Dr Olakunle Arowojolu v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 11 December 2019 |
| Neutral Citation | [2019] EWHC 3155 (Admin) |
| Date | 11 December 2019 |
| Docket Number | Case No: CO/3300/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3155 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: CO/3300/2019
Daniel Janner QC (instructed by Hempsons) for the Appellant
Alexis Hearnden (instructed by GMC Legal) for the Respondent
Hearing dates: 31 October 2019
Approved Judgment
The Honourable
Introduction
This is an appeal pursuant to s 40 of the Medical Act 1983 (the MA 1983). The Appellant, Dr Olakunle Arowojolu, appeals against the direction of the Medical Practitioners' Tribunal (the Tribunal) of 25 July 2019 that his name be erased from the register of medical practitioners. He attacks the findings of fact made by the Tribunal. It found proved a number of allegations of sexual misconduct in July 2013 by him towards a receptionist, Ms A, at the health centre in Essex where they both worked. The Tribunal found that Dr Arowojolu's fitness to practise was impaired and, as a consequence, directed that his name be erased from the medical register. If I uphold the Tribunal's findings the Appellant does not appeal the sanction.
Ms A's identity is protected by s 1 of the Sexual Offences (Amendment) Act 1992, and no matter relating to her shall during her lifetime be included in any publication if it is likely to lead members of the public to identify her as the person against whom the conduct in question is alleged to have been committed.
The Respondent to the appeal is the GMC, which is the statutory regulator for the medical profession established by s 1 of the MA 1983. It brought the case against the Appellant in the Tribunal.
The Tribunal's determination of the facts was made on 10 April 2019 and the sanction was imposed on 25 July 2019.
The grounds of appeal advanced by Mr Janner QC on behalf of the Appellant are as follows. He submitted that the conclusion that the Appellant sexually assaulted Ms A was wrong and/or that it was unjust because of a serious procedural or other irregularity, such that I should allow the appeal pursuant to CPR r 52.21(3). In summary he argued that:
a. The Tribunal was misdirected in law by its legally qualified Chair about how to approach an allegedly false complaint of sexual offences made by Ms A against her grandfather when she was a teenager (Ground 1).
b. It failed to take into account, sufficiently or at all, the implausibility of Ms A's account (Ground 2).
c. It failed to sufficiently take into account the Appellant's positive good character (Ground 3).
d. It was wrong in its assessment of the CCTV evidence (Ground 4).
Mr Janner placed the first of these submissions at the forefront of his argument and accepted that the other points were essentially subsidiary ones.
The factual background
The Appellant qualified as a doctor in 1982 in Nigeria. He worked as a consultant in Obstetrics and Gynaecology between 1993 and 1995. He moved to the UK in 1995. He worked as a GP Registrar and then as a locum GP. In 2005 he began working as an out of hours GP at the health centre. Ms A began working as a receptionist at the health centre about six weeks before the alleged incident with which this appeal is concerned.
On the night of 21–22 July 2013, Ms A was working the night shift. The Appellant finished his shift shortly after midnight. As he was leaving, he fell into conversation with Ms A in the reception area. She said she wanted to lose weight. She added that, having had two children, she was concerned about her stomach. The Appellant offered to examine her and to advise. He took her into a consulting room for that purpose. Two very different versions of what then took place were given in evidence by Ms A and the Appellant at the Tribunal hearing. They are as follows.
Ms A's account
According to Ms A, during the discussion in the reception area, the Appellant asked her to lift her top and show him her stomach, which she said was flabby. She lifted her top but did not show any skin. She claimed the Appellant then told her to follow him. They went into examination room number 6. She said that the Appellant looked into the office on the way, to make sure no one was around.
Once inside the examination room, Ms A said the Appellant pulled the curtain round, put some paper down on the examination table and asked her to lie on her back. He showed her how to do some sit-ups. She said the Appellant then seriously sexually assaulted her. She said that this happened in two phases.
During phase 1, she said that the Appellant repeatedly touched her clitoris and vagina. This lasted two to three minutes. She told him to stop seven or eight times, but he only stopped when she told him it was hurting. She then got up. But she then agreed to lie down again.
