Arowojolu v General Medical Council

On an appeal under Medical Act 1983 section 40, the High Court must respect the specialist tribunal’s assessment of witnesses and factual conclusions, but must intervene where material legal misdirection makes the decision wrong or unjust. Where historic allegations are admitted as evidence of a complainant’s propensity to make false allegations, the tribunal must address whether those allegations were truthful and whether they establish the alleged propensity. A direction merely requiring the tribunal to consider the evidence as part of the whole case is insufficient. The court may quash the sanction appealed against, but its statutory powers do not permit it to preserve selected findings of fact while quashing the sanction.

Dr Olakunle Arowojolu appealed under section 40 of the Medical Act 1983 against a Medical Practitioners Tribunal direction erasing his name from the medical register. The Tribunal had found proved sexually motivated touching of a receptionist, Ms A, during an examination in July 2013, and had found his fitness to practise impaired.

The appeal challenged the Tribunal’s fact-finding process. The principal ground concerned historic allegations by Ms A that her grandfather had sexually abused her when she was a teenager. The Appellant argued that the Tribunal should have determined whether those allegations were false and, if so, whether they demonstrated a propensity to make false allegations. He also challenged the assessment of the two phases of alleged assault, CCTV evidence and his good character.

1. Appeal allowed. The appeal was by way of rehearing, but without hearing the evidence again. The Tribunal’s decision was presumed correct, and appropriate weight had to be given to its specialist expertise and its opportunity to assess witnesses. The court could nevertheless intervene where the decision was wrong or unjust because of a serious procedural or other irregularity.
2. The criminal trial judge’s direction on the historic allegations did not automatically govern the disciplinary hearing. Disciplinary proceedings are civil, although fairness may require safeguards analogous to those used in criminal proceedings.
3. The historic allegations were admitted because they were relied on to support the contention that Ms A was a fantasist or had a propensity to make false allegations against older men in positions of authority. The legally qualified Chair wrongly directed the Tribunal that it did not need to determine the truth or otherwise of those allegations. The Tribunal had to attempt to resolve that issue. If it could not do so, the propensity issue could go no further; but it could not be relieved from making the attempt.
4. R v Mitchell (Respondent) (Northern Ireland) [2016] UKSC 55 did not support the Chair’s direction. Its warning concerned excessive reliance on bad character evidence and the danger of satellite litigation. It was not authority for omitting to determine whether disputed allegations supported a finding of propensity.
5. The misdirection concerned the central issue of Ms A’s credibility in a case substantially dependent on her evidence. The court could not conclude that it made no difference. The Tribunal’s findings of fact therefore could not stand, and the remaining grounds did not require determination.
6. The court’s statutory powers under section 40(7) did not permit it to quash the erasure direction while preserving selected findings of fact. The order was that the appeal be allowed and the Tribunal’s direction erasing the Appellant’s name from the medical register be quashed. Any further proceedings were for the GMC and Tribunal.

• Medical Practitioners Tribunal: Found allegations of sexually motivated misconduct proved on 10 April 2019 and directed erasure on 25 July 2019.
• High Court (Administrative Court): On an appeal under section 40 of the Medical Act 1983, allowed the appeal and quashed the erasure direction.