PROVING THINGS 135: WHAT A DIFFERENCE CROSS-EXAMINATION CAN MAKE

There has been much controversy recently about the need for cross-examination when allegations are made.  I have no intention of entering that controversy, however those who want to be fully informed on these matters should read the judgment of Mr Justice Martin Spencer in  Brayshaw v The Partners of Apsley Surgery & Anor [2018] EWHC 3286 (QB).  There is a marked difference in the view that the judge formed of a witness after cross-examination, compared to that formed by a disciplinary tribunal in which the witness was “questioned” (by the body) but not cross-examined.

“I came to the conclusion that there was very little of Mrs Brayshaw’s evidence that I could rely on.  It seemed to me that, with his cross-examination, Mr Stagg effectively destroyed the Claimant’s credibility and she was not a witness upon whom any reliability could be placed. This distinguished her evidence at trial from the evidence she had given before the FTP Panel where she had not been subjected to the same cross-examination by reference to a careful forensic comparison with the documents. Thus, I do not find myself persuaded by the findings of the FTP Panel as to what was proved or not proved and I make up my own mind as to what conduct by Dr O’Brien has been proved.”

THE CASE

The claimant brought an action against a doctors’ surgery and an individual doctor who had been a locum at that surgery. She had been a patient at the surgery and, after consulting the locum doctor, had become involved in his church and religious activities.  The trial judge found that the locum doctor had been negligent in his treatment of the claimant but that the surgery was not vicariously liable for the locum’s actions.

THE HEARING BEFORE THE GMC

The locum doctor had not appeared before a GMC hearing brought against him, the claimant gave evidence, she was subject to general questioning but not cross-examined.  The FTP panel found the claimant to be a credible witness.

CREDIBILITY

It has to be remembered that the judge found that the claimant had been mis-treated by the locum.  The credibility of witness is not the same as honesty.  A claimant may well  have come to believe every word they state.  However, as is often the case, contemporary documents established that the claimant’s recollection was inaccurate.

THE TRIAL JUDGE’S OBSERVATIONS ON THE CLAIMANT’S CREDIBILITY

  1. I regret that I found her a deeply unsatisfactory witness and in that regard I find myself at odds with the FTP Panel who stated:
“In general, the Panel was impressed with the clear, fluent and emotional [I wonder if this is a misprint for unemotional] manner in which she gave some of her evidence, which was consistent with her written statement. It noted that [Mrs Brayshaw] was clearly distressed whilst giving her evidence. She appeared to clearly recollect events with Dr O’Brien and his wife and provided some details to the Panel which were convincing and unlikely to have been made up.
However, the Panel found that during her oral evidence there were some discrepancies with her written statement. On the whole, however, her oral evidence, much of which was detailed and remarkably consistent to what she stated to Dr [Jorsh] in January 2013 and subsequently in her written statement dated 7 July 2013.  Furthermore, on occasions as set out below, we have found support for Mrs Brayshaw from Dr O’Brien’s own documents.

