Case report: Dr Senthil Gopalakrishnan v GMC
The Queen (on the application of) Dr Senthil Gopalakrishnan v General Medical Council  EWHC 1247 (Admin)
The appellant sought to challenge the factual findings of the Fitness to Practise Panel of the General Medical Council (GMC) on the grounds that the Panel’s findings showed inadequate reasoning, perversity and apparent bias.
The appellant worked as an associate specialist in anaesthetics at a NHS Foundation Trust (the Trust). Three female colleagues, A, B and C, alleged that the appellant had sexually assaulted them at work in separate incidents between May 2010 and April 2011. The assaults were said to have occurred when the appellant was alone with each person.
Although the appellant was summarily dismissed from his employment, following an internal disciplinary investigation, he succeeded in a claim for unfair dismissal in the Employment Tribunal.
Following a police investigation, the appellant was tried on eight charges of indecent assault in relation to A, B and C in December 2012. He was acquitted on all counts.
The Fitness to Practise Panel sat between 15 to 29 January 2015 and heard live evidence from A, B and C and their line manager. It also heard live defence evidence from the appellant and two other witnesses. The transcripts of the evidence given at the Crown Court were also available to the Fitness to Practise Panel. The hearing went part heard and on 27 May 2015 the Panel delivered its determination on the facts.
In summary, the Panel found that the appellant had touched B’s lower hips and backside area on more than one occasion without her consent, asked personal questions of B and made an inappropriate suggestion to B, moved his hand down C’s back, patted her backside and rubbed her backside without her consent, held his arms out to C and asked her to come back to him. The Panel found that the conduct was inappropriate and sexually motivated. None of the allegations in respect of A were found proved.
The appellant’s fitness to practice was found to be impaired by reason of misconduct and he was suspended for four months.
The appellant argued that:
- The Fitness to Practise hearing was in effect a retrial of the Trust disciplinary hearing and the Crown Court proceedings.
- The Panel’s reasoning was inadequate because they did not identify which parts of the complainants’ evidence they had relied upon and how they reconciled inconsistencies in the evidence.
- The findings were perverse because the three complainants had the opportunity to discuss the allegations with each other and there was a risk of collusion and collaboration.
- There was an appearance of bias because the Panel questioned witnesses on evidence that should have been accepted, it attempted to amend charges and because there was a lengthy period of deliberation (six working days).
The appeal was rejected on all grounds. The Honourable Mrs Justice Patterson DBE handed down judgment on 26 May 2016. She considered that “the heart of the case revolved around the simple issue of credibility as between the appellant and the complainants.”
The full judgment can be accessed here. Patterson J recited a number of authorities, with salient points from the following:
- Yaacoub v GMC  EWHC 2779 (Admin): guidance was given on the approach to the giving of reasons, re-emphasising the duty to make it clear to the losing party why he had lost, and acknowledging that the first instance body has the advantage of judging the credibility and reliability of evidence given by a witness.
- Gupta v GMC  1 WLR 1691: the first instance body is in a better position to judge the credibility and reliability of witness evidence. The appeal court recognises that it should be slow to interfere with the decisions on matters of fact taken by the first instance body.
- Porter v Magill  2 AC 357: the test of apparent bias as being ‘whether a fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased.’
- Helow v Home Secretary  1 WLR 2416: where the fair-minded observer was considered to be ‘the sort of person who always reserves judgement on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, nor complacent.’
Patterson J also noted that the Panel had been aware that their task in judging the witness evidence should be discharged to the civil standard of proof and that they had to be alert to the risks of collusion and contamination as between the complainants. Further, the Panel’s lengthy deliberations (six working days) did not have a bearing on the issue of bias.
Practitioners who are considering appealing the factual findings made by a first instance decision maker, such as a Medical Practitioner Tribunal, should be aware that the courts have shown a consistent reluctance to interfere with decisions on issues of fact. This case reaffirms the position that the first instance tribunals are generally better placed to assess the credibility and reliability of witness evidence, than appellate courts reviewing matters on the papers. The case also serves as a reminder that when providing reasons for their decisions, tribunals do not need to refer to all of the issues that were raised in evidence.
Practitioners should be aware of the importance of the first instance hearing and the limitations of the appeal process.
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