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Blow for Freeman as GMC secures change to key Testogel allegation

Richard Freeman could be struck off the medical register and face doping charges as a result of the tribunal
(Image credit: Getty Images)

Former British Cycling and Team Sky doctor Richard Freeman suffered a blow at the start of his medical tribunal on Thursday, as the General Medical Council (GMC) secured a significant amendment to one of its allegations.

The allegation in question concerns the 30 sachets of testosterone gel – or Testogel – delivered to British Cycling and Team Sky headquarters in Manchester in June 2011, which Freeman last week admitted to ordering.

Originally, the allegation read: “Your motive for placing the order was to obtain Testogel to administer to an athlete to improve their athletic performance.”

When the hearing reopened last week, after the original tribunal was scrapped in February, the GMC, which is bringing the case against Freeman, applied to amend the allegation to remove the notion of ‘motive’.

Having long debated the matter, with Freeman’s lawyer firmly opposed, the tribunal ruled in favour of the GMC on Thursday morning, with the serious accusation that the Testogel "was to be administered to an athlete to improve their athletic performance."   

Freeman and his legal team have claimed the Testogel was for former Team Sky and British Cycling coach Shane Sutton. He has denied that.

The allegation now reads: “12. You placed the Order and obtained the Testogel:

"a. when you knew it was not clinically indicated for the non-athlete member of staff.

"b. knowing or believing it was to be administered to an athlete to improve their athletic performance."

Freeman’s lawyer, Mary O’Rourke QC, said she and her client were “very disappointed” with the outcome. O’Rourke had argued that the amendment “would fundamentally change the GMC’s case”, according to a summary from the tribunal chair, Neil Dalton.

“In relation to 12b, Ms O’Rourke submitted that, by changing the words from ‘your motive …’ to ‘knowing or believing …’, the GMC was trying to relieve itself of the burden of establishing what was in Dr Freeman’s mind.”

However, the GMC’s lawyer, Simon Jackson QC, argued the amended allegation still represented a ‘high threshold’ for the GMC to meet. “Mr Jackson’s concern was that Dr Freeman could say, in terms, that ‘Testogel was for a third party, I don’t know what was going to happen to it ’,” said Dalton.

In terms of any anti-doping charges that could arise, with UK Anti-Doping awaiting the outcome, the new allegation, if substantiated, would reduce the level of responsibility on Freeman’s shoulders and leave room for influence from other people.

O’Rourke also argued that to defend himself against the new allegation, it would be necessary for Freeman, who she described as a ‘jobbing GP’, “to have evidence from an expert in GP practises to describe what a reasonable GP would ‘know or believe’.” 

While she contested Freeman did not currently have access to such an expert, Jackson argued the two-month allocation for the case – almost double that of the original February hearing – gave them ample time to consult one.

O’Rourke also took issue with paragraph 12a, which she felt contradicted assertions elsewhere that Freeman had been untruthful in previously claiming the Testogel was ordered for a non-athlete member of staff. Jackson argued it ‘simply reflected’ updates to Freeman’s testimony heard last Tuesday.

After discussions that took two days longer than predicted, the tribunal granted the amendment stating there was “no injustice” in doing so.

The change, Dalton said, “is said to reflect the GMC’s more recent, nuanced understanding of Dr Freeman’s position arising from his statement of 24 September 2019”, in which Freeman admitted he had previously told lies.

The tribunal rejected O’Rourke’s argument over the relevance of paragraph 12a and her description of Freeman as a ‘jobbing GP’.

“Dr Freeman was, in his own words, a consultant in sports and exercise medicine. At the time of the matters in question, he indicates that he was a member of Team Sky’s ‘Anti-Doping working group’,” said Dalton. “In the circumstances, the Tribunal was not persuaded that there was any unfairness to him by the absence of an expert to address what a ‘jobbing GP’ would ‘know or believe’ about the allegation.”

Vulnerable witness

Thursday morning also saw Freeman granted an application of his own, to be treated as a ‘vulnerable witness’.

Freeman will therefore be shielded from the public gallery – where the media sit – by a screen when giving evidence. He will also be shielded from Shane Sutton if he is present when Sutton is giving evidence. Freeman will give evidence for no more than three hours a day and will be granted breaks in the morning and afternoon in addition to the lunch break.

Freeman’s struggles with mental illness, including severe depression and suicidal thoughts, have been well documented and are understood to the reason for the adjournment of the hearing back in February. Freeman’s health previously prevented him from giving evidence in person to the UK Parliament Department for Culture, Media and Sport (DCMS) select committee inquiry into doping in sport in 2017, and to UK Anti-Doping.

The GMC did not oppose the application and it was granted by the tribunal as “reasonable adjustments which could be made to help him [Freeman] engage with the tribunal process”.

Sutton is the key witness in the case, given Freeman claims the Testogel was intended for his use. Sutton denies this, with the GMC set to call on evidence from an endocrinologist to show Sutton would have no medical need for testosterone.

Testosterone is banned in and out of competition and, if the GMC can stand up their allegation that it was administered to an athlete, it would be immensely damaging for British Cycling and Team Sky. UKAD has reportedly been assured the World Anti-Doping Agency’s new 10-year statute of limitations – upgraded from eight in 2015 – would be applicable, giving them until 2021 to press charges.