Doctor Aloaye Foy-Yamah v The General Medical Council

The Parties and reporting

1. There are cross appeals so; to avoid confusion in the use of the words Appellant and Respondent, I am going to refer to Doctor Foy-Yamah as “Dr Foy” and the General Medical Council as “the GMC”. The former is a consultant physician working at a hospital in Blackpool. The latter is the regulatory body for doctors. I shall refer to the complainant as Ms A. Her name has been anonymised because she made allegations of rape and sexual assault against Dr Foy and an anonymity order which I made governs the reporting of the appeal hearing and this judgment. Bundles

2. For the hearing I was provided with a core bundle, an authorities bundle, three exhibits bundles, three transcript bundles and skeleton arguments from each party in each appeal. The Panel’s decision, in summary

3. Dr Foy was found, by a Medical Practitioners Tribunal Service panel (the Panel), to have raped Ms A at around midnight on 2 nd December 2018, on the sofa, in his house in Blackpool (the Sofa Incident). Thus, he was found to have committed serious misconduct and to be “impaired” on the grounds of public interest (but not public protection). The sanction imposed by the Panel was that he was suspended from practice for 12 months with a direction to review thereafter. Some other less serious charges were not found proven and others were proven. The Appeals, in summary

4. Dr Foy appeals the rape finding on the basis that Ms A’s evidence lacked any sufficient credibility and that she was a proven liar. He also appeals on the basis that there were serious procedural irregularities. If he succeeds on those grounds, he asserts that the findings of misconduct, impairment and sanction must fall away.

5. The GMC appeal two of the Panel’s factual findings. Those were: (1) that on 20th November 2018, at midnight in Dr Foy’s bedroom, when Dr Foy asked Ms A to sleep with him (have sex) and touched her breast, he believed that she would consent to that and did so reasonably (the Bedroom Incident); and (2) that 12 days later when, Ms A was again in his house around midnight, this time on his sofa and lying between his legs (on his groin and stomach), he touched her breasts and he reasonably believed she would consent to that.

6. The GMC also appeal the Panel’s findings about misconduct, impairment and sanction. They submit that the Panel were wrong to find that he did not present a risk to the public and to rule that when he committed the Bedroom Incident he was not in a position of trust with a patient and that only proper sanction for rape was the erasure of Dr Foy from the register of practitioners, not just suspension. The Issues

7. Whilst there are many sub issues and sub grounds raised by both parties, the key issues arising from these appeals appear to me to be as follows: The bedroom incident on 20.11.2018 (1) Was the Panel wrong to find that Dr Foy had a reasonable belief that Ms A would consent to being touched on the breast? (the GMC appeal). The Sofa incident on 2.12.2018 (2) Was the Panel wrong to find that Dr Foy had a reasonable belief that Ms A would consent to her breast being touched as they lay together on the sofa? (the GMC appeal). Both incidents (3) Was the Panel wrong to rely on Ms A’s credibility and accept her version of events about the Sofa Incident despite their findings that she had been untruthful about her thesis and other matters and her contradictory evidence? (the Foy appeal). (4) Was there a serious procedural irregularity in the hearing before the Panel relating to Ms A’s medical records, the burden of proof and some witness transcripts? (the Foy appeal). Misconduct/impairment/Sanction (5) Was the Panel wrong to exclude patient status and the close personal relationship from their consideration of misconduct in relation to the Bedroom Incident? (the GMC appeal). (6) Was the Panel wrong in its findings on misconduct, future risk, impairment and sanction? (the GMC appeal) The Chronology of facts found and some evidence

8. I think it will help those reading this judgment if I set out, in a summary, the chronology of the key findings of fact of the Panel interspersed with some of the documents and witness evidence. I do not summarise it all. The hearing lasted many weeks and had been adjourned twice before it even started. After it was started and evidence was taken it was again adjourned, part heard, for many months, because Ms A’s mobile phone records were provided to the Panel by the police, rather late.

9. Ms A came from Nigeria to the UK on a visa to do a thesis at Glasgow university in 2017. Her father (Prof. G) knew Dr Foy and his father. In the spring of 2018 Ms A was advised by Prof. G to go to Dr Foy’s house in Blackpool for help with her ill-health. Prof. G called Dr Foy and asked him to treat her. She stayed at Dr Foy’s house for 2 days in May 2018 and he admitted her to his department, examined her, arranged scans and tests at his hospital in Blackpool. TB was the likely diagnosis. She ended up in Glasgow hospital for a month between June and July 2018 receiving antibiotics for TB. Ms A asserted later, to her sister, that something untoward happened one night during that stay in May 2018 with Dr Foy. Later still she asserted that he tried to cosy up to her on the sofa and got an erection, (Dr Foy denied the this). No charges were made against him relating to this. In messages after that stay HIV testing for Ms A was discussed and he described her as beautiful, pretty and gorgeous and asked about her boyfriends. He visited her in Glasgow Hospital.

10. In November 2018, Ms A went to stay with Dr Foy again, this time for 7 days (14-21 st ). The reasons Ms A gave for the stay were not consistent. Dr Foy asserted that she came for his 50 th birthday party and the vitamin D test was arranged after she arrived. The Panel found that she was ill, needed medical help and that he arranged a blood test for vitamin D deficiency and (inter alia) an HIV test. The blood test was done on 15 th November. He had a “surprise” birthday party with colleagues on 17 th November 2018. She attended and was photographed with her arm around him. The vitamin D results came back on 20 th November and he then sent messages to Ms A on 20 th suggesting “sex” or a kiss in compensation for the advice he had given to obtain a vitamin D test which did show a deficiency (he said that was a joke but in cross examination accepted it was a foolish and wholly inappropriate text). The Panel found that on the evening of 20 th November Dr Foy came into Ms A’s room late in the evening and invited her into his bedroom to look at flowcharts on his laptop. Ms A went voluntarily into his bedroom and stayed, on her evidence, about an hour, sitting on the bed with him. At around midnight, when she got up to leave, he suggested she stay the night with him (implying sex) and touched her breast. She rebuked him and he apologised the next day. (Dr Foy denied the bedroom incident entirely and gave an account of her wearing a t-shirt in the sitting room and no leggings, to which he objected).

11. On 2 nd December 2018 the Panel found that Ms A had asked Dr Foy for a lift from London back to Blackpool as part of her journey to Glasgow and he drove her up in his new Maserati. They left at 7 pm and arrived at midnight. She stayed over at his house. They ended up lying on the sofa, Dr Foy with his legs apart and she lying between his legs with her body on his pelvis and her head on his abdomen. They both agreed that much. A cushion was involved. He touched her breast, and she objected (he denied that). He then got up and leant over and started to kiss her, she objected (he admitted only a peck on her cheek to get her off him). He then overwhelmed, undressed and forcibly raped her (ejaculating inside her with no condom). He then begged his apology upstairs in her room and begged her not to report him. Ms A did not flee his house. He apologised again the next day and told her not to worry because he had had a vasectomy. He paid for her train fare up to Glasgow and drove her to the train station. He denied the Sofa Incident. The Panel rejected Dr Foy’s account and accepted Ms A’s account.

12. On the day after the rape Ms A went to the cinema with a man friend and photos were taken showing her looking happy. 4 days later Ms A was assessed as “bright in mood” on 7.12.20218 by Nurse UL at the TB clinic. Ms A made no complaint to her boyfriend, her family, her wider friends, or the police about sexual assault or rape until 23.12.2018. In a phone call with her brother (O) in the morning of that day, she asserted that Dr Foy had sexually assaulted her in December 2018.

13. O called Dr Foy twice that day and later produced a much-edited transcript of the calls. The Panel made findings about which transcript was for which call but, in any event, during the calls Dr Foy was contrite, apologetic and accepted that he could go to prison for what he had done to Ms A. Rape was not in the discussion on 23.12.2018 because Ms A had only disclosed sexual assault to O and she had specifically denied that Dr Foy had put his penis in her vagina (her words in a message to O). Dr Foy asserted that after the first call in which he said he had denied any wrongdoing, he thought he might be being blackmailed so he “went along” with the whole thing and made admissions in the second call to see what demands were coming. The Panel did not find that explanation persuasive and considered that his admissions were evidence of his sexual wrongdoing.

14. The transcripts of the edits of the two calls show the following. (A) In the call transcript at BP153-154 (4 mins): (1) Dr Foy stated that on the sofa Ms A lay between his legs and “body chemistry” arose. (2) Dr Foy denied that Ms A “came on” to him. (3) Dr Foy admitted he had failed everybody. (B) In the call transcript at BP325-327 (9 mins): (1) O was thankful that Dr Foy did not rape Ms A. (2) O assured Dr Foy he would not tell anyone except his friend in London (3) O said that if anything happened to Ms A he would tell their fathers and Dr Foy’s family about what Dr Foy had done. (4) O sought damage control. O accepted Dr Foy’s apology. O said that there should be minimal interaction with Ms A. (5) Dr Foy said it was the biggest mistake of his life. He had let his guard down. (6) O finished the conversation stating he was happy they could talk, and his emphasis was now to get her a visa, finish her treatment, finish her university and get her out of the UK. ___________ (C) In the call transcript at BP166-172 (25 mins): (1) Dr Foy said he would go to jail and pay for his sin. (2) Dr Foy said I don’t think you’ve asked me what happened. (3) Dr Foy said my guards came down, what has happened now it is enough for me to commit suicide, that is how much I regret it. (4) Dr Foy said he drove Ms A to Blackpool, then he lay on the sofa, then Ms A came in and rested between his legs and then they became “too familiar”. Dr Foy did not know what came over him. Something happened. Ms A was calling it sexual assault. When Ms A told Dr Foy to “stop” he stopped. He went up to his room and when he came back down, she rested on him again. (5) Dr Foy said he had betrayed himself, O and Prof. G. (6) Dr Foy accepted that he should face the consequences of his actions. (7) Dr Foy mentioned considering of committing suicide for what he did to Ms A. (8) Dr Foy said if he had to go to jail for what he had done, for his big mistake, he was resolved to that. (9) Dr Foy said that he went to Ms A’s bedroom and apologised and Ms A then asked if he wanted to “do another round?”. O asked what that meant in the light of Ms A's allegation that he got on top of her and tried to kiss her. (10) Dr Foy was in shock from how he had allowed things to progress. (11) O said thank God it stopped.

15. By 20.57 hours on 23.12.2018, O was informing Dr Foy by messaging that he had discussed the matter extensively with other people and believed the assault had to be reported to Prof. G. The second call happened after that time and after Dr Foy came home from work.

