General Medical Council v Dr Nilesh Pravin Jagjivan and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp |
| Judgment Date | 26 May 2017 |
| Neutral Citation | [2017] EWHC 1247 (Admin) |
| Docket Number | Case No: CO/3140/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 May 2017 |
[2017] EWHC 1247 (Admin)
Lady Justice Sharp
VICE PRESIDENT OF THE QUEEN'S BENCH
and
Mr Justice Dingemans
Case No: CO/3140/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ivan Hare QC (instructed by GMC Legal) for the Appellant
Anthony Haycroft (instructed by Berrymans Lace Mawer) for the First Respondent
Fenella Morris QC (instructed by Browne Jacobson) for the Second Respondent
Hearing date: 8 May 2017
Approved Judgment
Introduction
This is the judgment of the court. This is the hearing of an appeal by the General Medical Council ('the GMC') against the determination by the Medical Practitioners Tribunal ('the Tribunal') dated 24 May 2016 under the Medical Act 1983 ('the 1983 Act') in respect of conduct of Dr Nilesh Jagjivan. This is the first appeal brought by the GMC under its new powers, in force since 31 December 2015 (by virtue of Article 17(1) of SI 2015/794); and it raises a point of importance about the GMC's jurisdiction to appeal pursuant to the provisions of section 40A of the 1983 Act.
Background
Dr Jagjivan was employed as a cardiology Registrar within the University Hospitals of Leicester NHS Trust. The relevant conduct occurred at a consultation with a 27-year-old female patient ('patient A') on 22 October 2013. Patient A had been referred to hospital by her GP with a history of chest pain, palpitations and dizziness. She was assessed by nurses and a Foundation Year 1 doctor, and an ECG performed on her caused concern. The Clinical Decisions Unit was very busy and prioritised the treatment of patients who might be discharged home. Patient A was one such patient.
Dr Jagjivan therefore had a consultation with patient A, and issues then arose about what Dr Jagjivan suggested to patient A should be done to raise her heart rate. Patient A alleged, but Dr Jagjivan denied, that Dr Jagjivan had: (i) said there were 3 different places to get excited and pointed at her nipples and vagina; (ii) said she could put pressure "down there" and pointed towards her vagina; (iii) said "it's a bit 80's and some people aren't comfortable doing this", and (iv) said she could stimulate "down there", referring to her vagina, to excite herself and raise her heart rate. It was also alleged by patient A, but denied by Dr Jagjivan, that whilst patient A's hand was hovering above her vagina on top of her trousers he: (i) told patient A there was another way to make her heart beat faster; (ii) indicated towards patient A's vagina; and (iii) placed his hand on top of patient A's hand.
The Tribunal made adverse findings of fact about Dr Jagjivan's conduct during the consultation, and accepted patient A's account of what Dr Jagjivan had said and done as set out above. However the Tribunal did not find that the conduct was sexually motivated. The Tribunal held that the conduct was deplorable and amounted to misconduct, but did not find that Dr Jagjivan's fitness to practise was impaired by reason of misconduct. The Tribunal therefore did not direct that Dr Jagjivan's name should be erased or suspended from the register, or that his registration should be conditional on his compliance with requirements imposed for the protection of members of the public.
Issues on appeal
The GMC contends that the Tribunal should have made a direction pursuant to section 35D of the 1983 Act, and it appeals pursuant to section 40A of the 1983 Act. Dr Jagjivan submits that the GMC does not have jurisdiction to appeal, but that if it does, the appeal should be dismissed as the Tribunal's decision was not wrong.
The Professional Standards Authority for Health and Social Care ('PSA') has joined as a party to the appeal, and supports the GMC's appeal. If there is no jurisdiction for the GMC to appeal against the Tribunal's refusal to give a direction, then the PSA seeks permission to appeal out of time pursuant to the provisions of the NHS Reform and Health Care Professions Act 2002 ('the 2002 Act').
If the GMC does have jurisdiction to appeal, or if the PSA is granted permission to appeal, then issues arise as to: (1) the approach to be taken by this court to findings of fact made by the Tribunal; (2) whether fresh evidence in the form of another patient's evidence about a consultation which took place on 6 April 2017 should be admitted; and (3) whether to allow or dismiss the appeal.
