R Dr Senthil Gopalakrishnan (Claimant/Appellant) v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson DBE |
| Judgment Date | 26 May 2016 |
| Neutral Citation | [2016] EWHC 1247 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5389/2015 |
| Date | 26 May 2016 |
[2016] EWHC 1247 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Patterson DBE
Case No: CO/5389/2015
Mary O'Rourke QC (instructed by Nabarros LLP) for the Claimant
Ivan Hare (instructed by GMC Legal) for the Defendant
Hearing dates: 12 May 2016
Approved Judgment
Introduction
This is an appeal under section 40 of the Medical Act 1983 against a determination of 29 September 2015 when the Fitness to Practise Panel (FPP) on the part of the respondent found the appellant to be guilty of misconduct in relation to acts involving B and C and imposed a sanction of four months' suspension of the appellant's medical registration. The FPP found the appellant's fitness to practise to be impaired by reason of his misconduct in subjecting two of his female colleagues, B and C, to non-consensual and inappropriate touching.
The appeal is against the factual findings at stage 1 of the regulatory process. There are nine grounds of appeal. The appellant accepts that should his challenge to the factual findings fail then the stage 2 findings of misconduct and impairment of fitness to practise should stand and that the sanction of a four month suspension of registration is fair, appropriate and proportionate.
The grounds, it is agreed, can be distilled into three main areas of challenge. They are:
i) Inadequate reasoning;
ii) Perversity; and
iii) Apparent Bias.
It is accepted by the appellant that there is some overlap between the various grounds alleged.
Background
The appellant worked as an associate specialist in anaesthetics at the East Canterbury Hospitals NHS Foundation Trust (the Trust). On or about 23 June 2011 A, B and C made complaints to their line manager, Mr Siddle, of sexual assaults upon them by the appellant from May 2010 until April 2011:
i) The complainant A was a first year student in the operating department practice course and made allegations of incidents between May 2010 and January 2011;
ii) The complainant B was an operating department practitioner and made complaints about incidents between September 2010 and February 2011; and
iii) The complainant C was a sister in the theatre department and made allegations about incidents in April 2011.
All of the complaints were alleged to be incidents when each of the complainants was alone with the appellant.
All of the parties continued to work, apparently as normal, until December 2011 when there was an internal disciplinary hearing. The appellant was unrepresented at that hearing. He was summarily dismissed immediately after the hearing. Subsequently, he issued proceedings for unfair dismissal in the Employment Tribunal. Those proceedings were successful in March 2013.
In December 2011 all three complainants separately made allegations to the police of sexual assault by the appellant. The appellant was tried at Canterbury Crown Court in December 2012 on eight charges of indecent assault relating to A, B and C. He was acquitted on all counts. The transcripts of the evidence from the Crown Court were available to the General Medical Council (GMC) for their investigation and for the FPP of the Medical Practitioners Tribunal Service.
The FPP hearing commenced on 15 January 2015. The original heads of charge run to 14 paragraphs.
The FPP sat first from 15 to 29 January 2015. It heard live evidence from A, B and C and Mr Siddle. It heard evidence from the defence from the appellant, Dawn Martindale and Sally Abbott.
The hearing was then adjourned until 18 May 2015. Closing submissions were made on that day by both parties.
From 19 to 26 May the FPP carried out its deliberations.
On 27 May 2015 the FPP delivered its determination of the facts. It found that none of the complaints by A were proved;
It found that some, but not all, of the complaints by B and C were proved and that the appellant had, in summary:
i) Touched B's lower hips and backside area on more than one occasion between October 2010 and February 2011 without her consent, inappropriately and with sexual motivation;
ii) Asked personal questions of B between September 2010 and November 2010 and made an inappropriate suggestion to B between October 2010 and February 2011;
iii) Moved his hand down C's back, patted her bottom and rubbed her bottom on 2 April 2011 without her consent, inappropriately and with sexual motivation; and
iv) On 2 April 2011 held his arms out to C and asked her to come back to him, inappropriately and with sexual motivation, and asked why she kept running away from him.
