AC-2024-MAN-000469 - [2025] EWHC 2049 (Admin)

In advancing submissions under Grounds 1-3, Ms Tanchel rightly acknowledged that the effect of the legal principles set out at [48]-[53] above is that the threshold for a High Court to interfere with findings of fact made by Tribunals is a high one, and that it was certainly possible for the Tribunal to accept one of the versions of events set out by the Respondent’s witnesses. In considering the submissions I have been very conscious of the fact that the starting point is that an appeal court should be very slow to interfere with findings of primary fact of the court below, for the reasons explained in Byrne: see [52] above.

Ms Hearnden was correct to highlight that the differences in recollection by the witnesses were acknowledged both by the Respondent in submissions and by the Tribunal in its determination. Further, the exercise which the Tribunal was required to undertake – of assessing the credibility and reliability of evidence which was not entirely consistent – was not unusual. I also agree with the Respondent’s submission that the Tribunal was not required to determine every “satellite” issue (such as the exact location of people in the room) and was entitled to focus on the central issue of whether the Appellant slapped Patient A on one or more occasion, or not; and recognise the principle that when reviewing a written judgment with the benefit of hindsight, there is an element to which there is always “more than can be said”.

However, with those caveats, having considered all the submissions, I have concluded that the Tribunal did fall into error, for the following reasons.

First, the Tribunal failed to set out which of the disputed facts the Tribunal had found proven. It did not attempt to resolve or make findings on the key sub-issues in the allegation, such as (i) how many times did they conclude Patient A had been slapped? (ii) where was Patient A slapped was it on the neck or on the face? (iii) was the Appellant in a bad mood during the operation showing frustration and annoyance? (iv) at which point during anaesthesia was the slap said to have happened? and (v) where was the Appellant sitting/standing when it occurred?

The determination does not explain which of the various accounts the Tribunal accepted and why. The Tribunal simply acknowledged that there were differences in the accounts given. Each of the Respondent’s witnesses gave a different account of what is alleged to have occurred.

The inconsistencies between the witness’ accounts on both the number of times the patient was slapped as well as where on his body he was slapped are issues which needed to be resolved for the finding of fact to be one which a reasonable Tribunal could make. This was important because aside from the account of ODP Cousins, the only evidence of the slap was from Dr Singh, who did not see anything happen and whose evidence as to what she heard contradicted the evidence of ODP Cousins; and Patient A, whose account could have been consistent with the medical emergency described by the Appellant.

In these circumstances, I accept Ms Tanchel’s submission that the effect of the Tribunal’s characterisation of the evidence is that “something happened”, which was an insufficient basis for finding against the Appellant on paragraph 1a.

Second, although the Tribunal had directed itself that it should consider the reliability of the evidence as a global picture and not in isolation, reflecting the guidance in Hindle at [53] (see [36] and [57] above), there is no evidence that it did so.

The Tribunal had considered at the no case to answer stage that it was not safe to rely on ODP Cousins’ evidence about the words allegedly used in paragraph 1b of the Allegation, not least as his evidence on this issue had varied: see [28] above. At the end of the evidence, the Tribunal had formed the same view in relation to ODP Cousins’ evidence about the words said to justify paragraph 6, in relation to which he had also given different accounts: see [45] above.

In respect of Dr Singh, the Tribunal had noted at the no case to answer stage that the suggestion as to the Appellant’s motivation in giving Patient A the midazolam had come from speculation on the part of Dr Singh, who later conceded that her understanding of the effect of midazolam was wrong: see [30] above. Having heard all the evidence, the Tribunal did not consider that it could rely on Dr Singh’s evidence that the Appellant gave Patient A the injection of midazolam, checked the vial when she questioned him on the dose, said that the Appellant said he had accidently given a 10mg dose rather than a 5mg dose and then administered flumazenil to reverse the effect of midazolam. Rather, the Tribunal concluded that Dr Singh had been mistaken as to whether the Appellant had administered the midazolam and could have mistaken the administration of midazolam with the administration of flumazenil or saline: see [42] above.The Tribunal also felt unable to rely on Dr Singh’s evidence about the words said to justify paragraph 6, which varied from the account given by ODP Cousins: see [45] above.

However, when considering paragraph 1a, there is no evidence that the Tribunal considered the issues with the evidence of OPD Cousins and Dr Singh on the other paragraphs, which it had not felt able to accept.

Moreover, the effect of the Tribunal’s decisions to withdraw certain paragraphs of the allegation at the no case to answer stage and to find others not proved after the evidence, was that the overall “narrative” of the Appellant’s behaviour advanced by the Respondent – to the effect that he had behaved with frustration and aggression and had sought to prevent his conduct being reported – had not been accepted. This at least arguably cast a very different light over paragraph 1a of the Allegation, and this was not addressed by the Tribunal.

Third, the Tribunal here fell into the same error as that in Hindle in considering the evidence relating to each charge against the Applicant not merely on an individual charge-by-charge basis (as was correct), but “effectively in silos” (which was not). As in Hindle, the fact that OPD Cousins and Dr Singh appeared to have given incorrect accounts in relation to certain of the charges that the Tribunal had withdrawn or found not proved could not simply be ignored when the Tribunal was considering whether it could rely on those witnesses’ evidence as satisfying the Respondent’s burden of proof in respect of other allegations: it was not rationally open to the Tribunal to “simply ignore that matter by taking the rigidly siloed approach that it did”: see [59] above. As noted in Hindle, the Tribunal had to explain, in respect of the disputed allegations it found proved, “why it had preferred the account given by one or more of the [witnesses] to the contrary account given by the Appellant” [my emphasis].

Fourth, the evidence of ODP Cousins necessarily involved facts which if correct, would mean that the Appellant put the client’s life at risk contrary to the Tribunal’s own finding that the Appellant’s “focus was on “Patient A’s wellbeing” and that he had the patient’s best interests at heart. The Tribunal’s finding of assault by slapping the Patient A is irreconcilable with its finding that the Appellant was acting in the Patient’s best interests, without explanation.

Fifth, at [30], the Tribunal referred to part of the Appellant’s evidence as to how the events unfolded and accepted that evidence. However, the Tribunal failed to give any explanation for why it had disbelieved the Appellant on the crucial issue of the alleged assault, namely the basis upon which they found him unreliable or incredible. This is notable given that during the cross-examination of the Appellant it was explicitly put to him that he was a liar.

The Appellant, as in Hindle, was entitled to know why his evidence had not been accepted by the Tribunal, and such reasons as were given in that regard had to be rational and based on weighing up all legally relevant considerations, including the Tribunal’s assessment of the relevant witnesses’ general credibility and reliability: see [56] above.

Sixth, this erroneous approach is further aggravated in the particular circumstances of this case because the Appellant accepted that his hands were moving, that he did touch the Patient both by holding the mask down on his face and by trying to stop his neck from moving. Thus, there was no denial that the Appellant had made contact with the Patient’s body - the live issues in the case was where that contact was and whether it was undertaken for clinical need or was an unlawful assault. Accordingly, it was necessary for the Tribunal to identify which version of events it had accepted as the basis for its finding that the Appellant slapped Patient A.

For all these reasons I uphold Grounds 1-3.