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Dr Leo Casey v General Medical Council [2011] NIQB 95
Girvan LJ of the Northern Irish High Court has granted the appeal of Dr Casey, a Northern Irish GP who was suspended for 9 months following a hearing before the GMC’s Fitness to Practise Panel in July. The appeal is the first substantial appeal from the GMC’s to the Northern Irish High Court. The GMC’s decision has been quashed and an order made for costs.
The appellant was accused of using an examination of a female patient in his surgery for sexual gratification. The patient claimed that Dr Casey had cupped her breast, placed his stethoscope on her nipples, exposed her pubis and placed his hand below her knicker line, none of which was clinically indicated.
Despite finding that the GP had not cupped the patient's breasts, exposed her pubis or placed his hand below her knicker line, the GMC found that he had placed his stethoscope on the patient's nipples.
Fiona Paterson argued before the GMC that it was not open to them to find that the patient was reliable, given the inconsistencies in her accounts to the police, the GMC’s solicitor and during the hearing. Her reliability had to be considered in light of her previous accounts and also the allegations as a whole. If the GMC was not satisfied she was reliable in relation aspects of the allegations that should influence how they assessed her evidence regarding the remaining allegations.
The doctor secured an expedited appeal to the Northern Irish High Court. Fiona was led in the appeal by Martin Forde QC. Finding for the doctor Girvan LJ stated:
“…The evidential difficulty arising from serious inconsistencies and from making serious and ultimately unfounded allegations (evidence by their abandonment and withdrawal) is one which the tribunal must demonstrably appreciate and rationally deal with…The tribunal was not entitled to consider the apparently consistent and persistent version of events in relation to the nipples divorced from the inconsistencies established in relation to the other serious and abandoned sexual misconduct allegations…
Ultimately the court is the arbiter of what procedural fairness requires. In the present case whether one applies a test of fairness a test of exceptionality or a test of lack of straight forwardness, the circumstances in this case called for an explanation as to why the evidence of the doctor was rejected…
A proper direction from the legal assessor who bears the responsibility of ensuring that the panel understands the legal position should make the panel clearly aware of both the need and the reasons for heightened examination of the evidence of the case. All three of the examples given by Lord Carswell [in Re Doherty [2008] UKHL 37 i.e. the inherent unlikelihood of the occurrence taking place, the seriousness of the allegation to be proved and the serious consequences which could follow an acceptance of the proof] came into play in this case…”
In deciding that the GMC’s decision should be quashed, Girvan LJ relied upon 4 factors. First, the allegations related to events which occurred 6 years previously. Second, the patient’s lack of credibility and reliability could not be remedied through a further hearing. Third, her evidence would have been rehearsed through the first hearing. Finally, the patient “would have every motive to persist in maintaining [her] version of events, in order to justify the stance that she took before the …Panel which had led to adverse findings against the doctor…”
http://www.courtsni.gov.uk
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