Anthony Haycroft successfully represented a Scottish hospital doctor in an 8 day Fitness to Practise hearing in Manchester against an allegation of rape whilst he was a medical student, from a fellow medical student, at his home after an evening of drinking. The doctor was not prosecuted by the Scottish authorities where the criminal rules of evidence are different from those in England. Scots law is akin to English law pre-1994 and so there is an absolute right to silence in police interviews and in relation to giving evidence at trial. In addition, all sexual offences must be corroborated by independent evidence. These rules do not automatically apply in the MPTS and so a Scots doctor may potentially incriminate himself.

The GMC decided to bring FTP proceedings. The complainant gave evidence and was cross examined via video link from abroad.

The case was legally complex: the doctor intimated he would not give evidence but merely call other evidence as he wished to exercise his absolute right of silence under Scots law. He called a “skilled” witness in Scots law (ie the equivalent of an expert witness in Scotland) in support of his position. The GMC sought to argue that the MPT could draw “adverse inferences” from his failure to give evidence, which the defence resisted. There is currently no authority on the point and the FTP Rules of 2004, which have been revised as recently as 2017, do not allow for adverse inferences to be drawn expressly in these circumstances.

There was a day of legal argument on this issue at the conclusion of the GMC case. The MPT accepted Mr Haycroft’s argument that it should not draw any such inferences and the doctor did not give evidence.

After two days of deliberations on the facts, the Tribunal acceded to Mr Haycroft’s submission that a “heightened examination of the facts” was called for and that, upon such an exercise, “cogent evidence” of proof was lacking. None of the charges were found proved by the MPT, which found the complainant’s evidence inconsistent in places. They did find consensual sexual intercourse had occurred although not admitted. Although the Tribunal also found “sexual motivation” proven, no misconduct was found as the matter was consensual. This is the second adverse inference case which Anthony has defeated in as many months.

Anthony Haycroft was instructed by Laura Donald and Georgia Rose of BTO solicitors, Edinburgh, supported by Dr Claire Macauley of the Medical Defence Union