Tariquez-Zaman v General Medical Council [2019] EWHC 2927 (Admin)

Tariquez-Zaman v General Medical Council [2019] EWHC 2927 (Admin) concerned an appeal by Mr Tariquez-Zaman, a doctor, against a decision of a Medical Practitioners Tribunal directing that his name be erased from the medical register following findings of serious misconduct and serious impairment of fitness to practise under the Medical Act 1983.

The Tribunal had found proved allegations falling into three groups. First, it found that on 6 February 2010, whilst working as a locum house officer at University College Hospital Accident and Emergency Department, Mr Tariquez-Zaman had conducted a vaginal examination on Patient A that was not clinically indicated, was sexually motivated, and was accompanied by a number of sexually motivated actions including watching her undress, pulling down her knickers whilst ungloved, smirking and making inappropriate comments during the examination, asking for her telephone number, entering it into his mobile phone, suggesting she attend his private clinic, and trying to arrange a social meeting. Second, the Tribunal found that he had obtained the telephone number of Patient B, another female patient seen on the same date, without her consent and for his own personal use without clinical reason, although the most serious allegations of sexual touching and inappropriate examination of Patient B were found not proved. Third, the Tribunal found that between January 2014 and May 2015 Mr Tariquez-Zaman or his representative contacted Patient A’s mother, Ms C, offering £3,000 and an apology in exchange for the withdrawal of the GMC complaint, and found this conduct to be dishonest. Mr Tariquez-Zaman had been acquitted of sexual assault of Patient A at Blackfriars Crown Court in December 2011. The Tribunal proceedings followed a remittal ordered by Gilbart J on 17 April 2015, after the original Fitness to Practise Panel had wrongly refused an application to call Ms D, a health care assistant, as a witness.

Mr Tariquez-Zaman appealed on five grounds, contending that the Tribunal’s finding that there had been a vaginal examination was wrong and that the Tribunal had failed adequately to assess the evidence of Ms D; that its analysis of Patient A’s credibility was wrong and its reasons inadequate; that the finding of dishonesty in relation to Ms C was wrong; that there had been serious procedural failings; and that the determination relied upon factors not properly available.

The central issue was the Tribunal’s treatment of Ms D’s evidence. Ms D had been called by the GMC and was proffered for cross-examination by the appellant’s counsel, Mr Stern QC. CCTV footage showed that Mr Tariquez-Zaman and Patient A had been alone in the examination room for 19 minutes before Ms D first entered briefly to collect a urine sample, followed by a further period of just under four minutes before Patient A left, during which Ms D returned once more for about 23 seconds. Patient A’s evidence was that the inappropriate examination had occurred during the first 19-minute period. Mr Tariquez-Zaman contended that he had spent the entire 19 minutes taking a history, and that the examination, diagnosis, discussion and Patient A “hanging back” had all occurred in the subsequent four minutes. Ms D had said in a witness statement dated 6 December 2011 that she had entered the room whilst an examination was already underway, that Patient A had been wearing trousers during an abdominal examination, and that Patient A had returned to the department 30 to 40 minutes later to complain about the diagnosis. The Tribunal found Ms D to be trying to assist but concluded that her evidence was significantly unreliable. It noted that she had no independent recollection of the events seven years on, that her memory could be impaired by a current health condition, that she had not taken her prescribed medication on the day she gave evidence, that her first statement was not obtained until 22 months after the incident, and that she had told the Crown Court in 2011 that she could have “false memories” because the CCTV contradicted her belief that she had been present for the whole examination. The CCTV showed Mr Tariquez-Zaman and Ms D entering the room together, so she could not have witnessed an examination already underway. The Tribunal also found it unlikely that Patient A had returned to the hospital, given the timing of her telephone calls to her boyfriend and mother and the fact that Ms C had called the police at 19.26. The Tribunal concluded it was more likely than not that Ms D had identified the wrong patient and attached limited weight to her evidence.

