Dr Udodiri Okpara v General Medical Council [2019] EWHC 2624 (Admin)

Dr Udodiri Okpara v General Medical Council [2019] EWHC 2624 (Admin) was an appeal by Mr Justice Julian Knowles from decisions of the Medical Practitioners Tribunal finding allegations of sexual misconduct proved and imposing erasure from the medical register. The appeal was dismissed.

Dr Okpara was a Locum Registrar in the Accident and Emergency Department at the University Hospital of Wales in Cardiff between 2014 and 2016. The Medical Practitioners Tribunal found proved a number of allegations of sexual misconduct towards Ms A, a staff nurse at the hospital. The Tribunal found that between 2014 and 2016 Dr Okpara had made inappropriate sexual remarks, including commenting on Ms A’s bottom, had made unwanted sexually motivated physical advances including touching her bottom, trying to link legs with her, and standing unnecessarily close, had invited her out to drink champagne and given her his telephone number, had led her into a relatives’ room under false pretences, closed the door, stood in front of it, and told her he wanted a hug and would let her out in exchange for one, had stood behind her with his groin touching her bottom whilst she took blood from a patient, had offered to buy her underwear, and had sent her a Facebook friend request and message stating “thanks gorgeous” before following her into a sluice room, standing behind her, placing his arms around her waist, placing his groin against her, putting his hand down her trousers and touching her bottom, smelling her neck and making groaning noises whilst ignoring her requests to stop. The Tribunal also found proved an incident in which Dr Okpara stood behind Ms A in a staff room at three in the morning, placed his hand on her shoulder and his groin against her torso, and ignored her request to stop. The Tribunal found all these allegations sexually motivated. One allegation relating to the Facebook friend request itself was found not proved.

Dr Okpara denied all the specific allegations and said most of the encounters described had not occurred. He made counter-allegations that Ms A had behaved flirtatiously towards him, that she had asked him to invite her as a friend on Facebook, that she had sought help from him to take blood without clinical reason, that she wanted him to buy her an expensive handbag, and that she was the one constantly making physical contact with him.

The Tribunal found the allegations proved save for the Facebook friend request allegation. It found that Dr Okpara’s account of Ms A’s behaviour was wholly inconsistent with evidence from witnesses who described her as timid, prudish, quite religious with strong values, and a private person. The Tribunal found Ms A’s accounts consistent and detailed. It rejected Dr Okpara’s generalised denials and said it did not consider his evidence plausible given what it had heard about Ms A’s character and his propensity to mirror the allegations against him back at Ms A without credible supporting evidence. The Tribunal relied on corroborative evidence including complaints Ms A had made to colleagues and contemporaneous WhatsApp messages. It found Dr Okpara’s evidence implausible in several respects, including his assertion that he would never have been present when a nurse was taking blood from a patient.

On impairment, the Tribunal found the facts proved amounted to misconduct and that there was no evidence of insight or remediation from Dr Okpara. It concluded a risk of repetition remained. On sanction, the Tribunal characterised Dr Okpara’s conduct as a prolonged course of persistent, escalating and targeted predatory behaviour directed to a work colleague on shift in a clinical setting. It gave little weight to testimonials that were not on headed paper, were undated, were written prior to the findings of fact, and did not identify which hospital the authors worked at. The Tribunal rejected a submission that there had been insufficient time between the misconduct and impairment decision for Dr Okpara to show insight, finding instead that his blanket denials and counter-claims against Ms A demonstrated a complete lack of insight. It concluded that Dr Okpara’s misconduct was so serious as to be fundamentally incompatible with continued registration and that erasure was the only proportionate sanction to maintain public confidence in the profession.

Dr Okpara appealed on three grounds: first, that the Tribunal erred on burden and standard of proof by reversing the burden and failing to conduct sufficiently critical and anxious scrutiny of the evidence; second, that the Tribunal failed to take into account or give sufficient weight to prejudice arising from delay in making the complaint; and third, that suspension was a reasonable and appropriate sanction and erasure was wrong.

Mr Justice Julian Knowles addressed each ground in turn. On Ground 1, Mr Khan for Dr Okpara submitted that the Tribunal had erred when it stated at paragraph 18 of its determination that the combination of blanket denial and counter-arguments diminished Dr Okpara’s credibility as a witness. He said this reversed the burden of proof which lay with the General Medical Council and failed to apply the correct standard. He submitted the Tribunal did not scrutinise the evidence with sufficient care having regard to the principles in Re H and Others (Minors), In re D (Secretary of State for Northern Ireland intervening), and R v PS, which required more careful consideration where allegations are serious. He pointed to what he said were inconsistencies in the evidence and said the Tribunal should have held it could not resolve the conflict of evidence without independent corroborating evidence. He also said the Tribunal reversed the burden when it said Dr Okpara had not provided any reason why Ms A should make allegations against him, relying on R v GJB.

Ms Hearnden for the GMC responded that this was a paradigm example of a Tribunal making primary findings of fact founded on assessment of credibility which should be virtually unassailable. She said the Tribunal was properly directed on burden and standard of proof and that it was open to the Tribunal to conclude the GMC had discharged the burden by finding Ms A credible and Dr Okpara not credible. She said the submissions were simply attacks on findings of fact and that the Tribunal had in fact addressed inconsistencies, for example noting at paragraph 58 that Ms A had reiterated in oral evidence she was bending over and not kneeling as indicated in Ms Brown’s statement. She said the Tribunal was aware of the Appellant’s argument about CCTV evidence.

