Dr Olakunle Arowojolu v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 13 October 2021 |
| Neutral Citation | [2021] EWHC 2725 (Admin) |
| Docket Number | Case No: CO/4574/2020 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2725 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West,
Manchester, M60 9DJ
Mr Justice Julian Knowles
Case No: CO/4574/2020
Daniel Janner QC (instructed by Hempsons) for the Appellant
Ivan Hare QC (instructed by GMC Legal) for the Respondent
Hearing date: 14 May 2021
Approved Judgment
Introduction
This is an appeal by the Appellant, Dr Olakunle Arowojolu, under s 40 of the Medical Act 1983 (the MA 1983) against the decision of the Medical Practitioners Tribunal (MPT/the Tribunal) on 13 November 2020 to erase his name from the medical register. Although formally an appeal against sanction, the Appellant challenges the MPT's findings of fact as to the credibility of the complainant (Ms A). It is common ground that if I quash the Tribunal's factual determination then the sanction of erasure flowing from it must also be quashed.
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.
This is the second appeal by Dr Arowojolu against an MPT determination arising out of Ms A's complaint. In 2019 I allowed his appeal against the factual determinations made by the MPT in July of that year and remitted the entire matter to the MPT for rehearing. At the remitted hearing in November 2020, the MPT gave the direction for erasure which is challenged in this appeal.
Factual background
The factual background to the complaint by Ms A is as follows.
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 a health centre in Essex. 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 evening of 21–22 July 2013, Ms A was working a night shift. The Appellant was also working late. She was looking at weight loss pills on her phone and fell into conversation with him in the centre's reception area. She said she wanted to lose weight. She said that having had two children, she was concerned about her weight and about her stomach. Two very different versions of what then took place were given by Ms A and the Appellant at the Tribunal hearing. As the Tribunal noted at [65] of its factual determination, they were in ‘stark conflict’.
Ms A alleged that after that initial conversation in the reception, she looked down at her stomach, and the Appellant then said he would ‘have a look’ and told her to follow him. He led her into an examination room. She lay down on the table. She said that whilst she was lying there the Appellant, under the guise of conducting an abdominal examination, pressed her stomach under her clothes and with his other arm lifted her body as if she were doing sit-ups. He then put his right hand down the front of her trousers and inside her knickers touching her pubic bone and clitoris with his fingers. At that point, Ms A told him to stop and said several times that she wanted to get up, but he continued to make her do sit ups and kept his hand down her trousers. She got up, but he told her to lie back down, and said she did so because she was embarrassed and scared. He then touched her left breast over her clothing with his left arm and put his right hand inside her knickers to touch her genitalia again. She said several times that she wanted him to stop and eventually he did so.
The Appellant's account was as follows. He said that during the initial conversation with Ms A she had attempted to show him her abdomen and began to lift up her top, but he stopped her and asked her to cover herself. He said the centre's reception area, like most of the common areas, was covered by CCTV. He did not want her to embarrass herself by showing her stomach on CCTV in public. He said it was only because she lifted her top that he offered to examine her. He said would not have done so had she not done this. He therefore asked her that if she wanted him to have a look, and said she would need to go into a consultation room so he could examine her
The Appellant maintained that at no time did he put his hands in Ms A's knickers or touch her genitalia in any way. He said that he performed a limited examination of the elasticity of the skin of Ms A's stomach and the tone of her abdominal muscles, and he showed her how to perform sit-ups whilst his left hand was placed on her back and his right hand was on her abdomen. She was not distressed and did not ask him to stop. There was no second examination.
It follows that the Appellant's case was a complete denial of Ms A's allegation of improper touching. As the Tribunal rightly noted at [67], there was no scope for mistake or misinterpretation of the events by either party. Rather, either Ms A was lying, or she was telling the truth. It was submitted on behalf of the Appellant that the Tribunal should find Ms A to be a liar and a fantasist.
