Anantha Padmanabha Pillai Anil Kumar v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 10 October 2012 |
| Neutral Citation | [2012] EWHC 2688 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5848/2011 |
| Date | 10 October 2012 |
[2012] EWHC 2688 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/5848/2011
Mr Nicholas Peacock (instructed by Eastwoods Solicitors) for the Claimant
Mr Timothy Dutton, QC (instructed by GMC Legal) for the Defendant
Hearing dates: 19 th and 20 th June 2012
The Claimant is a consultant psychiatrist, whose registration was ordered to be suspended for four months by a Fitness to Practise Panel of the General Medical Council on 26 May 2011. This followed its findings that his fitness to practise was impaired by misconduct relating to evidence he gave as an expert witness for the defence in a murder trial in 2009. The trial judge had referred him to the GMC because of his concerns about Dr Kumar's evidence. He appeals pursuant to section 40 of the Medical Act 1983. He contends that the Panel's decision was wrong: it ought not to have found proved one of the charges, namely that he had failed to disclose that he had no previous experience of acting as an expert witness in a homicide case; and more importantly it had wrongly found that he had been reckless in a number of respects in his work as an expert. It ought not to have found that his fitness to practise was impaired, nor ought it to have imposed the sanction of suspension, let alone with the requirement for a review at the end of the period of suspension. This sanction would cause Dr Kumar to lose his appointment as a consultant psychiatrist at an NHS Foundation Trust hospital. The suspension has not taken effect pending the outcome of this appeal.
The facts in outline
Andrew Day stabbed his girlfriend to death on 26 May 2008. (I see no reason in this case to apply the normal practice of anonymising the person with whom the registrant was dealing). He was arrested after telling someone at a garage shortly afterwards that she had been stabbed. His interview with the police and his instructions to his solicitors led them to believe that he might have a defence of diminished responsibility under s2 of the Homicide Act 1957, (pre-amendment in view of the date of the offence). His solicitors' employee, Mr Bucinikas, came across Dr Kumar, and instructed him in August 2008. He used his medico-legal consultancy for this work. He prepared a report dated 24 September 2008 based on an interview with Day and on reading his interview with the police. Dr Kumar concluded that Day lacked intent to commit murder and also had a condition called Intermittent Explosive Disorder, IED. Dr Kumar produced a second report on about 22 December 2008, after a further interview with Day, in response to questions raised by his QC; this report also responded to the contrary views expressed on behalf of the Crown in a report from Dr Joseph. On 16 January 2009, Dr Kumar gave evidence at the trial in Luton. He found that a difficult experience. The multiplicity of deficiencies in his expertise, experience, preparation, diagnosis of IED, his obligations of disclosure to the court and in his understanding of the legal framework for diminished responsibility were laid bare. The jury rejected the defences of lack of intent, and diminished responsibility. There has been no appeal. After the verdict, the trial judge, HHJ John Bevan QC, summarised the defects in Dr Kumar's work and referred him to the GMC, with a view to his undertaking training on the role of an expert in criminal trials: he thought that Dr Kumar had at times shown an embarrassing lack of professionalism. This led to Dr Kumar being charged by the GMC with misconduct.
The charges
The charges took the form of a series of paragraphs dealing with the various stages of Dr Kumar's involvement, from acceptance of instructions to the preparation and content of his two reports and his giving of evidence in Court. Much of their content was not disputed. The charges then alleged that those acts had been done recklessly, or were misleading or fell below the standard of a reasonably competent psychiatrist expert witness.
The charges recite that the email from the defence solicitors dated 11 August 2008 contacting him mentioned the possible defence of diminished responsibility, and that he would be instructed to report on Day's " mens rea" at the time of the offence. Paragraph 3 of the charges said (a) that Dr Kumar accepted the instructions, which was not at issue, and (b) that Dr Kumar "did not disclose that you had no previous experience of acting as an expert witness in a case of homicide". Dr Kumar contested that latter point which the Panel found proved. He appeals against that finding.
Paragraph 4 was not disputed: the September report (a) made no mention of section 2 of the Homicide Act 1957, (b) expressed the opinion that Day (i) was suffering from the medical condition IED, (ii) had no intention of harming the victim, (c) did not explain that IED was not recognised in the International Classification of Diseases, ICD, and was a controversial diagnosis. Paragraph 5 was also not disputed: the September report made no reference to the fact that Dr Kumar had not read the prosecution witness statements, and did not acknowledge, by making clear reference to, the provisional nature of the report, in view of that omission.
