England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th April 2006

 


Mr Justice Underhill:

INTRODUCTORY

1. This is an appeal under s. 40 of the Medical Act 1983 (as amended) against the decision of a Fitness to Practise Panel of the General Medical Council to erase the appellant from the Register. The appellant is represented by Mr. Robert Jay QC and the Council by Mr. Robert Englehart QC.
2. The circumstances giving rise to the appeal can be summarised as follows:

(1) The appellant (to whom I will refer as Dr. Gopakumar) is a General Practitioner now aged 65. He was the subject of two complaints by female patients known as Mrs A and Miss B – the first relating to an incident on 14^th October 2002 at his own surgery in Dewsbury and the second to events which are said to have occurred in January and February 2004 at a surgery in Hunslet where he worked as a locum. Those complaints led to charges of serious professional misconduct which were heard together by the Panel between 16^th and 19^th August 2005.

(2) The essence of the first charge was that Dr. Gopakumar was said by the patient, who attended with a skin complaint, to have looked at her chest without warning her first what he was going to do, and also to have made a remark which she understood to be a suggestion that she should, unnecessarily, remove her trousers: his conduct was alleged to be not only inappropriate but indecent. Dr. Gopakumar's case was that he could not specifically recall the occasion but that he denied any inappropriate or indecent conduct (though he made it clear from an early stage that if he had unintentionally upset Miss A he regretted it and wished to apologise).

(3) The second charge covered several attendances by Miss B between 21^st January and 18^th February 2004. At one or more of the earlier consultations Dr. Gopakumar was said to have made inappropriate comments to the effect that she was "striking and attractive" and that she had "nice skin". On 18^th February he was said to have carried out an abdominal examination in the course of which he put his hand beneath her pants and pressed on the pubic bone, "the creases between her legs and the pubic bone" and "at the point where the outer labia start". Those examinations were said to have been unnecessary, inappropriate and indecent. Again, Dr. Gopakumar said that he had no, or very little, recollection of these consultations, but he was sure that he would not have made the comments alleged nor have touched the areas alleged in the course of any abdominal examination.

(4) The Panel heard factual evidence from both complainants and from Dr. Gopakumar; and also from Melanie Ellis, a health visitor to whom Miss B had first made an allegation about Dr. Gopakumar's conduct. They heard expert evidence from two general practitioners, Dr. Cox for the Council and Dr. Healy for Dr. Gopakumar. The case for the Council was presented by Mr. Ramasamy of counsel: Dr. Gopakumar was represented by Miss Lambert of counsel. HH Judge Townend acted as legal assessor and gave a short statement of his advice to the Panel before they retired.

(5) The Panel gave their decision on 19^th August 2005. As regards the charges relating to Miss A, they found that Dr. Gopakumar did indeed fail to explain to the patient what he was going to do and thereby failed properly to respect her dignity and privacy; but they did not find that he had acted indecently. However, they found the charges relating to Miss B proved. In accordance with the usual practice (endorsed by the Privy Council in Gupta v. General Medical Council [2002] 1 WLR 1691) the Panel gave only very short reasons. They recorded their conclusion that there could be no clinical justification for a doctor in the course of an abdominal examination to go beyond the anatomical limits of the abdomen – a proposition which was not in truth controversial - or to put his hand beneath a patient's knickers. But on the crucial factual question of whether Dr. Gopakumar had in fact acted in that way they said no more than that they had "carefully considered the evidence of Patients A and B and found them … to be credible witnesses". They summarised their conclusion as being that "in the context of a medical examination of Patient B's abdomen [Dr. Gopakumar] took the opportunity to touch her indecently" and "with a sexual motivation". They went on to decide that erasure was the only appropriate penalty.

(6) I should note, because it is of some significance for the issues which follow, that following the announcement of the Panel's determination (including their brief reasons) Miss Lambert asked the Chairman to clarify whether the Panel had intended to find that the abdominal examination as a whole was unnecessary or whether they accepted that there was a clinical indication for it (and thus that the conduct found was the illegitimate exploitation of a legitimate examination). The Chairman confirmed that "the Panel are of the view that an abdominal examination may have been clinically indicated".

