Dr Nithya Santhanalakshmi Shunmugavel Pandian v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Sheldon,Mr Justice Sheldon |
| Judgment Date | 26 March 2024 |
| Neutral Citation | [2024] EWHC 629 (Admin) |
| Year | 2024 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-001893 |
[2024] EWHC 629 (Admin)
Mr Justice Sheldon
Case No: AC-2023-LON-001893
CO/2269/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sam Thomas (instructed by MDDUS) for the Appellant
Rory Dunlop KC (instructed by GMC) for the Respondent
Hearing dates: 5 March 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 26 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Dr Nitha Shunmugavel Pandian appeals from the decision of the Medical Practitioners Tribunal (“the Tribunal”) of the General Medical Council (“the GMC”) to suspend her for a period of two months, following a finding that her fitness to practice was impaired by reason of misconduct.
The appeal is directed at the Tribunal's finding that Dr Pandian had not conducted an examination of Patient A on 24 May 2019, even though she had written into Patient A's notes various matters which indicated that an examination had taken place; and to the Tribunal's finding that Dr Pandian had been dishonest in doing so. Dr Pandian submits that the Tribunal's decision on the facts was wrong and/or was unjust because of serious procedural or other irregularity.
I have to consider whether or not to grant Dr Pandian an extension of time for her to bring the appeal, as her appeal was lodged out of time. If I do extend time, then it is necessary for me to consider the merits of her appeal.
Factual Background
Dr Pandian obtained her GMC registration in July 2018. She started working at Kettering General Hospital in November 2018. On 24 May 2019, Patient A attended the Accident and Emergency department of Kettering General Hospital presenting with concerns about her blood pressure. Patient A underwent an initial assessment and was transferred to the hospital's Ambulatory Care Unit, where Dr Pandian was working as a Trust Grade Doctor, at Senior House Officer level. Dr Pandian's duties involved detailed history taking, checking clinical vitals, carrying out relevant preliminary examinations, arranging initial investigations and presenting the case to a senior registrar or consultant for further assessments. After being assessed by Dr Pandian, Patient A was then seen by a consultant: Dr Khan. Dr Pandian has no recollection of seeing Patient A. Dr Khan did not give evidence to the Tribunal.
Patient A's notes record that Dr Pandian carried out a physical examination. The notes record “S1 + S2 +” which relates to the patient's first and second heart sounds. With respect to a respiratory examination, this is recorded as “clear” which means that no added sounds were noted. With respect to an examination of the abdomen, the notes record “soft and non-tender”.
Patient A complained to the Trust that Dr Pandian had recorded an examination that she did not perform. An investigation was carried out by the Trust. Patient A also made a complaint to the Ombudsman. Both closed their investigations with no further action.
The matter was referred to the GMC. After investigation, allegations against Dr Pandian were formalised as follows:
“That being registered under the Medical Act 1983 (as amended):
1. On 24 March 2019 you consulted with Patient A and wrote in her emergency assessment document in the box headed:
a. cardiovascular, next to heart sounds, ‘S1 + S2 +’;
b. respiratory, ‘clear’;
c. abdomen, ‘soft, non tender’.
(These allegations were admitted).
2. You knew that you had not, at the time of your actions at:
a. paragraph 1a, listened to Patient's heart;
b. paragraph 1b, listened to Patient's breathing;
c. paragraph 1c, examined Patient's abdomen.
3. Your actions at:
a. paragraph 1a were dishonest by reason of paragraph 2a;
b. paragraph 1b were dishonest by reason of paragraph 2b;
c. paragraph 1c were dishonest by reason of paragraph 2c.” (The allegations at 2 and 3 were denied by Dr Pandian).
The Tribunal's judgment
In its judgment, the Tribunal set out the evidence provided by the various witnesses: Dr Pandian, Patient A, and Mr B who is Patient A's husband. The Tribunal set out the relevant legal principles, including the advice that
“Tribunals should be wary of placing too much reliance on the demeanour of individuals, however impressive, when assessing the accuracy of their recall of events, without being aware of the fallibility of memory and the importance and greater accuracy of contemporaneous documents”.