Paragraph 6 made the undisputed point that on 12 December 2008, Dr Kumar received the Crown's report from Dr Joseph which did refer to the Crown's witness statements. Paragraph 7 dealt with the Addendum report of about 22 December. The charges here were that it (a) made no mention of s2 of the 1957 Act, (b) repeated the diagnosis of IED, (both accepted by Dr Kumar), (c) made no mention of the fact that he had not read the witness statements, a disputed charge which the Panel found proved, (d) stated that he did not have the CPS file when preparing it, which he accepted he said, and said was true, (e) did not acknowledge, by making clear reference to, the provisional nature of the report in view of the omission alleged in 7(c), a charge found proved, and (f)(i) did not explain that IED was not recognised in the ICD, as he admitted it did not, and (ii) was a controversial diagnosis, which was found proved.
Paragraph 8 of the charges dealt with the making of the diagnosis of IED: (a) it was admitted that Dr Kumar omitted from both reports that the diagnostic criteria for IED in the Diagnostic and Statistical Manual of Mental Disorders, DSM-1V, upon which he relied, excluded aggressive episodes caused by the direct physiological effects of a substance; (b) it was found proved that Dr Kumar had not taken proper account of the possible role of alcohol in incidents when dealing with Day's account. The Panel also found proved (d) that the diagnosis did not take proper account of the diagnostic criterion that the degree of aggressiveness had to be grossly out of proportion to its precipitant, and (e) that Dr Kumar had also wrongly relied on episodes of self-harm by Day.
Paragraph 9 dealt with the evidence given by Dr Kumar at Court. He had stated that (a) he had prepared reports in " four or five " murder cases, (b) had not seen the prosecution statements, (c) had based his opinion on what Day told him had happened and on the interviews conducted with him, (d) he had not challenged Day in respect of contradictory accounts given by him, (this related to very different descriptions in the two reports of Day's stepfather's behaviour and attitude towards him when young), (e) ICD 10 was not the manual of choice for listing accepted psychiatric diagnosis in the UK, (f) he was not asked to comment on Day's criminal responsibility, (h) that Day had IED, and (i) that a diagnosis of IED constituted an abnormality of mind for the purpose of s2 of the 1957 Act. These were admitted. The Panel also found proved paragraph 9(k)(i): that Dr Kumar had stated in Court that "serious assaultative acts" included self-harm as a diagnostic feature of IED when there was no mention of self-harm in the description of IED in DSM-1V.
Paragraph 10 (a) alleged that the actions and omissions in paragraphs 3–9, except 6, were reckless. None of this was admitted but the Panel found proved as reckless: paragraphs 3, 4(b)(i) and (c), but not 4(a) or (b)(ii) or any part of 5; it found proved as reckless 7(b)(c)(e), and (f)(ii),but not 7(a)(d) or (f)(i); likewise it found proved 8(b)(d)(e) but not 8(a); 9(h) and (k)(i) were found proved as reckless but not 9(a) to (f) or (i). Those proved as reckless were found proved, under charge 10(b), as misleading; this did not mean intentionally misleading according to the GMC charging guidance. In addition, charges 4(a) and (b), 5(b), 8(a), 9(e) and (f) were found to involve misleading conduct by Dr Kumar. Charge 10(c) alleged that the various charges in paragraphs 3–9 involved Dr Kumar acting below the standard of a reasonably competent psychiatrist acting as an expert witness; all of those which involved recklessness or being misleading were found proved and, in addition, charge 7(a). Mr Dutton accepted that the 10(c) charges added nothing, if the findings of recklessness were upheld.
The Panel went on to find, in the light of Dr Kumar's admissions and its findings on the charges, that Dr Kumar was guilty of misconduct, and that by reason of that misconduct his fitness to practise was impaired. It considered other sanctions, including the imposition of conditions preventing expert witness work in the criminal cases, but concluded that the public interest in...
To continue reading
Request your trial
-
The Forensic Ethics of Scientific Communication
...Royal Society of Edinburgh, Forensic Gait Analysis: A Primer for Courts (2017).45. Crim PR 19.4(h).46. Kumar v General Medical Council [2012] EWHC 2688 (Admin).47. Kumar v General Medical Council [2012] EWHC 2688 (Admin) at [39].48. S John, ‘Epistemic Trust and the Ethics of Science Communi......
-
The Forensic Ethics of Scientific Communication
...Royal Society of Edinburgh, Forensic Gait Analysis: A Primer for Courts (2017).45. Crim PR 19.4(h).46. Kumar v General Medical Council [2012] EWHC 2688 (Admin).47. Kumar v General Medical Council [2012] EWHC 2688 (Admin) at [39].48. S John, ‘Epistemic Trust and the Ethics of Science Communi......