Cavanagh J set out the well-established principles governing appeals under section 40 of the Medical Act 1983, emphasising that they are conducted by way of rehearing on the transcript, that findings of primary fact founded on credibility are virtually unassailable, that an appellate court should only interfere where the decision was plainly wrong or so out of tune with the evidence as to indicate with reasonable certainty that the evidence had been misread, and that the Tribunal had the advantage of seeing and hearing the witnesses. The judge must also give deference to the Tribunal’s specialist understanding and recognise that the questions of fact and overall value judgment are akin to jury questions to which there may reasonably be different answers.

Cavanagh J rejected each of Mr Tariquez-Zaman’s criticisms of the Tribunal’s treatment of Ms D’s evidence. The Tribunal had been entitled to find that Ms D had no independent recollection by the time of the hearing, given her answers under questioning and her acknowledgment that she did not know how reliable she was. The Tribunal was entitled to take into account her health condition and the fact that she had not taken her medication. The CCTV evidence plainly contradicted her account, and the possibility that she was referring to her second visit to the room was not supported by her own evidence, which placed the examination before that second visit, and was inconsistent with the very short time remaining after Ms D’s second departure. The Tribunal was entitled to note the delay in obtaining the statement, which was finalised and signed on 6 December 2011 whatever earlier discussions may have occurred. The Tribunal was entitled to take into account Ms D’s acceptance that she had false memories about the timings which went beyond mere minutiae, since she had thought she was present throughout the examination when the CCTV showed otherwise. The Tribunal’s rejection of Ms D’s evidence that Patient A had returned was open to it on the timings and telephone call evidence. The conclusion that Ms D had identified the wrong patient was not plainly wrong and was justified by the various factors considered. Taken cumulatively, the matters relied on by Mr Tariquez-Zaman did not lead to the conclusion that the findings should be set aside. The Tribunal had been entitled to conclude that the CCTV timings supported Patient A’s version that the examination occurred in the 19-minute period, as it was unlikely that history-taking would have taken that long and that the examination, diagnosis and discussion would all have been crammed into the final minutes.

Cavanagh J held that the Tribunal’s reasons were adequate. The Tribunal had carefully considered the inconsistencies in Patient A’s evidence and explained why it concluded that they related to peripheral detail and not the central core of the allegation, and that Patient A had been broadly consistent and given plausible explanations. The reasons given for rejecting Ms D’s evidence were detailed and enabled Mr Tariquez-Zaman to understand why he had lost. As to the findings concerning Ms C, the Tribunal had been entitled to infer that the approaches made to Ms C in 2014 and early 2015 were made by or on behalf of Mr Tariquez-Zaman, given the timing after the first Fitness to Practise decision, Ms C’s account that the caller identified himself as the doctor’s lawyer, and Mr Tariquez-Zaman’s own follow-up contact, his explanation for which the Tribunal had been entitled to disbelieve. The Tribunal was fully entitled to conclude that the text messages of 29 January 2015 proposing a draft withdrawal of the complaint were linked to Mr Tariquez-Zaman’s text of 6 February 2015 referring to a draft letter, that the offer to settle was an attempt to end the Tribunal proceedings, and that this was dishonest by objective standards.

Cavanagh J dismissed all three alleged procedural failings. There had been no irregularity in permitting the GMC’s counsel to respond on law and fact after the appellant’s closing submissions, particularly as Mr Stern QC was then given the final word. The disclosure of documents to witnesses in advance was entirely proper, and the inadvertent disclosure of an expert report to Patient B was an unfortunate oversight of no significance, particularly as the serious allegations against Patient B were found not proved. There was no substance in the complaint about reliance on a handwritten police note. The complaint that the Tribunal had relied upon an allegation concerning Patient B’s telephone number that had been dropped was incorrect; the relevant allegations had not been removed. Although the Tribunal had mistakenly thought Mr Tariquez-Zaman had kept Patient B’s number for five years when in fact he had retrieved it from a police record, the error was corrected at the sanction stage and in any event the findings on Patient B were minor compared to those on Patient A and Ms C. The decision on impairment and erasure would have been the same even without the Patient B findings.

In short, the appeal was dismissed, the Tribunal having been entitled on the evidence to prefer Patient A’s account to Mr Tariquez-Zaman’s and to find the conduct proved was sexually motivated and dishonest, with adequate reasons given and no material procedural irregularity.

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