Mr Angamuthu Arunkalaivanan v GENERAL MEDICAL COUNCIL
| Jurisdiction | England & Wales |
| Judge | Amanda Yip QC |
| Judgment Date | 02 April 2014 |
| Neutral Citation | [2014] EWHC 873 (Admin) |
| Docket Number | Case No: CO/127/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 April 2014 |
[2014] EWHC 873 (Admin)
Amanda Yip QC
Sitting as a Judge of the High Court
Case No: CO/127/2014
IN THE HIGH COURT OF JUSTICE
Queen's Bench Division
ADMINISTRATIVE COURT (AT MANCHESTER)
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
Mr Andrew Hockton (instructed by Ryan Solicitors) for the Appellant
Mr Ivan Hare (instructed by GMC Legal) for the Respondent
Hearing date: 6 th March 2014
This is an appeal of Mr Angamuthu Arunkalaivanan (known as Mr Arun) under section 40 of the Medical Act 1983 against a decision of the Fitness to Practise Panel ("the Panel") of the General Medical Council (GMC) to suspend his registration for a period of 12 months.
The charges related to a consultation with a female patient (known in the proceedings as "Patient A") on 28 th October 2010. The Panel heard oral evidence and submissions over six days before determining on 11 th December 2013 that Mr Arun had conducted a breast examination in the absence of a chaperone and in an inappropriate manner and that his conduct was sexually motivated. As a result of the factual findings, the Panel concluded that Mr Arun's fitness to practice was impaired by reason of his serious misconduct. The sanction of suspension was imposed on 13 th December 2013.
The Appellant brings this appeal on the facts. Sensibly, he accepts that if I uphold the findings of the Panel, including that of sexual motivation, there can be no possible complaint about the determinations on misconduct, impairment and sanction. The Respondent invites me to reject the challenge on the facts and so dismiss the appeal. However, equally sensibly, Mr Hare for the Respondent confirmed that if I were to quash the finding that the conduct was sexually motivated the GMC would not seek to uphold the decisions on impairment and sanction, even if I upheld all other factual findings. In the circumstances, the challenge to the finding that Mr Arun's conduct was sexually motivated is by far the most significant aspect of this appeal.
The Court's Approach
An appeal under section 40 of the Medical Act 1983 is by way of rehearing ( CPR Part 52 DPD 19.2) but as Foskett J observed in Fish v General Medical Council [2012] EWHC 1269 (Admin) at [28]:
"it is a rehearing without hearing again the evidence".
This Court will allow an appeal where the decision of the Panel was "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings" ( CPR 52.11(3)). Here the allegation is that the decision was "wrong".
CPR 52.11 (4) provides that the appeal court may draw any inference which it considers justified on the evidence.
It is well established that the court should give proper deference both to the Panel's specialist nature and to the fact that the Panel had the advantage of seeing and hearing the witnesses give evidence. The leading case on the nature of the appellate jurisdiction in this context is General Medical Council v Professor Sir Roy Meadow [2006] EWCA Civ 1390. The much quoted passage from the judgment of Auld LJ at paragraph 197 was cited by both Counsel:
"… it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
iii) The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
Further guidance as to the approach to be adopted was given by the Court of Appeal in Southall v General Medical Council [2010] EWCA Civ 407 where Leveson LJ said (at paragraph 47):
"First, as a matter of general law, it is very well established that findings of fact, particularly if founded upon an assessment of the credibility of witness, are virtually unassailable …. more recently, the test has been put that an appellant must establish that the fact finder was plainly wrong … Further, the court should only reverse a finding on the facts if it "can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread" …."
In Bhatt v General Medical Council [2011] EWHC 783 (Admin), having reviewed the authorities, Langstaff J concluded:
"… although the court will correct errors of fact or approach:
i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;
ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;
iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;
iv) credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;
v) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to … other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair.
The Background Facts
While there was a significant factual dispute between the parties as to the breast examination itself, there was no real dispute about the background circumstances.
At the time of the incident, Mr Arun was a consultant obstetrician and urogynaecologist at the Sandwell and West Birmingham Hospitals. He was aged 45 and had been in that Consultant post for over 8 years. He qualified in India and worked there for some years, before coming to this country in 1995, by which time he had specialised in obstetrics and gynaecology. From then until 2013, he was continuously employed within the N.H.S. He had developed a particular specialism in urogynaecology and had an impressive curriculum vitae.
Up until this incident, there had been no hint of any impropriety on Mr Arun's part. The evidence went further. A number of references were produced to the Panel and to me. Such included letters from medical colleagues, nurses and former patients. Mr Arun was portrayed as a committed doctor about whom there was no gossip or concern about his sexual attitudes. He was described as having a strong reputation as a family man, dedicated to his wife (a consultant obstetrician) and his two daughters.
Patient A was in her early 50's. She was referred to Mr Arun in December 2009 and in February 2010 she underwent an operation to repair a prolapsed bladder under his care. Following that surgery, she saw him again in April 2010. There is no dispute that Mr Arun's care of Patient A up until the appointment in question was medically appropriate, of a high standard and properly documented in her notes. The previous appointments had involved intimate examinations including speculum vaginal examinations during which a nurse chaperone had been present. Patient A confirmed in a police interview on 23 rd December 2010 that Mr Arun had seemed nice and she had never felt uncomfortable with him before the October appointment.
After the April appointment, Patient A was advised to monitor ongoing symptoms and to make a further appointment if needed. It was on that basis that she contacted the hospital and arranged the further appointment which took place on 28 th October 2010.
The appointment time had been fixed for 3:30 p.m. but at Mr Arun's request it was brought forward to 3:00 p.m. I do not think there is any dispute (and the evidence supports it) that the reason for this was that it was half-term week and that had impacted on the family's childcare arrangements. Mr Arun was responsible for picking his daughter up and that required him to leave the hospital at 3:30 p.m. Although Patient A had set out in good time, she unfortunately went to the wrong hospital so that she ended up being about ten minutes late.
When she arrived, Mr Arun came out to collect Patient A. She was conscious of being late knowing that the appointment had been brought forward as Mr Arun needed to get away. They entered the consultation room together. Patient A told the Panel that Mr Arun mentioned the need for him to pick his child up. He then asked about her symptoms which included urinary frequency and difficulty voiding her bladder. He explained that he needed to carry out an internal examination and asked her to remove her clothing below the waist and get on the couch. An internal examination took place. While Patient A was unable to recall the details of this, including whether a speculum was used, nothing seemed untoward. Mr Arun's demeanour was normal. No complaint is made about the vaginal examination.
At the end of the internal examination, Patient A revealed that she was getting intermittent pain in her right breast. There was some inconsistency about how this arose but I do not think much turns on it. Either Mr Arun asked whether Patient A had pain elsewhere and she volunteered that she had pain in her back/loin and breast or Mr Arun asked specifically whether she had any breast pain. The fact is that Patient A did have breast pain and she told the Panel that when it was mentioned she thought "Oh...
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