Dr Derek Keilloh and The General Medical Council by Dr Helen Bright

Dr Derek Keilloh was erased by The General Medical Council from their register.

He worked in Iraq as an army doctor in what sounds like the most awful circumstances. His job was to attend to detainees in other words prisoners captured by the British Army.  A very bad job, indeed. The prisoner who cost him his career so far was called Mr Baha Mousa. He worked as a hotel receptionist when British Army soldiers went in to help themselves to some cash from the hotel safe. Mr Baha Mousa's father, a police officer was present and having witnesses thieving reported it to two British officers who recovered some money from a couple of soldiers. It appears they decided on revenge.

The British soldiers came back and arrested Mr Baha Mousa on spurious charges. They beat him up a bit while he was in their custody.

At one point Dr Derek Keilloh was asked to examine him and he noted minimal injuries. Subsequently Mr Beha Moussa was strangled by a British soldier and I would think beaten up a lot more before he was strangled. Dr Keilloh was then asked to examine him again when he was dead and he made attempts to resuscitate him which proved impossible.

A pathologist Dr Ian Rowland Hill was flown almost a week later after Mr Baha Mousa's murder to Iraq to perform a post-mortem in a tent where the heat was an almost unbearable 46 degrees Centigrade or more. He was unable to time the injuries and that is exactly what matters in this case before GMC. There was no evidence from any psychologists as to what doctors perceive in emergencies or any normal person. That is a real pity. Emergencies are special situations in which human attention is focused on lets say saving life and not looking at other information. It is a bit like everything else being screened out including much of the patient body. GMC panel failed out of ignorance of psychological factors in human concentration and attention. There is a lot people do not perceive in emergencies. Soldiers may be wounded and not feel pain, for example. Doctors in emergencies as Dr Keilloh found himself in when resuscitating Mr Mousa would not be doing anything else but concentrating on the emergency bit.

When I was a junior doctor I was involved in a mock disaster exercise. All doctors concentrated on life saving measures and missed even fractures and other obvious injuries. Interesting to know that.

GMC told me they had no medical notes from Iraq and refused to disclose GMC's Expert Witness reports quoting s 40 of Freedom of Information Act 2000 stating it contained personal information. I have asked the third party to agree to disclosure or for those parts of the report to be redacted. 

It looks a bit dodgy that Dr Derek Keilloh was not given adequate defense to appeal this.

There is a very important Witness Statement from Baha Moussa Inquiry by Sir Ian Rowland Hill. Here is his Post Mortem

Fitness to PractiSe Panel of the

medical practitioners tribunal service

11 JUNE TO 20 JULY, 8 TO 12 OCTOBER, 14 OCTOBER, 21 OCTOBER, 4 NOVEMBER, 11 NOVEMBER, 9 DECEMBER & 16 TO 21 DECEMBER 2012

7th Floor, St M’s Buildings, 79 Oxford Street, Manchester, M1 6FQ

Name of Respondent Doctor:           Dr Derek Alexander KEILLOH

Registered Qualifications:               MB ChB 1998 University of Aberdeen

Area of Registered Address:            North Yorkshire

Reference Number:                          4509417

Type of Case:                                    New case of impairment by reason of misconduct

Panel Members:                               Dr B Alderman, Chairman (Medical)

                                                          Miss S O’Brien (Lay)

                                                          Dr N Thevamanoharan (Medical)

                                                 

Legal Assessor:                                 Mr J Salmon

Secretary to the Panel:                    Ms J Kramer (11 June – 13 July 2012)

                                                          Ms V Bean (16 July – 21 December 2012)

Representation:

GMC

Ms Rebecca Poulet QC, and Mr Ben Fitzgerald, Counsel, instructed by GMC Legal (11 June – October 2012)

Mr Tom Kark QC and Mr Ben Fitzgerald, Counsel, instructed by GMC Legal (16 December – 21 December 2012)

Dr Keilloh

Mr Timothy Langdale QC, and Mr Alan Jenkins, Counsel, instructed by RadcliffesLeBrasseur (11 June – 21 December 2012)

allegation

“That being registered under the Medical Act 1983, as amended:

1.       From August to November 2003, you were deployed as the Regimental Medical Officer of 1 Queens Lancashire Regiment at Battlegroup Main, Basra, Iraq; Admitted and found proved

2.       Before 17 September 2003, you failed to ensure that a written record was made of every medical examination of civilian detainees at Battlegroup Main; Admitted and found proved

3.       a.       On 14 or 15 September 2003, you were informed that a civilian detainee, D006, was complaining of a heart condition and had been found to have an irregular heartbeat and raised pulse, Admitted and found proved

b.       You failed to examine D006 yourself, Admitted and found proved

c.       You failed to place yourself in an adequate position to assess the condition of D006, Admitted and found proved

d.       You authorised the administration of propranolol to D006 when you were not in an adequate position to assess the appropriateness of its use; Admitted and found proved

4.       a.       From about 21:30 on 15 September 2003, you attempted to resuscitate Mr A, a civilian detainee, after he had stopped breathing. You confirmed his death at 22:05, Admitted and found proved

b.       Following your treatment of Mr A, you were aware that he had sustained injuries. This was as a result of

i.        your own observations of Mr A, and/or Found proved

ii.       what you were told by other medical staff, Found proved

c.       You failed to conduct any or any adequate examination of Mr A’s body after his death, Found proved

d.       You failed thereafter 

i.        to ensure that the physical condition of the other civilian detainees then held at Battlegroup Main was assessed, and/or Found proved

ii.       to notify a superior officer of the circumstances of Mr A’s death, Found proved

e.       You failed thereby to take any or any adequate action to safeguard the wellbeing of the civilian detainees then held at Battlegroup Main; Found proved

4.       a.       On 15 September 2003, following the death of Mr A, you examined 

i.        D004, a civilian detainee, and Admitted and found proved

ii.       Mr B, a civilian detainee, Admitted and found proved

b.       You were or should have been aware that D004 may have been mistreated as a result of 

i.        the circumstances of Mr A’s death, and/or Admitted and found proved in so far as you should have been aware that D004 may have been mistreated

Found proved in that you were aware that D004 may have been mistreated

ii.       D004’s complaint of being struck, and/or Admitted and found proved in so far as you should have been aware that D004 may have been mistreated

Found proved in that you were aware that D004 may have been mistreated

iii.      your examination of him, and/or Found proved

iv.      the circumstances of your examination of Mr B, Admitted and found proved in so far as you should have been aware that D004 may have been mistreated

Found proved in that you were aware that D004 may have been mistreated

c.       You were or should have been aware that Mr B may have been mistreated as a result of

i.                 the circumstances of Mr A’s death, and/or Admitted and found proved in so far as you should have been aware that Mr B may have been mistreated

Found proved in that you were aware that Mr B may have been mistreated

ii.       AM’s complaint of being struck, and/or Admitted and found proved in so far as you should have been aware that Mr B may have been mistreated

Found proved in that you were aware that Mr B may have been mistreated

         

iii.      your examination of him, and/or Found proved

iv.      the circumstances of your examination of D004, Admitted and found proved in so far as you should have been aware that Mr B may have been mistreated

Found proved in that you were aware that Mr B may have been mistreated

d.       You failed to record any visible injuries on the bodies of 

i.        D004, and/or Found not proved

ii.       Mr B, Found proved

e.       You failed thereafter

i.        to ensure that the physical condition of the other civilian detainees then held at Battlegroup Main was assessed, and/or Admitted and found proved

ii.       to notify a superior officer of the circumstances of your examination of D004 and Mr B, Found proved

f.        You failed thereby to take any or any adequate action to safeguard the wellbeing of the civilian detainees then held at Battlegroup Main; Found proved

6.       a.       On 17 September 2003, you made a witness statement to the effect that you were unaware of any injuries to Mr A other than old dried blood around his nose, Admitted and found proved

b.       You maintained that account 

i.        in interview under caution on 8 April 2005, and Admitted and found proved

ii.       in evidence under oath at a Court Martial on 11 December 2006, and Admitted and found proved

iii.      in a witness statement to the Mr A Public Inquiry on 13 May 2009, and Admitted and found proved

iv.      in evidence under oath to the Mr A Public Inquiry on 23 November 2009, Admitted and found proved

c.       Your account in this regard was untrue, Found proved

d.       Your conduct in this regard was 

i.        misleading, Found proved

ii.       dishonest; Found proved

7.       a.       On 17 September 2003, you made a witness statement to the effect that you did not observe any visible injury on the body of D004, Admitted and found proved

b.        You maintained that account 

i.        in interview under caution on 8 April 2005, and Admitted and found proved

ii.       in evidence under oath at a Court Martial on 11 December 2006, and Admitted and found proved

iii.      in a witness statement to the Mr A Public Inquiry on 13 May 2009, and Admitted and found proved

iv.      in evidence under oath to the Mr A Public Inquiry on 23 November 2009, Admitted and found proved

c.       Your account in this regard was untrue, Found not proved

d.       Your conduct in this regard was 

i.        misleading, Found not proved

ii.       dishonest; Found not proved

8.       a.       On 17 September 2003, you made a witness statement to the effect that you did not observe any visible injury on the body of Mr B, Admitted and found proved

b.       You maintained that account 

i.        in interview under caution on 8 April 2005, and Admitted and found proved

ii.       in evidence under oath at a Court Martial on 11 December 2006, and Admitted and found proved

iii.      in a witness statement to the Mr A Public Inquiry on 13 May 2009, and Admitted and found proved

iv.      in evidence under oath to the Mr A Public Inquiry on 23 November 2009, Admitted and found proved

c.       Your account in this regard was untrue, Found proved

d.       Your conduct in this regard was 

i.        misleading, Found proved

ii.       dishonest. Found proved

And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.”

Determination on facts

“Dr Keilloh: The Panel has given consideration to all the evidence adduced in this case and has taken account of the submissions made by Mrs Poulet, QC, on behalf of the General Medical Council (GMC) and those made by Mr Langdale, QC, on your behalf.

The Panel has considered the evidence from the following witnesses in this case, in addition to your own evidence:

Witness name	Oral or written evidence	Evidence agreed / not agreed	Witness role at time of allegation
Detainees
Mr B	Oral evidence	Not agreed	Co-owner of hotel where the detainees were arrested & detainee
D004	Evidence read	Not agreed	Employee of the hotel & detainee
Mr C (deceased)	Evidence read	Not agreed	Electrician at the hotel & detainee
Military personnel attached to 1st Battalion the Queen’s Lancashire Regiment (1QLR) and present at the Cardio-Pulmonary Resuscitation (CPR) of Mr A
Corporal D (now Warrant Officer Class 2)	Oral evidence	Not agreed	Combat Medical Technician  (CMT) Class 1
Private E (no longer in the Army)	Oral evidence	Not agreed	Regimental Medical Assistant (RMA) Class 3
Private F (no longer in the Army)	Oral evidence	Not agreed	CMT Class 2
Acting Sergeant G (no longer in the Army)	Oral evidence	Not agreed	RMA Class 1
Sergeant H (no longer in the Army)	Oral evidence	Not agreed	Ambulance driver & Admin Sergeant
Lance Corporal J (no longer in the Army)	Oral evidence	Not agreed	RMA Class 1
Expert Witnesses
Dr K	Oral evidence	Not agreed	Forensic Pathologist. Performed autopsy on Mr A’s body
Professor L	Oral evidence	Not agreed	Professor of Forensic Pathology
Dr M	Oral evidence	Not agreed	Consultant in Forensic Pathology
Professor N	Oral evidence	Not agreed	Professor of Forensic Medical Sciences
Dr O	Evidence read	Agreed	Consultant in Anaesthetics for Defence Medical Services
Colonel P	Oral evidence	Not agreed	Army Medical Officer
Professor Q	Oral evidence	Not agreed	GP & Forensic Physician
Colonel R	Oral Evidence	Not agreed	GP Military Trainer
Other witnesses of fact
Major S	Oral evidence	Not agreed	Army Officer (civil military co-operation)
Captain T (now Major T)	Oral evidence	Not agreed	Battlegroup Operations Officer
SO18	Evidence read	Not agreed	Army Intelligence Officer
Dr GG	Evidence read	Agreed	American doctor at Camp Bucca
Staff Sergeant U (no longer in the Army)	Oral evidence	Not agreed	Special Investigation Branch (SIB) - Royal Military Police (RMP) Investigator
Staff Sergeant V (no longer in the Army)	Oral evidence	Not agreed	RMP Photographer

The Panel also heard from the following character witnesses:

Character witnesses
Witness name	Oral or written evidence	Occupation
Dr W	Oral evidence	Consultant Physician
Dr X	Oral evidence	GP trainee
Colonel Y	Oral evidence	Army GP & GP Trainer
Nurse Z	Oral evidence	Mental Health Nurse & Care Home Clinical Nurse Manager
Dr AA	Oral evidence	GP
BB	Testimonial read	Army Nurse & now Dr Keilloh’s patient
Dr CC	Testimonial read	GP
Dr DD	Oral evidence	GP

The Panel accepted the Legal Assessor’s advice which was given in writing and provided to the parties for their consideration, prior to being given to the Panel. The parties all agreed that the Legal Assessor’s advice was the appropriate and necessary advice to be given to the Panel in the circumstances of this case. 

Background to the Allegation

The invasion of Iraq commenced on 19 March 2003. “Operation Telic” was the codename under which all British military operations in Iraq were conducted between the start of the invasion until the withdrawal of British forces in 2011. On 1 May 2003 the war-fighting phase of the Operation ceased when President George W. Bush declared the end of decisive combat operations. For the remainder of 2003, including the time of Mr A’s detention, coalition forces were in occupation of Iraq. The UK was the lead nation in the south-east of the country, including the city of Basra. This second phase was known as “Operation Telic 2”.

1QLR was one of the battlegroups for Operation Telic 2. Its headquarters, known as ‘Battlegroup Main” (BG Main), were located in the former headquarters of the Ba’ath Party in Basra. Inside BG Main, there was a Regimental Aid Post (RAP). Its staff included a single Regimental Medical Officer (RMO). At all material times you were the RMO for 1QLR. You were supported by a number of medics. For the avoidance of doubt, in this context, the term “medic” does not refer to a registered medical practitioner or nurse. It refers to soldiers who have received limited training by the Army in basic medical procedures, particularly appropriate for the treatment of people injured in battle. For the purposes of this determination, the term “medic” also includes Sgt H, although he was the ambulance driver and not medically trained.

In 2003, British Forces in Iraq had the power to deprive Iraqi civilians of their liberty on the grounds of either security or where they were suspected of committing criminal activities. From June 2003 civilian detainees were normally handed over to the Iraqi police unless they were considered to pose a threat to coalition forces. If they were considered to pose a threat they were interned at a Temporary Internment Facility (TIF) at Camp Bucca in Um Qasr, approximately 70 kilometres south-east of BG Main. From early July 2003 detainees were detained on the premises of BG Main so that a Battlegroup Internment Review Officer (BGIRO) could assess them to determine whether they were suspected of posing a threat to coalition forces. By virtue of his position, the BGIRO bore a responsibility for the general welfare of the detainees.

Detainees at BG Main were held at a Temporary Detention Facility (TDF) under guard and would normally be subject to ‘tactical questioning’ to seek information to enable the BGIRO to determine whether they should be interned or handed over to the Iraqi police. The TDF was a building containing two main rooms with a small central room between them.

On Sunday, 14 September 2003, 1QLR carried out ‘Operation Salerno’ which aimed to identify individuals suspected of being Former Regime Loyalists (FRLs). As part of Operation Salerno, troops from 1QLR searched the Ibn Al Haitham Hotel and detained seven male Iraqi civilians on suspicion of being FRLs, including Mr A, Mr B, Mr C and D004. These detainees were placed in the TDF at BG Main.

Over the following days, the detainees were guarded by a number of different soldiers from 1QLR, including Corporal EE. Furthermore, a number of different soldiers visited the area in or around the TDF during that period. Each of the detainees was subjected to tactical questioning; each was hooded and made to adopt stress positions for differing lengths of time. Each of the detainees suffered unlawful violence to some degree during the course of their detention.

Mr A was moved from the right-hand room of the TDF into the middle room after it was reported that he had tried to remove his plasticuffs (plastic handcuffs) and hood. At approximately 21:30 on Monday 15 September 2003, a violent incident took place in the middle room of the TDF, involving Mr A, Corporal EE and at least one other soldier. At the end of the incident Mr A was unconscious and you were summoned. You and your medic colleagues attempted to resuscitate Mr A for between 20 and 25 minutes. You commenced CPR in the TDF, with Mr A then being moved to the RAP, where CPR was continued.

You declared Mr A dead at 22:05. The Panel heard that, at the time of his death, Mr A was a 26 year old man with no underlying health problems. There is no criticism of your attempts to resuscitate Mr A and indeed, it appears that you and the medics did everything possible to try and save Mr A’s life. Shortly after Mr A was declared dead, on the night of 15 September 2003, you and your medic colleagues treated two other detainees: Mr B and D004.

At approximately 22:30 on 15 September 2003, an investigation into the death of Mr A was initiated by the SIB of the RMP. The investigation resulted in Court Martial proceedings which took place in 2006 and 2007 against seven members of 1QLR. You were not subject to Court Martial proceedings and nor were any of the witnesses in this case. However, you gave evidence at the Court Martial. Corporal EE pleaded guilty to a charge of inhumane treatment of a person protected under the Fourth Geneva Convention in relation to his conduct towards Mr A. The remaining defendants were acquitted on all charges.

A Public Inquiry was set up on 2 August 2008, chaired by Sir William Gage. You and a number of witnesses, who the Panel has heard from, provided witness statements and gave evidence at the Public Inquiry. These Fitness to Practise proceedings were, by agreement, postponed pending the completion of the Public Inquiry, the report of which was published in September 2011. By agreement of the parties, the Panel has not had sight of this report nor its conclusions.

The Allegation

You admitted the following paragraphs of the Allegation:

Paragraphs 1, 2, 3(a), 3(b), 3(c), 3(d), 4(a), 5(a)(i), 5(a)(ii), 5(b)(i), (ii) and (iv) insofar as you should have been aware that D004 may have been mistreated, 5(c)(i), (ii) and (iv) insofar as you should have been aware that Mr B may have been mistreated, 5(e)(i), 6(a), 6(b)(i), 6(b)(ii), 6(b)(iii), 6(b)(iv), 7(a), 7(b)(i), 7(b)(ii), 7(b)(iii), 7(b)(iv), 8(a), 8(b)(i), 8(b)(ii), 8(b)(iii) and 8(b)(iv).

The Panel has announced these as found proved.

The Panel has considered each of the remaining paragraphs of the Allegation separately. It has detailed your admissions, the Panel’s findings and the reasons for these findings below.