16. As the day of 23.12.2018 progressed, O asked Ms A to write her version of events down and she did, in what was called version one (V1). In that Ms A recited the May 2018 erection on the sofa event, the Bedroom Incident which she asserted occurred in December and an “attempted rape” on 2 nd December 2018 – the Sofa Incident. O then tidied V1 up that night (deleting that Ms A had told her sister about the May erection event and adding the sexually suggestive messages sent by Dr Foy to Ms A in November) into what was called “V2” and sent it to Ms A on 24.12.2018.

17. On 24.12.2018, O demanded money from Dr Foy as compensation, by messages, under what the Panel was told was a longstanding tradition of family civil resolution in Nigeria. Initially he sought £20,000 (later, after Ms A changed her allegation to rape on 28.12.2018, he sought £100,000).

18. By 26.12.2018, V3 was produced by Ms A and O (including mentioning the vitamin D test for the first time and correcting the date of the Bedroom Incident to November 2018).

19. Although, in her evidence, Ms A asserted that she went to a family friend for Christmas in 2018, the Panel found that she went after Christmas and stayed with the friendly family who knew her father. I shall call the father in that family Mr X (although he was called Dr F before the Panel). The Panel found that Ms A disclosed to Mr X that she had been raped. Thereafter her own father, Prof. G, was told that it was a rape allegation that same day, 28.12.2028.

20. The Panel was told that on 26.12.2018, on with the advice of Dr Edjohwomu, Dr Foy decided to fly to Nigeria to talk to Prof. G. He did so and that conversation occurred on 28.12.2018 in the presence of Dr Foy’s brother, a barrister. The Panel rejected Dr Foy’s and his brother’s assertions that he went to complain to Prof. G that his children were blackmailing him. The meeting led to Prof. G requiring Dr Foy to email to him a signed version of a document drafted by Prof. G making an admission, apology and an offer of compensation. This was agreed to and sent by Dr Foy on 29.12.2018 (see BP157). In it, Dr Foy admitted “inappropriate behaviour” towards Ms A, he regretted his action and the pain and distress caused and asked for forgiveness. He agreed to comply with “any financial request” to pay Ms A but sought guidance on figures. On 30.12.2018 Prof. G asked Dr Foy to sign an amended admission including the words “forced rape”. Dr Foy never signed or agreed to that. V4 of Ms A’s statement was produced on 30.12.2018 and for the first time, in all of the versions, she asserted rape in writing.

21. On 31.12.2018 Ms A went to the police and, without handing over any of the written versions, asserted that Dr Foy had raped her. A handwritten statement was taken. No mention was made of the Bedroom Incident. On 1.1.2019 Ms A was interviewed by the police. She set out the May 2018 event as a sexual advance and the Bedroom Incident (touched my breast) and then the Sofa Incident (rape).

22. Dr Foy was arrested on 2.1.2018. He was accused of sexual assault during the Bedroom Incident and rape during the Sofa Incident. He gave a police interview on 3.1.2019. He was 50 years old. He was under caution. He provided a handwritten pre-prepared statement. It dealt with the allegation of sexual assault. We wrote that Prof. G had asked him to help Ms A with her medical treatment. He accepted that she came for that help to his house in May 2018. He asserted she came again in November 2018 for his 50th birthday party. For the Sofa Incident he accepted she came and sat between his legs and leaned over him. He felt pressure on his abdomen, so he tried to get up. He gave her a peck on the cheek, and she said “stop”, so he stopped. He went to the loo returned and sat and Ms A came to “rest” on him. He felt “uncomfortable” and tried to get her to get up. She got up and said, “what’s this all about” and went upstairs. He went up to ask what was wrong. She asked why he was trying to kiss her. He alleges that she also said, “how much are you going to pay me?” In the interview, he recited his evidence about the Bedroom Incident. He initially made no comment about the allegations. He denied their relationship was sexual or that he wanted it to be sexual. He refused to answer if he had ever discussed having sex with her. He admitted sending a “jokey” message to her in November 2018 asking for a kiss and sex after he got the vitamin D deficiency result. Later that day Ms A had nothing to wear so asked for a t-shirt, so she came into his bedroom, and he gave her a t-shirt. Later he bought her tablets after the vitamin D result came back. They went together to get them. As for the later Bedroom Incident, he denied it, he denied touching her breast that night. His version of events was that she came downstairs wearing only the t-shirt and bent down in the sitting room wearing only the t-shirt and no leggings and then lay on the sofa and put her naked legs on him. Dr Foy told Ms A he was uncomfortable and went upstairs, then came back down and told her had just had an erection and he did not like her doing that. Ms A apologised, changed and came back down. She left the next morning. As for the Sofa Incident on 2.12.2018 Dr Foy asserted that Ms A had asked him to drive her up because the travel was too expensive. He did so. During the journey Ms A asked him “how was sex?” When they got to his home she came and lay between his legs on the sofa. Her head was on his abdomen. He asked her to get up and she did not, so he gave her a peck on the cheek. He went to the toilet, returned, they sat on the sofa and Ms A leaned up against him again, to his side. He was uncomfortable and told her he was going upstairs. Then she responded violently. Later, he went to her room, and she asked him why he was trying to kiss her. She asked how much he was going to pay her. He was shocked.

23. O gave a witness statement to the police on 8.3.2019. He informed them that in a call on 23.12.2018 Ms A disclosed that Dr Foy had made sexual advances to her before and assaulted her during the Sofa Incident but stopped short of rape. He obtained Dr Foy’s number from his sister. In the call he questioned Dr Foy about what had happened. Dr Foy apologised, said his actions were out of character and he did not know what came over him and admitted that, if the case went to the police, he would lose his medical licence and potentially go to jail. He pleaded for forgiveness. O made a secret recording of the call. O later contacted a friend and took advice from a lawyer who recommended reporting to the police. He did not mention two calls.

24. Prof. G gave a police witness statement on 6.5.2019. O had called him on 27.12.2018. He was then sent the recording of Dr Foy’s admissions of sexual assault in a phone call with O and one of the written versions of Ms A’s account. Later Prof. G called his daughter (Ms A) and she admitted it was rape not just sexual assault. He called Mr X and found out that Ms A had told him too. On 28.12.2018 Dr Foy and his brother visited Prof. G in Nigeria to apologise in person. He confessed to sexually assaulting Ms A. He admitted the Sofa Incident up to and before taking off her trousers but denied penetration. Prof. G asserted Dr Foy wrote a Whatsapp apology that evening and on 29.12.2018 wrote an email drafted by Prof. G admitting inappropriate behaviour, apologising and offering compensation. Prof. G then sought an admission of rape, but Dr Foy did not agree, instead the UK police asked both families to cease communicating. The Panel’s Judgment

25. Dr Foy faced 7 GMC charges split into various sub events. I summarise the charges and the findings as follows.

26. The Bedroom Incident. Charges 1(a) and (b) related to the Bedroom Incident in November 2018. The charges did not assert that he did his actions whilst Ms A was his patient. The Panel accepted Ms A’s evidence (the request to sleep with him and that he touched her breast) and rejected Dr Foy’s evidence (that she wore a t-shirt and he told her off in the sitting room), so found that he had touched her breast and asked her to sleep with him in his bedroom around midnight on 20.11.2018. However, the Panel also found (by inference) that he had a reasonable belief that she would consent to the touching, and because no allegation was raised that she was his patient, there was no misconduct or impairment, and no sanction arose.

27. HIV testing. Charges 2, 3 and 4 related to Ms A’s later assertions (long after December 2018) that when Dr Foy treated her in November 2018 for her malaise (vitamin D deficiency) he also urgently arranged an HIV test without her knowledge or consent, failed to document the reasons for doing so and failed to record the results in her medical notes or notify Ms A of the results or her GP or her treating doctors. On these charges the Panel rejected Ms A’s evidence and preferred Dr Foy’s evidence. They found that the HIV test was not clinically needed, and Dr Foy did not document the reason for it in her notes (admitted) and he made the request urgently (admitted) and he failed to tell her infectious disease clinicians (admitted). However, they found that he made the arrangement with her knowledge (so the lack of her knowledge charge was unproven), and he notified her of the result (so the alleged failure to tell her was unproven, as was the alleged failure to tell her GP). The Panel found that this was not serious misconduct and hence did not lead to consideration of impairment. No appeal was made over those findings.

28. Rape – the Sofa Incident. Charges 5, 6 and 7 all related to the Sofa Incident on 2.12.2018. It was not alleged that she was his patient at the time. It was split up into actions lettered (a) to (l). I remind myself that Dr Foy said none of the asserted assaults or the rape happened, instead he asserted that Ms A lay between his legs on his pelvis, and he accepted that he did try to peck her cheek to get her off. Taking into account that Dr Foy had admitted this it is difficult to understand why he did not admit charge 5(f). In any event, running from 5(a) to (l) Dr Foy was charged with and found guilty, on the balance of probabilities, of having done the following at around midnight on the sofa at his home in Blackpool on 2.12.2018: touching Ms A’s breast and breasts; pushing her down onto the sofa; laying on top of her; trying to kiss her; putting his tongue in her mouth; pinning her hands down; removing her trousers and pants; putting his penis into her vagina; having sex with her; ejaculating into her; and all this without consent (charge 5) and all but two with no reasonable belief that she consented. However, the Panel found that he reasonably believed that Ms A consented to his touching her breasts when she was lying between his legs, on his pelvis (5(a) and (b)). 5 (d) was not proven. The Panel found this was all sexually motivated.

29. Serious misconduct, impairment and Sanction The panel found that the rape was serious misconduct, but outside work. They considered that Ms A was not his patient at the time, was not especially vulnerable and that Dr Foy was not in loco parentis and that she was not in a close personal relationship or a relative of his. The Panel did not consider that there was a risk of repetition. They concluded that this was a “one off”, in particular circumstances. He had an impeccable record and good character and so the Panel decided that Dr Foy was not impaired on public protection grounds but was impaired on public interest grounds (the reputation of the profession). The Panel took into account the case law put before them and the Sanctions Guidance (SG), categorised the rape in the various SG categories, assessed the aggravating factors and the mitigating factors and decided that suspension was the appropriate sanction allied with a review at the end of 12 months. The Grounds of Appeal – Dr Foy Grounds 1 and 2 (i), (ii), (iv), (v)– credibility of Ms A .

30. Ground 1 is overarching with no detail. Ground 2 is split into 6 parts, and the detail was fleshed out in the skeleton argument and oral submissions. I shall generally follow the order in the skeleton and consider each in turn. I shall refer to the Panel’s written reasoning (or judgment) which was 194 pages long split into 492 paragraphs. Hereunder: J492 means para 492. Overall, under these grounds, Dr Foy submits that the panel were wrong to find Ms A credible and no reasonable tribunal could have come to that conclusion.