During phase 2, the same sort of assaults were repeated for a similar period of time. During this phase the Appellant also touched Ms A's left breast. She repeatedly asked the Appellant to stop, but he responded saying it was ‘nice.’ He only stopped when she again said it hurt.
They both then left the consultation room. Ms A said that she waited for the Appellant to leave and then complained to a nurse and her husband by telephone that she had been sexually assaulted. The call to her husband was at 1:01. Mr A did not answer but called her back a minute or so later. Ms A was upset when they spoke, at least implying that something adverse had happened ([32] of the fact-finding determination). Mr A's evidence to the police was that Ms A told him that the Appellant had touched her. The practice driver called at 1:05, and the transcript of the brief conversation records that Ms A was crying. The Appellant then called Ms A at 01:08, on his evidence, to reiterate his advice concerning sit-ups. At 1:28 the district nurse called Ms A. The transcript of the telephone conversation records that Ms A was crying and that she said that the Appellant had touched her inappropriately. With the support of the district nurse, Ms A reported the incident to the police later on the morning of 22 July 2013.
Although, on its face, Ms A's recent complaint to her husband supported the GMC's case, at [12] the Tribunal said that it had found his evidence ‘less helpful’ and that parts of it were ‘surprising’, for example, his evidence that he had gone to sleep even after his wife had told him that she had just been sexually assaulted.
The Appellant's account
The Appellant said that he had offered to carry out an informal examination after Ms A had lifted up her top and complained about her stomach after childbirth. He said that he thought it more appropriate to examine her in the privacy of a consultation room, and had offered to do so. Ms A accepted the offer and walked with the Appellant to the consultation room. He pinched her stomach skin for elasticity. He felt the firmness of her stomach and showed her how to do sit ups. He advised her to see her GP if the symptoms persisted.
The Appellant denied that any inappropriate behaviour whatsoever took place. He also denied that there were two phases, or that Ms A had asked him to stop at any point.
After the examination was over, they walked out of the examination room. He drove home, and on the way telephoned her to repeat his advice regarding seeing the GP.
The GMC's allegations against the Appellant
The allegations made by the GMC against the Appellant are set out in [4] of the Tribunal's fact-finding determination. They were, in summary, that he had: (a) asked Ms A to show him her stomach in the centre's reception area; (b) performed an intimate examination of Ms A; (c) failed to offer her a chaperone; (d) lifted up Ms A's clothing; (e) placed his hand on various parts of her body; (f) in particular, applied pressure to her pubic bone and touched her clitoris and labia under her knickers; (g) and stroked one of her breasts. He was also alleged to have made a number of comments to her during the examination including telling her to lie back down and that touching her was ‘nice’. Allegation [4(7)] was an overarching allegation that the conduct in question had been sexually motivated.
The Appellant admitted some of the allegations (eg, failing to offer a chaperone) but denied the most serious allegations and denied that his conduct had been sexually motivated.
The criminal proceedings and the disclosure of an alleged previous sexual assault of Ms A by her grandfather
The Appellant was arrested on the morning of 22 July 2013. In interview he provided a prepared statement which set out his account of the examination of Ms A, denying any sexual misconduct. He said that he was ‘deeply shocked’ by Ms A's allegations. He was charged with sexual assault on 16 January 2014.
The Appellant stood trial at Chelmsford Crown Court in October 2014 before Her Honour Judge Lynch QC and a jury. There was a single count on the indictment alleging the sexual assault of Ms A contrary to s 3 of the Sexual Offences Act 2003. On 16 October 2014 he was convicted and sentenced to two years' imprisonment. He appealed against his conviction, and on 1 April 2015 his conviction was quashed by the Court of Appeal: [2015] EWCA Crim 842. The reasons why his conviction was quashed are not directly relevant to this appeal. They related to some evidence given by a police officer about a complaint made against the Appellant in 2010 by a patient, and to the way in which the judge had dealt with the Appellant's partial ‘no comment’ interview in her summing-up. In light of these matters the Court of Appeal held that the conviction was unsafe and ordered a re-trial.
When the case was listed for re-trial on 22 February 2016, the prosecution disclosed some unused material which had not been...
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