On 28 September 2015 the FPP resumed. It heard submissions and found the appellant's fitness to practise to be impaired. The following day the FPP heard submissions from both parties and decided that the appropriate sanction was a suspension of four months.
Determination by the FPP
The FPP had to determine 14 paragraphs of allegations against the appellant. The first was admitted, which was that the appellant was employed as a speciality doctor in anaesthetics at Canterbury Hospital.
Of the other allegations all of those relating to A were dismissed. Those relating to B, which were paragraphs 6 to 10, were found proved only in part. Those relating to C, which were paragraphs 11 to 14, were, similarly, found proved only in part.
Before setting out its findings the FPP dealt with certain general matters including allegations of collusion and contamination, the Crown Court trial, the appellant's evidence and the evidence of the complainants. In dealing with the generality of those matters the FPP said:
" Collusion and contamination
51. Submissions were made on your behalf that there had been collaboration between Ms A, Ms B and Ms C and that this had contaminated their evidence, either intentionally or unintentionally. There was no dispute that all three witnesses had reported the alleged incidents to Mr Siddle at the same time and in the presence of each other. It was also suggested that they met together and discussed these incidents on later occasions. It was further submitted that they may have been prepared to support the GMC's case against you, in order to attempt to redress the damage to their reputation at work, after your acquittal in the Crown Court.
52. The Panel has borne in mind that it is not unusual for people to share those experiences which prompted them to make a complaint, nor for such people to conclude that they might wish to take such matters further some time after the incident or incidents complained of, particularly when they realised that there were others who may have had similar experiences. It has also borne in mind that there was no evidence that any of the complainants were experienced in matters of investigation, or that they would necessarily have appreciated or anticipated the forensic analysis to which their statements might subsequently be put. The Panel accepts that there were some changes and inconsistencies in the evidence and witness statements given by each complainant, but it has also borne in mind that these differences may have been as a consequence of more focussed questions which, had they been asked at the outset, might have resulted in greater consistency.
53. The Panel noted that Ms A, Ms B and Ms C had maintained their complaints over several years, and were willing to give evidence in these proceedings, notwithstanding their vulnerability. The Panel also noted that all three complaints, although sexual in nature, were different in a number of respects. Despite each witness knowing about the complaint of the others, in the Panel's view, there was no reason to suspect that their evidence had been tailored to correspond more closely with each other, or that their evidence was overstated.
54. Although the Panel recognised that discussion between the witnesses and delayed reporting may be understandable in certain circumstances, it adopted a cautious approach, when considering the consistency of the evidence from each complainant. However, in all the circumstances, despite the strong assertions made on your behalf, it did not find that there was any basis upon which the Panel could conclude that there had been, or might have been, collusion or contamination.
Crown Court trial
55. The Panel was told that all three complainants gave evidence at your Crown Court trial in December 2012, based on the allegation now before this Panel. However, the Panel has borne in mind that a jury does not provide reasons for its decisions, and that, in any event, criminal proceedings are determined on the criminal standard of proof, namely, beyond all reasonable doubt. The Panel noted that the jury returned 'not guilty' verdicts, in accordance with the criminal standard of proof, however, no inferences were drawn by the Panel from the conclusions reached by the jury when considering your case.
Your evidence
56. The Panel has taken into account the evidence of your good character, including the testimonials presented on your behalf. It has borne in mind that good character is not a defence, but, as a positive feature, it supports your credibility and should be taken into account when deciding whether the Panel accepts your account of events. Your good character may also mean that you are less likely to have acted in the manner alleged.
57. You denied all the remaining allegations against you. You explained the incidents alleged by Ms B and Ms C, in part, by reference to the informal, friendly environment in which you all worked. You explained that, culturally, the notion of hugging was not something that you were used to, but that your wife...
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