31. Dr Foy asserts that the Panel were wrong at J102-103 to find that Ms A’s accounts to the police and her GMC witness statement were broadly consistent accounts of the Bedroom Incident and the Sofa Incident. They went on at J104 to find they were broadly consistent with V4 of her pre-police written statement, which she made with input from O (her brother) and Prof. G (her father). Dr Foy submits that the Panel started at the wrong place, in breach of the guidance in Dutta and Khan. They decided in a blanket way to accept that her accounts were consistent and so credible and then ignored or placed inadequate weight on all the inconsistencies and so Dr Foy asserts: lies, that she told both to the Panel and to her university and others.

32. Dr Foy asserts that the accounts to the police were in fact inconsistent with or were to be weighed in the balance against the following. (1) what Ms A wrote in V1 on 23.12.2018 (attempted rape, not rape). (2) Her messages to O in which she stated his penis did not enter her vagina. (3) The words “abomination” in V4 came from Prof. G, not Miss A. (4) Ms A’s evidence that she made a poor choice of words using “attempted rape” not “rape” when she knew the difference, was unimpressive. (5) Ms A lied about the HIV test Dr Foy did for her (see above and the Panel’s findings). (6) Ms A lied to the University of Glasgow by paying a third person to write all or part of her thesis and then lied to the Panel by denying that she did so. There was unanswerable evidence in over 1,100 messages between Ms A and the third party showing he did the work, and she paid him. In her evidence she denied this. The Panel found that she had lied. (7) Ms A lied about the car journey to Blackpool on 2.12.2018. She asserted that she did not ask for it yet the Panel found that she did. She asserted she intended to catch the train to Glasgow that night from Blackpool, thus not stay over, but by setting off at 7 pm she had no hope of catching a train because she would arrive in Blackpool too late, and so she knew full well that she would be sharing a 4-5 hour car journey with and staying over with Dr Foy, when on her own case, he has asked her to sleep with her during the Bedroom Incident and assaulted her a mere 2 weeks before, and he had developed and erection in May 2018 when he made her cosy up to him the first time she stayed with him. (8) Ms A asserted that she was not aware of what Dr Foy described as blackmail by O and Prof. G on him, yet the messages and emails showed that she was well aware of her family’s demands for £20,000 and other compensation between 24.12.2018 and 30.12.2018. (9) Ms A’s evidence about the date of the Bedroom Incident was both contradictory and illogical. In V1 she stated it was in December. In V3 this changed to November. In her police witness statement, she stated she had left the next day. In her GMC witness statement (21.10.2020) she asserted this occurred the night before she had her vitamin D test (which was on 15.11.2018), so on 14.11.2018. She did not correct this in her second GMC witness statement (1.12.2021) or her third or fourth. Her counsel cross examined Dr Foy asserting it was 14 th . In evidence Ms A said various things: (a) she was not sure of the date; she was certain it could not have been after 20.11.2018; (b) she stayed a day or more after it; (c) Ms A deleted the words asserting that she had stayed 2-3 days after the incident from V3 when she wrote V4 so she wrote that the incident took place on 20.11.2018; (d) she asserted in evidence that the highest chance is that it occurred before the Vitamin D test. The Panel found that the date was 20.11.2018 because that was the day the vitamin D test results came back and Dr Foy had texted asking for a kiss or sex. Dr Foy’s submission is that the Panel’s finding did not accord with her live evidence. (10) Dr Foy submitted that the Panel’s findings about the chronological order of the two calls made on 23.12.2018 between O and Dr Foy was wrong. Dr Foy asserted that after the first call he had a sense that he was to be blackmailed and so in the second he played along, and so his admissions in that call were not real. When read the right way round and on the basis of his evidence that he denied any wrongdoing in the first conversation and admitted sexual indiscretion (not rape) in the second he was teasing out blackmail. In submissions Dr Foy asserted that the 9 minute call (BP324-328) was clearly made first and the other two transcripts were from the second call and that this proved his evidence. The Panel found at J148 that the 9 minute transcript was probably of the second call because O was satisfied by that time that the sexual assault did not amount to rape.

33. At J155 the Panel made findings about the calls. They found that O was seeking a settlement out of court without disclosing the matter to Prof. G or Dr Foy’s family but if no such settlement was reached reports would be made. The statements made by Dr Foy in the first call were not in anticipation of blackmail but in any event the issue was whether Dr Foy was telling the truth in the calls. The Panel rejected Dr Foy’s assertion that he was making statements which were untrue to O to obtain evidence of blackmail, having heard the calls live, and considered that submission to be inconsistent with the language which he used. Thus, Dr Foy’s admissions in those calls were taken into account. Dr Foy submits that they were wrong to do so because they got the calls the wrong way around.

34. In addition, although not in the Grounds or skeleton, at the hearing Dr Foy went back to rely on the internal inconsistencies and lack of probability in Ms A’s account raised before the Panel. Dr Foy pointed out that Ms A would not have stayed in November if the alleged May 2018 erection event had occurred. He pointed out that Ms A would not have stayed for 2-3 more days in his house in November 2018 if he had actually asked her so to sleep with him before the vitamin D test was done. He submitted that Ms A would not have accepted a lift from London to Blackpool at 7 pm on 2.12.2018 in the certain knowledge that she would not be able to take at train to Glasgow that night, when the alleged Bedroom Incident had occurred. He submitted that she would not have gone to the Cinema on 3.12.2018 and been so obviously happy, the day after she was raped. She would not have been assessed by the TB nurse on 7.12.2018 as in a bright mood if she had been raped and she would have gone to the police or told her family or friends. Finally, he submitted that she would have taken an STD test if he had raped her, but she did not. GMC submissions on Grounds 1 and 2 (i), (ii), (v) – credibility of Ms A .

35. The GMC respond to these grounds relating to credibility by: (1) relying on the deference which appellate Courts must give to panels who have heard all of the evidence and seen the witnesses and then made findings of fact. Furthermore, (2) the GMC rely upon the generous ambit of reasonable disagreement allowed to the first instance panel on findings of fact and in particular on findings of credibility. In addition, (3) the GMC point out that the Panel was advised by the Legally Qualified Chair and had Dutta and Khan in mind and specifically warned itself against blanket determination of credibility and lies. They submit that the Panel did not come to a blanket view of Ms A’s credibility. They had to start writing the reasoning somewhere and so started with her police statements then compared them with V1-4 and her GMC statements and then her live evidence. They then went through a very substantial number of challenges to her credibility and set those out in detail at J102-160. Thus, the GMC submit that the Panel took a granular approach considering each and every submission made by Dr Foy in relation to Ms A’s credibility on the evidence presented which was a wholly proper way to proceed. They noted the changes in Ms A’s written statements in December 2018 from V1 (attempted rape) to V4 (rape), they then compared her evidence to that of Dr Foy. They noted that his assertion to O that his sexual behaviour was provoked by Ms A lying on him and highlighted that he did not run his defence before the Panel on that basis. Instead, he denied the asserted Bedroom and Sofa Incidents ever occurred.

36. The GMC commented that the Panel had considered the inconsistencies in Ms A’s accounts in their reasons J125-164, assessed the assertions of dishonesty and referred back to their reasons given at half time. I have read and carefully considered Annex F to the reasons (J386 to 492). These reasons were referred to and incorporated into the final reasoning by J159. The GMC submitted that none of the asserted lies or inconsistencies related to the central allegation of rape. They related to other matters or secondary matters. The Panel considered the HIV test evidence and concluded, at J425, that it accepted that there may have been an HIV conversation in June 2018. Then in the final reasoning rejected Ms A’s evidence and found her assertion that she did not know she was having an HIV test “not proven “ J91.

37. As for the Thesis, the GMC submitted that the Panel accepted at the NCTA stage (J428) that there was abundant evidence to show that a third party was clearly helping with her thesis and being paid to do so and prima facie “it would appear” that Ms A’s denial of both to the Panel was untruthful. Thus, she had been prima facie doubly dishonest, with her University and the Panel. However, at the NCTA stage they did not consider that dishonesty was enough to rule that she was generally untruthful in relation to the Bedroom and the Sofa Incidents. In the event they did not return to that dishonesty in their final reasoning. They mentioned it as to be considered at J157 and then omitted to do so save by reference to Annex F. Then GMC submit this omission was acceptable because they did not have to deal with every point in their reasoning. I shall return to this below. There is a different burden at the NCTA stage from the final reasoning.

38. In relation to the journey to Blackpool, the Panel found (preferring Dr Foy’s evidence) that Ms A called him, not the other way around. She did so despite the Bedroom Incident which the Panel found had occurred. They took into account (J59) that she had sternly rebuked him after the Bedroom Incident. I note that it was also dealt with at Annex F, J433 in which the stern rebuke was recited and that they had tried to put the event behind them. This was still of course the NCTA stage, so this was not a final finding.

39. Post rape behaviour and the cinema. Ms A made an arrangement to go out with a friend the next day whilst she was in Dr Foy’s car. The Panel did not attach much weight to the way Ms A behaved the day after the rape because of the guidance that panels cannot know and should not assume how a rape victim will behave thereafter (J160, bullet point 4). The GMC accept that the Panel did not make much other comment about this.

40. Knowledge of the Blackmail/civil settlement. The GMC point out that the Panel considered the evidence at Annex F, J429 stating that Ms A was informed by O on 24.12.2018 of his demand for £20,000 so her denial of that was “inaccurate” however they tempered it with the note that she was not intimately involved in the settlement discussions so it did not consider the point undermined her general credibility.

41. Overall, on credibility and fact finding, the GMC submitted that the Panel had to balance multiple witness evidence and a straight he said /she said conflict in the context of objective documented messaging, to assess the defects in and honesty of Ms A’s evidence against the defects in and honesty of Dr Foy’s evidence and his admissions. Ground 2(iii), reverse burden of proof

42. Dr Foy submitted that the Panel reversed the burden of proof and imposed it upon him. After cross examination of Ms A her phone records were provided by the police. This led to a long adjournment and on the restart both parties submitted that there was no need to recall Ms A. The Panel went along with that. Dr Foy’s position was that the phone records so undermined Ms A’s evidence that her credibility was gone. He made a no case to answer submission (NCTA). That was rejected for the reasons given at Annex F J386-492. Dr Foy submits that the effect of dismissing the NCTA submission was that the Panel imported a burden onto Dr Foy as highlighted by the words in J159. Those words were: the Panel “… did not consider that the arguments put forward after the close of the Defence case strengthened the Defence case in relation to Ms A’s general credibility. It relies upon its determination in respect of the Defence submission that there was no case to answer in respect of these matters. … Annex F”

43. The GMC relied on the clear submissions by both parties to the Panel that the burden still lay on the GMC, not the defence, and referred to parts of the transcripts of each party’s submissions. Therefore, it was submitted that the Panel were made aware of the normal burden of proof to be applied in their final decision. In relation to J159 and its tortuous wording, the GMC submitted that it did not evidence that the Panel applied a different burden of proof but instead referred back to the reasoning on each of the issues raised about Ms A’s credibility, in their Annex F decision. Ground 2(iv), no evidence at all.