Introduction to the Panel’s findings

The Panel has, in coming to its conclusions, carefully reviewed and weighed all of the evidence in this case. It has been assisted by a Schedule of Evidence (Schedule) produced by the GMC. This Schedule was agreed by all parties to be an accurate summary of the key evidence given by witnesses. It was further agreed that the Schedule’s questions provided a useful framework for the consideration of the evidence. In addition, Mr Langdale, on your behalf, assisted the Panel with helpful tables and schedules that complemented the GMC’s Schedule. He further referred the Panel to other key evidence not contained within the GMC’s Schedule.

In order that those reading this determination can understand the Panel’s reasoning, prior to the discussion about the totality of the evidence in respect of any given paragraph of the Allegation, the Panel has set out a summary of some of the key evidence.  It is obviously not possible to recite all of the evidence that the Panel heard, however the Panel has spent considerable time carefully reviewing all of the evidence given in this case, having had the benefit of the full transcript of the proceedings. References in this determination to passages in the transcripts are denoted by day of hearing and page number, (e.g. D1/42).

In the sections entitled “Panel Findings”, the Panel sets out its conclusions and the reasons for such conclusions on each specific paragraph of the Allegation. In this case, there is overlap between the various paragraphs of the Allegation. The Panel, for ease of understanding, has set out its conclusions under each paragraph of the Allegation. However, it has ensured that it has not compartmentalised its discussions and has also looked at the evidence globally when coming to its decisions.

In determining the disputed facts of this case, the Panel has, at all times, borne in mind that the burden of proving disputed facts rests solely on the GMC. You, Dr Keilloh, do not have to prove anything. The Panel further reminded itself that, in order to find any fact proved, it must be satisfied, on the balance of probabilities, that the fact alleged is true.

A central allegation in this case is that you, a man of good character, have consistently lied about the events surrounding your treatment of the detainees. In these circumstances, the Panel has reminded itself of the need to give very careful scrutiny to the evidence before determining whether or not the GMC has proved such serious allegations as these against you.

Paragraph 1:

“1.      From August to November 2003, you were deployed as the Regimental Medical Officer of 1 Queens Lancashire Regiment at Battlegroup Main, Basra, Iraq;”

has been admitted and found proved.

Paragraph 2:

“2.      Before 17 September 2003, you failed to ensure that a written record was made of every medical examination of civilian detainees at Battlegroup Main;”

has been admitted and found proved.

Paragraphs 3(a), (b), (c) and (d):

“3.      a.       On 14 or 15 September 2003, you were informed that a civilian detainee, D006, was complaining of a heart condition and had been found to have an irregular heartbeat and raised pulse,”

          b.       You failed to examine D006 yourself,”

c.       You failed to place yourself in an adequate position to assess the condition of D006,”

d.       You authorised the administration of propranolol to D006 when you were not in an adequate position to assess the appropriateness of its use;”

have been admitted and found proved.

Paragraph 4(a):

“4.      a.       From about 21.30 on 15 September 2003, you attempted to resuscitate Mr A, a civilian detainee, after he had stopped breathing. You confirmed his death at 22.05,”

has been admitted and found proved.

Paragraph 4(b)(i):

4.       b.       Following your treatment of Mr A, you were aware that he had sustained injuries. This was as a result of

i.        your own observations of Mr A, and/or”

has been found proved.

The parties agreed that the evidence could be analysed by a series of useful questions to assist the Panel in coming to its determination. The Panel firstly sets out below some of the key evidence in relation to these questions.

What injuries had Mr A suffered and when did they occur?

What injuries had Mr A suffered?

In his oral evidence, Dr K told the Panel that he conducted the post-mortem examination of Mr A’s body on 21 September 2003, some five and a half days after death. Dr K’s evidence as to the injuries suffered by Mr A was not challenged.

Dr K found 93 external injuries to Mr A’s body. Many of the 93 injuries he identified were quite minor but many were significant and clearly visible at the time of the autopsy. The Panel has had regard to all 60 of the photographs of the external injuries taken at the post-mortem examination, particularly photographs 1, 3, 56 and 57. These show the face, front of chest, both arms, abdomen and both flank areas that were likely to have been visible at the time of death. It has also had regard to the brief headshot video taken on 19 September 2003 and the video of the start of the

post-mortem examination on 21 September 2003.

The Panel has also had regard to the list of injuries and sketches of Mr A’s injuries provided by Dr K and the diagrammatic representation of the injuries by Dr M.

When did these injuries occur?

There was no evidence that Mr A had suffered any injuries prior to his involvement with the British Military.

Mr C, D004 and Mr B all gave evidence of Mr A being hit and kicked both in his body and his face by soldiers from the time of his arrest in the hotel and throughout the period of his detention. There is no direct evidence to contradict this. The Panel reminded itself that the evidence of Mr C and D004 was read and must be treated with caution as it was not subjected to cross-examination.  Further, for reasons set out later in this determination, the Panel has some concerns about the reliability of the evidence given by D004.  However, the detainees’ evidence that Mr A was beaten throughout his detention is consistent with the multiplicity of injuries suffered by him. 

The photographs of the injuries to Mr A show multiple injuries in different areas of his body.

In his oral evidence Dr K (being the only expert to examine Mr A’s body), referring to Mr A’s injuries, told the Panel that:

“The multiplicity of injuries and their widespread distribution is consistent with a systematic beating taking place over a period. It is impossible to say how long that period of beating may have lasted because the timing of injuries is an inexact science, especially when injuries are inflicted over a relatively short period of time measuring hours rather than days. The injuries are all consistent with blunt impact.  Their appearances are consistent with the history that he could have been beaten over a period of time and he could have been struggling on the floor of the detention centre.  The fact that there is a mixture of grazes and bruises is indicative of a mixture of glancing blows against a firm object and directly applied force with blunt objects. It is quite possible that some of the facial bruising and grazing occurred because he was face downwards and on the floor and that he may have moved his head from side to side against the floor and even banged his head against a wall.” (D9/69)

What is the expert pathological evidence as to whether Mr A’s injuries would have been visible at the time of his death?

Areas of agreement

The Panel has heard extensive evidence from four forensic pathologists explaining the nature of bruising and how it develops, both during life and post-mortem. Dr K was the only forensic pathologist to see the injuries to Mr A in person. The others were reliant on photographs and a video taken at the time of the post-mortem.

It is common ground amongst the experts that:

                   1.       Following injury, any consequent swelling occurs quickly but then ceases to develop at the time of death and may reduce thereafter.

         

          2.       Bruises may develop slowly over a number of hours or days.

         

                   3.       Injuries to superficial tissue (e.g. face, nose, eyebrows) result in bruising appearing rapidly (minutes or hours) whilst injury to deeper tissues may not result in visible bruising until much later (days). Furthermore, the colour of the bruise will change and deepen over time. This process may continue after death. All of the experts agreed that the colour of bruising could not be relied upon to determine the time the injury occurred.

         

                   4.       Grazes will be visible immediately following injury although they may be relatively faint at first. They dry and darken with time and this process may continue after death.

Dr K

When asked as to the visibility of Mr A’s injuries at the time of his death, Dr K told the Panel that:

“The injuries would have been apparent but they would not have been the same colour that we see them in the post mortem photographs … After death the injuries change in colour, they become more prominent, because the blood cells that are in them break down releasing the pigments into the tissues so they look darker, and they are very much more prominent, and also the fact of putting a body into refrigeration alters the appearance, and then you have the problem of the photographs, which may or may not be an accurate colour rendition.” (D9/71)

In the course of Dr K‘s autopsy of Mr A, he found only one area of deep tissue bruising adjacent to the fractured ribs. The expert evidence was that deep tissue bruising would not have been visible at the time of resuscitation.

In relation to the other injuries, Dr K was of the opinion that there would have been some sign of injury immediately after the events that caused the ligature mark and bruising to the neck. In relation to the injuries to the face, he stated that these would have been visible at the time of death. (D10/28-29)

Dr K’s conclusion in relation to the other injuries that he observed post-mortem was that some of the injuries to the torso, arms, feet, ankles and wrists would have been visible at the time of death. Under cross-examination, Dr K refused to accept that none of the injuries that he had observed would have been visible at the time of death. He described such a view as being “impossible” (D10/32).

Professor L

In his report of 11 January 2005, provided for the Court Martial, Professor L stated that the size and distribution of injuries to Mr A indicated repeated blows and were not a post-mortem phenomenon. He went on to say:

“With the respect to the bruising and abrasions of Mr A, it is difficult to conceive that the abrasions around the head would not have been visible to an observant person, whether medically qualified or not and the bruising around the eyes is likely to have been discernible to a greater or lesser extent. Similarly, I would have expected an ordinarily observant person to have detected the abrasion marks in the neck. Also the abrasion marks to the wrists would have been visible.” (Report of 11 January 2005)

In his oral evidence-in-chief to this Panel, Professor L stated:

          “Putting it another way, I have never seen cases where you have so many           injuries that the clinicians have not identified a single one and then we have identified them all at autopsy.” (D13/9/E)

He confirmed this opinion under cross-examination, stating that it was his view that “if you observed this person you will see injuries” (D13/20).

Dr M

In his report of 14 September 2009, provided for the Mr A Public Inquiry, Dr M stated that both sides of Mr A’s face and his lips were swollen, there was extensive bruising around the eyes, nose and mouth, and his nose was broken. He gave the opinion that bruises and swelling would have been apparent during life, the bruises because they are close to the surface and extensive, the swelling because this develops in life. In relation to the grazes and bruises on the neck, Dr M considered that the injuries were likely to have been much less obvious during life. He noted that there were injuries to the front of the torso and extensive bruising to each flank with grazing. Dr M wrote that he would expect most of the bruising to have been apparent during life because it is extensive and originates close to the surface rather than in deep muscle although he acknowledged that it may have become more prominent after death. He stated that he would expect most of the injuries to the arms to have been visible during life. In his oral evidence to this Panel he gave the opinion that:

“I think that the vast majority would have been visible at the time of death.” (D13/40/D)

Dr M stated that, although injuries may be visible, they are not necessarily obvious. Whether they are obvious depends on the conditions under which one looks at the injuries. For example, the lighting (D13/47) and the colour of the skin can affect visibility (D13/48) as can the observer’s experience and training, and their state of mind (D13/47). Dr M told the Panel that bruises in non-fleshy parts of the body, such as the face, show more quickly as the damage is close to the surface of the skin. He stated:

“I think that some of the injuries which were present one would expect to be more obvious to everybody looking at Mr A than others.  Obviously one is going to sort of concentrate on the face and on the bruising that is around the eyes, the swelling and perhaps some of the grazes, although, as I say, they may be pink and a bit indistinct.” (D13/47)

Professor N

In his report of 8 May 2012 provided for this hearing, Professor N stated that there are legitimate reasons as to why you may not have noticed the injuries to Mr A described by Dr K. These include the following:

·                     Many of the injuries were minor, relatively small grazes and bruises.

·                     It is not unusual for a doctor who is busy trying to save a life to be unaware and not register the fact that there are a number of bruises to the body. If there had been serious trauma which needed urgent attention, then the priority would be the urgent assessment of the trauma and appropriate treatment. Clearly in this case, any injuries that might have been visible were not a priority for treatment and the doctor rightly focused on trying to resuscitate the patient.

·                     Lighting may be inadequate.

·                     A darker complexion would mask or modify the appearance of bruises and grazes which were not prominent.

·                     The appearance of bruises and grazes may change after death: (i) they may take time to develop and to become visible; (ii) bruises become darker and diffuse after death; and (iii) a graze will be there immediately after injury. It may not be easily visible, but it will certainly be there and if you look carefully you should be able to see it. However, they become considerably darker with the passage of time.

·                     If the swelling, grazes and bruising to Mr A’s head and face, as seen at the autopsy, were a result of violence inflicted shortly before the resuscitation attempts, some of these injuries may have been developing at that time and, hence, been less obvious.

In his oral evidence to this Panel, Professor N confirmed that, if there had been blows around the head and face, the resultant swelling would probably have been visible. He also confirmed that bruises close to the surface of the skin are likely to be visible within minutes to an hour. He told the Panel that if you had examined the body immediately after death, seeing the whole of the body, you would certainly have seen a number of the injuries, but as to how easy a lot of them were to see, that was another matter. He also told the Panel that the injuries to the head and face may not have been obvious. In terms of visibility, some of them may have been developing. (D20/49)

Professor N, when asked directly if the injuries would have been visible if they had been inflicted shortly before death, stated:

“You cannot actually see all 93 [injuries] because they are quite small and some of them are covered with clothing.  Whilst I do not think Dr M is wrong – you probably could be able to see quite a number of them – they would not necessarily have been obvious; they may well have been just very, very faint at that stage.” (D20/68)

What were the conditions under which you saw Mr A’s body on 15 September 2003?

It is common ground that you were called to the TDF where you found Mr A lying in the middle room/corridor. You attempted mouth-to-mouth resuscitation. After this was unsuccessful, Mr A was moved to the treatment room of the RAP where the stretcher was laid on trestle tables and resuscitation attempts took place for a period of 20 to 25 minutes.

General conditions surrounding the resuscitation

It is common ground and the Panel accepts that the following circumstances in which you saw Mr A are relevant to the issue as to whether you saw injuries on him.

Resuscitation is a stressful and physically demanding procedure. In this case, that situation was made worse by the fact that everyone was operating in extreme heat in a makeshift RAP. Further, the general living conditions were primitive and the British Forces were operating as an occupying force in a hostile environment that had included attacks on military personnel.

However, you had had previous experience of conducting CPR and you accepted, in your evidence, that this situation was not highly unusual for you, although it may have been for some of the other personnel present (D20/16). This variable level of experience was confirmed in their evidence by the other personnel present.

Lighting

The Panel has heard oral evidence from Cpl D, Sgt H, and you that the lighting in the TDF was very poor at the time of Mr A’s collapse, consisting of moonlight and hand-held lamps.

Both Cpl D and Sgt H stated that the lighting was better in the RAP where Mr A was moved to for resuscitation. The lighting in the RAP consisted of strip lighting above the trestle where CPR was conducted together with a clamp-on lamp. Cpl D described it as “good” (D6/26-27) and Sgt H as not “too bad” (D8/59).

You acknowledged that the lighting in the RAP was reasonable, although not of the standard found in a usual clinical setting (D19/50). When asked if there was “perfectly good lighting” you said you did not dispute that (D19/51).

The areas of Mr A’s body which were visible

During the attempted resuscitation of Mr A, it was necessary to expose his chest. Mr A was wearing trousers, hence his legs would not have been visible. He was wearing a short sleeved shirt and the Panel has heard differing accounts as to whether it was removed or opened in order to expose his chest for CPR to be performed. In your initial witness statement to the SIB you stated that, during treatment, Mr A’s shirt had been removed. However, in oral evidence to the Panel, you stated that his shirt had been cut open, but not removed.

Other medics gave differing accounts ranging from the shirt being cut off to being open. When Dr K examined the body, he found with the body a white vest and green shirt which appeared to have been cut off. Cutting off the shirt would have allowed easy access to the area where the defibrillator pads were placed (C2 / tab 1 / photographs 1 and 56). The Panel concluded that it is more likely than not that the shirt and vest were cut off during CPR.

However, even if the Panel is wrong on this issue, it is satisfied that from the positions of the CPR pads Mr A’s shirt must have at least been opened widely to enable CPR to take place.

Consequently, on any view, Mr A’s face, neck, arms, chest, abdomen and at least parts of his flanks would have been exposed during the attempted resuscitation. Each of these areas showed injuries. The back of his torso and his legs would not have been visible.

Your role

The Panel has heard that, in the RAP, you were in charge of the attempted resuscitation of Mr A, directing the efforts of the medics and other personnel present, and keeping an eye on the patient’s status on the monitor.

You informed the Panel that you were standing on Mr A’s left hand side, at the bottom end of the table, looking across his legs and towards the monitor, which was located on the right hand side of his legs. At the Panel’s request, you drew a diagram (D6), showing the layout of the RAP, the locations of personnel and the equipment in the room. Your evidence was that you were standing some 10 to 15 feet from Mr A (D19/53). During the course of the resuscitation attempt, you assisted in placing a cannula into the antecubital fossa of his left arm.

What do the medics say they saw of Mr A’s injuries?

The GMC relied upon evidence from others present to suggest that you must have seen more injuries on Mr A than you described in your witness statement of 17 September 2003. Similarly, on your behalf, it was argued that evidence from other people present supported your assertion that the only injuries you had seen were those described in your witness statement. The Panel, therefore, has studied with care the evidence of what others who were present say they saw.

These witnesses often had to refer to their initial witness statements in order to give their oral evidence as they could no longer recall the details of the events in question.

As a starting point, the Panel looked at the useful summary of the evidence of those present at the attempted resuscitation of Mr A, provided by the defence in closing submissions on facts, as follows:

“Cpl D: [D6/28C-G]                    Whole face looked swollen. Neck slightly swollen. Blood around the nostrils. Didn’t notice anything else about the face.

Pte E: [D7/18B]                         Did not see any injuries.

Pte F: [D7/56H-57E]                   Did not notice any injuries during resuscitation.

Sgt G: [D8/19E/20C]                  Saw a bit of blood on his nose, and two small bruises on the abdomen below the rib cage. Stomach swollen up a bit.

Sgt H: [D8/59H-60E]                  Noticed a bit of blood on his nose and a bruise (2p coin sized) on the left side of the abdomen.

L Cpl J: [D9/16A, 17B]                Skin slightly torn on his wrists, face generally puffy, speck of blood on his nose.”

The Panel sets out below, in more detail, the evidence of those who were there at the attempted resuscitation of Mr A.

Corporal D

Cpl D was the most experienced of the medics present at the attempted resuscitation. His role during the resuscitation was to insert and maintain an airway. To perform this function, he was standing at Mr A’s head end and he observed that the whole of Mr A’s face was swollen and that the neck was slightly swollen. He said that he did not take much notice of the face because he was trying to insert an airway, but he noticed blood around the nostrils (D6/27-28). He went on to say that he did not notice the torso when he was concentrating on the airway, but afterwards he looked down and saw bruising to the right side of the lower abdomen and slight bruising around the neck area on the right hand side. (D6/30-31). He stated that the bruising to the abdomen was about an inch by an inch in size and was obvious (D6/35).

Private E

Pte E & Pte F were assisting with equipment and were taking turns with chest compression.

In his oral evidence, Pte E stated that at the time of the CPR, he did not recall seeing any injuries to Mr A as he was concentrating on what he was required to do to assist. After refreshing his memory from an earlier witness statement he had made he stated that, when he was later assisting in placing the body in a bag, he noticed that there was blood around Mr A’s nose, bruising to the front of his neck and to the right side of his abdomen. (D7/18-19)

Private F

Pte F also told the Panel that he did not notice injuries to Mr A during the resuscitation efforts as he was too busy (D7/56-57). He stated that when he later assisted in placing the body in a bag he noticed that Mr A’s hands were quite red and swollen, there was kind of a ligature mark around the wrist, and there were a couple of small bruises on his stomach.

In his witness statement of 17 September 2003 (made only two days after the events in question), Pte F mentioned observing visible injuries, including those above, on entering the treatment room in the RAP. In his oral evidence he stated that he thought his witness statement of 17 September 2003 was most likely to be accurate. However, under cross-examination, he stated that he could not remember when he saw those marks and acknowledged that he may have made those observations later, when he was assisting with the body bag.

