[2024] UKUT 224 (AAC)

We were faced with a stark conflict of evidence between what the Appellant told us and his employer’s case investigator on the one hand (that he cleaned the patient thoroughly from front to back using a wipe in his open hand, successfully collecting some hard and soft faeces in the wipe), and what three of his colleagues say he told them during a conversation in the nurses’ station on a night shift on 15/16 December 2021 on the other.

Three of the Appellant’s colleagues report that they were discussing problems with constipated patients on the ward when the Appellant volunteered that he had assisted his patient to pass a stool by digitally penetrating her vagina to relieve her constipation, demonstrating a “digging motion” with his fingers. Their accounts of this conversation are consistent with each other and inconsistent with the account of the Appellant.

We had to decide what to make of the evidence of the Appellant’s three colleagues, and how to resolve the conflict between what they said and what the Appellant said.

At first glance the fact that three colleagues have given consistent accounts of the conversation on the night shift of 15/16 December 2021 seems very compelling. However, we assessed the evidence critically to decide how much weight we could place on these accounts.

First of all, it must be noted that these accounts were accounts not of witnessing the Appellant carrying out the alleged procedure, but rather of what the Appellant told them about what he had done, and how he had demonstrated this to them using hand gestures. There was no direct evidence of the incident itself other than the account of the colleague who was present in the room with the Appellant while he attended to the patient on 12 December. That colleague said she didn’t notice anything untoward (see paragraphs[52]-[53] below).

We considered whether the three witnesses to the conversation in the nurses’ office might have misheard what the Appellant said, whether they might have misremembered what they heard him say and what they saw him demonstrate, and whether they might have misinterpreted what he said and how he gestured with his hands.

We took into account that the Appellant speaks with an accent. We found it plausible that the witnesses misheard the words spoken. Indeed, the DBS itself acknowledged such a possibility in the Final Decision Letter:

“It is acknowledged that English is not your first language and that you could have been misinterpreted”).

The DBS considered that while it was possible that his words could have been misinterpreted, the accompanying hand gestures make it unlikely that they misunderstood him.

Unlike the DBS we had the benefit of hearing live evidence from the Appellant, including seeing him try to explain things using his hands during the hearing. With the benefit of this evidence we found it plausible that the witnesses misinterpreted the Appellant’s demonstration of the motion he said he used. During the hearing it was difficult to tell the difference between the gesture he used when explaining what he said he did (wiping the patient front to back with a wipe in his open hand) and when demonstrating what he would have to have done had he performed the procedure he is alleged to have performed (inserting his fingers into the patient’s vagina and using his fingers to scoop faeces out by applying pressure through the vaginal wall).

We also took into account that only one of the “statements” given by the Appellant’s colleagues detailing their recollection of the conversation of 15/16 December 2021 was dated, and it isn’t at all clear how long after the conversation the other statements were produced. Neither was any of them signed or accompanied by a statement of truth. We were therefore cautious about placing significant reliance on them and we decided that it was certainly possible that all three of them had misremembered the exact words they heard (or thought they heard) and the gestures they saw (or thought they saw).

While the DBS said in its Final Decision Letter that there was “no evidence to suggest that these witnesses had colluded to make false allegations against [the Appellant]”, the consistency of their accounts can be explained by the fact that they worked together and would have had every opportunity to discuss the allegations, which they wouldn’t necessarily have considered to amount to “collusion”. Because none of them was called as a witness at the hearing, we were denied the opportunity to explore this.

We weigh against this evidence the Appellant’s firm statement about what happened, and about what he said and demonstrated. We take into account that the Appellant has been entirely consistent in denying carrying out the alleged procedure. The suggestion that it was accepted practice in India came not from the Appellant but rather from his employer and from DBS. While the Appellant said that in India such a procedure could be performed by a doctor, he said it could not be performed by a nurse, he hadn’t been trained to do it, and he had never even seen a doctor perform it. He was adamant that it would have been wrong for him to carry out such a procedure, whether in the UK or in India.