44. Dr Foy also asserted that some of the Panel’s findings of facts were made without any evidence at all to support them. Those related to the position of Ms A’s bag in the living room when the Sofa Incident occurred, how Ms A was dressed on that night, how Dr Foy was dressed and why, where Ms A intended to sleep on the Sofa Incident night. Dr Foy asserted the Panel’s findings on these details were pure speculation and unsupported by any evidence.

45. The GMC pointed out that V1 of Ms A’s written statement asserted she put the bag downstairs; Ms A stated that she was dressed during the Sofa Incident; Ms A asserted to the police that Dr Foy was also dressed and Ms A stated in evidence that she rested her head on a cushion or pillow and where that came from was just a reasonable inference. Ground 2 (vi), inadequate or absent reasons.

46. Dr Foy submitted that at J136 the Panel did not explain what they meant by the words “advice … that it should not have pre-conceived notions as to how a victim of sexual assault will react.” In submissions Mr Bennett stated this was a circular argument. The Panel would: (1) assume Ms A was such a victim, then (2) look at what she did after the Sofa Incident, and if it showed she was distressed or made a complaint then this supported her credibility, but (3) if she was happy (cinema or TB nurse notes) that was ignored, so (4) the Panel’s approach was faulted. Dr Foy then relied on the inconsistencies and implausibilities set out under Grounds 1 and 2 above.

47. The GMC responded by pointing to the advice given to the Panel by the LQC on how to approach what complainants do after sexual assault, about which Dr Foy did not complain. This plainly did apply to the cinema photos of 3.12.2018 and the Panel were right not to place too much weight on that. The GMC pointed out that the Panel have considered all of Dr Foy’s points about Ms A’s credibility, and pointed out, for instance, her stern rebuke of Dr Foy after the Bedroom Incident. Serious procedural irregularities.

48. Ground 3, medical records. The irregularity which Dr Foy raised was a failure to admit Ms A’s medical records detailing her having STD tests in May 2018 and March 2019. Dr Foy applied to admit them (they having been excluded at an earlier interlocutory hearing on an application to admit them) on the basis of evidence provided by O live during which he asserted that Ms A behaviour was naïve, she failed to report in good time, failed to have an STD test, failed to have a rape kit test done, and failed to take her TB seriously. This was catalysed by his being asked why she did not have an STD test after the Sofa Incident if she had actually been raped. The Panel excluded the records, and Dr Foy asserts that was wrong and irregular. Dr Foy should have been able to make submissions on those to support his denial that anything happened.

49. The GMC respond submitting that not every decision is appealable, and the error must be serious. The Panel was case managing, and such decisions involve a wide margin of discretion, see Hayat. This evidence had been excluded by another Panel in May 2023 on the grounds of privacy and preventing victims of rape being cross examined on their past sex lives. Dr Foy applied under FTP Rule 30 to correct a misleading impression. In any event there was no injustice because it was not the GMC case that Ms A was unaware of STD testing. She was a 25 year old, sexually active woman and the Panel found (J347) that she would have been aware of SDT testing. So, the Panel refused, for the reasons set out at J221-223 and J340-349. The GMC submitted that refusing the application did not mean that O’s evidence was in some way excluded. They were entitled to take it into account.

50. Ground 4, reversing a previous finding of fact. Dr Foy submits that the fact that the Panel found at the NCTA stage (J472) that Ms A first disclosed rape to Prof. G and then changed its mind in the final decision that it was to Mr X, after Christmas in Manchester, was a serious irregularity. They failed to warn the parties and so Dr Foy had no ability to make submission on this. No new evidence had emerged so how could they change their minds? The weight of this was explained by counsel. Prof. G described rape as an abomination and hence it was far more likely that she made it up under pressure from her father than if she had disclosed it to the more neutral Mr X.

51. The GMC response was that at the NCTA stage the Panel had not completed their deliberations. They did so at the final stage. The two are different. Different decisions may be reached. In addition, Dr Foy did make a final submission that it was Prof. G

52. Ground 5, Transcripts of evidence. Dr Foy submitted that the fact that the Panel only obtained transcripts of the GMC evidence when they retired showed apparent bias and was irregular and unfair. They should have obtained transcripts of all the evidence.

53. The GMC referred to J38 in which the Panel explained that the GMC evidence had been given months earlier and the Defence evidence had recently been given so they needed to refresh their memories. The hearing started on 11.12.2023 and ended on 22.8.2024 with a large gap in between the GMC evidence and the Defence evidence. Grounds 6 and 7.

54. Dr Foy submits that if his grounds 1-5 succeed and decisions are quashed then the decisions on misconduct, impairment and sanction will need to be reconsidered. The GMC agree. The GMC appeal relating to finding of fact

55. Ground 1- Inferences – belief of consent. The GMC challenge the inferential findings of fact of the Panel (charge 6(b)) which related to charges 1(a) and (b) (the Bedroom Incident) and 5(a) and (b) (the Sofa Incident – groping Ms A’s breasts). The GMC submit that the findings that these actions were done with a reasonable belief that Ms A consented were wrong or speculation. Furthermore, the Panel found that Dr Foy was pre-occupied with Ms A and believed might reciprocate his desires, but there was no factual basis for those findings. The GMC submit that (1) Dr Foy did not assert that he had any such belief, instead he denied that the events occurred. (2) Neither party advanced such a case. (3) The Panel wrongfully relied on what Dr Foy said to O in the phone calls. (4) The Sexual Offences Act 2003 S.1(2) and S.3(2) require the tribunal to have regard to all of the circumstances including the steps taken by the charged person to ascertain whether the complainant consents. The GMC submitted that the circumstances of the Bedroom Incident and the Sofa Incident were not sufficient to give rise to any reasonable belief that she was consenting to her breasts being touched. Relying on the judgment of Mostyn J in Basson v GMC [2018] EWHC 5050 at para. 18, the GMC assert that the inferences were wholly contrary to the evidence and unsafe and the reasons given were insufficient.

56. Ground 2 – reasoning. The GMC also criticise the Panel’s inferences on belief of consent by asserting that the reasoning was inadequate. The Law The right to appeal

57. The registrant’s right to appeal against suspension and the Court’s powers on appeal are set out in the Medical Act 1983 S.40 . On an appeal from a Medical Practitioners Tribunal, the court may— “(a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Medical Practitioners Tribunal; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs … as it thinks fit.”

58. Appeals against a suspension sanction by the GMC are governed by S.40 A. The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public. Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient— “(a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the medical profession; and (c) to maintain proper professional standards and conduct for members of that profession.” The Appeal procedure and the test Procedure

59. The procedure on appeal is set out in the Civil Procedure Rules Part 52. In relation to whether the appeal is a review or a rehearing and the appellate Court’s powers, it says this: “Hearing of appeals 52.21 (1) Every appeal will be limited to a review of the decision of the lower court unless— (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (2) Unless it orders otherwise, the appeal court will not receive— (a) oral evidence; or (b) evidence which was not before the lower court. (3) The appeal court will allow an appeal where the decision of the lower court was— (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (4) The appeal court may draw any inference of fact which it considers justified on the evidence. (5) At the hearing of the appeal, a party may not rely on a matter not contained in that party’s appeal notice unless the court gives permission.” The Court’s powers under CPR Part 52 to overturn a Tribunal’s decision are the same whether the procedure is a rehearing or a review. S.40 appeals - rehearing not review

60. There is a Practice Direction governing many statutory appeals (PD52D). Ignoring the irrelevant provisions, para. 19.1 deals with appeals against decisions relating to healthcare professionals. It applies to S.40 of the and states: Medical Act 1983 “(2) Every appeal to which this paragraph applies must be supported by written evidence and, if the court so orders, oral evidence and will be by way of re-hearing.”

61. During such a rehearing, the appeal court focusses on the grounds, usually re-analyses the relevant parts of the transcript of the live evidence and reads the relevant witness statements and the documents put before the Panel below and listens to the submissions, then determines whether the grounds of appeal are made out. Evidentially and procedurally, it is not a rehearing, it is a re-analysis of the evidence without live evidence (generally). S.40 A appeals, review no rehearing

62. As for appeals under S.40 A, the procedure is by way of review not rehearing because CPR PD52D para. 19.1 does not apply to them. What I have said at para 61 above applies word for word. It is not easy to see what the difference is, as Lord Burnett said in Bawa-Garba at para. 60. The test for granting an appeal under each route is the same under CPR r.52.21. Statutory appeals – case law guidance

63. The parties did not disagree on the correct approach this Court should take to such appeals. The guidance from appellate Courts was neatly summarised into 9 points by Cranston J in Yassin v GMC [2015] 2995, at para 32. “The authorities establish the following propositions: i) The Panel‟s decision is correct unless and until the contrary is shown: Siddiqui v. General Medical Council [2015] EWHC 1996 (Admin) , per Hickinbottom J, citing Laws LJ in Subesh v. Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]; ii) The court must have in mind and must give such weight as appropriate in that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: Gosalakkal v. General Medical Council [2015] EWHC 2445 (Admin) ; iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not; iv) The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v . General Medical Council [197], per Auld LJ; v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577 , [197], per Ward LJ; vi) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council [2010] EWCA Civ 407 , [47] per Leveson LJ with whom Waller and Dyson LJJ agreed; vii) If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui , paragraph [30](iii). viii) Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall v. General Medical Council [2010] EWCA Civ 407 , [55]-[56]. ix) A principal purpose of the Panel‟s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani and Raschid v. General Medical Council [2007] EWCA Civ 46 , [19], per Laws LJ.”

64. For appeals under S40 A, Sharp LJ and Dingemans J in the Divisional Court in General Medical Council v Jagjivan [2017] 1 WLR 4438 , summarised the approach in 8 points at paras. 39-40: “The correct approach to appeals under section 40 A

39. As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act , to appeals under section 40 A of the 1983 Act , and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council [2006] EWCA Civ. 1390 ; [2007] QB 462 ; Fatnani and Raschid v General Medical Council [2007] EWCA Civ. 46 ; [2007] 1 WLR 1460 ; and Southall v General Medical Council [2010] EWCA Civ. 407 ; [2010] 2 FLR 1550 ) as appropriately modified, can be applied to section 40 A appeals.

