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

Having heard all the evidence, the Tribunal gave a further detailed determination of the facts on 15 July 2024.

At [15]-[18], the Tribunal directed itself correctly that the burden of proof rested on the Respondent and that the standard of proof was that applicable to civil proceedings, namely the balance of probabilities, ie, whether it was more likely than not that the events occurred. It reminded itself of the advice it had received from the Legally Qualified Chair to the effect that (i) a serious allegation requires careful analysis of the evidence taking account of inherent probabilities or improbabilities of an event happening; but there is no different standard of proof or especially cogent type of evidence required; (ii) it was entitled to draw proper inferences from the evidence, but it must not speculate and should only draw an inference if it can safely exclude other possibilities; and (iii) it should not confuse grounds for suspicion with evidence sufficient to prove, on the balance of probabilities, a serious allegation against a doctor.

At [19]-[21], the Tribunal summarised the guidance that has been given in the caselaw about how evidence should be evaluated when considering the facts. The Tribunal noted the caution to be applied when considering the confidence and demeanour of a witness and continued:

“19…In any approach to the factfinding stage care must be taken to avoid considering each part of the evidence in isolation. The tribunal should consider the reliability of the evidence as a global picture and not in isolation…Tribunals should consider all of the evidence before them before coming to a conclusion about a witness’s credibility. This could include conflicts in evidence with another witness, denials of the allegations and reasons why they could not be true. It is open to Tribunals not to rule out the whole of a witness’s evidence based on credibility; credibility can be divisible…

21.

Studies have demonstrated that memory can be contaminated by erroneous information that people are exposed to after they witness an event. A person's evidence is ‘contaminated’ if the evidence is false or misleading in any respect, or is different from what it would otherwise have been, and the evidence arises as a result of an agreement or understanding between that person and one or more others, or as a result of the person being aware of anything alleged by one or more other persons whose evidence may be, or has been, given in the proceedings”.

The Tribunal accepted the advice of the Chair that it was for the Tribunal to consider the reliability of any evidence that they concluded was contaminated and that it should consider whether to disregard it: [22].

The Tribunal noted that it had been informed that the Appellant had no previous convictions or disciplinary findings and reminded itself that his good character “was a matter it was entitled to take into account where his credibility was called into question, when considering whether it is more likely than not that he was telling the truth and whether he was likely to have behaved in the manner alleged”: [23]. The Tribunal had previously referred to the fact that the documentary evidence it had considered included testimonials about the Appellant: [14].

The Tribunal summarised the evidence in relation to paragraph 1a of the Allegation as follows:

“25.

The Tribunal considered whether, on 9 August 2019, whilst providing anaesthetic care to Patient A, Dr James, on one or more occasions, slapped Patient A. In determining this paragraph, the Tribunal reminded itself of the evidence of Patient A, Ms Baker, ODP Cousins and Dr Singh, all of whom were present at the time. In particular it has considered the initial reports of these witnesses, mindful that over time evidence can be influenced by other matters.

26.

Patient A recalls being slapped ‘up to three times’ by Dr James. The Tribunal took into account that Patient A was being administered drugs to make him unconscious and could have been mistaken about being slapped or for how many times. The Tribunal had determined earlier that Patient A had no reason to fabricate the story about Dr James.

27.

Ms Baker who conducted the operation was present in the operating theatre at the time although she did not witness Dr James slapping Patient A. She says she was at her computer and her mind was focussed on preparing for the operation. She saw Patient A the next day. She says that Patient A spontaneously volunteered words to the effect of “I got a slap” from Dr James.

28.

ODP Cousins says that he was standing next to Dr James and Patient A. He initially said that he saw Dr James slap the patient’s face. While ODP Cousins did not report the matter straight away, he did inform a work colleague Sister Gillian Crooks about the incident later that day. In later statements ODP Cousins said that Dr James slapped Patient A three times.

29.

Dr Singh did not see Dr James slap Patient A. She says that she heard a loud slap sound. She says that she mouthed “did he just slap him” to ODP Cousins and that he mouthed back “yeah” and nodded.

30.

Dr James denies slapping Patient A. He says “I did not slap the Patient A. However, I accept that this may have been how my actions were perceived as I attempted to keep his head still and the mask in position….”.

At [32]-[34], the Tribunal cited the evidence from ODP Cousins and the Appellant as to the environment in which the slap is alleged to have taken place, and the evidence from Dr McCrirrick that it can be an extremely taxing situation to manage as it becomes increasingly difficult to keep the facemask in place to administer further anaesthesia, which on occasion can become a potentially life-threatening situation.

The Tribunal’s key reasoning in relation to paragraph 1a was as follows:

“35.

The Tribunal was mindful that this incident took place in a hectic environment with a potentially life-threatening situation and a medical emergency where Dr James’ focus was on Patient A’s well-being. However, there were three witnesses that say Dr James slapped Patient A at least once and, despite some differences, their evidence was reliable. The Tribunal was satisfied that it was more likely than not that the Appellant did slap Patient A”.