Sergeant G

Sgt G was standing on the right hand side of Mr A taking turns to do chest compressions.

Sgt G told the Panel that he recalled seeing a bit of blood on Mr A’s nose and a small mark on his abdomen. Having refreshed his memory from his first witness statement of 17 September 2003, he said that he also saw two small bruises just below the ribcage. (D8/19-20).

Sgt G stated that, in his SIB interview in 2005, he had informed the SIB that the size of the bruises to the abdomen was about the size of a palm. He also told the SIB that Mr A’s stomach was swollen and it occurred to him at the time that he possibly had internal injuries (D8/21). Under cross-examination he acknowledged that the bruising he had seen was quite faint (D8/41).

Sgt G acknowledged that, having been asked about it several times, he found it difficult to get clear in his mind what had actually happened. He described to the Panel all of the different occasions he had given answers about this incident and said that, as a result of this intense scrutiny, “you start questioning yourself what you have said and what you have done.” He stated that he was horrified when he viewed the post-mortem photographs and saw the extent of the injuries that were visible on Mr A’s body by that time (D8/37-38).

Sergeant H

Sgt H was not medically trained. His primary role was that of ambulance driver at the RAP. He was not present throughout the whole of the resuscitation process, but did come into the room and assisted with chest compressions.

In his oral evidence, Sgt H stated that he noticed a bruise to the left of Mr A’s abdomen and blood on his nose. He described the bruise as being the size of a 2p coin. He said that he was not used to seeing dead bodies at that time and did not want to look at the body (D8/60-61). He also told the Panel that he was shocked when he was shown the post-mortem photographs (D8/67).

Lance Corporal J

L Cpl J was standing to Mr A’s right hand side and was assisting with chest compressions and ventilation.

L Cpl J, in his statement dated 17 September 2003, stated that he had inserted a cannula into Mr A’s arm. In evidence before the Panel, he said he could no longer remember whether or not he had done this. He told the Panel that he noticed that, where Mr A had previously worn plasticuffs on his wrists, the skin was slightly torn. He stated that he remembered seeing marks on at least one wrist but that these were not as pronounced as those shown in the post-mortem photographs. He also stated that he noticed a little blood on the nose and that the face was a bit puffy (D9/16-17). In cross-examination, L Cpl J conceded that he may have been confused about events as he had not, in fact, inserted the cannula, but he had performed chest compressions (D9/28).

Your evidence

In your witness statement of 17 September 2003, you stated:

“I noticed that there was old dried blood around his nose. I did not notice any other injuries around his face or body.”

In your SIB interview you said that you had no reason to look for injuries and that you could not recall any injuries. You qualified this by stating that, once in the RAP where there was better lighting, you saw a trace of blood around one or both of Mr A’s nostrils. You said that there was no apparent injury when the chest was exposed and you did not see that his nose was deformed or that there was trauma to his eyes (SIB i/v 8/4/05 p47-49). When questioned as to the fact that you must, therefore, have looked at Mr A’s face, you stated that you may have failed to register what you might have seen (SIB i/v 8/4/05 p51).

In your witness statement of 13 May 2009, you stated that you only noticed the blood around Mr A’s nose when you had been face to face with him when you were initially attempting CPR in the TDF.

In your oral evidence to the Panel you stated:

“I did not see any injuries to Mr A’s body. I was aware that there was blood from the man’s nose. I had not seen any other mark or injury to his body.” (D18/81)

Throughout the various investigations, you have consistently maintained that you observed no injury other than the blood around the nose. You told this Panel that your focus was on the monitor and directing the resuscitation attempts of the medics and personnel around you. You stated:

“If I had had occasion to notice bruising which I felt was significant, I would have no reason not to document that.  Of course it would be documented and it would have been described to every party that had an interest in this matter.  It would have also enabled me to understand more fully the presentation of the further detainees that came to see me.  Overall it would have improved the care of the patients that I would be providing for at that time.  That is my sole purpose in being a doctor, to help patients and to be there to provide care.” (D18/85)

The Panel’s conclusions in respect of paragraph 4(b)(i)

The issue in this part of the Allegation is whether you saw, whilst involved in the attempted resuscitation of Mr A, injuries upon him (other than old dried blood around his nose). 

In assessing whether you, in fact, saw injuries upon Mr A (other than old dried blood around his nose), the Panel has considered:

1.       What injuries were in fact inflicted upon Mr A and when were they inflicted?

          2.       How visible would such injuries have been at the time of your attempted resuscitation?

3.       The conditions in which you were working during the attempted resuscitation and the fact that you were co-ordinating a resuscitation attempt.

4.       What others who were present say they saw of the injuries to Mr A?

5.       Your evidence.

6.       The credibility and reliability of your evidence.

7.       What motivation, if any, you would have to give a false account of what you saw?

The Panel is acutely aware that the issue under this paragraph of the Allegation is not about whether there were injuries present that you simply failed to notice. The GMC’s case is that you saw additional injuries and made, in effect, a conscious decision not to tell the authorities of these injuries.

In considering this issue, the Panel has reminded itself that you are a man of positively good character. The Panel has taken into account the evidence as to your character that it heard and read. In particular, the evidence that, when placed in a difficult situation, you have appropriately reported safeguarding concerns to the necessary authorities. However, the Panel is of the opinion that examples of your good character, taken from civilian life, may be of less assistance when considering your actions in a war-like situation which was highly charged, chaotic, tense and stressful.

The Panel’s consideration of the injuries inflicted

The Panel accepts the unchallenged evidence of Dr K as to the injuries inflected upon Mr A.

In relation to when the injuries were inflicted, the starting point is that Mr A was, on any view, seriously assaulted by British soldiers prior to his collapse in the TDF. The post-mortem photographs of the injuries to him clearly demonstrate the extent of these assaults. The Panel, having heard evidence from four experts and other detainees, is satisfied that Mr A was repeatedly assaulted prior to his collapse. It rejects any suggestion that all his injuries occurred in one assault, immediately prior to his collapse. In coming to this conclusion, the Panel has taken account of the criticisms made of the detainees’ evidence, which was to the effect that they had exaggerated their evidence. The Panel has also taken account of the fact that you were unable to cross-examine D004 and Mr C. However, the thrust of the detainees’ evidence is, in the Panel’s opinion, supported by the preponderance of the expert evidence, and the wide range of injuries to Mr A.

The Panel’s consideration of the visibility of these injuries

The Panel’s conclusion, in respect of the forensic pathologists’ evidence, as to the visibility of the injuries at the time of the resuscitation attempt, is as follows:

1.       The swelling to the face and hands would have been present at the time of death.

          2.       The abrasions to the head, neck and body would have been present at      the time of death, although not as dark as in the post-mortem photographs.

          3.       The bruising to the face and some of the bruising to the body would have been present at the time of death, although different in colour to the post-mortem photographs.

          4.       The photographs are a reasonable representation of Mr A’s skin colour. Mr A’s skin colour was a factor that all of the experts were aware of in forming their conclusions. Dr K was the only expert to actually see the true colour of Mr A’s skin and he was of the view that the photographs reasonably represented what he saw at post-mortem (D9/71). Whilst Professor N speculated that this might not be correct given the apparent colour of Mr A’s skin on the post-mortem video, the Panel has concluded that Dr K’s view is more likely to be accurate because he actually saw Mr A’s body.

          5.       Many of the injuries present in the post-mortem photographs were there to be seen at the time of death. How visible they would have been to someone in the RAP is dependent upon the actual colour, size and state of the injuries themselves, the lighting conditions in the RAP, and the extent to which the observer looked at the injuries. With regard to how visible per se the injuries were, the Panel felt there was less of a difference between the experts than may have appeared at first glance. The Panel was particularly impressed with the evidence of Dr K and Dr M. Dr K had the advantage of seeing the injuries in person at post-mortem. Dr M’ evidence was, in the Panel’s opinion, clear, well reasoned, and balanced. The conclusion the Panel came to in respect of the expert evidence was that the injuries it has determined as being present (1 to 3 above) were there to be seen by someone looking at the body. In the words of Dr M and Dr K, these injuries would have been “apparent”.

However, merely because the injuries would be apparent to someone looking at Mr A’s body does not mean that you saw those injuries. This requires an analysis of the conditions in which you viewed the body and the extent to which you looked at the body.

The Panel’s consideration of the conditions in which you saw Mr A

The conditions in which you observed Mr A were not ideal. The Panel accepts that the lighting was not of a clinical operating theatre standard. However, the Panel is satisfied that the lighting was such that it would not cause any significant handicap to you seeing injuries on the body of Mr A. Of course, during CPR, not all of Mr A’s body was exposed. The Panel is of the view that the face, neck, torso, arms and at least part of the flank areas would have been visible when Mr A was lying on the table in the RAP.

The Panel accepts that the attempt to resuscitate Mr A would have been stressful for all concerned, including yourself. However, it was not the first time that you had conducted CPR. Your role was to supervise and observe the CPR being carried out by your medics. You were standing, on your own account, relatively near to Mr A and would have had a view of the face and neck, torso and Mr A’s left hand flank. Further, at one point, you inserted a cannula into the crux of Mr A’s left arm which must have brought you much closer, and indeed, into direct contact with his arm and hand. There is general agreement that the CPR attempt took between 20 and 25 minutes. Therefore, there would have been ample opportunity to observe Mr A and see any visible injuries. The Panel’s view is that, given your supervisory role, you in fact would have had a greater opportunity to observe Mr A than some of the medics who were concentrating on carrying out a specific task.

The Panel’s consideration of the evidence of the medics

The Panel now turns to the evidence given by the medics. The Panel has heard extensive argument from both sides as to the reliability of, and the weight to be given to, their evidence.

The Panel has concerns over the credibility and reliability of their evidence. Firstly, having had the opportunity to see and observe them giving evidence, the Panel gained a clear impression that their evidence was tainted by an understandable desire to be loyal towards you. Secondly, the passage of time since these events and the differing accounts that they have given over the many years had to be taken into account when assessing their evidence.

The Panel is of the opinion that care needs to be taken when considering what conclusions can be drawn from their evidence. For example, the fact that a medic saw an injury does not, of itself, prove that you saw the same injury. Similarly, the fact that they did not see an injury does not mean that such an injury was not present to be seen or that you did not see this injury.

It is the Panel’s opinion that, taken globally, the medics’ evidence supports the expert opinion that injuries, above and beyond blood around the nose, would have been visible to someone looking at Mr A’s body at the time of the attempted resuscitation.

The Panel determined that the following can be drawn from the evidence of the medics:

1.       There were visible injuries on Mr A other than blood around his nose.

2.       That it would be unsafe to conclude that, because a medic did not describe an injury, that it was not in fact visible.

3.       That their evidence established that there was visible injury in the area of the abdomen and to the face, neck, hands and wrists.

4.       That the medics’ descriptions of the injuries, in terms of their size or appearance, should be treated with caution. The Panel was satisfied that they were seeking to downplay what they had actually seen.

5.       That their evidence was not such as to undermine the expert evidence as to how visible the injuries on Mr A would have been at the time of the attempted resuscitation.

The Panel’s consideration of your evidence

The Panel turns next to your evidence. In considering this paragraph of the Allegation, the Panel has considered your evidence globally, both on this issue and the other paragraphs of the Allegation. It has also considered all of the other evidence in this case and how this impacts upon the truthfulness of your account in respect of this part of the Allegation.

In short, your case is that the only injury you ever saw on Mr A was blood around the nose. After his death, you deny further looking at the body and say that during the attempted resuscitation your gaze was almost exclusively on the monitor.

The Panel says at the outset that it does not accept that your account of what you saw is accurate. The Panel is satisfied, on the balance of probabilities, that you in fact saw more injuries on Mr A than just the blood around the nose.

As the Panel has already concluded, Mr A had more injuries upon the parts of his body which were exposed during the attempted resuscitation than just blood around his nose. He had been beaten over a sustained period of time. The Panel finds that, at the time of the attempted resuscitation, there was swelling to the face and hands, abrasions to the head, neck and body, abrasive marks on the wrists and some bruising elsewhere, including the abdomen and flanks. At least some of these injuries would, in the opinion of the Panel, given the lighting conditions, have been visible in the RAP.

The Panel has considered whether the traumatic events surrounding the attempted resuscitation could mean that you would not have seen the injuries the Panel has found were visible on Mr A.  The Panel concluded that, whilst this might be an explanation for not seeing all of the injuries, it cannot account for you seeing none. The attempted resuscitation occurred over 20 to 25 minutes. You had previous experience of CPR. There was no evidence that you were panicking during the attempted resuscitation.

As the Panel sets out below, it cannot accept that during the attempted resuscitation of Mr A you did not look at the body. Whilst it accepts that you were required to observe the monitor, you also had to oversee what the others present were doing. You were in charge of the resuscitation attempts and needed to ensure that your team, who were relatively inexperienced at CPR, were following your instructions.  In particular, you needed to ensure that Cpl D was achieving adequate pulmonary ventilation.  You accepted in evidence that you were aware that Cpl D was having difficulties intubating and, inevitably, you must have looked to see what he was doing.  You further accepted that you were observing the CPR process to ensure that the cycles were being carried out appropriately. You were not far away from Mr A and at one stage you intervened to place a cannula in the crux of his left arm.  As time went on and Mr A failed to respond, the Panel believes that it is inevitable that you would have looked at Mr A before ceasing resuscitation attempts and pronouncing death. The Panel rejects your evidence that you did not observe his body at all.

The Panel’s consideration of the credibility and reliability of your evidence

In relation to your evidence, the Panel had concerns as to its credibility. Of course the burden of proof remains, at all times, on the GMC and you do not have to prove anything.

You were asked twice, during your evidence to the Panel, whether you looked at Mr A’s body. On both occasions your response was simply that you did not examine the body. When pressed on this point you accepted that you were drawing a distinction between ‘looking’ at Mr A’s body and ‘examining’ Mr A’s body and accepted that you would have looked at his face. The Panel view this as a failure to be forthright and candid on an extremely important point in the case. The impression your earlier evidence gave was that you had not looked at Mr A at all in the RAP, when you knew that this was not the case. In evidence you went on to deny that you had looked at all at Mr A’s body (other than his face). You were treating Mr A for 20 to 25 minutes in the RAP, standing 10 to 15 feet from his body. The Panel finds it impossible to accept your evidence that you did not look at his body during this time. The Panel believes that it is inevitable that you would have done so and it finds that you did. Moreover your own evidence is that you had to assist with cannulating Mr A and at this point it was necessary for you to stand close to him, and insert the cannula into his left arm. Although this process may have been quick it is inevitable that you would have at least looked at his arm and the area of his body close to it whilst you were performing this task. Further it is more likely than not that you would have looked at the rest of his body.

The Panel notes that, despite your assertion to the Panel that you did not look at Mr A’s body, and only looked at his face, you were able to describe Mr A and the clothes he was wearing in your initial witness statement to the SIB dated 17 September 2003. The Panel takes the view that this evidence suggests that in fact you took a good look at Mr A whilst he was in the RAP, and were able to take in what you saw. The Panel is satisfied that, on looking at Mr A’s face, you would have seen more than simply blood around the nose.

The Panel was of the opinion that there were contradictions in your accounts which cast doubt on the credibility of your evidence.  For example, in your statement to the Public Inquiry, you suggested that the lighting was poorer than you now accept it was. You referred to the blood on Mr A’s nose in your statement of 17 September 2003, as “old dried blood”, when you now accept that you had wet blood on your face from attempted mouth to mouth resuscitation in the TDF. In your SIB interview you said that, “… we placed him into a bag and sealed that up … at which point I arranged onward acceptance and transfer for this man …” In what appears to be an attempt to distance yourself from any involvement with Mr A’s body after death, you now say you were not present when Mr A’s body was placed in the bag.

As will become clear later in this determination, the Panel was also concerned about the veracity of your evidence in relation to other key events. These concerns, in the Panel’s opinion, further undermine the credibility of the evidence you gave on this aspect of the allegation. In the Panel’s opinion, you have made a deliberate attempt to minimise what you saw on the night of 15 September 2003.

The Panel’s consideration of your motivation

It was urged strongly, on your behalf, that the fundamental flaw in the GMC’s case was that there was no motive for you not to have told the SIB on 17 September 2003 of all the injuries that you had in fact seen. It was pointed out that not to have done so would have been professional suicide, as in due course, the full extent of Mr A’s injuries would have become apparent.

Ms Poulet QC, on behalf of the GMC, pointed out that she did not have to prove a motive for why you acted in the way she alleged, only that you did so act. She suggested that there were many possible reasons as to why you might not have revealed to the SIB everything you saw on Mr A’s body that night.

The Panel rejects the suggestion that there could be no reasons for you to act in the way alleged. However, it is not for the Panel to speculate as to your precise motivation. The issue for the Panel is whether or not, as a matter of fact, it is satisfied, on the balance of probabilities, that you saw more injuries on Mr A than “old dried blood” near his nose.

The Panel’s overall conclusion

For all the reasons set out in this determination, the Panel is satisfied that, on the balance of probabilities, you were aware that Mr A had sustained injuries (apart from blood around his nose) as a result of your own observations of him.

Paragraph 4(b)(ii):

“4.      b.       Following your treatment of Mr A, you were aware that he had sustained injuries. This was as a result of

          ii.       what you were told by other medical staff,”

has been found proved

The Panel has considered the evidence given about the “debrief” of staff, immediately following Mr A’s death. This was not a formal, structured debrief, but was more of a post-death discussion with those who had been present at Mr A’s death. It took place in the courtyard outside the RAP and you told the Panel it lasted 4 or 5 minutes.

Corporal D

Cpl D told the Panel that the discussion was to, “check and make sure everybody was all right, because obviously some of the lads had never seen a dead body before, let alone one die on them, as such, so it was just checking in general is everybody all right.” (D6/33)

Cpl D told the Panel that he could not remember word for word what had been discussed but that:

“… what was discussed was the state of him, could we have done anything better, could we have done anything at all different to what we did… I cannot remember the exact words we used … but it was “Look at the state of him”, as in there was obvious bruises on the body and I think some of the lads discussed how it may have happened.” (D6/33)

Cpl D told the Panel that he drew no conclusions from the discussion. He also stated that he did not recall you saying anything. He remembered that although you had been flitting in and out of the courtyard you were present during these discussions. He could not remember your exact words, but he agreed that you had told those present to be open about the incident and say exactly what happened because the RMP would be asking questions at some point. (D6/52)

Private E

Pte E confirmed that a conversation had taken place in order to ensure that everyone present was coping with the events they had recently experienced. However, he could not recall whether there was any discussion of what people may have seen on Mr A’s body.