THE JUDGE’S REASONING

The judgment sets out in detail a number of reasons why the judge doubted the claimant’s credibility as a witness.
As to her general demeanour at this trial, Mrs Brayshaw found it difficult to answer the question that she was being asked.  Her answers tended to ramble on, giving information which was not prompted by the question which she was asked and she seldom gave a direct answer to a single question.  To a certain extent, this was due to her personality but it was also, in my judgment, because the questions which she was being asked were awkward for her and she chose not to answer them.  I have no doubt that she understood the questions that she was being asked and, indeed, foresaw their significance.  With all her difficulties and clear emotional lability, I nevertheless formed the impression that she is an intelligent woman.
41.              Time and again Mrs Brayshaw contradicted herself and gave answers which were inconsistent with what she had said in her statements and then, when taken to the statements, gave further answers which were in turn inconsistent with the answers she had just given.  Furthermore, many of her assertions in her evidence were not only unsupported by documentary evidence, but, in many cases, contradicted by the contemporaneous documents.
  1.  In her evidence, Mrs Brayshaw suggested that, during the relevant period between August 2012 and January 2013, it was exclusively Dr O’Brien who was providing for her medical needs.  Whilst it seems undoubtedly true that Dr O’Brien continued, on occasions, to provide advice or treatment as a GP, the records show beyond peradventure that Mrs Brayshaw’s medical needs were principally provided for through the surgery and through other doctors.  She continued to consult the surgery, as shown by the records, sometimes on a daily basis and she was given treatment for each of the ongoing medical problems listed in paragraph 5. above, with referrals as appropriate, for example for surgery for the perianal abscess.  In addition, Mrs Brayshaw continued to consult the psychiatric service including Dr Jorsh and attend review meetings of her treatment on the Care Programme Approach (“CPA”).  Whilst I have no doubt that Dr O’Brien compromised his position as a GP by introducing Mrs Brayshaw to his family and involving Mrs Brayshaw in their spiritual activities through the local Pentecostal Church, I also have no doubt that Mrs Brayshaw was quite aware that this was separate to the medical treatment which she had had and was continuing to have at the surgery, for which the First Defendants were responsible.
  2. In relation to the overall unreliability of the Claimant’s evidence, I agree with, and adopt, the submissions made to me in closing by Mr Stagg.  These were:
  3. i) Mrs Brayshaw’s two statements were not consistent with each other in certain important respects, for example in relation to whether she had religious faith before she met Dr O’Brien.  In her statement dated 12 January 2017 she said:
“I was a follower of the Roman Catholic faith before the abuse began and now I have been left sceptical and no longer believe in some of the faith’s teachings.”
          In her previous statement for the FTP Panel, Mrs Brayshaw said that when Dr O’Brien asked her if she had a faith she replied “No”.
  1. ii) When asked about her attendance at the Beacon House Prayer Group, Mrs Brayshaw initially said that she was always taken there by Dr O’Brien and his wife; then, moments later, she said she had driven there on her own and arrived after they had left.
iii)                In evidence, Mrs Brayshaw asserted that, when Dr O’Brien first visited her house, he examined her knee and wrote a prescription for cortisol (a cortisone injection).  This was a totally new allegation, not mentioned in the proceedings before the FTP Panel.  It is not reflected in the records.  What is reflected is that, on 5 September 2012, another doctor, Dr Sharif Zulfiker saw the Claimant because of a complaint of osteoarthritis in her right knee, he gave her a tubigrip (an elasticated tubular bandage) and arranged for her to come in for an injection.  Then, on 12 September Dr Zulfiker noted that he injected steroid into the Claimant’s right knee joint, Dr Zulfiker noting:
“Rhs (right hand side) knee injected many years ago and helped a lot … Patient would like another. Informed consent, patient knows what to expect as recalls from last time and went to seek medical advice.”
Thus, it seems clear that the injection of the right knee was arranged solely by Dr Zulfiker and not Dr O’Brien.
  1. iv) In her evidence, Mrs Brayshaw claimed that Dr O’Brien had taken volume 1 of her medical notes home to show his wife.  This would, of course, have been a gross breach of confidentiality which would have been of interest to the GMC but it formed no part of the complaint of serious professional misconduct.
  2. v) Mrs Brayshaw was also inconsistent in relation to what exactly happened on 12 January 2013 and the testimony of “Persistent Percy”.  At one stage she said that this took place when only she, Percy, Dr O’Brien and Dr O’Brien’s family were present.  However, in her statement she said she did it in front of everyone.
  3. vi) There was a further significant matter which the Claimant alleged against Dr O’Brien and which I found wholly unbelievable.  In paragraph 35 of her statement to the GMC, Mrs Brayshaw said:
          “Dr O’Brien told me that I had a tumour in my stomach and Tina kept saying that time was running out.  I texted my friend to say I had a tumour because I thought Dr O’Brien meant a cancerous tumour, but I texted the message to Dr O’Brien by mistake. He texted me back, saying he didn’t mean tumour as in cancer he meant as a swelling.  By then, I was convinced I was dying.”
                                             In her evidence, Mrs Brayshaw said:
“Tom told me I had a tumour.  He said only the Lord could help me.”
Mrs Brayshaw was taken by Mr Stagg to the GP records for 14 December 2012 which was the only time recorded in the records that she saw Dr O’Brien at the surgery.  He recorded as follows:
“Had a fall in her bathroom last week and has hurt her shoulder, back and knees. Feels right knee is distorted has some irregularity of right kneecap. Get x-ray. Is having a lot of hernia formation in the stomal area of her abdomen and is very worried about cancer. I will do referral to Mrs Hall, for further assessment.”
Then, three days later, there was a referral to Mrs Hall, a colorectal surgeon. Mr Stagg pointed out to Mrs Brayshaw that this note was effectively saying that she had convinced herself that she had cancer but she said that was wrong, it was Dr O’Brien who had mentioned a tumour. She said:
“I can’t explain why he would have made the referral to Mrs Hall if he had said that only the Lord could help me.”
She confirmed she went to see Mrs Hall.  The fact is that if Dr O’Brien had really told Mrs Brayshaw not just that she had a tumour but that the only person who could help her was God, he would surely not have referred Mrs Brayshaw to a colorectal surgeon for investigation and by far the more likely explanation is that, as Dr O’Brien recorded, the idea this was a tumour had come from Mrs Brayshaw and that Dr O’Brien had reassured her and referred her to a surgeon.
  1. For the above reasons, combined with what I say below in relation to the issue of medication, I came to the conclusion that there was very little of Mrs Brayshaw’s evidence that I could rely on.  It seemed to me that, with his cross-examination, Mr Stagg effectively destroyed the Claimant’s credibility and she was not a witness upon whom any reliability could be placed. This distinguished her evidence at trial from the evidence she had given before the FTP Panel where she had not been subjected to the same cross-examination by reference to a careful forensic comparison with the documents. Thus, I do not find myself persuaded by the findings of the FTP Panel as to what was proved or not proved and I make up my own mind as to what conduct by Dr O’Brien has been proved.