Bench Division nonetheless concluded that the finding that the patient was a consistent, reliable and credible witness was one that no tribunal properly directing itself on the evidence could have made in the circumstances.

In addition, it was held that should a Panel find that a witness who presented contradictory evidence ultimately told the truth on some issues, a Panel should, in fairness to the party whose evidence is rejected, explain why the evidence of the inconsistent witness has been preferred.

In this instance, Lord Justice Girvan found that the absence of reasons created an unavoidable inference that the Panel had failed to properly take into account the significant inconsistencies in the patient’s evidence when looked at in context. Instead, it was implicit that the Panel had taken the simplistic route of finding her credible because of apparent consistency and persistence with regards to the nipple based allegations. In turn, Lord Justice Girvan ordered that the decision of the Panel be set aside.

Casey v General Medical Council will require future Fitness to Practise panels to provide complete reasons as to why the evidence of an inconsistent witness has been accepted; a generic outline of the witness’ response to cross examination will not suffice. In turn, the contradictions in the overall content of the evidence provided will have to be examined in detail by the panel and thus will be at the forefront of the panel’s mind during this reasoning process. 

Gemma Gillet, Barrister

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