The Tribunal observed that Patient A stated that there were a number of “errors” in the medical notes written by Dr Pandian: that, contrary to what was set out in the notes, she did not have a cough at the time of the assessment, that she was not an HCA (a Healthcare Assistant), that she did not take Nurofen and that although she had discussed the medication Propranolol with her General Practitioner, she had not been prescribed it. Dr Pandian was reported to have told the Tribunal that she could only write down what the patient had told her. The Tribunal noted that Patient A was recalling events from four years ago when she commented on the notes. The Tribunal went on to say that it
“could appreciate that, while not ideal, the “errors” could perhaps be understandable. There were some parts in Dr Pandian's notes that she had crossed out and then replaced with a correction and so this appeared to have been a developing situation in which Dr Pandian was checking certain aspects with Patient A as she was writing and re-writing her notes. For example, under the heading “Presenting complaint”, Dr Pandian told the Tribunal that the words “chest pain” were obtained from the nursing notes, and crossed out by her subsequently and replaced with the word “palpitation” as this is what Patient A would have told her.”
At paragraph 35, the Tribunal observed that within Patient A's medical records there was also a specialist review page that detailed the assessment conducted by Dr Khan at 11am on 24 March 2019, shortly after the assessment by Dr Pandian. The Tribunal noted that Patient A had stated that Dr Khan did not examine her either. The Tribunal commented that there is a reference within the specialist review page to the chest being clear. It reads: “O/E [that is, on examination] – alert, no tremors, lungs are clear”.
The Tribunal noted at paragraph 38 that on the specialist review page the words “anxious/anxiety” in Dr Pandian's handwriting had been crossed out, and that Dr Khan had written “likely anxiety related symptoms” with an underline. The Tribunal commented that this was consistent with Patient A's recollection of her assessment by Dr Khan. In her witness statement, Patient A had stated that during the course of her assessment by Dr Khan she saw the notes that he was writing. She could see that the consultant had written that her blood pressure was secondary to anxiety, and she saw him underline this twice. Patient A said in evidence that it bothered her that her symptoms were being put down to anxiety “especially as neither doctor ever physically examined me”. She also said that neither of the doctors “had actually listened to me”.
At paragraph 39, the Tribunal stated that it appreciated that Patient A would have been worried about her health when she attended hospital and that she had a headache which “felt like her head was exploding”. Nevertheless, the Tribunal was of the view that Patient A was
“very convincing in that the trigger for her complaint was when she saw the words “soft, non tender” in her medical notes and was aggrieved and immediately complained.”
The Tribunal went on to say that:
“The specific recollection of Dr [Khan] underlining certain words added credence to her account. The Tribunal was of the view that, despite being worried and upset, Patient A was in a position where she would have known whether she had been examined or not. The Tribunal did not find it to be credible that Patient A would have missed a physical examination on the account provided and the evidence before it as a whole.”
At paragraphs 40–42, the Tribunal discussed the evidence of Mr B. The Tribunal noted that when Mr B was asked whether he could have been mistaken that Dr Pandian had not examined Patient A, he had stated that he was not mistaken. The Tribunal mentioned that there were a number of matters that Mr B could not recall, including whether a consultant had seen Patient A. The Tribunal commented, however, that “crucially [Mr B] corroborates Patient A's evidence that no examination took place by Dr Pandian”.
The Tribunal discussed Patient A's occupation at paragraphs 43–45. Dr Pandian's counsel, Mr Thomas (who also appears for Dr Pandian on this appeal) had argued that Patient A's occupation was irrelevant and should not be admitted by the Tribunal. The Tribunal decided that evidence about Patient A's occupation was admissible, but commented that “it placed limited weight on Patient A's occupation. The Tribunal was of the view that a patient did not have to be a healthcare professional to realise whether or not a physical examination had taken place.”
The Tribunal referred to statements in support of Dr Pandian. At paragraph 58, the Tribunal commented that it was “clear that there were no other concerns or complaints about Dr Pandian's fitness to practise and there were a number of testimonials, including within the Rule 7 response, that referred to Dr Pandian's competence and integrity. The Tribunal took these into account”.
The Tribunal concluded at paragraph 59 that:
“Dr Pandian could not specifically recall these events in relation to Patient A but was, nonetheless, adamant that she never makes mistakes of this nature....
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