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

At the end of the Respondent’s case, Ms Tanchel made a submission of no case to answer in respect of all the allegations against the Appellant, under Rule 17(2)(g) of the General Medical Council (Fitness to Practise Rules) 2004 (as amended). This provides that:

“…the practitioner may make submissions as to whether sufficient evidence has been adduced to find some or all of the facts proved and whether the hearing should proceed no further as a result, and the Medical Practitioners Tribunal shall consider any such submissions and announce its decision as to whether they should be upheld.”

In respect of paragraphs 1, 5 and 7 of the Allegation, Ms Tanchel argued that the evidence of the witnesses of fact was compromised or, at best, inconsistent and so could not be relied upon. In respect of paragraph 6, she contended that there was no evidence to say what the Appellant may have been referring to in his alleged comment set out in paragraph 6 and, even if there was sufficient factual evidence, this could not support a finding of misconduct: see the Tribunal’s determination on the application dated 31 October 2023 at [14] and [15].

Counsel for the Respondent argued that the three witnesses were all reliable and had given credible evidence, which was sufficient for a properly directed Tribunal to find paragraph 1 of the Allegation proved. In respect of paragraph 6, she submitted that any variation in the words used by the Appellant was covered by the phrase “or words to that effect” in the paragraph. She argued that (i) the fact that Dr Singh’s and ODP Cousins’ accounts differed was evidence that they had not colluded; (ii) when they met in the reception area, the conversation between Dr Singh and ODP Cousins was not about the details of the event or their report, but was merely about whether they should make a report and, if so, how best to do that; and (iii) it was purely speculative to suggest that Dr Singh’s husband had influenced her: [19] and [20].

The Tribunal reminded itself of the principles set out in R v Galbraith 73 Cr App R 124 (CA) and R v Shippey [1988] Crim LR 767, which apply to regulatory proceedings: see, for example, Tutin v General Medical Council [2009] EWHC 553 (Admin). Accordingly, it directed itself that its purpose at this stage was “not to make findings of fact but to determine whether sufficient evidence, taken at its highest, had been presented by the [Respondent] such that a Tribunal, correctly directed as to the law, could properly find the relevant paragraphs proved to the civil standard”: [2], [17], [24] and [26].

The Tribunal reached the following conclusions on the issue of witness contamination and collaboration:

“34…The Tribunal noted that Patient A had no prior relationship with Ms Baker and had seen nothing to indicate he had any motive to fabricate the allegations against Dr James. The Tribunal reminded itself that neither Dr Singh nor Mr Cousins made any contemporaneous records of the events, neither did they immediately report Dr James. However, the Tribunal did note that Mr Cousins had informally reported the events to Ms Crook on the same day. The Tribunal considered that Ms Tanchel’s claim was that Dr Singh and Mr Cousins met in the reception area and discussed what they would include in their report. The Tribunal noted that the content of Dr Singh’s and Mr Cousins’ complaint emails included differing accounts.

35.

The Tribunal was unable to exclude completely the possibility that Dr Singh and Mr Cousins had some brief discussion in the reception area about whether Dr James had struck Patient A. However, it did not consider that this contaminated their evidence to the extent that it was unreliable or unhelpful. The Tribunal accepted that there may be some risk over time that they shared details of the event but considered that this brief conversation was primarily about their decision to report something that they believed each had witnessed. The Tribunal accepted Mr Cousins’ claim that he had not made an official report at this point, despite having spoken to Ms Crook, informally, on the day. The Tribunal considered that this conversation was two colleagues sharing their concern about ‘putting their heads above the parapet’ to raise the issue and the only collusion was agreement that they would make a report, not any of the details of that report.

36.

The Tribunal was mindful that Dr Singh was new to the department and wanted to speak with Mr Cousins about the events but was satisfied that this conversation was about whether to make a report and to whom. The Tribunal considered that these were two professionals who had witnessed something that they say shocked them and had already had an interchange during the event. The Tribunal considered that the risk of contamination here was minimal and does not impact the credibility of either Dr Singh or Mr Cousins.

37.

The Tribunal considered that it would be speculative to try and determine what Dr Singh’s husband had said and whether this had changed her account. It considered that it was normal for a person to talk about stressful events and considered that Dr Singh’s account had remained consistent over time, as had that of Mr Cousins, with the exception of a change in detail about what specific language Dr James used with Patient A.

38.

The Tribunal considered that there was more risk of Ms Crook’s evidence being contaminated as she made her statement sometime later. However, the Tribunal considered that Ms Crook’s evidence was chiefly to corroborate that of Mr Cousins, whose account was, in the main, consistent. Therefore, the Tribunal determined that the GMC witness evidence was not contaminated and should stand”.

Having determined that the evidence of the GMC witnesses could be relied on, the Tribunal went on to consider if that evidence was sufficient for a reasonable Tribunal, properly directed, to potentially find the facts proved.