In respect of paragraphs 2-4 of the Allegation, the Tribunal found that Patient A had been given a 10 mg dose of midazolam which was excessive and not clinically indicated, but it was not the Appellant who had directly administered the midazolam. The Tribunal’s reasoning included the following:

“37…The Tribunal noted that it is the GMC’s case that Dr James directly administered the [10 mg of midazolam] to Patient A.

38.

The Tribunal noted that there was a factual dispute about who directly administered midazolam to Patient A.

39.

Dr James…says that he asked his assistant, SSN McDonald to fetch 5mg of midazolam from the controlled drug cupboard. He says that he did not directly administer the midazolam but cannot recall who did. He says that he instructed an assistant to administer a 5mg dose.

40.

Dr Singh says that she saw Dr James go to the anaesthetic room. He came back and gave Patient A an injection. She said that she asked him what this was, and that he said that it was midazolam. She said that when she questioned Dr James on the dose, he had given he went to the anaesthetic room to check the vial. She said that Dr James said he had accidently given a 10mg dose rather than a 5mg dose. He then administered flumazenil to reverse the effect of midazolam.

41.

The Tribunal noted that Dr James stated that the midazolam was already available when Patient A was on the post operative bed. Dr Singh in her witness statement accepted that the midazolam would have been signed out in advance of the operation. ‘Midazolam is a controlled drug, as is morphine and fentanyl, so would have been signed out of the controlled drugs cupboard by the ODP in advance of the operation. Non-controlled drugs such flumazenil are freely available for use in the theatre and are stored in the anaesthetic room’.

42.

On that basis the Tribunal concluded that it was more likely than not the midazolam was readily available, and that Dr Singh had been mistaken. She had assumed Dr James had gone to get the drug when he left the room, However, there was not any evidence that Dr James had access to the controlled drugs cabinet to get the midazolam.

43.

The Tribunal also concluded that Dr Singh could have mistaken the administration of midazolam with the administration of flumazenil or saline. Therefore, the Tribunal accepted Dr James’ version of events that he prescribed midazolam and directed someone else to administer it”.

Notwithstanding who administered the midazolam the Tribunal considered whether midazolam was administered instead of opiate analgesia. The Tribunal took into account the expert opinions of Professor Hardman and Dr McCrirrick, and concluded that there was a body of opinion, articulated by Professor Hardman and the Appellant, that in relation to the circumstances of Patient A, there was a not a preference in using opiate analgesia instead of midazolam: Accordingly, the Tribunal found paragraphs 2a and 2b and 3 not proved: [44]-[51].

The Appellant and both experts had agreed that administering a 10 mg dose of midazolam was excessive. The Tribunal found paragraphs 4a and 4b, albeit noting that it was not the Appellant who had directly administered the midazolam, as set out in paragraph 2b: [52]-[54].

The Tribunal found paragraph 6 of the Allegation not proved, holding as follows:

“55.

The Tribunal considered whether after the operation Dr James said to ODP Cousins ‘you’re not going to say anything are you’. Dr James says that he has no recollection of making any such comment.

56.

The Tribunal also took into account the written evidence of ODP Cousins provided for the GMC. He said: ‘I walked around foot (sic) of the patient’s bed and Dr James said to me ‘You’re not going to say anything are you.’

57.

In his earliest account to the Trust and his later statement to the police, ODP Cousins uses different wording. He says: ‘I was back in theatre 5 again and Dr James asked me ‘Are you going to say anything?’

58.

Dr Singh gives a different variation on the words used: ‘Just before waking the patient up Dr James asked ODP Cousins in front of everyone in theatre, “You’re not going to tell on me are you? You’re not going to say anything about this are you?” which ODP Cousins ignored and did not respond.’

59.

The Tribunal noted that ODP Cousins gave different accounts of what Dr James allegedly said. It also noted that Dr Singh’s recollection varied from ODP Cousins.

60.

The Tribunal considered that the words ‘are you going to say anything?’ have a very different interpretation and effect than the words ‘you’re not going to say anything are you?’. The first could be seen as a straightforward question; the second as a possible attempt to influence a person’s actions.

61.

Given its findings that the words ‘are you going to say anything?’ do not have the same effect as the words in the Allegation, the Tribunal did not find it more likely than not that words in the Allegation or words with a similar effect were used by Dr James, the Tribunal found paragraph 6 of the allegation not proved”.

The Tribunal found paragraph 7 of the Allegation not proved due to its findings on paragraph 6: [62].

Misconduct was admitted and found proved by the Tribunal. The Tribunal found that the Appellant’s fitness to practise was impaired. The Respondent submitted that erasure from the register was appropriate. The Tribunal acceded to the Appellant’s submission that a period of suspension was appropriate and imposed a suspension for three months without review.