Sergeant G

Sgt G stated in his oral evidence that a discussion of some 10 to 20 minutes had taken place to talk through the events as a “counselling type of thing”. He stated that he mentioned to you “the blood on [Mr A’s] nose and the mark on his abdomen” as he thought that if someone died in custody it would be treated as suspicious. He stated “obviously there were injuries on him so I mentioned it to the doctor to pass up the chain of command” (D8/24-25). He could not remember how you responded to being told of the marks on Mr A’s body.

There are inconsistencies between the account given in Sgt G’s statement of 17 September 2003, that given in his SIB interview in 2005, and his oral evidence before the Panel. For example, in his SIB interview Sgt G refers to telling you that it would be a good idea to check the other detainees in the light of Mr A’s death. However, this is not mentioned in his statement and he conceded under cross-examination that this may not have been said at that time. Sgt G also conceded that he may not have mentioned to you at the post-death discussion the injuries he had seen.

Sergeant H

Sgt H told the Panel that he remembered commenting to someone about the blood on your face as a result of your attempted mouth to mouth resuscitation of Mr A. He could not remember to whom he had mentioned this. He said that he was tired and upset and was not listening to the discussion. However, despite saying that he was not listening to the discussion, he went on to state “there was no discussion of his injuries at all.” (D8/63)

Lance Corporal J

In his SIB interview (21/03/05 p90-92), L Cpl J was unclear as to whether it was him or one of the other medics who had spoken to you about the injuries to Mr A. However, he stated:

“… we did talk about it… it was mentioned to the doctor in the sort of debrief … the state of his wrists and nose …”

At this hearing, L Cpl J told the Panel that he was trying to be accurate in the SIB interview. He told the Panel that he had mentioned to you about the marks on Mr A’s body (D9/18). When asked what was the purpose of mentioning the injuries, he responded:

“Obviously so the doctor would be aware of it, and if the doctor had any concerns he could pass it up the chain.” (D9 /17-19)

He could not remember your response to being told of the injuries. He confirmed that you had told those present to be open about the incident and co-operate fully with the RMP (D9/26). He told the Panel that he could not now remember what he did or did not say to you about Mr A’s injuries, he was reliant on his earlier documented accounts (D9/38).

Private F

Pte F was present during the attempted resuscitation of Mr A. In all of his evidence, he made no specific mention of being involved in any debriefing discussion between you and the medics. In his evidence to the Public Inquiry, he said he had a short rest and had taken a drink before he began helping to clean up the treatment room. No party, in the course of questioning him, suggested that he had been part of a debrief session. He told the Panel that he had not drawn to your attention the injuries he had seen on Mr A.

Your evidence

Your consistent account has been that during the post-death discussion, none of the medics raised any concerns about injuries to Mr A. The only slight deviation from this was in your SIB interview in 2005 when you stated:

“People might have said things to me that, at the time, I wasn’t fully able to register, so the conversation could have happened.”

In your oral evidence, you told the Panel that the post-death discussion took some four to five minutes. You said:

                             “It was my opportunity to thank my team and to recognise the effort that they had put in and to give them consolation; that I appreciated what they had done and that they had done it very well.  It was really me talking to them, not them talking to me … I was becoming increasingly aware of the frailties and fragilities of people. People were very tired, exhausted, missing home, frightened, and I saw it as my role that I was their person to look to … I wanted to give them some of my confidence that they had done well.” (D18/79)

You confirmed that you had spoken to those present about the possibility of an investigation and stated that:

“I will have made them aware that what can happen after a sudden death is that police will come and ask questions and, you know, I had already spoken to the police myself and I had made them aware that they would very likely be talked to as well … I wanted to just let them know that was normal; it will happen; you have nothing to worry about.  The police ask questions because there has been a death, not because they think there is a problem; it is just what happens.” (D18/79)

When asked if anything was said during the discussion by anybody about injuries to the body of Mr A, you replied:

“It was not expressed to me. I do not know if there were other conversations, but not in my presence or directed to me.” (D18/80)

You further stated under cross-examination:

“All I can say is I do not record or register a medic saying anything to me about bruising or anything about the circumstance. It may have been said to me but I do not recall hearing that. I came out of the debrief without any knowledge of any bruising or any concern from the medics” (D19/55)

You also confirmed that nobody had mentioned to you that the other detainees should be checked (D18/80).

In your oral evidence you told the Panel that, at that time, you would have been “somewhat in turmoil” yourself as a result of recent events (D20/16). However, you confirmed that you were listening to what was being said to you by the others present.

Panel Findings

There is no dispute that after the death of Mr A there was a discussion between you and a number of the medics about the attempted resuscitation. The central question under this allegation is whether this discussion involved medics telling you of injuries that they had seen on Mr A.

The Panel has already determined that the body of Mr A had visible injuries upon it at the time of your attempted resuscitation. A number of medics gave evidence that they had seen injuries upon his body, either during resuscitation or whilst placing the body in the body bag. The Panel is satisfied that these medics had, at the very least, seen the injuries that they described in their evidence.

In these circumstances, common sense would suggest that the medics would have said something about the injuries upon Mr A when discussing the failed resuscitation. Such injuries would be a clear talking point. The Panel in so inferring has considered the unusual circumstances that pertained on this night, including the heat, exhaustion and trauma of the resuscitation attempt. Whilst it accepts that a primary concern of yours would have been the physical and emotional welfare of your men, it seems highly unlikely to the Panel that within such a discussion no mention would have been made of injuries that medics had seen on Mr A’s body. Further, this common sense inference is supported by a number of medics who expressly remember talking about injuries on Mr A’s body at the debrief.

The Panel turns to the direct evidence of those who were present at the debrief. The Panel heard from Cpl D, Sgt G, and L Cpl J that injuries of one form or another were discussed in your presence.

The clearest and most reliable account, in the Panel’s opinion, came from Cpl D. He was the most experienced of the medics. It was submitted on your behalf that his evidence on this paragraph of the Allegation could not be safely relied upon. In support of this, a number of examples were given of evidence on other issues where it was said that his evidence either could not be right or was significantly undermined by what others had said. As the Panel has already stated, care must be taken with respect to recollections of things that happened a long time ago. However, with regard to the inconsistencies highlighted to the Panel, these were explainable as errors of memory regarding more mundane events. They did not lead the Panel to consider that his recollection – that the state of Mr A was discussed at the debrief when you were present - was incorrect.

On the issue as to the discussion at the debrief, Cpl D’s evidence was, in the Panel’s opinion, consistent and clear. The Panel has considered whether Cpl D, in order to ‘salve his conscience’, may have later decided to claim that he had mentioned the state of Mr A at the debrief in your presence, when in fact he had not done so. The Panel finds Cpl D to be someone who was well disposed towards you and do not believe that he would have chosen to invent such a conversation. In fact, if anything, Cpl D was seeking to downplay the visibility of the injuries to the face of Mr A. It was also suggested that the other medics’ account of the debrief did not support Cpl D’s version of events. Given the length of time since these events, it is understandable that people’s recollections may differ. However, the other medics’ evidence, taken globally, supports the conclusion that the injuries to Mr A were spoken about at the debrief.

The Panel accepts that Pte F made no mention of the debrief. It seems likely that he was not there, or at least, not there for much of it. Sgt H specifically stated that he was not listening to the discussion, and therefore the Panel finds that his later evidence that injuries were not discussed cannot be relied upon. Pte E simply could not remember whether or not injuries were discussed.

The evidence of Sgt G and L Cpl J positively supports the conclusion that there was a discussion about injuries on Mr A’s body.

With regard to the evidence of Sgt G, whilst accepting his evidence that injuries to Mr A were discussed in the debrief, the Panel does not find, on the balance of probabilities, that he suggested to you that the other detainees should be checked. This was his recollection in 2005, when interviewed by the SIB. However, under cross-examination, he accepted that this may have been something that he had thought about later. The Panel accepts that there is some force in Mr Langdale’s submission that, had this been said, someone would have checked the detainees. The Panel has considered whether this and the other concerns about his evidence are such that they cannot rely upon his overall account that injuries were mentioned at the debrief. The Panel, having had the advantage of seeing and observing Sgt G, is satisfied that he was accurate in his account that injuries were talked about at the debrief in your presence.

The evidence of L Cpl J has also been criticised. In particular, its alleged vagueness, for example, whether he had spoken about injuries or whether it was others who had mentioned them. However again, the thrust of his evidence was that there was such a discussion.

It was submitted on your behalf that, as much as it might be common sense if you had seen injuries on Mr A’s body to talk about them, it was equally common sense that, if they had been discussed and you had heard such a discussion, that you would have reported it to others. It was argued that there could be no reason for you not mentioning these matters in your SIB statement or to your commanding officers. Further, it is suggested that, had you been told of injuries to Mr A by your medics, you would inevitably have visited the other detainees. However, the Panel believes that, given the unusual circumstances, care should be taken about drawing such inferences. The Panel preferred to look at the evidence of what people said had happened. For example, the mere fact that you did not visit the other detainees that night could not outweigh the clear evidence of three medics that they discussed injuries to Mr A in your presence at the debrief. Of course, none of the medics visited the other detainees (despite them accepting that they had seen and discussed injuries to Mr A). Further, the fact that you did not report the injuries is not necessarily supportive of the fact that you were not told about them. This could be for a variety of reasons. For example, seeking to cover up what had occurred or simply a disbelief that British soldiers would have acted unlawfully. Therefore, again, the Panel chose to concentrate on the actual evidence that all of the witnesses, including you, gave to the Panel.

The Panel has considered your evidence and all of the submissions made on your behalf. Again, it has taken account and given weight to your good character when assessing this part of the Allegation.

As the Panel has already noted, Mr A had visible injuries on his body. The Panel is satisfied that the medics saw injuries on Mr A’s body prior to the debrief. From seeing and observing the medics, the Panel formed the clear impression that they were seeking to downplay what, in fact, they had seen. The Panel thinks it is most unlikely that the medics would not have talked about the injuries they had seen. Further, in this case there is, in the Panel’s opinion, credible and clear evidence from three medics that injuries to Mr A were discussed at the debrief and that you were present.

The Panel has also considered whether, when the injuries were discussed with you that night, you may not have taken that in or may have forgotten the conversation, given your state of mind after the attempted resuscitation. The Panel does not find this suggestion credible. Any mention of injuries to Mr A would have been significant given that, on his arrival at BG Main, no injuries to his face had been noted. Your own evidence was that you were concerned for your medics and were listening to them. The Panel cannot accept that you would not have taken in, or remembered, such a discussion.

The Panel has given careful consideration to the submission, made on your behalf, namely, why would you claim not to have heard this discussion if it had happened? As the Panel has previously noted, it is not necessary for its determination to ascribe a particular motive to your actions. What the Panel must do is decide, on the balance of probabilities, whether you were told of the injuries to Mr A that the medics had seen. The Panel agrees with Ms Poulet QC, on behalf of the GMC, that there are a number of possible motives or explanations as to why you might have chosen not to mention to others the conversation about the injuries at the debrief. However, it is not for the Panel to engage in speculation as to your precise motivation.

The Panel rejects your evidence on this part of the Allegation.

The Panel’s overall conclusion

For all the reasons set out above the Panel is satisfied that, on the balance of probabilities, you were aware that Mr A had sustained injuries as a result of what you were told by other medical staff.

Paragraph 4(c):

“4.      c.       You failed to conduct any or any adequate examination of Mr A’s body after his death,”

has been found proved

The Panel has considered paragraph 4(c) in the light of its findings at 4(b). Therefore, it has considered whether, when you knew that Mr A had sustained injuries, you should have conducted an examination of his body after his death.

Your evidence

You accepted that you did not conduct any examination of Mr A’s body after his death. However, you contended that there was no duty on you to do so, therefore you did not “fail” to conduct an examination.

You were asked whether you thought that you should have gone and looked at the body yourself if you had received information that Mr A was injured and you replied:

“On one hand, I had felt that by speaking with Sergeant FF and having left the treatment room [after Mr A’s death], Mr A was now effectively in the care of the police. Should I then invite myself into a police scene to perform a further examination?  I do not know if I would have done that. I do not know what purpose I would have been looking for that. I would be confident that it would have been expressed to the police both at that point in time and in further statements.” (D18/80)

You went on to say:

“I certainly did not feel I had any responsibility to do a secondary examination when Mr A had failed to respond to our life-giving measures. I say that because of several factors.  The first is simply it was not known to me to be a usual practice. I had attended many arrests in hospital and never once had I ever done a secondary examination prior to those people not responding to being resuscitated. I was not aware that any examination I may then go on to do would provide any assistance or help to a forensic examiner or a pathologist.  In fact, it was my thought that by then going to visit the body with an examination in mind may actually be interpreted as a harmful act, something which would not be wanted and which could then … It may introduce artefact, it may also be construed that I have gone to visit the body for another purpose. I was clear that the police were involved and that investigation would follow as per standard for any sudden death. I just did not really see that me then revisiting the body was going to bring anything and it simply did not enter into my head that that was something which I ought to do.” (D18/81-82)

When cross-examined by the GMC, you stated:

“I did not have any curiosity as to what had happened to him.  The poor man had died, I had my idea that it was through organic causes … I did not consider this to be due to anything other than a natural cause.” (D19/65-66)

Expert Evidence

Dr K

In his oral evidence, Dr K stated that he would expect you to undertake a brief examination of the body to make sure that you had not missed anything (D10/29).

Dr K disagreed with the suggestion put by Defence Counsel that there are perfectly reasonably held views which differ about the wisdom or not of examining a body after death. He stated:

“I think I might take issue with the word “reasonably”, because if a doctor has been carrying out resuscitation on somebody, it would be helpful to the pathologist to know what had been done and what had been found at that time so that when you came along to make your examination, you had a starting point … I can understand that the focus initially was on keeping the man alive, but once he had died, the position changed.” (D10/38)

Defence Counsel reminded Dr K that there was an RMP presence there at the time, and so you were aware that there was going to be an investigation, as well as a post‑mortem examination. In these circumstances, he asked whether it would not be advisable to see to it that the body was put in a body bag and taken to the mortuary at the hospital as soon as was practicably possible? Dr K responded:

“I think at the point that you say “as soon as practicably possible”, I do not think that a delay of a few minutes whilst a check would have been done and made sure there was nothing obvious would have caused any undue delay. “ (D10/38)

Dr K stated that he thought such a check serves a purpose as it tells the pathologist what the situation was at that time:

“It gives me a head start on what I am going to do. Okay, yes, I am going to find the bruises, but if you know what they were like when he was treated, then you have got some chance of getting a better description later on, because you can see here the bruises have changed colour and all the rest of it, so you could not put a pattern to them. You may well find a patterned bruise, which, if there is a passage of time, such as happened here, it will become diffused and indistinct.” (D10/39)

Professor L

Professor L agreed with Dr K’s opinion on checking the body. He stated:

“So at least I would expect and I normally expect my clinicians to give some overview and that is certainly the practice that I have always understood to happen because that overview will aid the direction of the case.” (D13/9)

Dr P

Dr P gave evidence to the Panel as an expert in military medicine. In his report of 12 February 2012 he stated that:

“… it would be usual for the responsible clinician to review the body of the deceased.  This is not as a forensic physician or pathologist looking for a specific cause of death, but to ascertain as a generalist doctor whether there were any obvious suspicious circumstances that should be brought to the attention of the police and/or investigating authorities. This would be particularly important when dealing with unexpected deaths and is usually undertaken either immediately after resuscitation efforts have ceased or soon afterwards. Usual practice would be to at least review the head and neck to the waist and preferably include examination of the patient’s back by momentarily rolling the patient over.” (page 118)

Professor N

Professor N disagreed with the opinion given by both Dr K and Dr P. He told the Panel:

“Obviously if one sees any obvious bruising then obviously it is prudent to mention it to the local officers, “Look, I can see bruising in that area”, but one should never ever take clothes off, adjust clothing, turn bodies over or anything like that. You try and put the body in the body bag in the same position in which he died so as to preserve any fluids that you want to examine so that they do not run from one part of the body to another when you are taking swabs and so on, so once a person is dead you want to prevent contamination, so an examination by a doctor who is not forensically trained is completely out of the question, in my view, if there is going to be a forensic post mortem and, in my view, it would hamper the forensic autopsy, particularly if erroneous measurements are taken and opinions are given.  It could conflict later on when opinions are given in court, so it is not wise at all.” (D20/47)

Professor N qualified his view under cross-examination when he stated:

“What I am envisaging is that the doctor certifies death – tries to save life first of all and if that is not successful then certifies death.  A doctor after that point, if there is anything obvious that he sees – he might well make a comment to the people around him, the officers around him, make his opinion known – but if he is confident that there is not anything obvious to him at the time he is not duty bound, in my view (and in the view of many of the other pathologists) to then start unclothing the body and making a thorough inspection of the body.” (D20/61)

Professor Q

Professor Q strongly disagreed with any suggestion that you should have examined Mr A’s body. In his report of 31 May 2012, he stated:

“… once death had been pronounced, knowing that there would be an investigation by the Military Police and a forensic post mortem, it was not necessary and indeed it was inappropriate to undertake any further examination. In this set of circumstances, as in civilian practice, it is appropriate to preserve the scene i.e. body; so that it can be further assessed by a forensic pathologist without any subsequent interference of the scene having taken place. In civilian practice, I would be highly critical of a doctor who had confirmed death in a forensic setting and then went to undertake further examination of the body.” (page 44)

However, like Professor N, Professor Q conceded that, whilst there is no need, it is helpful to have a note of any obvious injury (D21/24-25), although he maintained his opinion that any further examination is unnecessary and can actively interfere with the later forensic examination.

Colonel R

Col R provided an expert report to the Panel on your behalf. At the time of his report, he was employed as the Defence Professor of General Practice at the Royal Centre for Defence Medicine.

Col R also gave the opinion that you should not have undertaken an examination of the body. In his report of 31 May 2012 he stated:

“Having confirmed the death, I would not usually undertake a complete physical examination. A patient has died and the reasons for this will need to be investigated by the Coroner.” (Page 27)

He stated:

“This is now a scene of crime and Dr Keilloh will have been taught on his Army Entry Officers’ Course one of the additional skills that he has or he has a little bit of training in is being a forensic military medical officer and the main thing that the Military Police teach you is you doctors, make sure that you do not interfere with a crime scene. At that point for me the priority changes to assisting the police with their enquiries about what was going to happen next, so that it does change … I do not agree with my colleague Dr P.  The story changes at that point and anything that Dr Keilloh does in examining, removing clothes or taking his trousers off could, in theory, be damaging evidence, so I do not believe there was any requirement for Dr Keilloh to carry out further examinations after he had confirmed that Mr A had died.” (D21/48)

In response to a question from the Panel, Col R acknowledged that if you had thought that Mr A had been assaulted and that was the cause of his death, then consideration and prevention of risk to others was important. He gave his opinion on the basis that this was not something that you knew at that point. The Panel has now found otherwise. Col R went on to say, that if you were trying to prevent risk to others then:

“I disagree with Dr P but it would not be unreasonable to have a quick look if you thought that you could glean some information which might help others - if you thought that.” (D21/67)

Panel Findings

In determining this paragraph of the Allegation, the Panel considered whether you should have conducted any, or any adequate, examination of Mr A after his death. In your evidence you accepted that you had not carried out any examination of Mr A after his death.