3. Formally, Dr. Gopakumar's appeal is against the erasure order rather than the individual findings leading to that order: see s. 40 (1) (a) of the 1983 Act. But in practice the dispositive issue in this appeal is whether the Panel were right to make the findings that they did as to the indecent touching of Miss B in the course of the examination on 18^th February 2004. It is plain that the findings in relation to Mrs. A's complaint would not by themselves justify erasure; nor would the finding as to the inappropriate remarks said to have been made to Miss B at the earlier consultations. Mr. Jay does in addition submit that even if the finding of indecency is upheld erasure was an excessive penalty; but that is very much a fallback submission.
4. In addressing that issue I bear in mind that an appeal under s. 40 is by way of rehearing: see para. 22.3 (1) (e) of the Practice Direction to CPR Part 52. Accordingly, although the issue is entirely one of fact, I must decide not simply whether the decision of the Panel was one which was open to them on the evidence but whether it was right. However in making that decision I must give appropriate weight to the fact that the Panel had the advantage of hearing the evidence live and that that advantage is of particular importance in a case where the issue essentially depended on the credibility of the witnesses. In this connection I was referred to a large number of Privy Council and other decisions in which the scope of the Court's task in an appeal of this character is discussed. It was suggested that there was some tension between what was said in, on the one hand, such cases as Ghosh v. General Medical Council [2001] 1 WLR 1915 and Preiss v. General Dental Council [2001] 1 WLR 1926 and, on the other, Bijl v. General Medical Council [2002] Lloyd's Rep Med 60 and R (Campbell) v. General Medical Council [2005] 1 WLR 3488. I am not sure that there is any real discrepancy; but in so far as a choice has to be made I would follow the decisions in Ghosh and Preiss, which emphasise the unrestricted scope of the right of appeal in disciplinary cases and which caution against undue reliance on such earlier authorities as Libman v. General Medical Council [1972] AC 217. I note that that was also the approach of Stanley Burnton J in the recent case of Threlfall v. General Optical Council [2005] Lloyd's Rep Med 250.
5. I also bear in mind that, as is common ground, findings of gross misconduct should only be made if the case is proved to the criminal standard of proof. The question for me is thus whether the Panel were right to be sure, on the evidence which they had heard, that Dr. Gopakumar was guilty of the conduct alleged.

THE CHARGES RELATING TO MISS B

Preliminary Point

6. I should deal first with a point raised by Mr. Jay, without objection from Mr. Englehart, as a supplemental ground of appeal. In his formal statement of advice to the Panel Judge Townend did not at first say anything about the significance of the fact that – as had been formally agreed in evidence - Dr. Gopakumar was of good character. However Miss Lambert drew attention to this omission, and the assessor went on to say this:

I pause for this reason, Mr Chairman: I do not know whether Counsel want to speak to me about it, but the fact of the matter is that all witnesses are of good character unless the Panel hears to the contrary. It is the position that the doctor is of good character. It is the position that the witnesses are of good character.

Good character is of course relevant. I will go on to say this, yes: good character is relevant in two aspects of matters when you are asked to consider it. It is evidence that you should take into account in his favour in these two ways: in the first place, as the doctor has given evidence, good character supports his credibility. Good character supports every witness's credibility. The doctor is of good character. His good character supports his credibility. That means it is a factor which you should take into account when deciding whether you believe or disbelieve his evidence, or are not sure.

In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to have acted as it is alleged he has acted in this particular case. Those are matters which you should have regard to in his favour. The weight you will give to those two factors is for you to decide.

Mr Chairman, that is all I feel it appropriate to say.

7. Mr. Jay submits that that was an inadequate direction. He makes two points:

(1) The assessor undermined the force of the direction by saying that not only the doctor but the witnesses – i.e. the complainants – were of good character. A direction in this form would not be given in a criminal trial; and it was in any event technically wrong because no evidence had been adduced as to the character of the witnesses. Indeed – though Mr. Jay advanced this particular point with avowed diffidence – Miss B was not strictly of good character, since she had received a police caution in 1999 for being a passenger in a stolen car.