The judge held that there could be no doubt the Tribunal understood the burden lay on the GMC and that Dr Okpara bore no burden of proving anything. The Tribunal had expressly directed itself at paragraph 7 of its determination and the Chair’s legal advice had referred to the judgment of Baroness Hale in Re B (Care Orders: Standard of Proof) regarding inherent probabilities. A good character direction was given. The judge held that whilst paragraphs 17 to 18 were perhaps unfortunately phrased, when read carefully in context they did not amount to reversing the burden of proof. What the Tribunal was saying was that because it doubted the credibility of one part of Dr Okpara’s case regarding Ms A’s alleged behaviour, that caused it to doubt the credibility of the other part of his case denying the misconduct. That was entirely legitimate reasoning albeit clumsily expressed. The judge rejected the argument that the burden of proof was reversed.

On the scrutiny of evidence, the judge held the Tribunal was expressly directed by the Chair in accordance with Re B, Re H, and In re D. The direction was impeccable. The Tribunal had the correct test in mind. The judge held that given the straightforward nature of the credibility issues, it was not necessary for the Tribunal to address every single forensic point in its determination. The Tribunal set out each allegation, the competing evidence, and gave reasons for its findings. Where relevant it identified corroborative evidence from witnesses and contemporaneous messages. It considered inherent plausibility, for example finding implausible Dr Okpara’s evidence that he had never taken a patient’s history whilst a nurse was taking blood. The Tribunal’s reasons more than met the required standard. The Tribunal was entitled to take into account whether Dr Okpara could put forward an explanation for false accusations provided it bore well in mind the burden throughout lay on the GMC, which it clearly did. R v GJB was not on point. Ground 1 failed.

On Ground 2, the judge held the timescale from 2014 to 2016 when Ms A made her complaint to the hospital was unremarkable. R v PS concerning allegations decades previously was not relevant. The Tribunal was addressed on the absence of CCTV and other matters and would have had these forensic points in mind when considering whether the GMC had proved its case. Ground 2 failed.

On Ground 3, the judge reminded himself that he could only intervene if there was an error of principle in the evaluation or if the evaluation was wrong in the sense of falling outside the bounds of what the Tribunal could properly and reasonably decide. The judge held that Dr Okpara’s conduct could properly be described as sexually predatory behaviour over a sustained period and the Tribunal was right to so characterise it. Some of the conduct was capable of amounting to sexual assault contrary to section 3 of the Sexual Offences Act 2003, and the relatives’ room incident was capable of amounting to false imprisonment. The Tribunal was right to find the conduct fell within paragraphs 148, 149, and 150 of the Sanctions Guidance. Erasure was open to the Tribunal as a likely appropriate sanction.

The judge held the Tribunal expressly referred to paragraph 92 of the Guidance and concluded Dr Okpara’s misconduct was fundamentally incompatible with continued registration. It was not wrong to reach that conclusion whether or not Dr Okpara had acknowledged fault (which the judge found he had not). As a specialist Tribunal it was entitled to conclude that sustained sexually predatory behaviour towards a colleague whilst on duty, once in a patient’s presence and once following deception about wanting to discuss a patient, was fundamentally incompatible with continued work as a doctor. The Tribunal did refer to personal mitigation including Dr Okpara’s personal difficulties and role as sole breadwinner but gave them little weight given the seriousness of the misconduct. Weight was a matter for the Tribunal. The Tribunal was entitled to attach little weight to testimonials that were not submitted eight weeks before the hearing as required and were not verified by the GMC. In any event, given the very serious nature of the misconduct, the testimonials were not capable of requiring suspension rather than erasure. None of the other forensic points showed the Tribunal’s decision was wrong. Ground 3 failed.

In short, the appeal against both the findings of fact and the sanction of erasure was dismissed, the Tribunal having correctly directed itself, properly evaluated the evidence, and reached a decision on sanction that was open to it as a specialist adjudicative body dealing with sustained sexually predatory behaviour fundamentally incompatible with medical practice.

Fish v General Medical Council [2012] EWHC (Admin) 1269
Siddiqui v. General Medical Council [2015] EWHC 1966
Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56
Gosalakkal v. General Medical Council [2015] EWHC 2445
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Khan v General Pharmaceutical Council [2017] 1 WLR 169, [2016] UKSC 64, [2017] 3 All ER 873
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GJB [2011] EWCA Crim 867
PS [2013] EWCA Crim 992
Re H [1996] AC 56
Re B [2009] AC 11
Re H and R (Child Sexual Abuse: Standard of Proof) [1996] AC 563
R (on the application of AN) v Mental Health Review Tribunal [2005] EWCA Civ 1605, [2006] QB 468, [2006] 4 All ER 194, [2006] 1 MHLR 59, 88 BMLR 59
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Yassin v the General Medical Council [2015] EWHC 2955 (Admin)

Case appealed

Sayer v General Osteopathic Council [2021] EWHC 370 (Admin)