The Panel has heard much evidence from expert witnesses on this matter, but before making a determination, it first considered the context of the situation in which you found yourself.

Mr A had unexpectedly collapsed whilst in detention in the TDF. You had commenced attempted resuscitation in the TDF, before transferring him to the RAP where facilities for resuscitation were better. There, together with your team, you continued with your attempts to resuscitate him. The Panel has already determined that Mr A had injuries and that you were aware of them, as a result of both your own observations and what you were told by other medics. Furthermore, you were aware that the RMP had arrived and you spoke to Sgt FF very shortly after the attempted resuscitation of Mr A was discontinued.

The Panel has heard evidence from six experts on the responsibilities of a non-forensically trained doctor who finds himself in a situation where he is presented with a body following an unexpected death. There were a number of areas of consensus between the experts. These included:

• The doctor’s initial priority should be keeping the person alive or, if this is not possible, then confirming death;

• Thereafter, the doctor should not disturb the body in order to avoid unnecessary contamination of the scene which could then complicate subsequent forensic examination by an appropriately trained pathologist. Col R pointed out that you would have been taught this on your Army Entry Officers’ Course;

• Under no circumstances should the clothing be disturbed or removed after death;

• All agreed that it would not have been wrong simply to look at the body.

Any disagreement between the experts related to the extent of the examination, if any, which may be undertaken and whether such was necessary. Dr K, Professor L and Dr P stated that a limited examination should take place and may be of assistance to the pathologist. Dr P suggested that, in addition to external inspection, it would be acceptable to examine the patient’s back by “… momentarily rolling the patient over”.

Professor N, Professor Q and Col R, whilst expressing their opinion that examination of the body should not be undertaken, spoke of the danger of disturbing and possibly contaminating it. Their evidence was clearly given in respect of physical examination which involved contact with the body. These experts did not accept that not conducting a visual examination was below the standard of a reasonably competent RMO.

The Panel rejects any suggestion that a reasonably competent RMO should have carried out an examination of Mr A’s body that involved further man-handling him. Nevertheless, the Panel is satisfied that not to have carried out at least a visual examination of the exposed parts of Mr A’s body so as to be able to record any findings was below the standard expected of a reasonably competent RMO. The Panel accepted the expert evidence of Dr K, Professor L and Dr P which was to this effect: such action would not interfere with the body (which was the main concern of the other three experts), would not have taken long to do, and was necessary in the context of this death. Mr A was a man in detention, along with others, and you knew from your own observations and from what you were told that there were visible injuries upon him. The Panel rejects the suggestion that, in these circumstances, it was reasonable to simply leave it to the investigating authorities. In these circumstances, the Panel considered that the need for such an examination was not a matter of training, but one of common sense for any doctor present.

For these reasons, the Panel finds head of allegation 4(c) proved.

Paragraph 4(d)(i):

“4.      d.       You failed thereafter

i.        to ensure that the physical condition of the other civilian detainees then held at Battlegroup Main was assessed, and/or”

has been found proved

In the context of this case, this paragraph of the Allegation refers to your alleged failure to check (or make arrangements for others to check) the physical condition of the other civilian detainees after Mr A’s death and before your examinations of D004 and Mr B.

Were you aware that other detainees may still be held at BG Main?

In your evidence, you told the Panel that you became aware of the fact that groups of detainees were being dealt with at BG Main two to three weeks into your tour and that your medics had been going over to check them.

You told the Panel that you were made aware of the presence of D006 at BG Main by Cpl D at around 4 o’clock on Sunday 14 September 2003. You were asked if you understood that there were other detainees present at that time and you replied:

“I do not think I asked and I do not think I made any inquiry other than to assume that there could well be others.” (D18/57)

Further in answers given in your SIB interview in 2005, it is implicit that you thought that there were still other detainees at BG Main at the time of Mr A’s death (page 50 & page 54).

From the above, it is clear that at the time of Mr A’s death, at the very least, you should have been aware that it was likely that there were still other detainees present at BG Main.

Expert evidence on your duty to check on the other detainees

Colonel R

In his report of 31 May 2012, Col R wrote:

“At this point Dr Keilloh was in need of discussing the events surrounding Mr A’s death with a trained military GP or his Commander Medical. Perhaps this would have raised the suspicion that Mr A may have been ill-treated and this could have contributed to his death. If Dr Keilloh had a professional relationship with a more senior medical colleague, it is my opinion that any dialogue, including reflection on Mr A’s death, would have subsequently resulted in Dr Keilloh wanting to undertake a full medical examination on all detainees at the TDF at Battlegroup Main.” (paragraphs 109 – 110, page 28-29)

In his oral evidence Col R stated:

“It is difficult to believe that I would not have concern for the other detainees if at that moment in time I had clicked as to what might have happened to Mr A, if I had realised that Mr A possibly had been assaulted in the detention centre.” (D21/64)

Dr P

In his report of 12 February 2012, Dr P did not express a direct opinion as to whether, after the death of Mr A and before you saw D004 and Mr B, you should have checked upon the physical condition of any of the other detainees at BG Main. However, he was clear that, after the death of Mr A, you should have taken steps to ensure that others did not suffer the same fate; in particular, by informing your Commanding Officer.

Panel Findings

The Panel has already found that you were aware that Mr A had sustained injuries as a result of both what you saw during the attempted resuscitation and were told by other medics during the debrief. Mr Langdale candidly acknowledged in his closing submissions that:

“There is no dispute by Dr Keilloh or, indeed, anybody else that if he suspected foul play and had seen injuries it would have been appropriate to take action, including obviously checking the detainees.” (D25/15)

The Panel has heard that, on arrival at the TDF or shortly afterwards, each detainee was checked by one of the medics. You had not been informed that these checks had revealed any significant injuries to any of the detainees, including Mr A. The Panel considered that, in these circumstances, the clear inference must have been that Mr A’s injuries had occurred during his detention. This and the fact that he had died in custody should have alerted you to the distinct possibility that he had suffered unlawful violence whilst in detention.

Further, whilst the Panel is satisfied that you should have suspected the possibility of “foul play”, as described by Mr Langdale, it considered that, if only because Mr A had died in custody, you had a duty to check on any other detainees held at BG Main. This conclusion is supported by Col R who said that the very words death in custody equal alarm bells and a red flag. The Panel is satisfied that these alarm bells should ring for any doctor regardless of whether they had been specially trained in the treatment of detainees.

Given your role as the only doctor in BG Main it was not sufficient to leave matters simply in the hands of Sgt FF of the RMP. The Panel accepts that it was not long after the death of Mr A that you were faced with dealing with D004 and Mr B. However, given what had occurred, you should have, at the very least and prior to seeing D004, put into effect arrangements for any remaining detainees’ well-being to be checked, either by you or by your medics. Whilst it is acknowledged that your military training in respect of the handling of detainees was very limited, the Panel believes that this issue is one of common sense and something it would have expected a doctor to do regardless of whether they had had such specialist training.

The Panel recognises the arduous conditions and the stresses to which you were subjected. However, these do not mean that you should not have checked, or made arrangements for any other detainees to be checked. It is clear that, after the attempted resuscitation had been abandoned, you remained able to deal with a number of other matters; clearly the welfare of any other detainees should have been dealt with as a matter of priority.

Paragraph 4(d)(ii):

“4.      d.       You failed thereafter

ii.       “to notify a superior officer of the circumstances of Mr A’s death,”

.

has been found proved

Again, the Panel has made its finding on this sub-paragraph in the light of its finding at 4(b) that you were aware that Mr A had sustained injuries.

Expert evidence

The expert evidence of Col R and Dr P concentrated mainly upon who you should have notified about the fact of Mr A’s death. However, implicit in their evidence, was the assumption that you should have informed the chain of command about the circumstances of his death, Dr P referred to informing the CO “so that he has the full facts”.

Your evidence

When cross-examined on this issue, you agreed that, had you seen injuries to Mr A, you had a duty to contact your Commanding Officer (D19/17).

Mr Langdale confirmed this in his closing submissions on facts, made on your behalf. He stated that:

“There is no dispute at all that if he had been aware of injuries to the detainees or that there were injuries to Mr A’s body, he himself accepts, he would have acted much more precisely in terms of informing his CO [Commanding Officer], he personally informing the CO of such a thing and if the CO was not available then the adjutant or the second-in-command.” (D25/35)

Panel Findings

The actions that you took, in informing the RMP, Shaibah and the Ops Room were clearly sufficient to amount to notifying a superior officer. However, what you did not do was make anyone aware of the circumstances of Mr A’s death, as you did not tell anyone of the injuries to Mr A.

You accept that, if you knew of the injuries to Mr A, you would have had a duty to inform your CO, explicitly, of those injuries. The experts also agreed that you had a duty to inform your CO. Having found that you were aware that Mr A had sustained injuries, the Panel found this paragraph of the Allegation proved.

Paragraph 4(e):

“4.      e.       You failed thereby to take any or any adequate action to safeguard the    wellbeing of the civilian detainees then held at Battlegroup Main;”

has been found proved

Given that the Panel has found proved that you failed to ensure that the physical condition of the other detainees was assessed and that you failed to notify a superior officer of the circumstances of Mr A’s death and, given that it has heard no evidence that you took any further action, the Panel found this paragraph of the Allegation proved. In so doing, it has borne in mind that you had a responsibility to safeguard the health of all those at BG Main. The detainees were vulnerable as they did not have the freedom to speak to you as and when they wished.

At this point, the Panel feels it appropriate to remind those reading this determination that the Medical Practitioners Tribunal Service (MPTS) is only considering your conduct in this matter. The responsibility for the injuries to Mr A rests with British soldiers who inflicted unlawful violence upon him. There were also clearly failings by others with responsibility towards the detainees to have safeguarded their welfare. Therefore, the Panel’s findings in respect of your conduct must be viewed in this context.

Paragraphs 5(a)(i) and (ii):

“5.      a.       On 15 September 2003, following the death of Mr A, you examined 

          i.        D004, a civilian detainee, and

ii.       AM, a civilian detainee,”

have been admitted and found proved.

Paragraphs 5(b)(i), (ii), (iii) and (iv):

5.       b.       You were or should have been aware that D004 may have been mistreated as a result of 

i.        the circumstances of Mr A’s death, and/or

ii.       D004’s complaint of being struck, and/or”

iii.      your examination of him, and/or”

iv.      the circumstances of your examination of Mr B,”

Paragraphs 5(b)(i), (ii) and (iv) have been admitted and found proved in so far as you should have been aware that D004 may have been mistreated.

Paragraphs 5(b)(i), (ii), (iii) and (iv) have been found proved in that you were aware that D004 may have been mistreated.

Panel’s findings

The Panel has approached the non-admitted parts of this paragraph of the Allegation globally. It seemed to the Panel entirely artificial to seek to split the separate sub‑paragraphs (i) to (iv) into stand alone issues. The central allegation is a result of the matters set out in these sub-paragraphs that you were aware that D004 may have been mistreated. The Panel interpreted “mistreated” to mean inappropriate treatment of a detainee. Mistreatment does not require a detainee to have been unlawfully assaulted.

From the Panel’s earlier findings and the non-disputed evidence, in the Panel’s opinion the following picture emerges:

By the time that you saw D004 the Panel has found that you were aware that Mr A had injuries upon him and, on your own admission, you accepted that, had you known this, the other detainees’ physical condition would have needed to have been assessed.

On your own account, you accepted that D004 did complain to you that he had been struck by British soldiers. Further, whilst there is a dispute as to whether you observed visible injuries upon him, you accepted that your own examination revealed tenderness to the lower abdomen and back that you ascribed to muscular-skeletal pain. You later saw Mr B, who similarly complained of being kicked by British soldiers.

You told the Panel that you found it hard to conceive that British soldiers would mistreat detainees. However, it seems to the Panel that, based upon the matters you accept (as set out above) and the fact that you were aware of injuries to Mr A, you must have been aware, at the very least, that D004 may have been mistreated.

The Panel believes that it can come to this conclusion, under this paragraph of the Allegation, without having to decide the critical question of whether you saw injuries upon D004 (a matter that the Panel considers carefully under paragraph 5(d)(i) below).

The Panel is acutely aware of the dangers of hindsight in coming to this conclusion. However, the Panel’s conclusion is supported by the evidence of Major S. Major S gave straightforward evidence in a clear manner. There was no attempt to exaggerate what he could remember. He appeared to the Panel to be a man who took no pleasure from the knowledge that his evidence could be damaging to you and he had no apparent axe to grind. The Panel found him to be a reliable witness whose oral evidence was corroborated by his detailed and thoughtful contemporaneous recordings in his diary. The Panel is satisfied that it was you that he met, not Cpt T, the next morning by a shower block in BG Main and that you said words to the effect of, “one of them had died and the others looked in shit state” regarding the detainees. The Panel does not find that this comment can, in itself, corroborate a suggestion that you observed injuries upon D004, but it does suggest that you believed, at the very least, that detainees may have been mistreated.

Paragraphs 5(c)(i), (ii), (iii) and (iv):

“5.      c.       You were or should have been aware that Mr B may have been mistreated as a result of

                   i.        the circumstances of Mr A’s death, and/or

                   ii.       AM’s complaint of being struck, and/or

                   iii.      your examination of him, and/or

                   iv.      the circumstances of your examination of D004”

Paragraphs 5(c)(i), (ii) and (iv) have been admitted and found proved in so far as you should have been aware that Mr B may have been mistreated.

Paragraphs 5(c)(i), (ii), (iii) and (iv) have been found proved in that you were aware that Mr B may have been mistreated.

Panel’s Findings

The Panel has approached the non-admitted parts of this paragraph of the Allegation globally. It seemed to the Panel entirely artificial to seek to split the separate sub‑paragraphs (i) to (iv) into stand alone issues. The central allegation is a result of the matters set out in these sub-paragraphs that you were aware that Mr B may have been mistreated. The Panel interpreted “mistreated” to mean inappropriate treatment of a detainee. Mistreatment does not require a detainee to have been unlawfully assaulted.

From the Panel’s earlier findings and the non-disputed evidence, in the Panel’s opinion the following picture emerges:

By the time that you saw Mr B the Panel has found that you were aware that Mr A had injuries upon him and, on your own admission, you accepted that, had you known this, the other detainees’ physical condition would have needed to have been assessed.

On your own account, you accepted that Mr B did complain to you that he had been kicked the day before by a member of the combined forces. Your own examination revealed the abdomen to be obese, non-distended and soft. You further found Mr B was tender in bi-lateral renal angles that you ascribed to muscular-skeletal pain. At this point you had already seen D004, who had complained that he had been struck by British forces. Further, your own examination of D004 had revealed tenderness to the lower abdomen and back that you had also ascribed to muscular-skeletal pain.

You told the Panel that you found it hard to conceive that British soldiers would mistreat detainees. However, by the time you saw Mr B you had, on your own evidence, been told by D004 that he had been struck by British soldiers. You had determined that there was tenderness in parts of his body. You were now seeing Mr B, another detainee, who was similarly complaining of being struck and also had tenderness in his body. These two detainees were seeing you within hours of the death of Mr A. As the Panel has found, following Mr A’s death you were aware of injuries upon his body, from both your own observations and from what others told you after his death. In all of these circumstances, the Panel concludes that you must have been aware, at the very least, that Mr B may have been mistreated.

The Panel believes that it can come to this conclusion, under this paragraph of the Allegation, without having to decide the critical question of whether you saw injuries upon Mr B (a matter that the Panel considers carefully under paragraph 5(d)(ii) below).

The Panel is acutely aware of the dangers of hindsight in coming to this conclusion. However, the Panel’s conclusion is supported by the evidence of Major S. Major S gave straightforward evidence in a clear manner. There was no attempt to exaggerate what he could remember. He appeared to the Panel to be a man who took no pleasure from the knowledge that his evidence could be damaging to you and he had no apparent axe to grind. The Panel found him to be a reliable witness whose oral evidence was corroborated by his detailed and thoughtful contemporaneous recordings in his diary. The Panel is satisfied that it was you that he met, not Cpt T, the next morning by a shower block in BG Main and that you said words to the effect of, “one of them had died and the others looked in shit state” regarding the detainees. The Panel does not find that this comment can, in itself, corroborate a suggestion that you observed injuries upon Mr B, but it does suggest that you believed, at the very least, that detainees may have been mistreated.

Paragraph 5(d)(i):

“5.      d.       You failed to record any visible injuries on the bodies of 

i.        D004, and/or”

has been found not proved

It is accepted that you did not record, in your notes of your examination of D004 on the night of 15 September 2003, any visible injuries. This allegation, is not only that D004 had been injured, but that these injuries were visible, such that you, as a reasonably competent doctor, during the course of your examination of him, should both have seen and recorded these injuries.

After Mr A’s death and the debrief, you told the Panel that, whilst you were in your office completing paperwork, Pte F came to you with D004. In your evidence to this Panel, you described your examination of D004. This included a systematic examination of his chest and abdomen, using your fingers and a stethoscope. You asked him to expose his chest and abdomen area and to take his trousers down. This examination was carried out using a lamp. In the course of your evidence to this Panel, you accepted that you had no reason not to have seen any injuries that were visible (D19/71). It is not disputed that, had injuries been seen, a reasonably competent doctor would have recorded this fact.

The evidence that, on the night of 15 September 2003, D004 had visible injuries comes from his account of his treatment at the hands of British soldiers, the evidence of Pte F that he saw bruising on D004’s back, inferences that the GMC says can be drawn from the evidence of those who saw D004 on 16 to 17 September 2003, and from Dr K’s examination of D004 on 22 September 2003.

D004’s evidence

D004 did not give oral evidence to the Panel. The Panel received into evidence his signed witness statement, dated 4 June 2009, in which he described violent assaults upon him by British soldiers during the whole of his time at BG Main. He described having been beaten and kicked over his first two days in the TDF, collapsing, and being taken to see you. D004 said that whilst in the RAP, you saw him alone (save for an interpreter) and, on seeing him and him telling you he had been kicked, you were upset and shook your head in disgust. D004 then recounted that, after your examination and on the third day of his detention at BG Main, he was beaten as badly as before. In particular, he was again beaten in the kidney area. Despite this account, somewhat oddly, in his witness statement of 4 June 2009 (page 23), D004 stated that after his transfer from BG Main to Camp Bucca he did not himself see any bruising on his own body, although he did say that others told him that there was swelling to his back and bruising in the kidney area.

Another detainee, Mr C, whose evidence was also read, described D004’s head being stamped on by British soldiers at the time of arrest.

Neither D004’s, nor Mr C’s evidence was able to be tested by cross-examination. Further, the Panel were unable to question these witnesses. In the light of this, the Panel has considered carefully what weight can be placed upon this evidence.

