Dr. Anandagopal Srinivasan v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sweeting |
| Judgment Date | 22 June 2022 |
| Neutral Citation | [2022] EWHC 1606 (Admin) |
| Docket Number | Case No: CO/2157/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1606 (Admin)
Mr Justice Sweeting
Case No: CO/2157/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Anthony Haycroft (instructed by RadcliffesLeBrasseur) for the Appellant
Peter Mant (instructed by General Medical Council) for the Respondent
Hearing date: 1 st February 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 11am on Wednesday 22 June 2022.
This an appeal under s.40 of the Medical Act 1983 against a decision of a Medical Practitioners' Tribunal, (“the Tribunal”), dated 26 May 2021. The time allocated, and suggested, for reading was not sufficient to allow me to read, in any detail, the transcripts of the hearing as well as police interviews and other evidence related to connected proceedings. I was invited to read this material in its entirety having heard the parties' submissions. Given the significance of this appeal for the Appellant I have done so.
The Tribunal determined that during two clinical examinations the Appellant, Dr Srinivasan, had performed actions which were not clinically indicated and were sexually motivated, in that:
i) During an examination, on 24 October 2014, he had lifted the top of a female Patient (Patient A) and stared at her bare breasts.
ii) During an examination on 6 October 2016, he touched the pubic area of a female Patient (Patient B) and attempted to put his fingers inside her vagina.
A number of other allegations were found not to have been proved, or were decided in the Appellant's favour, as follows:
i) The Appellant had not failed to offer a chaperone for either patient because there was, ultimately, expert agreement that a chaperone was not mandatory for non-intimate abdominal examinations.
ii) That whilst the Appellant had pulled down Patient A's trousers and had taken a femoral pulse these actions may have been clinically justified and were not sexually motivated.
iii) The Appellant had not inserted his fingers into Patient B's vagina (but had attempted to do so).
The Tribunal decided that the appropriate sanction was that the Appellant's name should be erased from the Medical Register for impairment of his fitness to practise as a result of sexual misconduct. The Tribunal concluded that the second incident represented an escalation of his behaviour both because of its nature and the fact that it had taken place notwithstanding a police investigation of the first complaint.
At time of the first examination, the Appellant was a medical student at Cambridge. By the time of the second he had qualified as a doctor and was undertaking his foundation year, and first clinical rotation, in the Accident and Emergency department of the John Radcliffe Hospital, Oxford.
Both Patients complained to hospital staff on the day that their examinations took place. Neither of the complainants were known to each other and there was no possibility of any cross contamination between their accounts which were separated in time and location.
The police investigated the complaint made by Patient A and interviewed the Appellant. In March of 2015 they closed their file. The case was reopened following the complaint made by Patient B. The Appellant was charged with criminal offences arising out of both examinations and stood trial at the Crown Court in November 2018. He was acquitted in respect of Patient A and the jury discharged in relation to Patient B. There was a retrial in May 2019 which resulted in a further not guilty verdict in respect of Patient B.
The Appellant has always maintained that the accounts given by both Patients are inaccurate and that no sexual misconduct occurred.
The Tribunal hearing took place over four days in May of 2021. The Tribunal heard oral evidence as to what had taken place during the examinations from Patient A, Patient B, her friend Ms C and the Appellant. There was expert evidence from Dr Peter Burnett-Smith, Consultant in Emergency Medicine, instructed on behalf of the GMC and Mr Tajek Hassan, Consultant in Emergency Medicine, and Dr Stephen Morely, Consultant Chemical Pathologist and Forensic Toxicologist, on behalf of the Appellant. The Appellant also relied on two character witnesses. His case was argued skilfully and comprehensively both before the Tribunal and before me at the hearing of the appeal.
The Grounds of Appeal
The Grounds of Appeal are that:
i) The Tribunal's findings of fact in respect of the examinations of both Patient A and Patient B were wrong and/or irrational.
ii) The finding of impairment and the sanction of erasure were unfair and wrong insofar as they were based on erroneous findings of fact.
The second ground is dependent upon the first. It was accepted that if the Tribunal's findings of fact were to be upheld on appeal, then the Appellant's fitness to practice was impaired and the sanction of erasure was appropriate. The Appellant contends that the Tribunal did not apply the relevant principles fairly in its examination of the facts and reached the wrong conclusion, in part as a result of having failed to give a fully reasoned and rational Determination including an explanation as to why the Appellant's evidence had been disbelieved. It is also argued that the Tribunal failed to deal with arguments advanced on behalf of the Appellant and identified similarities between the complaints which did not exist.
The Legal Framework
An appeal may be allowed if the decision of the Tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court (CPR R52.21(3). The form of the appeal is a rehearing without evidence ( Fish v General Medical Council [2012] EWHC 1269 (Admin)).
In Azzam [2008] EWHC 2711 (Admin) the court gave guidance as to the principles which apply in the context of medical appeals:
[25] … The principles are:
(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;
(2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession;
(3) The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment;
(4) The court's function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it.
[26] To this list one can also add that the Panel is entitled and bound to consider aspects of the public interest that arise in any case.
The challenge in this appeal is to primary findings of fact. The approach that the court should take in these circumstances was summarised by Morris J in Byrne v General Medical Council [2021] EWHC 2237 (Admin):
11. The issue is as to the circumstances in which an appeal court will interfere with findings of fact made by the court or decision maker below. This is an issue which has been the subject of detailed judicial analysis in a substantial number of authorities and where the formulation of the test to be applied has not been uniform; the differences between formulations are fine. I do not propose to go over this ground again in detail, but rather seek to synthesise the principles and to draw together from these authorities a number of propositions.
12. First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at §§16 to 20. The present case concerns findings of primary fact: did the events described by the Patient A happen?
13. Secondly, the governing principle remains that set out in Gupta §10 referring to Thomas v Thomas. The starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge's more general expertise in making Determinations of fact: see Gupta, and McGraddie v McGraddie at §§3 to 4. I accept that the most recent Supreme Court cases interpreting Thomas v Thomas ( namely McGraddie and Henderson v Foxworth) are relevant. Even though they were cases of “review” rather than “rehearing”, there is little distinction between the two types of cases for present purposes (see paragraph 16 below).
14. Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below. (However the reference to “virtually unassailable” in Southall at §47 is not to be read as meaning “practically impossible”, for the reasons given in Dutta at §22.)
15. Fourthly, the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows:
— where “any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusions”: per Lord Thankerton in Thomas v Thomas approved in Gupta;
— findings “sufficiently out of the tune with the evidence to indicate with reasonable certainty...
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