Arunkalaivanan v General Medical Council

In a professional disciplinary appeal, an appellate court must respect a specialist tribunal’s primary factual and credibility findings, particularly where it heard the witnesses, but may scrutinise an inference drawn from those facts where it is equally well placed to do so. An inappropriate intimate examination does not, without more, establish sexual motivation. The tribunal must separately weigh all circumstances, including alternative non-sexual explanations and relevant character evidence, on the balance of probabilities. A finding of sexual motivation was plainly wrong where the tribunal conflated an inappropriate examination with sexual intent and failed to evaluate competing explanations. The primary findings remained, but impairment and sanction were quashed and the question of a warning was remitted.

Mr Angamuthu Arunkalaivanan appealed under the Medical Act 1983 against a Fitness to Practise Panel decision. The Panel found that he had examined Patient A’s breasts inappropriately and without a chaperone, that the conduct was sexually motivated, and that his fitness to practise was impaired. It imposed a 12-month suspension. The appeal challenged the factual findings, particularly the finding of sexual motivation. The central issues were the extent to which the court could revisit the Panel’s findings and whether sexual motivation could properly be inferred from the established manner of examination and the surrounding circumstances.

Appellate approach

The appeal under the Medical Act 1983 was by way of rehearing, but without hearing the evidence again. Under the Civil Procedure Rules 1998, the court could draw any inference justified by the evidence and could intervene where the decision was wrong or unjust because of serious procedural or other irregularity.

The court applied the guidance in Fish v General Medical Council [2012] EWHC 1269 (Admin), General Medical Council v Professor Sir Roy Meadow [2006] EWCA Civ 1390, Southall v General Medical Council [2010] EWCA Civ 407 and Bhatt v General Medical Council [2011] EWHC 783 (Admin). Primary findings, especially those based on credibility, required substantial respect and were virtually unassailable unless plainly wrong or based on a misreading of the evidence. The court could be less deferential when reviewing an evaluative inference outside the Panel’s immediate professional expertise.

Sexual motivation

1. The Panel was entitled to prefer Patient A’s account and to uphold the findings about how the breast examination was performed. Its reasons were sufficient, and the court declined to interfere with those primary findings.
2. Sexual motivation was a separate issue. It had to be inferred from the primary facts and all the surrounding circumstances on the balance of probabilities. An inappropriate examination did not necessarily amount to sexually motivated conduct. The reasoning in In re D [2008] UKHL 33 was relevant to the assessment of the improbability that a person would risk serious consequences, although abuse-of-trust cases required caution.
3. The Panel materially failed to consider whether the examination could have been clumsy, rushed and insensitive without sexual intent. It also failed to weigh Mr Arun’s character evidence at the motive stage and treated the absence of a valid medical reason and the inappropriate manner of examination as effectively establishing sexual motivation. A broad assessment was required, rather than a numerical counting of factors. The competing circumstances made sexual motivation unlikely and the finding was plainly wrong.

Disposal

The primary factual findings were upheld. The finding of sexual motivation was quashed, together with the determinations of impairment and sanction. The court accepted that the Notice of Hearing contained separate factual allegations and an additional allegation of sexual motivation, applying the approach discussed in R (on the application of El-Baroudy) v GMC [2013] EWHC 2894 (Admin). The matter was remitted to a differently constituted Panel to consider whether a warning under rule 17(2)(l) of the General Medical Council (Fitness to Practise Rules) 2004 was appropriate. The remittal was not an encouragement to impose a warning and introduced no further allegation. The GMC was ordered to pay costs assessed at £10,500.

• High Court (Administrative Court) — appeal from the GMC Fitness to Practise Panel’s decision imposing a 12-month suspension. The primary factual findings were upheld, but the finding of sexual motivation, impairment and sanction were quashed. The warning issue was remitted to a differently constituted Panel.