Dr Mokhammad (“the Claimant“), a registered doctor, challenged by way of judicial review the decision of the Medical Practitoner’s Tribunal (“MPT“) dated 25 January 2019 to impose a warning in the following terms:
“On 17 May 2017 you were involved in an incident in a hospital car park in Birmingham during which you used language and made a gesture, both of which were offensive and insulting. This conduct does not meet with the standards required of a doctor. It risks bringing the profession into disrepute and it must not be repeated. The required standards are set out in GMP and associated guidance. Whilst your conduct has not resulted in any restriction on your registration, it is necessary in response to that conduct [to] issue this formal warning.”
At the time of the incident the Claimant was practising as a Locum Senior SHO and on a placement at Queen Elizabeth Hospital. The hospital car park was operated by a private company, QPark Limited. In April 2017, the Claimant purchased a 3 month car park permit and pass. However, the Claimant routinely was unable to access the car park with his pass because the barrier would not open as the car park was designated full, in which case he had to purchase a single use car park ticket. The Claimant was worried about being late for work, which he knew would impact upon colleagues and patients.
On the day in question, 17 May 2017, the Claimant again found that he was unable to access the car park using his pass, and so he purchased a single use ticket to gain access and then drove to Car Park F where the site office was situated in order to speak to the car park staff. In the office at the time were Ms A, administration assistant, Mr B, assistant site manager, Mr C, site supervisor, and Mr D, car parking host, all of whom had worked together for many years. It is not disputed that what then occurred was an ugly and explosive incident. Later that day the car park staff provided initial written accounts regarding the incident and in which it was alleged that the Claimant had used aggressive, threatening, abusive and/or offensive language directed towards Ms A, Mr B and Mr C. Also that day the Claimant made a complaint against Mr B and Mr C in respect of their alleged rude and aggressive behaviour directed towards him. By email dated 25 May 2017, and having been invited to do so, the Claimant submitted a more detailed account in respect of his complaint against Mr B and Mr C. In that account, the type of language allegedly used against the Claimant is similar to the type of language allegedly used by the Claimant against Mr B and Mr C.
The hearing before the MPT took place over a period of 10 days (14 January to 25 January 2019). The Claimant was represented by counsel during that hearing, although he represents himself at the appeal hearing. There was no CCTV footage available to assist the MPT. Nor was there any mobile phone footage available despite Ms A having stated in her witness statement dated 2 August 2018 that she “took my mobile phone out and recorded a video of the argument between [Mr B] and [the Claimant]”, but “Unfortunately I have since deleted this video as I didn’t think it was needed.” Therefore, the MPT faced the difficult task of having to make findings of disputed fact solely by reference to the written and oral evidence of the Claimant and the car park staff. The MPT noted that:
“ The Tribunal has considered all the evidence presented. It has noted that the accounts given by the GMC witnesses present in Car Park…and Dr Mokhammad were entirely different; the former contended that Dr Mokhammad was always the instigator of the unacceptable behaviour; Dr M’s evidence put the instigation of the bad behaviour fully on the Q-Park staff. Nor were the accounts of the incident given by the 4 GMC witnesses present in the Car park particularly consistent with one another. It fell to the Tribunal to make sense of the incident based on its analysis of the evidence which was presented to it.”
The Court of Appeal granted permission to seek the judicial review on limited grounds, commenting that:
“If the application for judicial review succeeds upon the index facts issue, the warning imposed by the MPT cannot be sustained. If the appeal fails on the primary facts issue, the warning which was imposed was reasonable and appropriate.”
It was submitted by the Claimant that given the lack of objectively verifiable evidence (such as CCTV or mobile phone footage), the MPT were constrained to make findings of fact based upon witness evidence only. However, the witness evidence did not amount to a reasonable evidential basis for the index finding.
On the part of the GMC, it was argued that the submissions advanced by the Claimant fall far short of the high threshold required to justify intervention. The evidence before the MPT was reasonably capable of supporting the MPT’s findings that the Claimant made the statements and gestures alleged. The MPT was confronted with differing accounts of the car park incident and a denial of wrongdoing by the Claimant.
HHJ Richard Williams quashed the decision of the MPT saying that:
“The allegations made against the Claimant, which included threats of sexual violence accompanied by graphic gestures, were undoubtedly very serious. However, the civil standard of proof (balance of probabilities) does not vary with the gravity of the alleged misconduct. There is, therefore, no legal requirement that the more serious the allegation, the more cogent the evidence needed to prove it, although it is right to consider the inherent probability of an allegation in light of the particular circumstances of the case in determining whether it has been proved on the balance of probabilities.
“In my judgment, in the particular circumstances of this case, the Claimant was entitled to know why the MPT had rejected his evidence. The Claimant was cross examined at length. If the MPT doubted the Claimant’s credibility whether generally or by reference to specific allegations, it should have expressly said so and given its reasons for doing so even if only relatively briefly. In the evaluation of witnesses section of its determination and having already made assessments as to the reliability of Mr B and Mr C, the MPT failed to articulate any distinct assessment of the Claimant’s credibility in circumstances where the MPT was required to make findings of disputed fact solely by reference to the competing witness evidence.
“In my view, this means that the decision of the MPT to find the Claimant guilty of misconduct cannot stand and the warning cannot be sustained.”