General Medical Council v Dr Vinesh Narayan
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 04 October 2017 |
| Neutral Citation | [2017] EWHC 2695 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5041/2016 |
| Date | 04 October 2017 |
[2017] EWHC 2695 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Jay
CO/5041/2016
APPEARANCES
Mr I Hare QC (instructed by GMC Legal) appeared on behalf of the Appellant.
Mr J Counsell QC (instructed by RadcliffesLeBrasseur) appeared on behalf of the Respondent.
Introduction
This is the hearing of an appeal brought by the General Medical Council (“the GMC”) under s.40A of the Medical Act 1983 against the decision of a Medical Practitioners' Tribunal (“MPT”) announced on 5 th October 2016 imposing conditions on the registration of Dr Vinesh Narayan (“the respondent”). The essence of the GMC's complaint is that the MPT imposed a sanction which was insufficient to protect the public, and that the tripartite interest in that regard could only properly be safeguarded by suspending the respondent from practice for a finite period. This is the issue of substance which this appeal raises, but there is also a preliminary issue, namely whether the GMC's Notice of Appeal was lodged in time.
Before I address these issues, it is necessary to set out some essential factual background.
The facts
The respondent is a consultant psychiatrist who, since January 2010, has been employed at the 5 Boroughs Partnership NHS Foundation Trust (“the Trust”). Between January 2013 and May 2014, which covers the period relevant to the charge before the MPT, the respondent was also a clinical and undergraduate tutor for the Mersey Deanery, and in that role acted as a supervisor for medical students and trainees.
Following an investigation, a charge was raised by the GMC against the respondent alleging inappropriate sexual contact with three of his female students at the University of Liverpool. These students were anonymised before the MPT as Witness A, Witness B and Witness C.
By way of summary, it was alleged in relation to Witness A that he engaged in inappropriate text and email contact with her and on 4 th April 2013 invited her to his home address. On that occasion, the respondent closed the blinds and curtains, asked Witness A to sit on the sofa, poured her a glass of wine, asked her inappropriate questions as to her personal circumstances and then tried to kiss her on the cheek. The inappropriate text messages did not stop there; these continued in a similar vein over the summer, concluding in September 2013. On a number of occasions, Witness A was harassed by the respondent and he invited her to meet him at home. This behaviour in relation to Witness A lasted about seven months.
The respondent's inappropriate conduct in relation to Witness B started in December 2013 and proceeded along similar lines. On 19 th December 2013 the respondent drove Witness B to a pub and allowed his legs to touch hers on more than one occasion. In the car outside he asked personal questions designed to encourage physical contact and then touched Witness B's hair. He also suggested on that occasion and in a later text message that the state of his mood would or might affect the mark he would give Witness B in an academic module.
The respondent's inappropriate conduct in relation to Witness C started in January 2014 and followed the established pattern. In my view, the most serious aspect of the respondent's comportment regarding Witness C was that on 16 th January 2014, when they were in a pub together, he suggested that spending time together could be the difference between a good and an excellent mark and that for the latter she would “have to have a little understanding”, or words to that effect. The implication could not have been clearer. There was also inappropriate physical contact, the most reprehensible aspect being that he brushed the side of Witness C's cheek with his lips.
Overall, this inappropriate conduct with three separate women, all students of his, took place over the course of 12 months.
At the MPT hearing, the respondent did not dispute the evidence of Witness A, Witness B and Witness C so it proved unnecessary to call them to give oral evidence. The respondent also accepted the impact his behaviour had had and was continuing to have on these three young women.
The respondent gave oral evidence at the second stage of the MPT hearing and he was cross-examined. I should add that he also gave oral evidence at the third stage. The MPT referred in detail to his evidence. According to the respondent's witness statement, he is now a consultant psychiatrist working with adults in the community. There is only one other consultant in the team and there are over 1,000 patients. When first confronted with Witness C's allegation on 21 st January 2014, the respondent immediately apologised “as soon as I began to realise how inappropriate my behaviour was”. There were further meetings in March and May 2014 when the respondent was asked about Witness A and Witness B, and again he admitted that his behaviour was unprofessional.
As regards what he said to Witness B and Witness C about their assessed modules, the respondent's written evidence was as follows:
“I wish to emphasise that I now realise that such comments were profoundly inappropriate but hope that the Tribunal can accept that they were intended to be a joke, albeit an entirely inappropriate one, given my position of influence. I now realise how such comments would be likely to be interpreted and how what I said was an abuse of my position.”
The respondent underwent a disciplinary hearing on 14 th August 2014. He was issued with a final written warning and required to cease his academic responsibilities. He accepts that this was appropriate action to take by his employer.
The respondent has undertaken various courses and has reflected on his actions and behaviour. He was referred by his employer to occupational health and attended sessions with an occupational health psychologist. His written evidence continues:
“During those sessions I carried out a functional analysis of my behaviour. It is right to say that I was going through a very acrimonious divorce at the time of these events, although I wish to stress that the pressure which this was putting on me is no excuse at all for such behaviour.”
All of this evidence was carefully considered by the MPT, tested, as I have said, in cross-examination, and the Tribunal itself asked a number of searching questions. Paragraph of the record of the determination is material in this regard:
“During Tribunal questions you referred to your current personal circumstances and to the stability in your life. You also explained your difficult personal circumstances at the time when asked about them and stated that your judgment had been adversely affected but that you thought you had a connection with the students. You told the Tribunal that, looking back, you were too informal with students and you accept that your behaviour towards Witnesses A, B and C was foolish and that you overstepped professional boundaries. You stated that you are deeply ashamed of your behaviour, including the inappropriate comments you made to the three students. You apologised for your behaviour and for the hurt and distress caused to these students. You said that you would not have wanted your daughter or another member of your family to have been subjected to such behaviour.”
It was submitted on his behalf that the respondent was not currently impaired (the emphasis being on the present tense) because he had learnt his lesson and there was no risk of repetition.
On the issues of misconduct and impairment of fitness to practise, the MPT correctly directed itself as to the legal test in the light of the tripartite public interest I have touched on. As for Good Medical Practice (2006 and 2013 editions), three principles were relevant:
(1) “You must treat your colleagues fairly and with respect…” (GMP 2006 para.46; GMP 2013 para.36)
(2) “Patients need good doctors. Good doctors: … establish and maintain good relationships with … colleagues” (GMP 2013 para.1)
(3) “You must be aware of how your behaviour may influence others within and outside the team” (GMP 2013 para.37).
Unsurprisingly, the MPT concluded that the respondent had failed to maintain professional boundaries and that his behaviour constituted a pattern of inappropriate conduct. The respondent's pursuit of a sexual relationship with his students amounted to an abuse of authority, not only as an educational supervisor but as a consultant psychiatrist. The MPT was concerned that on two occasions he abused his authority to make implied threats regarding grades. Although intended as a joke, it was reasonable for the students to take them seriously.
The MPT's conclusion on the first issue, that of misconduct, was that it had no doubt but that in all the circumstances his conduct would be viewed by the public and fellow medical professionals as dishonourable and disgraceful.
As for impairment of...
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