40. In summary: i) Proceedings under section 40 A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’. ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are ‘clearly wrong’: see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128. iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642 ; [2003] 1 WLR 577 , at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23 , [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47). iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4). v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person’s fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64 ; [2017] 1 WLR 169 , at paragraph 36. vi) However there may be matters, such as dishonesty or sexual misconduct, where the court “is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …”: see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin) ; [2005] Lloyd’s Rep. Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29 ; [2001] 1 WLR 1915 and 1923G, the appellate court “will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee’s judgment more than is warranted by the circumstances”. vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public. viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal’s decision unjust (see Southall at paragraphs 55 to 56).”

65. I also take into account the well-known guidance on appeals by review of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ. 5:- “iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.” Deference

66. The Panel’s professional expertise (Cranston J point (ii), Sharpe LJ point (v)) and role is taken into account in an appeal and deference and respect is given to that and to the three purposes behind that which the Panel is serving, namely: protection of the public, protection of the reputation of the medical profession (not punishment) and maintenance of high standards. On matters of medical practice and sanction the respect may be profound but the deference is not total. On issues of sexual assault, the Panel’s medical practice experience is less relevant and less deference is likely due.

67. Determination of sanction is an area where deference to professional judgment is definitely applied. An analysis of the correct +approach was provided by the LCJ Burnett, Sir Terrence Etherton MR and Rafferty LJ in Bawa-Garba v GMC [2018 EWCA civ 1879, between paras. 60 and 67. The GMC appeal in the case before me relates to sanctions. In an appeal concerning the determination of sanctions, guidance was given by Laws LJ in Raschid v GMC [2007] EWCA Civ. 46 ; 1 WLR 1460: “17. The first of these strands may be gleaned from the Privy Council decision in Gupta v General Medical Council [2002] 1 WLR 1691 , para 21, in the judgment of their Lordships delivered by Lord Rodger of Earlsferry: “It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 , 517—519 where his Lordship set out the general approach that has to be adapted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: “The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.” Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.”

18. The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This, as it seems to me, engages the second strand to which I have referred. In Marinovich v General Medical Council [2002] UKPC 36 Lord Hope of Craighead, giving the judgment of the Board, said: “28. . . . In the Appellant’s case the effect of the committee’s order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession. “29. That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This was a case of such a grave nature that a finding that the Appellant was unfit to practise was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the Appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case, while undoubtedly severe, was wrong or unjustified.”

19. There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffmann giving the judgment of the Board in Bijl v General Medical Council [2002] Lloyd’s Rep Med 60, paras 2 and 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett’s observations in Ghosh v General Medical Council [2001] 1 WLR 1915 , 1923, para 34: “The Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee’s judgment more than is warranted by the circumstances.”

20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.” The generous ambit principle on findings of fact

68. Cranston J’s point (v) and his other points were summarised, in appeals against findings of fact, in R (Dutta) v GMC [2020] EWHC 1974 (Admin) . Warby J summarised the approach in 7 points, which are helpful in defining the ambit of when an appellate Court will overturn a finding of fact (there was a long list of citations in the Appendix to the report): “20. … This is a challenge to the Tribunal’s fact-finding processes at Stage 1. A specialist Tribunal may of course have specialist expertise that is relevant at that stage, but this is not such a case. If the Court finds that the Tribunal went wrong at the first stage, it should quash the conclusions at all three Stages, unless persuaded that the error would have made no difference to the outcome. That, as Ms Hearnden rightly accepts, is a high threshold, which is not readily satisfied: R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR 3315 , 3321.

21. Bearing that in mind, the points of most importance for the purpose of this case can be summarised as follows: (1) The appeal is not a re-hearing in the sense that the appeal court starts afresh, without regard to what has gone before, or (save in exceptional circumstances) that it re-hears the evidence that was before the Tribunal. “Re-hearing” is an elastic notion but generally indicates a more intensive process than a review: E I Dupont de Nemours & Co v S T Dupont (Note ) [2006] 1 WLR 2793 [92-98]. The test is not the “Wednesbury” test. (2) That said, the Appellant has the burden of showing that the Tribunal’s decision is wrong or unjust: Yassin [32(i)]. The Court will have regard to the decision of the lower court and give it “the weight that it deserves”: Meadow [128] (Auld LJ, citing Dupont [96] (May LJ)). (3) A court asked to interfere with findings of fact made by a lower court or Tribunal may only do so in limited circumstances. Although this Court has the same documents as the Tribunal, the oral evidence is before this Court in the form of transcripts, rather than live evidence. The appeal Court must bear in mind the advantages which the Tribunal has of hearing and seeing the witnesses and should be slow to interfere. See Gupta [10], Casey [6(a)], Yassin [32(iii)]. (4) Where there is no question of a misdirection, an appellate court should not come to a different conclusion from the Tribunal of fact unless it is satisfied that any advantage enjoyed by the lower court or Tribunal by reason of seeing and hearing the witnesses could not be sufficient to explain or justify its conclusions: Casey [6(a)]. (5) In this context, the test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Yassin [32(v)]. (6) The appeal Court should only draw an inference which differs from that of the Tribunal, or interfere with a finding of secondary fact, if there are objective grounds to justify this: Yassin [32(vii)]. (7) But the appeal Court will not defer to the judgment of the Tribunal of fact more than is warranted by the circumstances; it may be satisfied that the Tribunal has not taken proper advantage of the benefits it has, either because reasons given are not satisfactory, or because it unmistakably so appears from the evidence: Casey [6(a)] and cases there cited, which include Raschid and Gupta ( above) and Meadow [125-126], [197] (Auld LJ). Another way of putting the matter is that the appeal Court may interfere if the finding of fact is “so out of tune with the evidence properly read as to be unreasonable”: Casey [6(c)], citing Southall [ 47] (Leveson LJ).”

69. Ms Grey KC placed reliance on a passage from Southall , at para. 47, where Leveson LJ observed that: '… it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable.' Dutta shows how tricky it is to delineate the outer boundaries of the test for appeals against findings of primary and secondary facts by a panel. Clearly, if the Appellant proves that the Tribunal’s decision was Wednesbury unreasonable then the appeal will be granted. In my view, Warby J was ruling that the test of “wrong” encompasses Wednesbury but goes well beyond it. The Wednesbury test only covers situations where the panel has made an irrational decision, in the sense that no reasonable panel could have come to that decision on the evidence; whether the panel has taken into account matters which were irrelevant when reaching a material finding of fact; and whether the panel has failed to take into account a relevant matter when making a material finding of fact. But “wrong” goes beyond that and encompasses failing to give adequate weight to evidence or errors in the approach taken or the panel failing to take advantage of the benefit of hearing live evidence. All of these are different ways of says that the three “wrongness thresholds” have been crossed: (1) deference to the professional experience in the field; (2) deference to the fact that the panel heard and saw the live evidence; (3) deference to the “generous ambit of disagreement”. As a result, in such statutory appeals, findings of fact have been overturned when a Court has found, for instance that any advantage enjoyed by the panel by reason of having seen and heard the witnesses could not be sufficient to explain or justify the panel’s conclusions ; when the findings are sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread, per Lord Hailsham in Libman v GMC and Warby J in [1972] AC 217 Dutta at para 21(7); when there is no evidence to support a finding of fact; when due to a clear defect in the panel’s approach to assessing credibility the panel's finding was one which no reasonable panel could have reached. Sexual assault and rape findings

70. This Court must take into account that it is at a disadvantage when assessing the credibility of the witnesses who gave evidence in person at the Panel hearing. The Panel heard and saw Ms A, Dr Foy and the other witnesses give evidence, this Court did not. However, in relation to decisions of fact in sexual misconduct cases the deference to medical expertise is lower and likewise in relation to inferences of fact (or secondary findings of fact). The standard of proof to be applied by the panel is the civil standard of balance of probabilities. Where the allegations and the potential consequences for the registrant are particularly serious, the correct approach is that there is only one civil standard of proof in all civil cases. There is no heightened civil standard of proof in particular classes of case. In particular, it is not correct that the more serious the nature of the allegation made, the higher the standard of proof required. Intense analysis and focus on the evidence is required for such serious charges. The inherent probability or improbability of an event is a matter which can be taken into account when weighing the probabilities and in deciding whether the event occur red. Where an event is inherently improbable, it may take better evidence to persuade the judge that it has happened. This goes to the quality of evidence. Whilst the court may take account of inherent probabilities, there is no logical or necessary connection between seriousness and probability. Human memory and demeanour

71. I take into account that the assessment of the credibility of witnesses must involve an understanding about the unreliability of human memory and should be considered and tested by reference to objective facts, in particular those shown in contemporaneous documents. Where possible, factual findings should be based on objective facts as shown by contemporaneous documents, see Warby J in Dutta at paras. 39 to 42. Demeanour may in some cases be a relevant factor and the panel is best placed to assess this but there are powerful warnings about placing too much weight upon it, see Dutta para 42 and Khan at para 110. In a case such as this appeal where the complainant provides an account, and the registrant denies the events occurred, with no independent evidence, no forensic evidence and no other direct witnesses, it is commonplace for there to be inconsistency and confusion in some of the detail. The task of the panel is to consider whether the core allegations are true. Sufficient reasons

72. One of Dr Foy’s grounds of appeal is a lack of sufficient reasons. Rule 17(2)(j) of the FTP Rules requires the Panel to give reasons for its findings of fact. In Southall , Leveson LJ ruled thus: "55. For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate Tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter [in Phipps].

56. When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex. … I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the panel. …

59. Further, once providing some reasons, in my judgment, the panel did have to say something about Dr Southall who gave evidence on this topic for some days. If (as must have been the case) they disbelieved him, in the context of this case and his defence, he was entitled to know why even if only by reference to his demeanour, his attitude or his approach to specific questions. In relation to Ms Salem, the position was worse: to say that the panel "did not find her evidence to be wholly convincing" is not good enough. … That is nothing to do with not being wholly convincing: it is about honesty and integrity and if the panel were impugning her in these regards, it should have said so.” … Reasons and credibility

26. As regards reasons concerning the credibility of witnesses (1) Where there is a dispute of fact involving a choice as to the credibility of competing accounts of two witnesses, the adequacy of reasons given will vary. In English v Emery , Lord Phillips stated that "it may be enough to say that one witness was preferred to another, because the one manifestly had a clearer recollection of the material facts or the other give answers which demonstrated that his recollection could not be relied upon ". On the other hand, Southall at §55, and Gupta at §13 and 14 suggest that even such limited reasons are not necessarily required in every case. (2) Secondly, whilst Mr Mant accepted that it is a common practice in Tribunal decisions on fact, there is no requirement for the disciplinary body to make, at the outset of its determination, a general comparative assessment of the credibility of the principal witnesses. Indeed, such a practice, undertaken without reference to the specific allegations, has been the subject of recent criticism in Dutta at §42 and Khan at §§106 and 107. In my judgment, consideration of credibility by reference to the specific allegations made is an approach which is, at least, equally appropriate.