The Panel is satisfied that D004 was unlawfully assaulted by British soldiers. However, the Panel concluded that it could not rely upon the evidence of D004 as to the severity of the assaults upon him. The photographs taken on the 17 and 22 September 2003 do not support the beatings described in D004’s witness statement. Further, Dr K, in his report in 2004 (page 28 – 29) described D004’s injuries as “mild”, consistent with “rough handling” and being non-specific in nature. In his evidence before the Panel (D10/36 – 37), he said that the injuries were not consistent with D004’s description of being punched repeatedly to the face, kicking to the thighs, and being struck with an iron bar, or of being struck forcefully in various places over a period of hours.

The Panel accepts that not all blunt trauma leads to bruising, and that sometimes serious deep tissue injury may not be visible upon the skin until some time later, if at all. However, the Panel concluded that it would be unsafe to reach the conclusion, from the untested evidence of D004 and/or Mr C, that the level of any unlawful assaults upon D004 during his first two days of detention was such that there must have been visible injuries upon him when you examined him.

Private F’s evidence

The Panel turns to the evidence of Pte F. He told the Panel that during your examination of D004, the only injury he saw was bruising on D004’s back, in the kidney area. Evidence to the same effect was also given by him in his evidence to the Public Inquiry in 2009. However, on 17 September 2003 in his witness statement to the RMP, where he did describe seeing injuries upon Mr A, he made no mention of having seen any injuries to D004. In response to a question about his recollection of injuries to Mr A, he accepted that his account in 2003, being made closer in time, was likely to be the most accurate account. The Panel has determined that, given these inconsistencies, it cannot rely upon Pte F’s evidence to determine whether or not visible injuries were present on D004 at the time you examined him.

Evidence of those who saw D004 on 16 to 17 September 2003

Injuries to D004 were photographed by Mr V on 17 and 22 September 2003. Mr V told the Panel that his job was to photograph whatever injuries were disclosed to him. The photograph on 17 September 2003 of D004’s face shows no injuries at all. As the Panel has already noted, this is inconsistent with D004’s allegation that he was beaten in the face. The only photographs taken on 17 September 2003 of any injury to D004 show faint bruising to the back. On 22 September 2003, under Dr K’s instruction, Mr V took additional photographs that show other injuries, in particular to the shoulder area. It was argued, on your behalf, that the failure to photograph these additional injuries on 17 September 2003 demonstrated that they were either not visible or very difficult to see. The Panel believes that caution must be exercised in drawing this inference. Whilst it accepts that Mr V’s task was to photograph injuries, there is clear evidence in relation to detainees in general that he did not always photograph every injury on his initial meeting with them.

The Panel received written evidence (by agreement) from Dr GG who had examined D004 on 16 September 2003 and had recorded “minimal swelling, bruising and superficial lacerations on the extremities (extremities include the arms and legs) … injuries consistent with blunt trauma” (Dr GG’s witness statement 17 October 2003, page 6).

The Panel considered that it was unfortunate that it was unable to hear from Dr GG in person. This has made it difficult to assess the reliability of his evidence. The Panel gained the impression that he might not have been as conscientious in his examination of the detainees as might have been expected. This is illustrated by his ambiguous recording of what he had seen upon examination of D004. For example, it is unclear where the bruising he described was situated and whether that bruising was minimal or whether only the swelling he described was minimal. The fact that he did not record every visible injury to each detainee is clearly demonstrated by his recording in relation to his examination of Mr C.

The Panel concluded that, from the evidence of Dr GG, there was some bruising visible on 16 September 2003 on D004.

Expert evidence

The expert evidence as to the visibility of the injuries recorded by Dr K on 22 September 2003 varied, although it is self-evident that, on any view, the injuries to D004 were not in the same league as those which were observed on Mr A’s body at post-mortem examination.

Dr K told the Panel that he would have expected signs of injury to have been present when you examined D004.

Professor N told the Panel that he could not say if any of the bruising would have been present on 15 September 2003 and, in any event, the bruising in the photographs was minor and faint in appearance, and might not have been seen by someone examining him. Professor Q was equally unable to age the bruising and believed that it may not have been apparent on examination on 15 September 2003.

The Panel has already indicated that, in relation to Mr A, it found Dr K’s evidence convincing. However, on this issue the Panel finds Dr K’s opinion less persuasive, mainly because it was given on the implicit basis that the injury which produced the marks Dr K saw had occurred before you had examined D004.

This is a fundamental problem in assessing what injuries would have been visible on D004 at the time of your examination, as his own evidence is that he was again beaten by British soldiers after you saw him. The Panel does not know if, for example, the injury to the back of D004 shown in the photographs of 17 September 2003, was caused or made worse by unlawful violence to that area, subsequent to your examination.

Other evidence

The GMC relied upon two other witnesses in support of the fact that you must have seen injuries during your examination of D004. The first is your comment to Major S about the state of the detainees. The Panel, for the reasons already given, accepts that you did speak with Major S and did describe the detainees as being in “shit state”. It seems to the Panel that someone can be in “shit state” without visible injuries having been seen upon them. Anyone who had been plasticuffed, had a hessian bag placed over their head, and been made to stand in stress positions in stifling heat with minimal food, water and sleep over a long period of time (as illustrated graphically in the video clip shown to the Panel) is in reality likely to have looked to anyone seeing them (even when the observer is unaware of how the detainees had been treated) as being in a “shit state”. In the Panel’s opinion, it would be wrong to infer from such a comment that you had actually seen and deliberately chosen not to record injury upon D004.

Similarly, the GMC relied upon the evidence of SO18 that he had seen, on 17 September 2003, bruising around the kidneys on every single detainee. SO18’s evidence was not able to be tested under cross-examination. The Panel could not ask him questions. The first time this account was made was in August 2005. The lack of clarity as to whether the reference to “all detainees” had to have included D004, coupled with the inability of your Counsel to probe this issue meant that the Panel concluded that SO18’s evidence could not assist it on the specific allegation that D004 had visible injury on his body at the time you examined him. There was no clear evidence before the Panel that SO18 had in fact seen D004. Further, SO18’s evidence could not in any event assist as to whether such injury had been inflicted after your examination.

The Panel turns to your evidence on this issue. The Panel has already found against you in relation to your evidence about what you saw and were told in respect of Mr A. The Panel is of the opinion that this is very different from the position with Mr A. He was someone who died whilst in custody and, as the Panel has already noted, the evidence of the visibility of his injuries is very different from that of D004.

The Panel has reminded itself that, in respect of all paragraphs of the Allegation, the burden of proof rests firmly on the GMC. In this case the Panel formed the view that:-

          1.       It is impossible to know when D004 sustained his injuries and exactly which injuries were sustained and visible prior to your examination of him. The injuries to D004 are in an entirely different league to those found on Mr A.

          2.       D004’s account cannot be relied upon as being accurate as to the severity of the injuries he sustained.

          3.       Pte F’s evidence cannot be relied upon to determine whether or not D004 had visible injuries at the time of your examination.

          4.       Dr K’s evidence that the injuries he saw would have been visible on your examination of D004 was given on the implicit basis that the injuries were inflicted prior to your examination. The Panel cannot be satisfied that this was the case, given D004’s own evidence.

The Panel concludes that the GMC has failed to discharge its burden of proof in respect of this paragraph of the Allegation and, on the balance of probabilities, that you did not see any visible injury on D004 at the time of your examination. Furthermore, it concludes that not to have seen and recorded any injury that may have been there was not a failing on your part.

Paragraph 5(d)(ii):

“5.      d.       You failed to record any visible injuries on the bodies of 

                   ii.       Mr B,”

has been found proved

It is accepted that you did not record, in your notes of your examination of Mr B on the night of 15 September 2003, any visible injuries. This allegation, is not only that Mr B had been injured, but that these injuries were visible, such that you, as a reasonably competent doctor, during the course of your examination of him, should both have seen and recorded these injuries.

After Mr A’s death and the debrief, and after you had examined D004, Pte F came to you with Mr B. In your evidence to this Panel, you described your examination of Mr B. This included an examination of his abdomen and shining a light on his body whilst he was standing up. You stated in evidence that Mr B was wearing only his underpants during this examination. There was no suggestion in the course of your evidence to this Panel, that there was any reason why you would not have seen any injuries that were visible. It is not disputed that, had injuries been seen, a reasonably competent doctor would have recorded this fact.

The evidence that, on the night of 15 September 2003, Mr B had visible injuries comes from:

·         his account of his treatment at the hands of British soldiers;

·         the evidence of Pte F that he saw bruises around Mr B’s back;

·         inferences that the GMC says can be drawn from the evidence of those who saw Mr B on 16 – 17 September 2003; and

·         Dr K’s examination of Mr B on 22 September 2003.

Mr B’s evidence

Mr B gave oral evidence to the Panel. He described violent assaults upon him by British soldiers during both his arrest and his time in the TDF prior to his examination by you. He described having been beaten and kicked over his first two days in the TDF, particularly in the abdomen, kidney area and on a hernia that was present before his arrest. He described being taken to see you in the RAP. He said that whilst in the RAP you examined him, and that he showed you his hernia, swollen leg and the kidney area where he had been kicked. Crucially, Mr B maintained in evidence that after he had been examined by you in the RAP he was returned to the TDF where he was not beaten again. This was consistent with the account that he gave in his witness statement in 2003. Whilst his evidence on this point did change in his witness statement given in 2007 (which described further assaults after he was returned to the TDF) the Panel is satisfied that in fact Mr B was not beaten again after he was returned to the TDF. Mr B’s oral evidence to the Panel on this point was convincing – it accorded with his earliest recollection as given in his 2003 witness statement and it cannot be said that asserting that he was not assaulted again can be borne out of an attempt to exaggerate the mistreatment he was subjected to.

Another detainee, Mr C, whose evidence was read, described hearing Mr B being assaulted by British soldiers at the time of his arrest. Mr C’s evidence was not able to be tested by cross-examination and the Panel was unable to question him. In the light of this, the Panel has considered carefully what weight can be placed upon his evidence. The Panel was shown a video clip that powerfully demonstrated degrading and inappropriate treatment of detainees. The Panel take the view that Mr B’s evidence, that he was unlawfully assaulted from the time of his arrest and during his detention, is to be believed and is corroborated by Mr C’s evidence, the injuries to Mr B and the injuries to the other detainees.

The Panel is satisfied that Mr B was unlawfully assaulted by British soldiers. Further the position of Mr B is different to that of D004, as the Panel had the benefit of hearing from Mr B. The Panel has taken into account the considerable criticism made of Mr B’s evidence by Mr Langdale.  However, whilst the Panel took the view that Mr B was prone to adopting a somewhat dramatic description of events (which might be for cultural reasons or simply borne out of a sense of injustice regarding his treatment), it did not gain the impression that he was wantonly exaggerating the extent of his mistreatment. For example he referred to being ‘kicked to the head’ but then went on to describe this as “not hard…brushing my head with the soldier’s foot”. He described being kicked twice in the hernia, rather than asserting a large number of assaults to this area. He also categorically denied that he had been mistreated after he had seen you. The Panel concluded that, whilst care must be taken about some of the more general phrases used by Mr B to describe his treatment, when it came to specific assertions his evidence could be relied upon. 

Lance Corporal J’s evidence

The Panel heard from L Cpl J that he had been called to the TDF where he saw Mr B who told him he had been kicked. He went on to examine Mr B in the TDF. Whilst he did not notice any injuries to Mr B, it is clear that he was not conducting a full examination. His purpose was, in effect, to arrange for him to be seen by you in the RAP. To this end, L Cpl J arranged for Mr B to be stretchered to the RAP as Mr B claimed he was unable to walk. L Cpl J did notice something on his examination of Mr B in the area of his abdomen because he suspected a blocked bladder and that this may have been caused by being kicked. The lighting conditions in the TDF were significantly poorer than the conditions under which you carried out a full, detailed examination of Mr B in the RAP.

Private F’s evidence

The Panel turns to the evidence of Pte F. It is correct to state that Pte F accepted that he was confused as to the order in which he had seen the two further detainees. That is perhaps to be expected given the passage of time. However, when pressed, Pte F did confirm that the second detainee he saw was the older man, i.e. Mr B, and that he had seen bruising to his back (D7/54). Pte F confirmed to the Panel that in his witness statement to the Public Inquiry, dated 8 October 2009, he stated that during your examination of Mr B, he had seen bruising to Mr B’s back, in the kidney area. However, on 17 September 2003 in his witness statement to the RMP, where he described seeing injuries upon Mr A, he made no mention of having seen any injuries to Mr B. In response to a question about his recollection of injuries to Mr A, he accepted that his account in 2003, being made closer in time, was likely to be the most accurate account. The Panel has determined that, given these inconsistencies, it cannot rely upon Pte F’s evidence to determine whether or not visible injuries were present on Mr B at the time you examined him.

Evidence of those who saw Mr B on 16 to 17 September 2003

Injuries to Mr B were photographed by Mr V on 22 September 2003 but not on 17 September 2003. Mr V told the Panel that his job was to photograph whatever injuries were disclosed to him. The only photograph he took of Mr B on 17 September 2003 was of his face, which shows no injuries at all. This is not inconsistent with Mr B’s allegation that he was kicked in the face as he qualified this stating that the soldier brushed his face with his foot. There are no photographs taken on 17 September 2003 of any injury to Mr B’s back. On 22 September 2003, under Dr K’s instruction, Mr V took additional photographs that show bruising to Mr B’s back. It was argued, on your behalf, that the failure to photograph these injuries on 17 September 2003 demonstrated that they were either not visible or very difficult to see. The Panel believes that caution must be exercised in drawing this inference. Whilst it accepts that Mr V’s task was to photograph injuries, there is clear evidence in relation to detainees in general that he did not always photograph every injury present on his initial meeting with them. 

The Panel received written evidence (by agreement) from Dr GG who had examined Mr B on 16 September 2003 and only recorded “No treatment was required urgently or given, as the hernia was easily reducible” (Dr GG’s witness statement 17 October 2003, page 6). Dr GG described no injuries to Mr B at all.

The Panel considered that it was unfortunate that it was unable to hear from Dr GG in person. This has made it difficult to assess the reliability of his evidence. The Panel gained the impression that he might not have been as conscientious in his examination of the detainees as might have been expected. This is illustrated by his ambiguous recording of what he had seen upon examination of D004. The fact that he did not record every visible injury to each detainee is clearly demonstrated by his recording in relation to his examination of Mr C. The Panel therefore concluded that it could not rely upon Dr GG’s evidence as showing that Mr B had no visible injuries on 16 September 2003.

Expert evidence

The expert evidence as to the visibility of the injuries recorded by Dr K on 22 September 2003 varied, although it is self-evident that, on any view, the injuries to Mr B were not in the same league as those which were observed on Mr A’s body at post-mortem examination.

Dr K told the Panel that he would have expected signs of injury to have been present when you examined Mr B.  He stated that, although it is always a possibility that injuries were not visible at the time of your examination, he thought this was a ‘fairly remote’ one.

Professor N, who had considered the photographs of the bruising taken by Mr V, told the Panel that he could not say whether the bruises would have been present when you examined Mr B.

Professor Q was equally unable to age the bruising. He believed that the injuries could have been sustained before or after your examination (however the Panel has already found that the injuries were not sustained after your examination) and may not have been apparent upon your examination. However Professor Q agreed that Dr K would be better placed to assess if the injuries were visible on 15 September, as Dr K had actually seen the injuries rather than looked at photographs.

The Panel has already indicated that, in relation to Mr A, it found Dr K’s evidence convincing. The Panel has also already found that Mr B was not subjected to further assaults after he was examined by you, which was the implicit basis upon which Dr K’s evidence regarding Mr B was given (and which the Panel has found to be a fundamental problem in relation to D004). Accordingly on this issue the Panel accepts Dr K’s evidence, that there would have been signs of injury on Mr B at the time of your examination. Dr K had the crucial advantage over Professors N and Q of actually examining Mr B, rather than relying upon photographs.

Other evidence

The GMC relied upon two other witnesses in support of the fact that you must have seen injuries during your examination of Mr B. The first is your comment to Major S about the state of the detainees. The Panel, for the reasons already given, accepts that you did speak with Major S and did describe the detainees as being in “shit state”. It seems to the Panel that someone can be in “shit state” without visible injuries having been seen upon them. Anyone who had been plasticuffed, had a hessian bag placed over their head, and been made to stand in stress positions in stifling heat with minimal food, water and sleep over a long period of time (as illustrated graphically in the video clip shown to the Panel) is in reality likely to have looked to anyone seeing them (even when the observer is unaware of how the detainees had been treated) as being in “shit state”. In the Panel’s opinion, it would be unsafe to infer from such a comment that you had actually seen and deliberately chosen not to record injury upon Mr B, however such comment is certainly not inconsistent with you having seen injury on Mr B.

Similarly, the GMC relied upon the evidence of SO18 that, on 16 September 2003, he saw a detainee who he identified as Mr B, who was being assisted walking, looking in pain, and who had a hernia which was significantly large enough for SO18 to notice it ‘hanging out of his stomach’. SO18 referred to having seen, on 17 September 2003, bruising around the kidneys on every single detainee. SO18’s evidence was not able to be tested under cross-examination and the Panel could not ask him questions. The first time his account regarding bruising was made was in August 2005. The Panel was not able to ask him whether he had examined Mr B’s back on 17 September 2003. The lack of clarity as to whether the reference to “all detainees” had to have included Mr B, coupled with the inability of your Counsel to probe this issue meant that the Panel concluded that SO18’s evidence could not assist it on the specific allegation that Mr B had bruising that was readily visible.  There was no clear evidence before the Panel that SO18 in fact saw Mr B’s back at any time. However the Panel did believe that it was safe to accept that SO18 had seen Mr B was having difficulty walking and had a hernia on 16 September 2003. SO18’s witness statement relating to this aspect was given on 6 October 2003, relatively close to the events he was relating. There is no suggestion that SO18 has any reason to lie about what he saw, he was specific in relation to this being Mr B and his evidence as to what he saw is borne out by what Dr K found to be present on 22 September 2003.

The Panel turns to your evidence on this issue. The Panel did not find your evidence in relation to what happened during your examination of Mr B to be accurate. You stated in evidence to the Panel that Mr B told you that he had been kicked once to the back on 14 September 2003. You maintained in evidence that Mr B had not mentioned his hernia to you. It is clear that Mr B did have a hernia that was concerning him at the time of your examination of him. The Panel, having observed Mr B giving evidence, find it impossible to accept that he did not point the hernia out to you. Your refusal to accept that he made any reference to the hernia impacts upon the Panel’s view of the credibility of the remainder of your evidence – namely that you did not see any marks on Mr B.

The Panel was urged strongly, on your behalf, that the GMC’s case in regard to Mr B was flawed in that the GMC could point to no motive for you failing to record injuries if in fact you had seen them, particularly as you did record that Mr B alleged he had been struck. However the Panel rejects the suggestion that there could be no reasons for you to act in the way alleged. It is not for the Panel to speculate as to your precise motivation. The issue for the Panel is whether or not, as a matter of fact, it is satisfied, on the balance of probabilities, that you saw visible injuries to Mr B that you failed to record.

