Gopakumar v General Medical Council

An appeal under section 40 of the Medical Act 1983 is by way of rehearing. The appellate court must decide whether the disciplinary panel’s decision was right, while giving appropriate weight to the panel’s assessment of witnesses heard live. Findings of gross misconduct must be proved to the criminal standard. A legal assessor’s advice is not equivalent to a criminal judge’s summing-up; an alleged defect invalidates the decision only if it was sufficiently significant to the result. Where a panel is satisfied by a credible witness and is not persuaded by the respondent’s evidence, an appellate court should be slow to interfere. Indecent touching by a doctor may justify erasure even where the touching was brief and occurred during a clinically justified examination.

The appellant, a general practitioner, appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel’s decision to erase him from the medical register. The Panel found that he had failed to respect one patient’s dignity and privacy, and had indecently touched another patient during an abdominal examination with sexual motivation. The appellant challenged the adequacy of the legal assessor’s good-character direction, the factual findings, and the severity of the sanction. The central issue was whether the Panel had been entitled to find the indecent touching proved to the criminal standard and, if so, whether erasure was excessive.

1. The appeal was dismissed. The decisive issue was whether the finding that the appellant indecently touched Miss B was correct.

2. Under section 40 of the Medical Act 1983, the appeal was by way of rehearing. The court had to decide whether the Panel’s conclusion was right, rather than merely whether it was open to the Panel. However, appropriate weight had to be given to the Panel’s advantage in hearing the witnesses live, especially where credibility was central. The charge had to be proved to the criminal standard.

3. The legal assessor’s advice on good character was imperfect when compared with a criminal trial direction, but disciplinary proceedings were not conducted on that basis. The assessor’s role was not analogous to that of a judge summing up to a jury. The relevant question was whether any deficiency could fairly be regarded as sufficiently significant to invalidate the decision. It could not.

4. The Panel was entitled to accept Miss B’s clear and confident evidence and reject the appellant’s account. The delay in complaining, the initial generality of the complaint, the possible misunderstanding about the purpose of the examination, and the appellant’s good character did not require the Panel to reject her evidence. The court therefore found no error in the factual conclusion.

5. If the indecent touching occurred as alleged, sexual motivation was the realistic inference. Although the conduct was minor in comparison with other forms of professional misconduct, the Panel was entitled to conclude that erasure was the only appropriate sanction.

• Fitness to Practise Panel of the General Medical Council: found certain charges proved and ordered erasure from the Register.
• High Court (Administrative Court): dismissed the appeal under section 40 of the Medical Act 1983.