Dr Ganeshmoorthi Arunachalam v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 08 February 2018 |
| Neutral Citation | [2018] EWHC 758 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No. CO/2897/2017 |
| Date | 08 February 2018 |
Neutral Citation Number: [2018] EWHC 758 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Sitting at Manchester)
Manchester Civil Justice Centre
1 Bridge Street West, Manchester, M60 9DJ
Mr Justice Kerr
Case No. CO/2897/2017
Mr Simon Gurney (instructed by Stephensons Solicitors LLP) appeared on behalf of the Appellant.
Ms Sharon Beattie (instructed by GMC Legal) appeared on behalf of the Respondent.
Introduction
The appellant, Dr Arunachalam, represented by Mr Simon Gurney, is a doctor. He appeals against the decision of the respondent (the GMC) to uphold charges of misconduct against him and impose the sanction of erasing his name from the medical register. That occurred on 23 May 2017. The GMC has responsibility for bringing disciplinary charges against doctors who are considered to have misbehaved. The relevant statutory provisions and rules provide for a medical practitioners' tribunal (the tribunal, or the panel) to sit and determine such charges. The GMC opposes the appeal and, through Ms Sharon Beattie, speaks in defence of the panel's treatment of the evidence and its reasoning and conclusions on the charges brought. The GMC says the sanction of erasure from the medical register was fair, reasonable and justified on the evidence.
Although there are many grounds of appeal and the case has in some ways become unnecessarily complex, the real issue before me is whether it was wrong to erase this doctor's name from the medical register as the chosen sanction for sexually motivated misconduct towards two trainee women doctors known as Dr A and Dr B. A slightly unusual feature of this case is that the GMC itself supported the sanction of suspension rather than erasure before the tribunal.
Suspension is the next most serious sanction available, short of the most serious one, erasure, but suspension can only be for up to 12 months. There cannot be a two or three year suspension imposed as a sanction. Although the GMC supported suspension before the panel and the appellant's then counsel, Mr David Morris, did not argue against it, the GMC now submits that the more serious sanction of erasure was in no way wrong and that this court should not interfere by changing the decision to the one the GMC regarded as appropriate at the time.
I should make clear that there is no logical inconsistency in the GMC's position then and now. A regulator may advocate a particular sanction but then, on appeal, defend the decision of the independent tribunal to impose a more serious one. It does not follow that, because the parties were content with suspension before the panel, the decision to erase the appellant's name from the medical register was necessarily wrong.
The appellant partially denied the allegations, partially admitted them and argued through his then counsel — and argues now through Mr Gurney — that the sanction of erasure is disproportionately severe, unfair and wrong. It is said that the behaviour towards Drs A and B was at the less serious end of the spectrum of sexual misbehaviour. The appellant invites me to substitute a suspension order of up to 12 months, which would run from the date of this judgment.
When a doctor's name is erased, the tribunal normally imposes an immediate suspension order pending any appeal. The tribunal did so in this case. That means periods during which the doctor is suspended, in practice, long exceed the maximum of 12 months even if an appeal subsequently succeeds. Moreover, at the end of a period of suspension, the doctor concerned must be authorised to return to practice following a review process and cannot return to practice unless and until so authorised.
The behaviour in this case falls into two categories. In the case of Dr A, it was unwanted messages sent outside work in the summer of 2014, with an inappropriate, intimate, overfamiliar but not sexually explicit dimension. In the case of Dr B, there were at least four or five unwanted incidents of tickling her, hugging her once, kissing her on the top of the head once and inappropriately seeking her company at work, thereby making her feel uncomfortable.
The Facts
The appellant comes from a religious, Christian background in southern India. He is married with children. He won a scholarship, graduating in April 1993 from a medical university in Tamil Nadu. After that, he commenced clinical training in India, the UK and the West Indies. From 2000 to 2002, he completed honorary clinical research fellowships in New York. From 2002 to May 2005, he undertook a combination of clinical observerships and research fellowships in London. In May 2005, he became a specialist registrar at Guys and St Thomas's Hospital in London. Nothing untoward occurred until we come to the events starting in February 2014, when he was at Guys and St Thomas's Hospital.