The Panel makes it clear that it does not believe that the mere presence of a hernia would be sufficient to establish this part of the Allegation, a hernia not being an injury. However the Panel did rely on the evidence in relation to the hernia as establishing that you did not record everything that you saw at the examination. It is clear that you failed to record that Mr B had a hernia, although the Panel is satisfied that you were told by him that he did. Having been told of the presence of a hernia, it is likely that you would have seen and examined the hernia yourself. Accordingly it cannot properly be said that you recorded everything you saw. This undermines your suggestion that if the injuries to the back and leg were present at the time of your examination you would have recorded them.

 The Panel has reminded itself that, in respect of all paragraphs of the Allegation, the burden of proof rests firmly on the GMC. In this case the Panel formed the view that:-

1.       AM sustained his injuries prior to your examination of him.

2.       Those injuries were visible at the time of your examination of him.

3.       That the conditions under which you examined Mr B were such that you would have seen those injuries.

The Panel concludes that the GMC has established that, on the balance of probabilities, you did see injuries on Mr B at the time of your examination. Furthermore, it concludes that not recording such injuries was a failing on your part.

Paragraph 5(e)(i):

“5.      e.       You failed thereafter

          i.        to ensure that the physical condition of the other civilian detainees then held at Battlegroup Main was assessed, and/or”

has been admitted and found proved.

Paragraph 5(e)(ii):

“5.      e.       You failed thereafter

                   ii.       to notify a superior officer of the circumstances of your                            examination of D004 and Mr B,”

has been found proved

The context of the circumstances of your examinations of D004 and Mr B are clearly relevant.

You had very recently seen and attempted to resuscitate Mr A, who suffered death in custody. The Panel has found that you were aware that he had sustained injuries, both as result of your own observations and what you were told by other members of staff. Very shortly after abandoning resuscitation attempts and having informed Sgt FF of Mr A’s death, you saw two other detainees, D004 and Mr B, both of whom you acknowledged had complained to you of having been assaulted by soldiers.

Your evidence

In your evidence, you told the Panel that you did not report the allegations of assault to anyone “because I did not have any evidence that would uphold that allegation” (D19/77). You went on to say that you believed that the chain of command was already aware of the fact that you were receiving further prisoners “because the guard staff were bringing people across to me. I thought that would then be somehow communicated to other parties that needed to know. It was an assumption on my part I am afraid.” (D20/17).

Expert evidence

Expert evidence was heard on this matter from Dr P and Col R. In the context of two patients, D004 and Mr B, both stating that they had been hit, Dr P was asked what he would expect the doctor to do. He answered, “the minimum I would expect would be obviously speaking to the CO …“ (D17/49). Dr P was also asked whether, “ …following the death of Mr A, if the Panel conclude that Dr Keilloh was aware of the injuries to his body perhaps suggesting that something untoward had happened in the TDF, what would you expect the doctor to do as far as the other detainees are concerned?” Dr P stated “… the issue is telling the commanding officer … just speaking to the OC, the officer commanding …” (D17/22)

Col R stated in his report of 31 May 2012 (page 30) “However, the circumstances surrounding these incidents should have been a major concern. If Dr Keilloh had received appropriate pre-deployment training and there were policies to follow, then I would have expected Dr Keilloh to discuss these incidents with his SMO.”

The Panel acknowledges that there were admitted deficiencies in your pre-deployment training and you had not had specific training in relation to the handling of detainees. However the Panel believes that the issue of reporting concerns is one of common sense and something it would have expected a doctor to do, regardless of whether they had had such specialist training.

It is clear that you did not report anything regarding D004 or Mr B to a superior officer the night that you saw them. You have told the Panel that the next day, at an O Group meeting, you informed the O Group of the presentation of the two detainees, what they had told you, and your findings. This was contrary to your account to the SIB when you had no recollection of discussing the matter with any of your colleagues.

It could be argued that informing the O Group the next day negated any need to inform superior officers of the circumstances of your examinations of D004 and Mr B. However, in the Panel’s opinion, given:

·                     the death in custody and your awareness of some injuries upon Mr A;

·                     your awareness that D004 and Mr B may have been mistreated; and

·                     your seeing injury on Mr B;

there was a requirement to communicate this information to a superior officer that night. Even if the Panel is wrong about that, given its findings you clearly did not inform the O Group of the full circumstances of your examination of D004 and Mr B as you did not tell them that you had seen injury to Mr B and believed that both detainees may have been mistreated whilst in detention.

Allegations of physical mistreatment of detainees by British soldiers were and are a very serious matter, even if the allegations were subsequently found to be not proven. In these circumstances, even if you had not had evidence to support that allegation, it was your duty as a doctor to report the full circumstances known to you to a superior officer as a matter of urgency.

Good Medical Practice (2001) paragraphs 26 and 27 make it clear that the safety of patients must come first at all times and, where there are serious concerns about a colleagues performance, it is essential that steps are taken, without delay, to investigate the concerns, to establish whether they are well founded, and to protect patients. Although this reference in Good Medical Practice relates to the care of patients by other healthcare professionals, this could reasonably be applied to the conduct and performance of other colleagues (i.e. soldiers) who may put patients (detainees) in harm’s way.

In all the circumstances of this case (in particular, you had recently dealt with a man who had died in custody, followed soon afterwards by your examination of D004 and Mr B, both of whom told you that they had been assaulted by British soldiers, and who were in what you were later to describe as “shit state” and, in the case of Mr B, had visible injury), a reasonably competent and responsible doctor would have notified a superior officer of the circumstances of your examination of D004 and Mr B. The Panel therefore finds this paragraph of the Allegation proved.

Paragraph 5(f):

“5.      f.        You failed thereby to take any or any adequate action to safeguard the     wellbeing of the civilian detainees then held at Battlegroup Main;”

has been found proved

You have admitted that you should have ensured that all of the other civilian detainees’ physical conditions were assessed. You have also admitted that both D004 and Mr B alleged that they had been assaulted. The Panel has further found that you were in fact aware that civilian detainees may have been mistreated and that you failed to inform superior officers, or for that matter the O Group, that Mr B had injuries upon him. All of this must further be seen in the context of the death of Mr A.

In all of these circumstances, it must follow that you failed to take any or any adequate action to safeguard the wellbeing of civilian detainees held at BG Main. It was not sufficient to simply assume that others might or would take action. As the RMO, you should have done more to safeguard the civilian detainees.

Paragraph 6(a):

“6.      a.       On 17 September 2003, you made a witness statement to the effect that you were unaware of any injuries to Mr A other than old dried blood around his nose,”

has been admitted and found proved.

Paragraphs 6(b)(i), (ii), (iii) and (iv):

“6.      b.       You maintained that account 

                   i.        in interview under caution on 8 April 2005, and

                   ii.       in evidence under oath at a Court Martial on 11 December 2006, and

                   iii.      in a witness statement to the Mr A Public Inquiry on 13 May 2009, and”

          iv.      in evidence under oath to the Mr A Public Inquiry on 23 November 2009”

have been admitted and found proved.

Paragraph 6(c):

“6.      c.       Your account in this regard was untrue,”

has been found proved

Given the Panel’s findings set out earlier in this determination, your account that you were unaware of any injuries to Mr A other than blood around his nose is untrue. As set out above, the Panel has found that, as a result of what you saw during the resuscitation attempt on Mr A and from what you were told by other medics at the debrief, you were aware that Mr A had further injuries upon him above and beyond blood around his nose. 

Paragraph 6(d)(i):

“6.      d.       Your conduct in this regard was 

i.             misleading,”

has been found proved

Plainly, given the Panel’s findings that you were aware of additional injuries to Mr A other than those set out in your account on 17 September 2003 and further maintained in the accounts listed at paragraph 6(b), your account on 17 September 2003 and subsequent accounts were misleading.

Paragraph 6(d)(ii):

“6.      d.       Your conduct in this regard was 

                   ii.       dishonest;”

has been found proved

In considering this paragraph of the Allegation, the Panel accepted the agreed legal advice given by the Legal Assessor. The Panel has asked itself whether your actions would be considered by the ordinary standards of reasonable and honest people to be dishonest. The Panel, as it has during its deliberations on all of the paragraphs of the Allegation, has considered and taken into account when coming to its conclusions the fact of your good character and the evidence it heard in support of this.

In this case, the Panel has found that you were in fact aware, when you made your statement on 17 September 2003, that Mr A had more injuries upon him than those you chose to describe in that statement. You knew that this statement was part of a formal investigation into his death. You signed the caption at the top of the statement stating that the contents were true to the best of your knowledge and belief. Given the Panel’s findings, you knew that the contents of the statement were not true.   The Panel has taken into account the stressful and difficult circumstances in which you found yourself, but that cannot be an excuse for not telling the truth to the SIB investigator. The Panel believes that such a lie would be considered dishonest by the ordinary standards of reasonable and honest people and that you knew this.

Subsequently, you have repeated what you knew to be an untruth on the occasions set out in paragraph 6(b). The Panel has considered whether or not, given the passage of time, you had in fact now convinced yourself that your earlier statement, made on 17 September 2003, was in fact true and hence, it might be said that you were not acting dishonestly when you repeated its contents on subsequent occasions. Counsel on your behalf did not suggest that this may have been the case and it seems to the Panel that, given the importance of these matters, it is most unlikely that your memory would have become clouded in this way. The Panel is satisfied that when you repeated what you had said on 17 September 2003 on subsequent occasions, where reference was made to you being unaware of any injuries to Mr A other than blood around his nose, you knew that this was untrue.

In these circumstances, the Panel concludes that your actions, both when you made the initial statement and subsequently, were dishonest.

Paragraph 7(a):

“7.      a.       On 17 September 2003, you made a witness statement to the effect that you did not observe any visible injury on the body of D004”

has been admitted and found proved.

Paragraphs 7(b)(i), (ii), (iii) and (iv):

“7.      b.       You maintained that account

                   i.        in interview under caution on 8 April 2005, and

                    ii.       in evidence under oath at a Court Martial on 11 December 2006, and

                   iii.      in a witness statement to the Mr A Public Inquiry on 13 May 2009, and

                   iv.      in evidence under oath to the Mr A Public Inquiry on 23 November 2009” 

have been admitted and found proved.

Paragraph 7(c):

“7.      c.       Your account in this regard was untrue”

has been found not proved

For the reasons set out under paragraph 5(d)(i), the Panel is not satisfied that your account of the injuries you saw on D004 was untrue.

Paragraph 7(d)(i):

         

“7.      d.       Your conduct in this regard was

                   i.        misleading,”

has been found not proved

It follows from the Panel’s findings that your conduct was not misleading.

Paragraph 7(d)(ii):

“7.      d.       Your conduct in this regard was

                    ii.       dishonest;”

has been found not proved

It follows from the Panel’s findings that your conduct in this regard was not dishonest.

Paragraphs 8(a) and (b):

“8.      a.       On 17 September 2003, you made a witness statement to the effect that you did not observe any visible injury on the body of Mr B,”

          b.       You maintained that account in interview under caution on 8 April 2005, and

                   i.        in evidence under oath at a Court Martial on 11 December 2006, and

                   ii.       in a witness statement to the Mr A Public Inquiry on 13 May 2009, and

                   iii.      in evidence under oath to the Mr A Public Inquiry on 23 November 2009,”

have been admitted and found proved.

Paragraph 8(c)

“8.      c.       Your account in this regard was untrue,”

has been found proved

Given the Panel’s findings set out under sub-paragraph 5(d)(ii), your account that you were unaware of any injuries to Mr B was untrue.

Paragraph 8(d)(i):

“8.      d.       Your conduct in this regard was

                   i.        misleading,”

has been found proved

Plainly, given the Panel’s findings that you were aware of visible injuries to Mr B then your witness statement on 17 September 2003 and your subsequent accounts were misleading.

Paragraph 8(d)(ii):

“8.      d.       Your conduct in this regard was

                    ii.       dishonest;”

has been found proved

In considering this paragraph, the Panel accepted the agreed legal advice given by the Legal Assessor. The Panel has asked itself whether your actions would be considered by the ordinary standards of reasonable and honest people to be dishonest.

In this case, the Panel has found that you were in fact aware, when you made your statement on 17 September 2003, that Mr B had visible injuries upon him. You knew that this statement was part of a formal investigation by the SIB. You signed the caption at the top of the statement stating that the contents were true to the best of your knowledge and belief. Given the Panel’s findings, you knew that the contents of the statement were not true. The Panel has taken into account the stressful and difficult circumstances in which you found yourself, but that cannot be an excuse for not telling the truth to the SIB investigator. The Panel believes that such a lie would be considered dishonest by the ordinary standards of reasonable and honest people and that you knew this.

Subsequently, you have chosen to repeat what you knew to be an untruth on the occasions set out in paragraph 8(b). The Panel has considered whether or not, given the passage of time, you had in fact now convinced yourself that your earlier statement, made on 17 September 2003, was in fact true and hence, it might be said that you were not acting dishonestly when you repeated its contents on subsequent occasions. Counsel on your behalf did not suggest that this may have been the case and it seems to the Panel that, give the importance of these matters, it is most unlikely that your memory would have become clouded in this way. The Panel is satisfied that when you repeated what you had said on 17 September 2003 on subsequent occasions, where reference was made to you not seeing any visible injuries on Mr B, you were aware that this was untrue.

In these circumstances, the Panel concludes that your actions, both when you made the initial statement and subsequently, were dishonest.

Next stage

Having reached its findings on the facts, the Panel will now invite the GMC and Defence to adduce further evidence and make any further submissions as to whether, on the basis of the facts found proved, your fitness to practise is impaired.”

Determination on impaired fitness to practise

“Dr Keilloh: The Panel has considered whether your fitness to practise is impaired by reason of misconduct, in accordance with Section 35C(2)(a) of the Medical Act 1983, as amended. In considering the question of impairment, the Panel has taken account of all the evidence presented, both oral and documentary, the submissions made by Mr Kark QC, on behalf of the General Medical Council (GMC), and those made by Mr Langdale QC, on your behalf.

Mr Kark submitted that your actions amounted to serious misconduct and that your fitness to practise is impaired. He took the Panel in detail through Good Medical Practice 2001 (the edition that was in use in 2003). He submitted that, whilst the circumstances within which you were practising were not akin to the usual clinical environment envisioned in Good Medical Practice, nevertheless, the principles still apply. He categorised your actions as a significant series of failings in respect of patient care; that they demonstrated a significant disregard for the health and wellbeing for the detainees under your care; and that your repeated dishonesty, as found by the Panel, damaged public trust in the profession. Mr Kark took the Panel to each of the paragraphs in Good Medical Practice that he submitted your conduct had breached.

Mr Langdale made no submissions in respect of the Panel’s findings in relation to dishonesty. However, in respect of the other matters which relate to your clinical practice and decision-making, he submitted that the Panel may properly find that your fitness to practise is not impaired. He asked that the Panel bear in mind the following:

• The circumstances of your deployment;
• Your lack of training;
• You did not receive an induction process prior to deployment;
• Your lack of knowledge of the unit to which you had been posted;
• Your lack of any acclimatisation period;
• The defective handover process in that there was no written brief and the presence of the detainees was not mentioned to you;
• You needed but received no supervision and/or support from senior medical officers.

He reminded the Panel of the action you took, of your own volition, to change the then practice in respect of medical records for detainees shortly after the death of Mr A.

He also asked that the Panel bear in mind that more than one witness has given evidence at this hearing that Mr A’s death and the surrounding circumstances amounted to a “watershed case” in terms of military attitudes, the issue of detainees in general and the awareness of the risk of ill treatment of detainees by the British soldiers charged with guarding them. You had not expected, on deployment, that you would have to deal with civilian detainees, nor had you been trained in this.

The issue of whether your fitness to practise is currently impaired is one for the Panel to determine exercising its own judgment. The Panel has taken into account the public interest which includes the need to protect patients and the public, to maintain public confidence in the profession, and to declare and uphold proper standards of conduct and behaviour.

The Panel accepted the agreed legal advice given by the Legal Assessor. The Panel followed the approach and guidance set out in the case of CHRE v Nursing and Midwifery Council & Paula Grant [2011] EWHC 927 (Admin) and the agreed direction as to how it should approach individual findings of fact in respect of its overall consideration of whether your actions and omissions amounted to misconduct (taken from the guidance in Calhaem [2007] EWHC 2606 Admin).

The Panel first considered whether your failings amounted to misconduct. It considered that these fell under three broad headings:

• Clinical failings
• Failure to safeguard civilian detainees
• Probity

Clinical failings

The Panel considered that paragraphs 2, 3, 4(c) and 5(d)(ii) of the Allegation as found proved fell under this category.

Paragraph 2

The Panel found that your failure, prior to 17 September 2003, to ensure that written records were made of the medical examinations of every detainee did not amount to serious misconduct. It has heard that, at that time, there were no standing orders as to how detainees should be treated or as to what your role as a Regimental Medical Officer (RMO) was in respect of their treatment. It seems clear to the Panel that the accepted systems in place in the Army as a whole at that time were inadequate. You had been informed of and followed the established system in place at the time of your arrival at BG Main and which was adopted by the previous RMO. The expert evidence before the Panel was that, whilst this failure was below the standard expected of a reasonably competent medical practitioner, it was not seriously below the standard.

Paragraph 3

In respect of your prescription of propranolol for D006 without seeing him and assessing his medical condition, you admitted your failures in each of the relevant paragraphs. The Panel took account of the expert evidence that propranolol was potentially harmful and should not be prescribed without seeing and assessing the patient. D006 was assessed on your behalf by a medic prior to you prescribing propranolol, but Dr P told the Panel that such an assessment was outwith the training and competencies of a military medic. You acknowledged that there was no barrier preventing you from seeing D006 yourself.

The Panel has taken account of paragraph 3 of Good Medical Practice 2001 which states:

          “3.      In providing care you must:

                   …

·                     prescribe drugs or treatment, including repeat prescriptions, only where you have adequate knowledge of the patient’s health and medical needs…”

Professor Q’s opinion was that you should have assessed D006 and that prescribing propranolol without doing so was sub-standard practice. However, he did not view it as seriously below the standard of care in Good Medical Practice. Dr P and Col R did not express a specific view as to whether this amounted to serious misconduct,

The Panel finds that, although in the circumstances there were no adverse effects for D006, you placed your patient at risk of harm by failing to assess him yourself prior to prescribing such a drug. This was, in the Panel’s view, conduct that should not in any circumstances have occurred. However, it was a single incident and there is no evidence it has ever been repeated. Accordingly, the Panel concludes that this single clinical incident did not amount to serious misconduct.

Paragraph 4(c)

In respect of your failure to examine Mr A’s body after his death, there was considerable difference between the opinions of the experts as to whether or not any examination should have been carried out. Although the Panel found that, in the circumstances of a death of a detainee at a military base, you should have carried out a visual examination of Mr A’s body, it considers that, as you knew that there would be a post mortem examination and investigation into Mr A’s death, this failure did not amount to serious misconduct. 