As to paragraph 1a of the Allegation, the Tribunal found as follows:

“40…The Tribunal reminded itself that the evidence for this occurring came from Patient A’s account of the event, Dr Singh’s evidence that she heard a slap and Mr Cousins’ evidence that he saw it. The Tribunal also noted that there was second hand evidence from Ms Crook and Ms Baker, who were informed of the slap by Mr Cousins and Patient A respectively.

41.

The Tribunal considered it immaterial whether the word ‘hit’ or ‘slap’ was used in witness statements as they were used synonymously. The Tribunal also noted that Patient A had reported the slap to Ms Baker the next day. The Tribunal considered that there were three witnesses to the slap, which, despite some differences in details, was sufficient that a Tribunal could find the facts proved on this matter. The Tribunal considered that Ms Baker’s evidence did not alter this opinion as her evidence that she did not witness the slap was not evidence that it did not happen. Therefore, the Tribunal determined not to withdraw this paragraph of the Allegation.

The Tribunal then addressed paragraph 1b of the Allegation, as follows:

“42…The Tribunal considered that the evidence of the words used in the Allegation comes from Mr Cousins and Ms Crook, who was only able to say what Mr Cousins had told her. The Tribunal noted that Dr Singh gave evidence that a different form of words was used than that in the Allegation and Patient A varied in his account. Only Mr Cousins gave evidence on the language being as drafted in the Allegation and this had changed from his original statement and trust interview.

43.

The Tribunal considered that the phrase as drafted in the Allegation – ‘stop messing around you fucker’ – was not capable of being proved by the evidence before it. The only direct evidence came from Mr Cousins, whose evidence varied about what the specific words used were. The Tribunal considered the phrase in the Allegation ‘or words to that effect’. The alternative form of words that had been put forward by the GMC was ‘stop fucking around.’

44.

The Tribunal considered that for the phrase ‘or words to that effect’ to be able to be proved, the alternative words must be comparable to the original phrase in both intent and effect. It considered a key aspect in determining this to be the expletive in this phrase. The Tribunal considered that it was clear from the various accounts that, whatever words were used, they were directed at Patient A. The Tribunal also noted that there was a variety of evidence that Patient A was wriggling around and making it difficult for the team to administer anaesthetics.

45.

The Tribunal considered the two phrases that had been suggested. It considered that the expletive in the phrase as drafted in the Allegation was clearly a pejorative directed at Patient A. However, as stated above, the Tribunal did not consider the evidence available to be sufficient to prove that this phrase was used. The Tribunal considered that the expletive in the alternative phrase, whilst improper language, could reasonably be substituted for a more benign word such as ‘messing’, meaning that the expletive was a broader expression of frustration rather than an insult directed specifically at Patient A.

46.

The Tribunal considered there to be a material difference between the two phrases that had been suggested and that it was being asked to substitute in words to fit the Allegation. It considered that the evidence before it was not capable of proving that the alternative phrase had the same effect as the phrase drafted in the Allegation and therefore determined to withdraw this paragraph of the Allegation”.

The Tribunal then considered paragraphs 2, 3 and 4 of the Allegation together, as they all related to the factual aspects of the administration of midazolam. The Tribunal determined not to withdraw paragraphs 2, 3 and 4 of the Allegation, in part because of Dr Singh’s evidence that she had seen the Appellant injecting something into the IV, had asked what it was and been told by him that it was midazolam: [48]-[50].

The Tribunal then considered paragraph 5 of the Allegation and considered that it was being asked to draw an inference about the Appellant’s motivation, continuing as follows:

“52.

The Tribunal reminded itself of Dr McCrirrick’s evidence that, whilst it was plausible, there was poor evidence that a high dose of midazolam had the effect of causing retrograde amnesia. The Tribunal noted that a low likelihood of success did not necessarily mean that this was not Dr James’ motivation.

53.

The Tribunal looked at where this suggestion had originated and considered that it came from speculation on the part of Dr Singh, who later conceded that her understanding of the effect of midazolam was wrong. The Tribunal considered that the evidence that Dr James’ motivation was malign was very dubious and it was being asked to speculate. It considered that, taken at its highest, the GMC’s evidence was only grounds for suspicion and determined that the evidence was not capable of proving the Allegation. Therefore, it determined to withdraw paragraph 5 of the Allegation”.

As to paragraph 6 of the Allegation, the Tribunal reminded itself that the evidence for this came from the accounts of Dr Singh and Mr Cousins. As set out above, the Tribunal considered these to both be reliable witnesses and so determined that the evidence of two witnesses was sufficient and that a Tribunal could find the Allegation proved.

In light of its findings on the other paragraphs, the Tribunal withdrew paragraph 7 (where it related to paragraphs 2, 3 and 5) of the Allegation were withdrawn.