27. Finally, an appeal court will not allow an appeal on grounds of inadequacy of reasons, unless, even with the benefit of knowledge of the evidence and submissions made below, it is not possible for the appeal court to understand why the judge below had reached the decision it did reach. It is appropriate for the appeal court to look at the underlying material before the judge to seek to understand the judge's reasoning and to "identify reasons for the judge's conclusions which cogently justify" the judge's decision, even if the judge did not himself clearly identify all those reasons: see English v Emery Reimbold §§89 and 118.”

73. The scope of the duty to give reasons is a flexible one dependent on the complexity of the facts of the case and the need for fairness in explaining to the losing party the decisions of fact and the decisions on the credibility of the witnesses, so that the losing party on any point can understand why the decisions were reached and consider whether to appeal. Analysis of each of Dr Foy’s Grounds

74. Grounds 1 and 2 (i)(ii)(v)– Credibility In my judgment the Panel took a granular and detailed approach to the assessment of the credibility of Ms A. They heard 9 witnesses give evidence, they considered expert evidence from Prof. Fertieman, they heard the phone call excerpts, and they considered A’s written and verbal accounts and then went through the charges one by one. They set out the correct burden of proof, reminded themselves not to have a pre-conceived notion of what a victim of rape would do after being raped and took into account Dr Foy’s good character.

75. I take into account that the Panel found in Dr Foy’s favour and accepted his evidence on the HIV testing and rejected Ms A’s evidence. This shows that they approached each charge independently and determined the credibility of Ms A’s evidence separately in relation to each charge. There was no overall blanket acceptance of her credibility.

76. When considering Ms A’s credibility, the Panel started by comparing her statements to the police, made 4 weeks after the alleged events, and then carefully looked at her earlier ones (V1 to V4) and considered the alteration in her allegation from sexual assault or attempted rape to rape. They found Prof. G was involved in drafting V4. They considered the phone calls between Dr Foy and O. They found that the transcripts of 4 and 9 minutes duration were from the same call and the other (25 mins) was a different call. They rejected Dr Ejohwomu’s evidence that no Nigerian Man would go to Nigeria to apologise if he had raped another man’s daughter – there would be violence and the assertion that Dr Foy went to confront Prof. G with the fact that Dr Foy was being blackmailed by his children.

77. They then considered the facts relating to each charge one by one. For the Bedroom Incident they carefully considered Ms A’s various accounts to her brother, then the police. They considered the inherent improbabilities raised by the defence about her behaviours. They considered the improbabilities of her evidence about staying 2-3 days more after he “pawed” her and asked to sleep with her. They compared her evidence to that of Dr Foy and considered the inherent improbabilities within his account. He had asserted that his message to Ms A on 20.11.2018 suggesting a kiss or sex arose out of a jokey conversation the day before in which Ms A asked him if he thought that “she was a virgin”. Then she came into the lounge wearing on the t-shirt with bare legs and he got and erection and later came downstairs and told her off. They compared that explanation with his multiple messages to her that she was “pretty, gorgeous, beautiful” etc. They considered his conversation with O as well (“even if she came on to me”). They looked at Ms A’s different accounts of the date when this incident occurred and the number of days she stayed afterwards. They noted that her GMC witness statement did not mention him touching her breast. They took into account that she had her arms around his neck at the party.

78. In relation to the Sofa Incident, from J95 to J101, the Panel set out Ms A’s and Dr Foy’s main evidence to the police and in her witness statements, about what happened. Then, they went on between J102 and J138 to consider the challenges to Ms A’s credibility and concluded at J138 that her evidence was plausible. I do not accept that starting at J102 shows any defect in their approach. They had to start somewhere. They then carefully considered the inconsistencies in V1-V4 of her own drafted statements and Ms A's inconsistent evidence about to whom she first made the rape complaint (Prof. G or Mr X). It is clear to me that whilst doing so they considered the inherent illogicality in Dr Foy’s evidence. Why would he admit sexual assault to O and to Prof. G and why would he send an email of admission and apology to Prof. G if he had not sexually assaulted Ms A? How would admitting sexual assault to O assist him in uncovering blackmail? If Dr Foy went to Prof. G to expose his childrens’ blackmail plot, why did he subsequently send a message and then an email with apologies and admissions of sexual assault? His evidence clearly did not find favour with the Panel. The Panel considered the inconsistencies in V1-V4, her shame at being raped, O’s evidence that she was perhaps naïve, but plausible, matching their conclusion at the NCTA stage. The Panel carefully considered the telephone recordings of Dr Foy’s admissions to O, and determined as a fact which came first in time (J148). The Panel went on to consider the wider evidence about these calls and the made factual findings at J156. They rejected Dr Foy’s assertion that he was deliberately telling lies to elicit blackmail and considered that he had made admissions to O.

79. I do not find the ground of appeal based on attacking these finding of fact relating to the calls was made out. There was no record of Dr Foy denying he had sexually abused Ms A. Both recordings contained admissions, apologies, remorse and fear of jail. After meeting Prof. G, Dr Foy made a written admission and an apology and offered to pay money. The Panel actually listened to the recordings, which I was not asked to do. I consider that the challenged findings were well within the range of findings that a reasonable Panel could make on the evidence.

80. Grounds 1, 2(iii) – reversed the burden of proof. Between J157 and J159 the Panel considered the other defence points undermining A’s credibility. These were the main ones raised at the NCTA stage (lies about: TB; HIV testing; failing to disclose to O her desire for secrecy about her visit to stay with Dr Foy in November; her “paid for” thesis; her knowledge of what the defence called the blackmail). Mr Bennett submitted to the Panel (J158) that these dishonesties supported Dr Foy’s credibility because the late received messages from Ms A’s phone proved that some of his cross examination of Ms A, on instructions, was true and her answers thereto were untrue. Thus, the phone records undermined Ms A’s credibility. The keystone of this ground was Dr Foy’s criticism of J159 which, on Dr Foy’s submission, shows that the Panel applied the wrong test for her credibility. They reapplied the “sufficient evidence test” from the FTP Rules r17(2)(g) (see Galbraith), not the final determination test, applying the civil burden of proof which had to be discharged by the GMC. Dr Foy asserted that they reversed the burden of proof.

81. The test at the NCTA stage is a simple “sufficient evidence test” as set out in the FTP Rules r17(2)(g). The guidance in R v Galbraith [1981] 2 All ER 1060 , is imported into Panel cases. So, for a submission of no case to answer at the end of the prosecution case, the Panel should stop the case if either (1) there is no evidence that the charge was committed by the registrant or (2) if there is some evidence but it is of a tenuous character, because of inherent weakness or vagueness or because it is inconsistent with other evidence, and if taken at its highest, is such that the Panel properly directed could not properly convict on it. In contrast, where the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or on all of the other evidence which is within the province of the Panel and where on one possible view of the facts there is evidence on which the Panel could properly come to the conclusion that the accused is guilty, then the Panel should allow the matter to go on.

82. Annex F contained the Panel’s decision at NCTA stage. They took legal advice. They considered Galbraith , went through the clear criticisms of Ms A’s credibility due to her apparent untruths or inconsistencies about TB; HIV testing; the “paid for” thesis; her knowledge that she would be staying with Dr Foy overnight on 2.12.2018; conversations with her sister about May 2018; her denial of rape to O on 23.12.2018; her denial of knowledge of financial demands; the dates of the alleged Bedroom Incident and her post alleged rape phone calls. They noted that neither party sought to recall A. They considered Ms A’s motivation in delaying her complaint and then only reporting sexual assault and later disclosing rape. As set out above, they could not reach a conclusion on the TB allegations. They found that Ms A did discuss the HIV testing in June 2018 and found the HIV charges unproven, but they did not find her untruthful about November. They found her untruthful about the thesis to Glasgow University and to the Panel. They found that she did know about O making demands for money. They went through each ground one by one. They considered “at this stage” that Ms A first disclosed rape to her father. They noted how in messaging Ms A complained to her brother (O) that after the rape allegation was made that her father was behaving exactly in the way she had sought to avoid. The Panel considered Ms A’s evidence in the context of Dr Foy’s admissions of sexual assault to O and in his email to Prof. G. They considered the amendments to V1-V4. Overall, the Panel found that Dr Foy had a case to answer.

83. I do not consider that J159 contains a reversal of the burden of proof. What is says in short is that, whereas at NCTA the Panel decided that the GMC case was sufficiently plausible to continue, by the time Dr Foy had completed his case the panel preferred Ms A’s evidence to his and was prepared to accept it as credible. So, Dr Foy’s evidence did not strengthen his case. In effect, his case was at its height before he gave evidence, not after. I have read the cross examination of Dr Foy, it is apparent that there were many inconsistencies and illogicalities in his evidence.

84. Standing back and looking overall at these grounds relating to the Panel’s findings about Ms A’s credibility, this was a straight fight between the credibility of Ms A and Dr Foy, with the burden of proof to the civil standard on the GMC’s shoulders. It is clear to me that the Panel was open, after the NCTA stage, to being persuaded by Dr Foy that his evidence was to be preferred to Ms A’s on the two key incidents, or that the defence evidence undermined her evidence so much that the GMC’s case was not proven, but in the end they preferred her evidence to his all of the GMC evidence and his evidence. Her account of the rape was sufficiently credible for them to accept it, in preference to his denial. The Panel expressly relied on his admissions to O and the email he sent to Prof. G, that he had sexually abused Ms A, despite his denials at the hearing that any such thing had occurred. There was a deep fault in the logic of his evidence. If, on 2.12.2018, he had merely “pecked” Ms A on the cheek to get her off him, why did he admit to O and Prof. G that he had sexually abused her? Why would he tell them that he was so ashamed and why would he think he could have been sent to prison? The really tricky challenge which the Panel faced was to decide whether a proven dishonest witness, on a matter as serious as her university education, could be found credible on her rape allegation, taking into account the many inconsistencies in her evidence. That was a very difficult decision, but I do not consider that Dr Foy has overcome any of the two main deference principles for his appeal on these grounds. I do not apply any deference due to the Panel Professional expertise, because this is a rape allegation. I do consider that the Panel are due deference due to hearing the whole of the evidence live and I do accord their decision a wide margin for disagreement. I do not consider that the decision on Ms A’s credibility was wrong, or unjust and I do not consider that Dr Foy has proven that they applied the wrong burden of proof, or applied the wrong weight to the untruths and inconsistencies.