Proceedings before the Tribunal
Patient A made witness statements dated 6 October 2014 and 10 April 2015 about the consultation on 22 October 2013 and about the complaints that she made immediately after the consultation. Dr Jagjivan made a statement dated 10 May 2016 setting out his response to the allegations of misconduct. Statements as to Dr Jagjivan's good character were made by a number of his colleagues.
A number of other witnesses made statements about the investigations made after the events in question for example. One witness, Dr Rajesh Chelliah made a statement about walking into the cubicle during the examination of patient A at a time when patient A was lying on the bed at a 45-degree angle exposed from the waist up.
The hearing before the Tribunal began on 16 May 2016, and continued on 17 to 19, 24, 26 and 27 May 2016. Patient A gave evidence on the first day of the hearing. Dr Jagjivan gave evidence on the third day of the hearing and the witness statements about his good character were read. Dr Jagjivan did not mention his sexuality in his written witness statement, but started his oral evidence by making very brief reference (in three sentences) to the fact that he was not attracted to men or women, and had no sexual experience. Closing submissions were then made. The Tribunal retired at various points to make its findings of fact, to determine whether there was misconduct and impairment, and to decide whether a warning ought to be given to Dr Jagjivan.
The Tribunal's determination
The determination as to fact was handed down. The Tribunal's material findings on the allegations against Dr Jagjivan were that:
i) "2. In the course of a consultation with patient A on 22 October 2013 you:
(a) caused patient A to remain partially undressed for longer than was necessary." This allegation was denied and found not proved.
"(b) caused patient A to perform squatting exercises when her breasts were exposed". This allegation was admitted and found proved.
"(c) suggested to patient A that she undertake 10 squats when this action was not a recognised technique for: (i) undertaking an exercise echocardiogram, or; (ii) raising the heart rate substantially". This allegation was admitted and found proved.
"(d) failed to communicate appropriately with patient A in that you told patient A words to the effect of: (i) there were 3 different places to get excited and pointed at her nipples and vagina; (ii) she could put pressure "down there" and pointed towards her vagina; (iii) "it's a bit 80's and some people aren't comfortable doing this"; and (iv) she could stimulate "down there", referring to her vagina, to excite herself and raise her heart rate." This allegation was not admitted but was found proved.
"(e) failed to communicate appropriately with patient A in that whilst patient A's hand was hovering above her vagina on top of her trousers you: (i) told patient A there was another way to make her heart beat faster; (ii) indicated towards patient A's vagina; (iii) placed your hand on top of patient A's hand." This allegation was not admitted but was found proved.
"(f) examined patient A's breast from behind". This allegation was not admitted and was not found proved.
ii) "3. Your conduct as alleged in paragraph 2 (a)-(f) was sexually motivated." This allegation was not admitted and not found proved.
The Tribunal set out its reasons for not finding that Dr Jagjivan's actions were sexually motivated. It noted that "ordinarily, it would be likely to find such statements to have been sexually motivated" but gave three reasons for not making such a finding in this case. First, extensive testimonial evidence showed no one had heard him engage in the slightest sexual banter or inappropriate communication of a sexual nature. Secondly, the Tribunal had borne in mind Dr Jagjivan's evidence about his sexuality, which the Tribunal accepted. Thirdly, the Tribunal found no evidence to support the GMC's contention that Dr Jagjivan was seeking to pursue a sexual relationship with patient A. For those reasons: "the Tribunal … determined that these statements were more likely to have been the result of non-sexual motivation within the specific context of this consultation. There is therefore a lack of reliable evidence upon which to draw the inference of sexual motivation."
Submissions on impairment were made, and the Tribunal was directed to determine whether the allegations proved amounted to misconduct; and if so, what, if any, sanction ought to be imposed.
In its determination on impairment, the Tribunal said this: "…although it did not find sexual motivation, the Tribunal is of the view that what [Dr Jagjivan] said and did could all too easily be construed by others as implying a sexual motive". It found that Dr Jagjivan did not treat patient A with dignity, he had used unacceptable words which were interpreted by patient A as sexual and caused distress, and that his actions were deplorable. The Tribunal found misconduct in relation to the matters proved at paragraphs 2(d) and 2(e). The Tribunal did not find that Dr Jagjivan's fitness to practise was impaired by his misconduct. Submissions were then made about whether the Tribunal should warn Dr Jagjivan about...
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