Newsletters Professional Discipline 14th Jun 2018

Dr G Arunachalam v GMC [2018] EWHC 758 (Admin): Can a Doctor Escape Erasure for Repeated Sexual Misconduct?

Dr Arunachalam appealed against his erasure by a Medical Practitioners’ Tribunal for sexually motivated misconduct against two colleagues. One, Dr A, was pestered by over-familiar messages from the Registrant which she ascribed to a deluded belief on his part that there was more than a professional relationship between them. She initially tried to deal with it informally but when the Registrant persisted, she reported him and he was dismissed.

After his dismissal, the Registrant did locum shifts at another hospital, where he subjected another colleague, Dr B, to unwanted attention including touching on multiple occasions, including once hugging her, and kissing her on the top of her head. She discussed this with someone from the hospital’s human resources department, expecting that the Registrant would be made to apologise which she was happy to accept so long as he changed his behaviour.

The Registrant was referred to the GMC. He faced eight charges at his fitness to practise hearing. Some were admitted, and those not admitted were found proved. He was subsequently struck off by the Tribunal.

The unusual feature of this case was that the GMC, after the inevitable finding of impairment, contended for suspension and not strike-off. Kerr J said that there was nothing inconsistent in the GMC then opposing the appeal and arguing that the erasure should stand; it was perfectly logical that a regulator should defend the Tribunal’s actual decision on appeal.

In its sanction decision, the Tribunal found that the Registrant had very limited insight and showed “no evidence of regret or remorse” apart from accepting errors of judgment. He had undertaken no remedial training, was in a position of authority over the victims and the behaviour towards Dr B occurred after he had been dismissed for his conduct towards Dr A. It then listed, and the fact that these were only listed was key for this decision, the mitigating factors in four bullet points covering previous good character, no repetition in 2 ½ years of subsequent practise, no concern about clinical competence and good testimonials.

At this point most practitioners may find themselves entirely unsurprised that the sanction of erasure was imposed, particularly given that the sexually motivated touching of Dr B could arguably have founded a conviction for sexual assault, albeit a very minor one.

However the erasure was quashed. What troubled Kerr J about the decision was a complete failure by the Tribunal to evaluate, rather than just list, the mitigating features. Earlier in the judgment he had reminded himself that sexual misconduct cases are not to be regarded as leading to automatic erasure and required proper consideration of the least serious sanction required to maintain confidence etc just as any other category of misconduct does.

He then went on to consider what a reasonable and informed member of the public would think. He concluded it would be rather generous to dismiss the conduct as “deluded behaviour”, as Dr A (the recipient of the texts rather than the touching) had. Nevertheless he felt that the stance of the GMC that suspension was sufficient was itself quite strong evidence that the public would not think erasure was required. The GMC’s stance, together with Dr B’s statement that she would have accepted an apology, persuaded him to overturn the erasure and impose a 12-month suspension.

It may be that this can be regarded as a rather generous judicial decision, especially as it is based largely on the Tribunal’s failure to explain its views on the mitigating features, rather than a fundamental disagreement with the Tribunal’s view that in principle this was a case that pointed towards erasure. Nevertheless it is a useful reminder that even apparently very serious cases have to be considered on their merits, and Tribunals must engage fully with the range of responses available before imposing the ultimate sanction.

Ben Rich

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