(2) The direction did not go far enough because it failed positively to draw to the Panel's attention the facts that Dr. Gopakumar had served as a doctor in the NHS without complaint for over thirty years and was a partner in a busy practice, making it particularly unlikely that he should have acted as alleged. He should have had the equivalent of an "enhanced" good character direction, i.e. one which incorporated the additional comments outlined in the final part of the standard JSB direction.

He submits that those omissions represent a serious unfairness in the conduct of the proceedings.

8. I deal with this point first, and separately, because if it is good the consequence must be that the decision of the Panel cannot stand irrespective of my views on the factual issues (unless perhaps I were able to conclude that the case against Dr Gopakumar were so strong that the procedural unfairness could have made no difference). But in my judgment it is not a good point. I agree that, viewed as a character direction in a criminal trial, what the assessor said was unsatisfactory, for essentially the reasons given by Mr. Jay. But it is well-established that the role of a legal assessor assisting a disciplinary panel is not analogous to that of a judge summing up in a criminal trial. In R (Campbell) v. General Medical Council (above), at para. 23 Judge LJ repeated the following passage from Libman (above):

The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against a conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee in camera on points of law and reports his advice in open court after he has given it. The committee under its president are masters both of law and of the facts and what might amount to misdirection in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee's decision. Where a criticism is made of the legal adviser's account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision. See Fox v General Medical Council and per Lord Guest in Sivarajah v General Medical Council ([1964] 1 WLR at 116, 117).

9. I do not believe that the way in which the assessor dealt with the issue of good character invalidated the Panel's decision. No doubt the Panel had to consider what weight, in all the circumstances of the case, to give to the fact that Dr. Gopakumar had no criminal convictions or findings of professional misconduct against him. The assessor's advice was clearly adequate to remind them – if a reminder were needed - to consider that point. I am not convinced that the reminder needed to follow the format of the JSB direction, with its distinction between the relevance of good character to credit and its relevance to the probability of the offence being committed; but even if it was necessary I do not believe that the deficiencies identified by Mr. Jay gave rise to any substantive injustice. Taking them in turn:

- As regards the reference to all the witnesses being of good character, I do not think that this undermines substantially the main point being made: read as a whole, the direction clearly focuses principally on the credit to be given to Dr. Gopakumar. Nor in any event do I think that the practice in a criminal trial of drawing attention only to the good character of the defendant, and not of the prosecution witnesses, represents any fundamental principle of justice. I can see nothing inherently wrong – as a matter of fairness or of logic – in a tribunal assessing the credibility of a 'prosecution' witness taking into account what may be known about his or her good character: nor could Mr Jay suggest why this should be so. The statement that Miss B was of good character was not in any real sense wrong. It is clear that her record had been checked; and I do not believe that the only matter discovered, namely the criminal caution relied on by Mr. Jay, can conceivably be regarded as damaging to her credibility.

- As regards the submission that an enhanced good character direction was required, even in a criminal trial it would be very much a matter for the judge's discretion whether to give such a direction, and I do not believe that fairness required that the Panel here should have been explicitly reminded of the facts – which will have been obvious to them as a specialist tribunal – as to the length of Dr. Gopakumar's (unblemished) record in the NHS. Indeed I note that Miss Lambert did not herself think it necessary to do so in her closing submissions nor did she ask the assessor to do so in his advice.

10. I accordingly do not believe that the Panel's decision is vitiated by any misdirection of law based on the assessor's advice. I proceed to consider the grounds of appeal based on the facts.

The Evidence

11. Although, as noted above, the central issue is what happened at the consultation on 18^th February 2004, it is necessary briefly to summarise the evidence as regards the earlier consultations. I do so as follows:

(1) Miss B was registered with the practice of a Doctor Gupta at the Hunslet Health Centre. On 21^st January 2004 she attended with a complaint of spots on various parts of her body. She did not want to see Dr Gupta because she believed that he had recently misdiagnosed a serious illness from which her baby son had been suffering, and he had suggested that her spots might be chicken-pox, which she was sure they were not. She was accordingly referred to Dr. Gopakumar, whom she had seen once before. She attended again on 23^rd January 2004 and also – according to her evidence, although there is no note – on 24^th January, which was a Saturday. It is clear from the notes made on 21^st and 23^rd January that Dr Gopakumar diagnosed the cause of the spots as impetigo contagiosa. He prescribed antibiotics and a cream.

