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
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
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