Paragraph 5(d)(ii)

In respect of your failure to record visible injuries to Mr B’s body, the Panel has taken account of the context of your examination. Mr B was a detainee at the military base of an occupying force. Given the nature of the allegations made by Mr B and another detainee against the soldiers who were guarding them and the circumstances of Mr A’s death, the Panel found that it was particularly important that you recorded all of your clinical findings. This scenario is very different from the general requirement that you should have made records of all examinations of detainees, including negative findings, as set out in paragraph 2 of the Allegation.

Paragraph 3 of Good Medical Practice 2001 states:

“3.      In providing care you must:

                   …

·                     keep clear, accurate, legible and contemporaneous patient records which report the relevant clinical findings …”

In the light of all of the above, the Panel finds that your failure to record any visible injuries to Mr B amounted to serious misconduct.

Having considered your clinical failings as a whole, the Panel is not satisfied that the failings in paragraphs 2, 3 and 4(c) of the Allegation as proved are relevant to its finding in relation to paragraph 5(d)(ii). Accordingly, the failings in paragraphs 2, 3 and 4(c) form no part of the Panel’s consideration on impairment by reason of clinical misconduct. However, in any event, even if these clinical failings were to be taken into account, it would not alter the Panel’s conclusion on impairment by reason of clinical misconduct.

Impairment by reason of clinical misconduct

The Panel then considered whether your fitness to practise is currently impaired as a result of your clinical misconduct. In doing so, it has taken account of whether your failings were remediable, whether they have been remedied and whether any repetition is likely.

The Panel is satisfied that such misconduct is remediable. You are no longer a military doctor and are highly unlikely to be placed in such an unusual situation again. Nevertheless, the need for clear and accurate patient records is a fundamental requirement of any doctor, whether in a civilian or military setting. The Panel has no evidence before it that, in the nine years since the events in question, there has been any repetition of your misconduct. Indeed, the evidence before the Panel demonstrates that you are a good clinician, conscientious in your work and respected by your professional colleagues.

Further, the Panel does not find that a finding of impairment is required in the public interest in respect of your clinical misconduct.

In these circumstances, the Panel determined that your fitness to practise is not impaired by reason of your clinical misconduct.

Failure to safeguard civilian detainees

The Panel considered that paragraphs 4 and 5, but in particular paragraphs 4(d), 4(e), 5(e) and 5(f) fell under this category.

The opening page of Good Medical Practice 2001 states:

“… as a doctor you must:

·                     make the care of your patient your first concern;”

This is a fundamental tenet of the medical profession.

You had several opportunities to check on the other detainees given the circumstances which unfolded before you and which should have alerted you, with increasing urgency, of the need to do so. Having been present at the time and confirmed his death, you were aware that Mr A had died in custody. The Panel has found that you had observed visible injuries to Mr A’s body during your attempted resuscitation. Following this, two detainees came to see you for medical attention, complaining of being beaten by British soldiers. The Panel found that you observed visible injuries on one of these detainees. In these circumstances, the Panel considers that the requirement to check on the other detainees, inform superiors of what you had seen, and take steps to safeguard all of the detainees (including the two you had examined) were matters of common sense and urgency. Furthermore, the Panel considered this to be a primary duty of any medical practitioner.

The Panel determined that your failure to adhere to this fundamental tenet of the medical profession amounted to serious misconduct.

Impairment by reason of failure to safeguard

When assessing any future risk posed to patients by your misconduct, the Panel has borne in mind the unusual circumstances in which your failings occurred. You were a young and relatively inexperienced doctor working in a warlike situation, deployed with inadequate training, no medical supervision, no effective handover, and no military policies to guide you regarding your role in the care of detainees. The safety of the detainees was not your responsibility alone. Furthermore you, along with no doubt many others, held a belief that the high standards in the British Army meant that despite the allegations of the detainees, no British soldier would have unlawfully assaulted them.

The Panel has taken account of the fact that your clinical practice and your fulfilment of your duties as a medical practitioner have not been called into question since the time of these events. It has been provided with evidence that since 2003 in your civilian practice, you have, when necessary, raised safeguarding concerns with the relevant authority.

Having taken account of the circumstances at the time and the positive evidence before it of your appropriate practice since 2003, the Panel considers any repetition of your misconduct highly unlikely. It is satisfied that you do not present a risk to patients.

Nevertheless, the Panel has also considered the public interest. It has taken account of paragraph 74 of CHRE v NMC & Grant where Mrs Justice Cox states:

“In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

The Panel considers that the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in respect of your failure to safeguard the detainees despite the information before you at that time which indicated that they were at risk of harm. Accordingly, the Panel determined that your fitness to practise is impaired in relation to your breach of a fundamental tenet of the profession.

Probity

The Panel considered that paragraphs 6 and 8 fell under this category.

The Panel has found that you gave dishonest accounts as to the injuries you had seen on both Mr A and Mr B to several public authorities who were attempting to investigate the death of a civilian detainee at the hands of British soldiers. The Panel considers that this fell well below the standard expected of a medical practitioner.

The Panel accepts that there was no apparent personal gain from your actions and it has not speculated as to the reason for your conduct. Nevertheless, probity is essential to the trust that the public places in the medical profession.

The opening page of Good Medical Practice 2001 states:

“… as a doctor you must:

          …

·                     be honest and trustworthy;”

The Panel is in no doubt that your dishonesty amounted to serious misconduct.

Impairment by reason of dishonesty

Given the fact that you have maintained your account over the years to several public investigations into Mr A’s death, the Panel considers that a finding of impairment is necessary in order to uphold proper professional standards and public confidence in the profession.

Accordingly, the Panel determined that your fitness to practise is impaired by reason of your dishonesty.

Overall finding

For all of the reason set out above, in the Panel’s judgement, your fitness to practise is currently impaired by reason of your misconduct.

Next stage

The Panel now invites any further evidence and submissions from both Counsel as to the appropriate sanction, if any, to be imposed upon your registration. Submissions on sanction should include reference to the Indicative Sanctions Guidance, using the criteria set out in the guidance to draw attention to the issues which appear relevant in this case.”

Determination on sanction

“Dr Keilloh: The Panel has determined that your fitness to practise is impaired by reason of your misconduct. It has now considered what action, if any, to take in respect of your registration.

Mr Kark QC, on behalf of the General Medical Council (GMC), submitted that your breach of fundamental tenets of the profession, namely your failure to protect patients, coupled with your persistent dishonesty, means that the only appropriate sanction in this case is one of erasure. He suggested that the Panel must ask itself the question, ‘Can the public and Dr Keilloh’s professional regulatory body trust him as a doctor?’ He reminded the Panel that probity is an essential part of the profession.

Mr Langdale QC, on your behalf, submitted that you are a doctor who should properly be kept on the Medical Register. He reminded the Panel of the unique nature of the circumstances surrounding the events which have brought you here, describing them as a “watershed case” in military history. He drew the Panel’s attention to the testimonials by your colleagues and patients, and he submitted that it was remarkable for a doctor of your age and experience to receive so many excellent testimonials from such a broad spectrum of professionals and patients. He acknowledged that in many dishonesty cases erasure is the only appropriate sanction. However, he submitted that this is not one of those cases because: (i) the circumstances here are unique; and (ii) suspension would meet the justice of the case. He then took the Panel, in detail, through the factors and reasons which he submitted meant that a sanction of suspension was appropriate and sufficient to protect the public interest. The Panel does not set this out in full but has taken very careful regard to these submissions.

The Panel accepted the agreed advice provided by the Legal Assessor.

Whilst it has taken account of both submissions, the matter of what action to take, if any, is one for the Panel.

The Panel has had regard to the GMC’s Indicative Sanctions Guidance, April 2009 as amended (“the Guidance”). The purpose of a sanction is not to be punitive but to protect patients and the wider public interest. The public interest includes the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. The Panel has also borne in mind the principle of proportionality, weighing the interests of the public with your interests.

Context of your misconduct in Iraq

In considering what action to take, if any, the Panel has kept firmly in mind the unusual circumstances within which your misconduct took place. The Panel has heard that you were a relatively inexperienced doctor, unexpectedly thrust into a war zone at very short notice to supply the highest levels of clinical care with little support or supervision.

In August 2003, you were still a junior doctor needing six months’ further training before you would qualify as a General Practitioner. In a civilian context, your practice would have continued under supervision for a further six months. The Panel has heard of the wide-ranging and complex nature of the role of a Regimental Medical Officer and the attendant need for support and supervision.

The Panel heard expert evidence that it is usual for there to be further information and training before deployment so that the individual is aware of their role and able to prepare for their deployment.

You had attempted to arrange your own pre-deployment training, but were unable to secure this. Dr P told the Panel that currently, until a person has done their mandatory pre‑deployment training, they are unable to deploy. However, the pressures and intensity of the situation at that time meant that this was not always possible. You were deployed at short notice, in the early hours of the morning, to a unit in a hostile warlike zone, of which you had no knowledge.

Furthermore, the handover on your arrival was ineffective and contained no written brief of procedures or current issues. On your arrival at BG Main in August 2003, you were not made aware of the presence of detainees and there was no clarity as to your role and responsibilities regarding their care and welfare.

Finally, the Panel has taken account of the general conditions within which all those in Basra were operating at the time. The Panel has heard of the oppressive and constant heat, the long hours and the distressing environment within which you were living. In your oral evidence, you told the Panel that you felt that you were never off duty and you were “surrounded by death”.

Consideration of sanction

No action

The Panel first considered whether it would be appropriate to conclude this case by taking no action on your registration. The Panel identified in its determination on impairment that the need to uphold proper standards of conduct and behaviour and to maintain confidence in the profession are the central issues in your case. In view of this focus on the public interest and the gravity of its findings both in respect of the safeguarding of patients and of your dishonesty, the Panel determined that it would be wholly inappropriate to take no action.

Conditions

The Panel next considered whether placing conditions on your registration would be sufficient. Any conditions must be appropriate, proportionate, workable and measurable.

Again, it is the Panel’s view that a sanction of conditions would not be proportionate as it would not adequately address the public interest in this case. Furthermore, the Panel’s findings of fact do not relate to clinical deficiencies that are amenable to re‑training. It has also made several findings of dishonesty which are unlikely to be amenable to conditions. Therefore, the Panel could not envisage the formulation of conditions that would be appropriate, workable or measurable.

Suspension

The Panel then considered whether to impose a period of suspension on your registration. In so doing, the Panel has considered its findings of impairment. These were in respect of Safeguarding and Probity. It has considered these below.

Safeguarding

As set out in its determination on facts, the Panel wishes to re-state that the responsibility for the injuries to the detainees rests with the British soldiers who inflicted unlawful violence upon them. There were also clearly failings by others with responsibility towards safeguarding the welfare of the detainees. Nevertheless, your failure to check on the detainees left them at risk of harm. They were vulnerable at the time they were being held and did not have the freedom to come to see you as and when they wished or needed.

In your oral evidence you acknowledged that you should have gone to check on the detainees, despite the (as it turned out misplaced) reassurance you felt because it was those guarding the detainees who were bringing them to you for medical attention. The Panel accepts that you have shown some insight into your misconduct in this regard. Furthermore, it is to your credit that within two days of these events you, together with others, designed and implemented a proper system for the assessment and safeguarding of detainees.

The Panel has taken account of the evidence before it that, since your return to civilian life, you have, when necessary, raised safeguarding concerns with the relevant authority. It has already stated that it considers any repetition unlikely and has concluded that you do not present a risk to patients.

The Panel has also taken account of the three A4 lever arch files of testimonials received from patients and colleagues. It is clear to the Panel that you are a highly respected and dedicated doctor with excellent clinical skills who is trusted and respected by colleagues and patients alike. Nevertheless, your failure to safeguard vulnerable detainees is likely to damage the confidence which the public has in the profession.

Probity

The Panel considers that the context in which you made your witness statement to the SIB on 17 September 2003 is a strong mitigating factor. It has taken account of the intensity of your daily life, the pressure of long hours of often intense work and the distressing nature of the events you had recently experienced. You and your team of medics had tried your best to resuscitate Mr A and had failed. The Panel has deliberately avoided speculating about the motive for your failure to give a true account to the SIB on 17 September 2003. The Panel repeats that it does not accept that there is no sensible motive, but it has not been asked to make a factual finding in relation to motive and therefore it has not done so. The Panel does however accept that the traumatic experience of Mr A’s death, together with your exhaustion and the general conditions under which you were working may have clouded your judgement in the days immediately following his death.

However, the Panel’s findings of dishonesty are not confined to your witness statement of 17 September 2003. The Panel has found that you maintained your dishonesty in your interview under caution on 8 April 2005, in evidence under oath at a Court Martial on 11 December 2006, in a witness statement to the Mr A Public Inquiry on 13 May 2009, and in evidence under oath to the Mr A Public Inquiry on 23 November 2009. These accounts were not given in the context of a highly charged warlike situation following a traumatic event when you were exhausted. These accounts were given once you had returned to a civilian environment with none of the intense pressures set out above. By the time you gave the account on 8 April 2005 and thereafter, you had had ample time to reflect on the events of that night, on what you had seen, and on the inaccurate account you had given in your statement to the SIB on 17 September 2003.

It is of particular concern to the Panel that these accounts were given under oath or with an accompanying statement of truth signed by you. Furthermore, they were given in the course of official inquiries attempting to investigate and discover the truth of the events of September 2003. The mitigating context described to the Panel in detail by Mr Langdale is simply not relevant to your dishonest conduct from 2005 onwards. The Panel does not accept that it was impossible for you to correct your initial inaccurate account. Instead, you chose to maintain it. Given the national and international importance of these investigations and the need to uncover the truth of what took place, your repeated dishonesty was wholly unacceptable.

The Panel has taken account of the large volume of testimonials provided on your behalf which it has read in full. It appears that, in all other areas of your professional and personal life, you are regarded as an honest, decent man of integrity. It has balanced this view of your character with its findings of fact that you gave a dishonest account which you maintained through several different official investigations.

The Panel was also referred to print outs of a Facebook page and an iPetition. As both parties agreed, less weight can be attached to these documents, but in any event, they simply reiterate many of the comments in the testimonials that the Panel has taken into account.

The Panel was also referred to three letters from Dr HH, Medical Director and Director of Primary Care, North Yorkshire and York NHS Trust. The Panel makes it clear that it has not relied upon the content of those letters, save where they lend support to your case.

Indicative Sanctions Guidance

The Panel has taken account of the fact that suspension of a doctor’s registration has a deterrent effect and can be used to send a signal to the doctor, the profession and the public about what is regarded as behaviour unbefitting a doctor. It has identified the public interest as the key issue in your case. Accordingly, it has considered whether a period of suspension would be sufficient to address the public interest, having taken account of the factors it has set out above.

Paragraph 75 of the Guidance sets out a non-exhaustive list of factors that may be apparent when a sanction of suspension may be appropriate. The Panel has detailed those it considers may be relevant to a misconduct case of this nature as follows:

·                     “A serious breach of Good Medical Practice where the misconduct is not fundamentally incompatible with continued registration and where therefore complete removal from the register would not be in the public interest, but which is so serious that any sanction lower than a suspension would not be sufficient to serve the need to protect the public interest.

·                     …

·                     No evidence of repetition of similar behaviour since incident.

·                     Panel is satisfied doctor has insight and does not pose a significant risk of repeating behaviour.”

These factors do not accord with the Panel’s findings in your case.

Although the Panel found that there has been no repetition of your failures in respect of safeguarding, the very nature of its findings in respect of your dishonesty is that it has been repeated, up to and including the account you gave to this Panel.

The Panel has also identified only limited insight into your misconduct. Whilst it considers it highly unlikely that you would repeat your misconduct in respect of safeguarding, it has no evidence to assure it similarly in respect of dishonesty. In coming to this conclusion, the Panel has borne in mind the many letters attesting to your honesty and integrity. However, it is the opinion of the Panel that these letters cannot outweigh its findings of repeated dishonesty and the consequent necessity for the damage to the public confidence in the profession to be addressed.

In coming to this conclusion, the Panel has taken account of the principles set out in Bolton v The Law Society [1994] 1 WLR 512, [1993] EWCA Civ 32 which are equally applicable in the case of a medical practitioner:

‘Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely to be, so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. 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.’

In these circumstances, the Panel concluded with regret that the suspension of your registration is not sufficient to reflect the unacceptability of your conduct in giving untrue accounts in sworn statements and evidence under oath over several years. Given the Panel’s findings, the suspension of your registration even for the maximum period of 12 months would not be sufficient to declare and uphold proper standards of conduct and behaviour and to maintain public confidence in the profession. Furthermore, it would not send a strong enough signal to you, the profession and the public about what is regarded as behaviour unbefitting a doctor.

Erasure

In all the circumstances, the Panel determined that erasure is the only appropriate sanction in this case. It considered that this action is the only way proper standards of conduct and behaviour may be upheld and trust in the profession as a whole may be restored.

The Panel has identified serious breaches of Good Medical Practice and, given the gravity and nature of the extent and context of your dishonesty, it considers that your misconduct is fundamentally incompatible with continued registration.

Probity is at the heart of medical professionalism and at paragraph 111, the Guidance makes it clear that dishonesty, especially where persistent, is likely to result in erasure.

In making this decision, the Panel has taken account of your undoubted professional expertise, the respect in which you are held, your popularity with your patients and the loss to the medical community and public that the erasure of a skilled doctor such as yourself entails. However, it is not your clinical competence that is in issue. It is the damage to the profession as a whole and to you as a doctor that your misconduct, particularly relating to repeated dishonesty, has caused. The Panel is bound to observe that the mitigation in your case cannot outweigh the gravity of its findings of fact in respect of your dishonesty from 2005 onwards.

The effect of this direction is that, unless you exercise your right of appeal, your name will be erased from the Medical Register 28 days from the date on which notification of this decision is deemed to have been served upon you.

Next stage

The Panel now invites both Counsel to make submissions as to whether an immediate order is necessary.”

Determination on immediate sanction

“Dr Keilloh: Having determined that your name should be erased from the Medical Register, the Panel has now considered, in accordance with Section 38(1) of the Medical Act 1983 as amended, whether it should suspend your registration immediately.

The Panel has taken account of the submission of Mr Kark QC, on behalf of the General Medical Council, that, in view of the Panel’s decision that erasure was necessary in the public interest alone and that you do not present a risk to patients, an immediate order is not necessary.

It has also taken account of the submission of Mr Langdale QC, on your behalf, that an immediate order is not necessary.

The Panel is satisfied that you do not pose a risk to patients. It has a large amount of information before it that you are an excellent doctor. It considers that, in erasing your name from the Medical Register, it has sent an unambiguous signal to you, the profession and the public about what is conduct unbefitting a doctor. It is satisfied that the substantive sanction of erasure is sufficient to meet the public interest in this case.

Accordingly, the Panel has determined that it is not necessary for the protection of patients, nor is it otherwise in the public interest or your own interests to make an order suspending your registration forthwith.

That concludes this case.”

Confirmed

21 December 2012                                                    Dr Brian Alderman, Chairman