We also take into account that the Appellant gave oral evidence at the hearing of this appeal and made himself available for questioning by Mr Tinkley and by the panel. He stood up well to cross-examination and we found him to be forthcoming in his evidence, and a credible witness.

He was asked why, if he were simply wiping the patient’s bottom with a wipe in his open hand, as he now says, he felt the need to share this with his colleagues, or indeed to illustrate it with a manual demonstration. However, it must be remembered that the context of his contribution was a conversation among professionals about issues that patients on the ward were having with their bowel movements. There is nothing strange about the Appellant seeking to contribute to that discussion by sharing his own experience with colleagues. We are not persuaded that he would only contribute to the discussion if he had something particularly new or striking to share.

Considering the evidence about the conversation of 15/16 December 2021 in the round, we decided that despite the evidence of the three colleagues being consistent, it should be given only limited weight because of the possibility discussed above of mishearing, misinterpretation and misremembering, and because there had been no opportunity to investigate this because none of the witnesses gave evidence at the hearing.

We considered the practicalities of carrying out the alleged procedure, relying on the expertise and experience of the Tribunal Members: had the Appellant digitally penetrated the patient’s vagina and carried out the “digging motion” that the witnesses allege he demonstrated to them, this would have prompted an immediate physical response in the patient, resulting in her defecating on the Appellant’s arm before he would have had the chance to get it out of the way.

However, the only eye witness to the incident on 12 December 2021 noticed nothing of this nature when she assisted the Appellant with the patient, and her account of what she observed was consistent with the Appellant’s account (see page [66] of the appeal bundle):

“[The Appellant] proceeded to wipe/clean the patient. He appeared to wipe firmly from front to back and a large amount of firm balls of stool appeared on the wipes. He repeated this action with the same result; a large amount of firm balls of stool on wipes. The patient leaned further into my chest. [The Appellant] carried out the action a third time and a large smooth looking stool appeared on the wipes. During this procedure the patient let out noises of ? objection, this was normal for the patient when being cleaned or rolled for pressure relief.”

Her account in her interview with the employer’s case investigator was consistent with this (see page [64] of the appeal bundle):

“It was in the right back area, there was a person in Bed 12 on the floor. Could see a large bowel movement. She was female. I could see that there were hard stools under the bed. We got the lady onto the commode and waited behind the curtain Checked she had finished and we went in, [the Appellant] to the left of the commode and I to the right. I explained what we were going to do, [The Appellant] began cleaning. There were 3 lots of stools 2 hard 1 other. For the last time of cleaning the patient made a noise. I didn’t think anything of it at the time. [The Appellant] was at the side of me, I can’t say which hand he used. He wiped 3 times and there was a large softer movement.”

Had the Appellant performed the procedure alleged it is difficult to see how he could have done so without his colleague becoming aware that he had done something unusual. Were such an invasive action taken the patient can be expected to have responded either by making noises of significant distress or by pulling away, while the only response reported by the colleague was “noises of ? objection” which she described as “normal” for the patient when being cleaned or rolled.

Digitally penetrating the patient’s vagina and “digging” by applying pressure to the vaginal wall to remove stools would also be very difficult in the position the Appellant and his colleague described. If the Appellant had intended to carry out such a procedure it is much more likely that he would have done so when the patient was lying on the bed, rather than standing/crouching.

It is also difficult to see how the Appellant could carry out the procedure alleged if he had a wipe in his hand (as both the Appellant and his colleague consistently described). Had he digitally penetrated the patient’s vagina while holding a wipe in his hand, he would have inserted the wipe into the patient’s vagina. It is then difficult to see how he would be able to collect the faeces in the wipe as his colleague who was the only eyewitness described him doing.

Having considered the evidence in the round, we concluded that the DBS was wrong to find that the Appellant had inserted his fingers into the patient’s vagina and pressed against her vaginal wall. We find instead that he wiped the patient’s vagina and perineum firmly three times with a wipe in his open hand, and in doing so stimulated a bowel movements, which he collected with the wipe in his cupped hand.