According to the later findings of the tribunal which are not and cannot be challenged, it was in February 2014 that the appellant became acquainted with Dr A. She worked under him at the hospital. At first, the relationship was entirely professional but she then gradually became uncomfortable when he started sending her regular, unwanted and unnecessary personal messages. That began from 23 May 2014.
Initially, Dr A attempted to manage the situation without escalating it but, after a time, she complained to the relevant NHS Trust, the employer, about messages sent to her while she was on holiday abroad from 24 June to 7 July 2014 and in particular one on 7 July, in which he offered to arrange for her to be picked up from an airport on the arrival of her return flight to this country. At that point, Dr A became disquieted and worried about her personal safety.
The messages were sent by text, email and WhatsApp and were described by Dr A as “deluded behaviour”. She considered that, throughout the period during which they were sent, the appellant was labouring under the false impression that there was more than a professional relationship between them. The words used by the appellant in the numerous messages were in evidence before the tribunal.
By way of example, one sent on 6 July 2014 included the following:
“[First name of Dr A], trust you are doing well and greatly enjoyed your holiday: likely to be one of the best you have had, I am sure. It was scintillating tennis but Roger was vanquished by Novak in the end:- ((. [First name of Dr A], have a pleasant and safe flight and it will be so good to see you next week. Take care and welcome back to London!”
Although there were many messages and that is but one example, it conveys the inappropriate tone of false familiarity and intimacy, albeit never partaking of any sexual character or language.
As a consequence of Dr A's complaint, in September 2014 the appellant was summarily dismissed from his post at Guys and St Thomas's Hospital following a disciplinary process. He appealed against his dismissal. After his dismissal, he was able to work certain locum shifts at Queen Elizabeth Hospital in Greenwich. It was there, in November 2014, that further incidents involving Dr B took place. Again, according to the unchallenged findings of the tribunal, on the night of 22 and 23 November 2014, the appellant was working with Dr B.
The appellant's behaviour made Dr B, who was unaware of Dr A's complaint, feel uncomfortable. On that night after, as is normal, exchanging telephone numbers for professional reasons, the appellant displayed behaviour towards Dr B that led to the second part of the subsequent charges against him. On at least four or five occasions, he subjected her to physical, unwanted touching, nudging, tickling; and, on one occasion, hugging her and bestowing a kiss to the top of her head.
In evidence before the tribunal, she explained that she had made a complaint which she discussed in December 2014 with a representative from human resources and that she thought at the time she would probably be told that the appellant had apologised. She said that, if that had been the case, she would have accepted it “as long as change was evident”. However, she was told that the appellant had raised concerns about her, Dr B's, behaviour.
In her evidence to the tribunal, Dr B said that she felt the appellant's behaviour was “sleazy”. After that, on 3 December 2014, the appellant's internal appeal against dismissal was allowed and a final written warning was substituted for the penalty of dismissal. It was found on his appeal that his previous good record had not sufficiently been taken into account by the disciplinary panel that had decided to dismiss him. He was given a second chance.
As a result of the complaints made by Drs A and B, the appellant was charged with misconduct. There were eight charges. The first was innocuous enough. It merely stated where he had worked. Although that was found “proved”, it obviously carried no sting. More seriously, the second, third and fourth charges alleged the conduct relating to Dr A that I have just summarised, which the tribunal subsequently found proved. Indeed, it was for the most part admitted by the appellant. The fifth, sixth and seventh charges alleged the conduct against Dr B, which I have summarised in accordance with the tribunal's subsequent findings. Much of that conduct was disputed by the appellant, but found proved.
Finally, and importantly, the eighth charge alleged that the appellant's actions “as described above in paragraphs 2, 4, 5, 6 and 7 were sexually motivated”. That charge was found proved. The appellant's conduct towards both doctors was found to have been sexually motivated. This obviously made it more serious than it would otherwise have been.
In October 2015, the appellant...
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Alberts v General Dental Council
...be given and perhaps the only convincing evidence.” 22 I must add some extracts from the case of Arunachalam v General Medical Council [2018] EWHC 758 to which both parties referred. This was a decision of Kerr J where the approach of this court on a regulatory appeal, where sexual allegati......