85. Ground 2(iv) For the reasons set out in the GMC skeleton and summarised above at para. 45, I consider that there was sufficient evidence to support all of the findings of fact challenged in this ground.

86. Ground 1, 2(vi) – Sufficient reasons. This ground only related to “ advice … that it should not have pre-conceived notions as to how a victim of sexual assault will react.” I have considerable sympathy with Mr Bennett’s well crafted submissions. Were a Panel to take into account only evidence of post alleged rape distress and ignore post event happiness, then that would be improper. However, I do not consider that there is any sufficient evidence to justify such a conclusion in this appeal. The Panel expressly did consider the Cinema trip, the notes of the nurse at the TB clinic, Ms A’s failure to report rape, failure to take an STD test and her continuing messages to Dr Foy. They also noted that he asked if she was still angry with him and she wrote back that she was still “processing”. They took into account that she made sequential disclosure of sexual abuse (denying penetration) and later of rape, in answer to Dr X’s questions. They took into account that she did not want to get into the shame of an “abomination” situation. In my judgment the Panel were not wrong or unjust in their approach to Ms A’s post event behaviour.

87. Ground 3 – medical records. This evidence had been excluded by another Panel in May 2023 on the grounds of privacy and preventing victims of rape being cross examined on their past sex lives. In my judgment there was no injustice. The Panel stated that they accepted that Ms A was fully aware of STD testing (J347). Dr Foy was not prevented from making the submission or from cross examination on that point. What he could not do was raise her earlier test and the circumstance surrounding it. There is a broad margin of discretion on such decisions. I do not consider that this case management decision made by the Panel was unjust due to a serious irregularity

88. Ground 4 – reversal of a finding of fact. The decision made at NCTA stage was not a final decision and the Panel were entitled to change it having more carefully considers all of the evidence. Although the Panel suggested at NCTA that Prof. G was the one who persuaded Ms A to admit that she was raped, all they were determining was whether there was sufficient evidence. I do not consider that they were bound by their NCTA determination. Nor did I find the reasoning of the ground persuasive. Whether Ms A disclosed to Mr X or Prof. G makes very little difference. Both were senior to her and were parents. The best that Dr Foy could submit on the relevance of this was that if Prof. G was the one to squeeze the admission out of her that made her evidence less likely to be credible because he had more power and sway over her. I do not find that point carries much weight on its own or when set against the Panel’s finding that Ms A was trying to avoid the whole “abomination” situation and the shame involved.

89. Ground 5 – transcripts The Panel made clear why they only obtained the old evidence transcripts, it was because that evidence had been given months before so was not fresh in their minds. I do not consider that this gave rise to any objectively reasonable fear of bias or unfairness. The Panel had only recently heard all of the defence evidence. Memories fade over time.

90. For the reasons set out above I do not consider that grounds 1-5 of Dr Foy’s appeal were made out.

91. Grounds 6 and 7 – Misconduct and Sanction. Because grounds 1-5 were not made out these grounds do not arise. The GMC appeal

92. Grounds 1 and 2. Belief in consent - (charges 1(b), 5(a) and (b). Once the Panel had decided to prefer Ms A’s evidence about the Bedroom Incident and the Sofa Incident, they were bound to consider the issue of whether she had consented and whether he had a reasonable belief that she consented. The Panel found that the burden was on the GMC to prove he did not have such belief. The Panel considered his subjective belief and his state of mind and then objectively considered whether it was reasonable. They noted that Dr Foy gave no direct evidence that he had any such belief and that was not his case. He denied the events. The GMC are right to submit that neither of the parties put forwards a case of sexual provocation by Ms A or belief in consent by Dr Foy. However, the primary factual findings which the Panel made and which Ms A admitted in relation to the Bedroom Incident included: (1) on her evidence, that her presence, cosy beside him on the sofa in May 2018 gave him an erection; (2) he had sent many messages saying she was beautiful and he had proposed that he deserved a kiss or sex by messaging her on 20.11.2028; (3) she had been at his birthday party on 17.11.2018 and was happy with her arms around him in photos taken that night; (4) she was alone in the house with him and he went into her bedroom at around 11 pm, asked her to come to his bedroom and she did so voluntarily; (5) she sat on his bed for around an hour until around midnight talking and sitting side by side looking at a laptop. As for the Sofa Incident, the Panel found that: (6) Ms A called Dr Foy for a lift back to Blackpool knowing that it was likely she would be alone in the car with him for 4-5 hours and staying over, 2 weeks after he had asked he to sleep with him; (7) on the drive he asked about her boyfriends and she messaged her sister who expressed no shock that she was in his car and gave no advice to be careful, despite her reporting his sexualised behaviour to her earlier; (8) Ms A did stay over, alone with him at his house; (9) at around midnight, as he lay on the sofa, she lay between his legs with her head on his abdomen (on a cushion) and her body on his pelvis/groin. At J64 the Panel found that the GMC had not proven that the Bedroom Incident occurred without Dr Foy having a reasonable belief that Ms A consented. At J172 the Panel found that, during the Sofa Incident, touching her breasts as she lay on him was done with a reasonable belief that she consented. Thereafter, when Ms A objected on the sofa, the belief in consent fell away. They also found at J161 that Dr Foy’s first account to O was that Ms A had provoked his body response when she lay on him at the start of the Sofa Incident. In my judgment the reasonable belief inferences were within the broad range of findings which the Panel could make on the evidence before them arising from their primary factual findings.

93. The Panel was required in law to set out their factual findings and to provide sufficient reasons so that the GMC understood why those were made and were able to appeal. Not every issue had to be dealt with. In the context of their main findings, and their rejection of Dr Foy’s complete denials, but also in the context of the Panel expressly recording that his earliest account was that he gained sexual stimulation by her lying on his pelvis at midnight on 2.12.2018 and by her being in his bedroom, sitting next to him on his bed at midnight for an hour on 20.11.2018, and her behaviour towards him, over the 7 months of their relationship being close, I consider that the Panel provided sufficient reasoning for their findings on his belief about what she would consent to. Sanction The GMC appeal

94. Ground 3 - Misconduct. Setting aside charges 2, 3 and 4, which the Panel found did not amount to serious professional misconduct and are not appealed, this ground of appeal focussed on the sexual misconduct charges.

95. Charge 1, the Bedroom Incident. The relevant charge was as set out in the decision: “1(a) on or around 14 th November 2018 you: (a) asked Ms A whether she would spend the night with you. (b) touched her breast/s”. It did not allege that Ms A was his patient. This is in contrast to charges 2, 3 and 4 related to his treatment of her as a patient, with whom he had a close personal relationship, in the following 5 days. At J220-232 the Panel analysed whether the Bedroom Incident was serious misconduct and concluded that it was not. The reasoning is a little confusing. Firstly, the Panel stated that, although they had found that Ms A was his patient before and leading up to the Bedroom Incident (J65), because the GMC had not pleaded that she was his patient as part of and in charge 1, they could not take into account her being a patient. So, for the purpose of determining whether his conduct was misconduct, when he asked to sleep with her and touched her, this was ignored. Secondly, the Panel considered whether to take into account that they had a “close personal relationship” and the Panel stated, at J231, that they had considered the conduct without reference to charge 2(a) (which they had determined was proved and was that Dr Foy had treated her on 15.11.2018 when he had a close personal relationship with her). Thirdly, the Panel found at J232, that “there was no reason why he should not have made those advances as, at the time, he had a reasonable belief that she would consent to them”. It appears the Panel meant that if she was not a patient then he was free to act as he did.

96. The GMC described the Panel’s decisions to ignore (1) their own finding that Ms A was patient at the time and (2) the close personal relationship which they had found (J280), as “narrow pleading points”. They point to the Panel’s finding that Dr Foy was intent on having sex with Ms A, J164. The GMC also rely on FTP Rule 17(2)(k) which states: “(k) the Medical Practitioners Tribunal shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner's fitness to practise is impaired;” It was submitted that all the facts found proved were relevant, not just the way that the charges were framed. No authority was cited for this proposition.

97. In response Dr Foy made no submissions in writing or verbally.

98. Analysis . Prima facie one might assume that a registrant is to be sanctioned for the charges laid, defended and yet found proven and nothing more, all in the light of Good Medical Practice , the Sanctions Guide (SG) and the case law The FTP Rules specifically state that fitness to practise is determined on the basis of all the facts proved. Should the determination of his misconduct for this charge therefore be considered based upon all of the facts found instead of the wording of the charges? It is an express principle that sanctions are not imposed to punish, but to protect and promote public health, safety and confidence in the profession. It seems to me that those objectives are wider and more flexible than, for instance, criminal charges and sentencing in criminal Courts. Furthermore, the FTP Rules appear to make the facts to be considered at the fitness to practise stage wider than the charges. However, I do not consider that a registrant can be sanctioned for a charge which was not laid or amended or on facts which were not asserted in relation to that charge. It seems to me to be a matter of justice that a registrant should know the charges which he faces and be given time to prepare to answer them. If any charge needs amending an application can be made to do so. I understand that some charges were amended at the hearing, but these charges were not. Whilst all the facts are relevant to fitness to practise I do not consider that FTP rule 17(2)(k) can be used to change or amend the charges actually laid without an application. This charge was worded without reference to Ms A being a patient and so Dr Foy faced a straight charge of sexual assault without consent. The act was proven, the lack of belief in consent was not proven. The Panel determined the misconduct on the charge as drafted and I consider it was right to do so. I dismiss this ground for that reason.

99. Ground 2 – Aggravating factors. Breach of trust Ms A and Dr Foy called each other “Uncle” and “Niece”. Dr Foy denied being in loco parents, denied being related to Ms A and denied being her guardian in his evidence. He asserted that he was a contact for her whilst she was in the UK inter alia for medical advice at the request of her father who came from the same village as his father. The Panel accepted Dr Foy’s evidence on the breach of trust issues and preferred it over the GMC assertions of positions of trust, in particular rejecting Prof. G’s evidence (that Dr Foy was her guardian and a distant blood relative). The GMC submit that the Panel failed to take into account that Dr Foy’s actions in the Bedroom Incident and the Sofa Incident were a breach of trust and an abuse of position. They pray in aid that Prof. G had asked Dr Foy to assist his daughter, who was visiting the UK for her thesis, with her ill health; who treated her as a patient; whose family were close to Prof. G’s family; who was twice her age and whom he raped whilst she was a guest in his home. The GMC rely on the judgment of Supperstone J in Davies v BSB [2015] EWHC 2927 (Admin) at paras. 34 and 37. Para. 34 recited the judgment of Collins J in Nandi v GMC [2004] EWHC 2317, in which he ruled that the panel is required to look at the whole picture surrounding the allegation of professional misconduct when imposing sanction. Para. 37 is not relevant.