There was evidence about a sequence of telephone calls shortly after the Appellant and Ms A left the consultation room to which the Tribunal attached significance.
The CCTV showed them leaving the consultation room at 00.57. Approximately four minutes later, Ms A telephoned her husband. He did not answer and so she texted him. At 01:02, he called her back. During that conversation she told him that the Appellant had touched her inappropriately. There was an issue about how much detail she had given to her husband, but the Tribunal said there was little doubt that within about four minutes of leaving the consultation room Ms A had told her husband that she had been assaulted by the Appellant
At 01:05 a driver employed by the centre called reception. The call was recorded. He spoke to Ms A, who was audibly distressed and crying whilst she attempted to deal with the driver's inquiry.
As the Tribunal set out at [110]–[112], the Appellant made two telephone calls to Ms A shortly after leaving the centre. The first call, at 01.08, was not answered. Ms A answered the second call but it was not recorded because of a system fault. There was no dispute the call was made, but what was said was in dispute.
The Appellant said that he had telephoned Ms A solely to reiterate his advice regarding her need to perform sit-ups. The Tribunal considered that, if true, this was surprising given that, by his own account, he had already given her that advice and shown her what to do. It noted that his explanation differed in part from what he had told the police, which was that he had telephoned Ms A in order to check she was alright because she was alone in the building and to reiterate his advice regarding sit-ups. The Tribunal said that in his evidence, the Appellant denied that he had telephoned Ms A to check on her because she was alone. He explained that he would not have done this because the fact of Ms A being alone in the surgery was not an unusual matter, as this was necessarily part of her job as the out-of-hours receptionist at the centre.
Ms A's evidence was that when he telephoned, the Appellant had said that he ‘hoped that he had not stressed her out too much’ and then said, ‘… just keep up with your tummy exercises…’.
The GMC's case was that the Appellant telephoned Ms A in an attempt to reassure himself that she had not contacted the police.
At [113] the Tribunal said:
“The Tribunal accepted the evidence of Ms A that Dr Arowojolu had said this and, whereas it did not amount to an admission of having acted in a sexually inappropriate way, it was at the very least a recognition by Dr Arowojolu that he believed that he may have done something to ‘stress her out’ …”
At 01:28, a district nurse telephoned reception and spoke to Ms A. This call was recorded. It was clear to the district nurse that Ms A was upset. She asked her what the matter was, and Ms A replied that the Appellant had touched her, making clear she meant inappropriately. The nurse said that she had a further patient to see but would return to the surgery to see Ms A when she had finished. Later, there was a telephone call from the on-call clinical manager and the district nurse to Ms A whilst she was still on duty. The manager asked Ms A to tell her what had happened. In reply, Ms A gave a detailed account of what she said the Appellant had done.
Counsel for the GMC encapsulated its case in her opening to the Tribunal as follows:
“The GMC's case is that there is no motive for Ms A to have fabricated these allegations about a doctor she barely knew. She reported what had happened quickly, to a number of different people, both people she knew well, her husband, whom you will hear from tomorrow, and those she did not know her well (sic). They all, those calls and her husband, attest to how distressed she was.”
The Allegation
The Allegation brought by the GMC against the Appellant was as follows:
“1. On 22 July 2013, you:
a. asked Ms A to show you her stomach in the reception area of the [Healthcare Centre]; To be determined
b. performed an intimate examination (‘the First Part of the Examination’) on Ms A; To be determined
c. failed to offer a chaperone prior to, or any time during, the First Part of the Examination. To be determined
2. The First Part of the Examination was inappropriate in that Ms A was:
a. a work colleague; To be determined
b....
To continue reading
Request your trial
-
Dr Sudheer Shabir v The General Medical Council
...the degree of deference to be shown to findings of primary fact by an appellate court: Arowojolu v General Medical Council [2021] EWHC 2725 (Admin) at [90]–[98] and Byrne v General Medical Council [2021] EWHC 2237 (Admin) at 12 The degree of deference shown to the court below will differ ......