AC-2025-LON-000408 - [2025] EWHC 2846 (Admin)

Ground 3, medical records. The irregularity which Dr Foy raised was a failure to admit Ms A’s medical records detailing her having STD tests in May 2018 and March 2019. Dr Foy applied to admit them (they having been excluded at an earlier interlocutory hearing on an application to admit them) on the basis of evidence provided by O live during which he asserted that Ms A behaviour was naïve, she failed to report in good time, failed to have an STD test, failed to have a rape kit test done, and failed to take her TB seriously. This was catalysed by his being asked why she did not have an STD test after the Sofa Incident if she had actually been raped. The Panel excluded the records, and Dr Foy asserts that was wrong and irregular. Dr Foy should have been able to make submissions on those to support his denial that anything happened.

The GMC respond submitting that not every decision is appealable, and the error must be serious. The Panel was case managing, and such decisions involve a wide margin of discretion, see Hayat. This evidence had been excluded by another Panel in May 2023 on the grounds of privacy and preventing victims of rape being cross examined on their past sex lives. Dr Foy applied under FTP Rule 30 to correct a misleading impression. In any event there was no injustice because it was not the GMC case that Ms A was unaware of STD testing. She was a 25 year old, sexually active woman and the Panel found (J347) that she would have been aware of SDT testing. So, the Panel refused, for the reasons set out at J221-223 and J340-349. The GMC submitted that refusing the application did not mean that O’s evidence was in some way excluded. They were entitled to take it into account.

Ground 4, reversing a previous finding of fact. Dr Foy submits that the fact that the Panel found at the NCTA stage (J472) that Ms A first disclosed rape to Prof. G and then changed its mind in the final decision that it was to Mr X, after Christmas in Manchester, was a serious irregularity. They failed to warn the parties and so Dr Foy had no ability to make submission on this. No new evidence had emerged so how could they change their minds? The weight of this was explained by counsel. Prof. G described rape as an abomination and hence it was far more likely that she made it up under pressure from her father than if she had disclosed it to the more neutral Mr X.

The GMC response was that at the NCTA stage the Panel had not completed their deliberations. They did so at the final stage. The two are different. Different decisions may be reached. In addition, Dr Foy did make a final submission that it was Prof. G

Ground 5, Transcripts of evidence. Dr Foy submitted that the fact that the Panel only obtained transcripts of the GMC evidence when they retired showed apparent bias and was irregular and unfair. They should have obtained transcripts of all the evidence.

The GMC referred to J38 in which the Panel explained that the GMC evidence had been given months earlier and the Defence evidence had recently been given so they needed to refresh their memories. The hearing started on 11.12.2023 and ended on 22.8.2024 with a large gap in between the GMC evidence and the Defence evidence.

Dr Foy submits that if his grounds 1-5 succeed and decisions are quashed then the decisions on misconduct, impairment and sanction will need to be reconsidered. The GMC agree.