100. The Panel carefully considered the legal principles at J203-211 and neither Appellant challenged their approach to those. They considered the Sofa Incident and listed failing to wear a condom and ejaculating as aggravating factors. The Panel rejected the GMC assertions that Dr Foy pre-planned the attack, or that Ms A was an especially vulnerable person, or that there was any betrayal of trust. They decided, as a fact, that Dr Foy was not her guardian or in loco parentis. They ruled that Dr Foy was not a relative of Ms A in biological terms. They rejected the submission that age was a relevant aggravating factor. The GMC does not expressly challenge any of those findings save to assert that age was an aggravating factor and there was a breach of trust.

101. Dr Foy did not make written or oral submissions in response.

102. Analysis . The Panel found, at J236, that the Sofa Incident amounted to serious professional misconduct, was culpable and disgraceful but noted that their decision was not a criminal conviction. This ground of appeal probably goes to impairment and sanction as well as seriousness. I have not been provided with the document Good Medical Practice however, abuse of a position of trust is mentioned in paragraph 109 (d) of the SG, which states by reference to para. 65 of Good Medical Practice that “you must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession”.

103. For there to be a relationship of trust, the relationship needs to involve something more than just inter family friendship or doing a family friend a favour, or social friendship. Dr Foy was expressly found by the Panel not to have been her guardian (he was cross examined upon that) or in loco parentis. The Panel accepted his evidence. The Panel found that Ms A was not his patient when he drove her back to Blackpool on 2.12.2018 (in contrast to the relationship in November 2018). He was merely doing her a travel favour at her request to save her money. She was not a child; she was a grown woman. Yes, she placed her trust in him as a friend who had helped and treated her in the past, but she did so with her eyes open, in the knowledge that he had asked her to sleep with him a mere two weeks before. In my judgment the challenge to the finding that there was no breach of trust is not made out.

104. I do not consider that the challenge to the ruling that age was not an aggravating factor is sustainable. Ms A was an educated woman, aged 25, pursuing a thesis. She had enjoyed past sexual relationships, she had experience of life. Her adult life was her own to live as she wished and she was entitled to have relationships with adult partners of her own age, younger or older. She was not a child. Her father, sister and brothers were alive and available for advice and support. She had one brother in Glasgow and another in the USA. If she had been aged 18 the point might have had some weight.

105. Ground 5 - seriousness. The GMC submit that the Panel’s assessment of the seriousness of the rape was wrong on the basis of the following matters: (1) the Panel was “victim blaming”, as Ms Grey KC put it in submissions; and (2) the Panel failing adequately to classify Dr Foy’s intent; and (3) failing properly to assess the harm to Ms A. As a result, the GMC submit the panel lowered the seriousness of the rape. I am not sure that I fully understand the subtlety of how this ground was put because the Panel decided at J236 that the rape was serious misconduct and disgraceful.

106. Dr Foy did not make written or verbal submissions in response.

107. Analysis. The Panel found that Dr Foy had no preplanned intention to rape Ms A and the GMC highlighted no evidence to show that this finding was wrong. No evidence was led by the GMC from any doctor, GP, psychiatrist or psychologist, diagnosing any medical condition caused by the rape, so the only evidence of harm came from Ms A. There was almost nothing in her four GMC witness statements on harm. The Panel considered the seriousness of the conduct between J229-236, but the GMC rely on subsequent paragraphs: J239, 278 and 279 and 281. In 237-240 the Panel summarised their findings of fact on the lead up to the rape in the context of impairment. They took into account Dr Foy’s good character and impeccable testimonials. They stated that they did not apportion blame on Ms A. Then set out her three visits to his house, his visit to her whilst she was in hospital in Glasgow, his desire to have sex with her, his request for sex made on 20.11.2018 (which she refused), and Ms A’s subsequent request for him to drive her to Blackpool two weeks later, in the knowledge that he had wanted sex with her which she sternly rebuked and that she would need to stay over. Then her decision to lay between his legs on his pelvis with her head on his abdomen, over a cushion. The Panel found his sexual actions were initiated as a result of his desire arising from her lying on him, which he honestly believed was reciprocated. Ms Grey submits that none of that excuses rape after Ms A said “no” nor does it reduce the seriousness of the rape. I agree. If this background was used to minimise the seriousness of the rape this ground of appeal would have legs, but I do not read J239 as saying that. It is under the heading impairment. It is the background to their consideration of whether Dr Foy is impaired. They then went on to consider his lack of apology; his lack of insight; the testimonials from female colleagues; his clinical competence and found that his fitness to practice was not impaired on public protection grounds. The attack on that finding is in ground 6, to which I shall turn below.

108. At J278 the Panel took into account that the charges were proven to the civil standard not the criminal standard. Looking at the SG there is a focus on criminal convictions as distinct from civil wrongs. For instance, paras 109 (f) uses the word “offences”, and para 151 describes criminal convictions, and the paragraphs on sexual misconduct, 149-150, focus on criminal convictions. I do not consider that the Panel fell into error by making some distinction between rape proven to the civil standard and criminal convictions. The word rape is the same and the actions are the same, but the standard of proof is intentionally different. How much of a distinction is a factor in the multi-factorial assessment they had to make.

109. The Panel took into account their finding that the rape occurred in Dr Foy’s private life, not on a current patient. That was a relevant factor, and I do not accept the GMC’s submission that it should have been ignored.

110. At J279 the Panel was unable to assess Dr Foy’s level of insight because he denied the rape. But that is really relevant to ground 6 not ground 5. Overall, I do not consider that the Panel fell into error when assessing the seriousness of the conduct because they reviewed the relevant evidence and stated they found it serious and disgraceful. They considered his intention and inferred it from his actions, they set out Ms A’s actions which were relevant to his arousal, and they were given scant evidence from the GMC of the level of harm caused to Ms A. They could only work with the evidence provided.

111. Ground 6 – Risk assessment. This ground appears to me to be the crux of the GMC’s concerns about the sanction. The Panel found that there was no risk of future repetition of rape by Dr Foy, so the public are safe, and he had no impairment on public protection grounds, see J248. The GMC submit that the Panel were wrong so to find and their reasoning at J241 and 247 leading to J248 disclosed that error. At J241 the Panel stated that rape was not easily remediable and Dr Foy had presented no evidence of efforts to remediate his conduct because he denied it. Against that, they considered that this was an “isolated incident” and were satisfied that “ in the circumstance of the case it is inconceivable that Dr Foy-Yamah would repeat the behaviour which led to the finding … ever again .” They stated that Ms A had entered his life at the request of her father and she “captured his imagination to the extent that he developed a sexual interest in her”, they spent evenings together, she attended his birthday party, and they exchanged familiar messaging. Later, he denied the rape and asserted he was being blackmailed and faced the abyss, but that did “not detract from its [the Panel’s] determination that Dr Foy-Yamah will not repeat his behaviour”.

112. Dr Foy did not make written or verbal submissions in response.

113. Analysis. Objectively, in my judgment, the factual findings made by the Panel about the circumstances leading up to the rape were hardly unusual. They could occur anytime in a huge range of similar circumstances. An older man who, living away from his family 5 days a week and working hard in the day, develops a sexual fixation in his social life on a younger woman who had visited his house twice. They went out to a party. He had proposed sex, and she had rebutted him. Despite her rebuttal, two weeks later she asked for a long ride up to Blackpool in his Maserati and stayed over. When he made a move on her, because she was lying on his groin, she said again that she did not want sex with him. The fact that he was aroused is not an excuse for him to ignore her free will and rape her. The incident was isolated only because he had not raped anyone before. He had however, twice before become aroused with her and backed off. This time he did not back off. Nothing in the facts of the lead up to the incident made it isolated in the sense that countless similar situations could arise in his social life in future, away from home, with any woman friend who entered his house, who would then be in danger were she to say no.

114. Furthermore, the lack of insight shown by Dr Foy after the event is very troubling. Whilst he was found to have admitted to sexual assault of Ms A to O and Prof. G, his explanation to the Panel, that he was admitting only to one peck on the cheek, which was clearly rejected by the Panel and showed no insight. The tone and content of his admissions to O and Prof. G did not sit well, according to the Panel, with a mere peck on the cheek. They were illogical on his own case. His denial at the hearing was part of his right to defend himself but his lack of any insight and remediation gave the Panel no room to feel secure that his disgraceful and dangerous behaviour would never happen again. His excellence at work before and since does not go to that risk. It goes to clinical competence.

115. In my judgment ground 6 is made out. Despite the deference thresholds to overturning findings on appeal, I consider that the determination by the Panel that Dr Foy presented no risk to women in future was made without logical foundation, lacked any or any sufficient evidential foundation and failed properly to take into account his conduct, lack of insight, his lack of remediation. On the evidence, in my judgment it is clear that there are substantial risks to any woman who may become friendly with Dr Foy outside work, in Blackpool, and may then go back to his house (or to her accommodation) and lead him to feel aroused. Furthermore, there was no sufficient evidence before the Panel that Dr Foy realised that when Ms A said no, that meant no, quite the opposite. The Issues

116. As a result of my decisions above, the key issues are determined as follows: The bedroom incident on 20.11.2018 (1) The Panel was not wrong to find that Dr Foy had a reasonable belief that Ms A would consent to being touched on the breast (the GMC appeal). The Sofa incident on 2.12.2018 (2) The Panel was not wrong to find that Dr Foy had a reasonable belief that Ms A would consent to her breast being touched as they lay together on the sofa (the GMC appeal). Both incidents (3) The Panel was not wrong to rely on Ms A’s credibility and accept her version of events about the Sofa Incident despite their findings that she had been doubly untruthful about her thesis and other matters and her contradictory evidence (the Foy appeal). (4) There was no serious procedural irregularity in the hearing before the Panel relating to Ms A’s medical records on SDT testing, the burden of proof and some witness transcripts (the Foy appeal). Misconduct/impairment/Sanction (5) The Panel was not wrong to exclude patient status and close personal relationship from their consideration of misconduct in relation to the Bedroom Incident, they assessed his conduct as charged (the GMC appeal). (6) The Panel was wrong in its findings on risk and impairment on public protection grounds and hence the sanction needs to be reconsidered (the GMC appeal). Conclusions

117. I will dismiss the appeal by Dr Foy on all grounds.

118. I will grant the GMC’s appeal on ground 6 and dismiss their appeal on all other grounds.

119. Whilst the Panel ruled that suspension was the appropriate sanction, despite the Panel considering that the misconduct of Dr Foy bought him close to the line over which erasure would have been necessary, I consider that the appropriate sanction should be reconsidered by a Panel as soon as is practicable hereafter. Until that time Dr Foy should remain suspended from registration.