(2) According to Miss B, in the course of the consultation on the 21^st, Dr Gopakumar said some things which she regarded as "a bit strange". Specifically, he asked if she had a boyfriend, and what he was like; he described her "striking and attractive"; and (either on that occasion or on the 23^rd) he told her that she looked like a receptionist whom he had once had and whom he described to her. Dr. Gopakumar's evidence was that he would not have said these things or anything that might have been regarded as "making a pass" at her. If he had said anything about her being attractive, it would only have been by way of reassurance if she had expressed concern that the spots caused by the impetigo might be disfiguring.

(3) Miss B attended Dr. Gopakumar again on 6^th February. The spots had almost cleared up but she was feeling bad – "tired, drained, run-down, awful" – and the notes record that she was complaining of itching. Dr. Gopakumar carried out an examination which included checking her liver and spleen. He thought she might be anaemic. She said that on this occasion she asked if her skin would scar and he said that that would not happen because she had "nice skin". Dr. Gopakumar accepted that he might have said something to that effect, although he believed it would have been at one of the earlier consultations and that he thought he would have used some such phrase as "nice and healthy" rather than simply "nice".

12. I turn to the evidence about the consultation on 18^th February 2004. This was arranged not for Miss B herself but for her baby son: one consequence of this is that Dr. Gopakumar would not have had Miss B's own notes to hand. It was Miss B's evidence that after Dr. Gopakumar had reassured her about the baby she had then told him that she thought she might be pregnant. She was still feeling very tired and having to go to the toilet more than usual, and she wondered whether the antibiotics that she had been taking might have affected the efficacy of the contraceptive pill. He asked if her period was late – she said that she told him it was not – and whether she had any pain in her stomach – she says that she told him she had no pain as such, "just a couple of twinges that did not hurt". She says that he then offered to check her stomach to see if she had any sign of pregnancy, and she accordingly got on the couch. He pulled the curtains round, which concerned her a little as it meant that she could not any longer see the baby or her three-year old daughter, who had also come with her. She moved her T shirt up and pulled down the top of her jeans and the thong which she was wearing to the level of what she described as the top of her pubic bone. Miss B's account to the Panel of the examination was as follows:

Q: So that is how you arranged your clothing when you got on to the couch, and how did the examination proceed once you were on the couch?

A: Dr Gopakumar was touching my stomach just below my belly button in lines with going across.

Q: Was he wearing gloves or not?

A: No.

Q: He examined your belly, as you have described. What happens after that?

A: He moved lower in lines, until he gets to where my pubic bone is, and then he pushes on my pubic bone, moves to the left groin, back over to my right groin, back on to my pubic bone and then a bit lower down to where it says in my statement, and it stops

Q: We will go back over this in a moment to where it says in the statement. I do have to ask you to set out for the record. Whereabouts, when his hand goes down a bit lower as you have described, does it stop?

A: His fingers stopped just where the labia start. [In cross-examination she said that 'one of his fingers touched the dividing area'.]

Q: You described the thong that you were wearing. Where were his hands in relation to the thong? Were they above the thong or beneath it?

A: Beneath it.

Q: Was there anything said when he was pressing on your pubic bone, down to the sides and then lower down as you have described?

A: He was asking if it hurt.

Q: What was going through your mind at that time when he was examining you in that area?

A: Confusing.

Q: Can you tell us why you felt confused?

A: I have had my stomach checked by a midwife and people before, and they have never, ever gone anywhere near there.

Q: So you have described the examination in that area and how you felt. Once he had put his hands to where the labia starts, as you have described, what happened immediately after that?

A: He moved away.

Q: Was there any other part of the examination or was it stopped at that point?

A: It stopped.

Q: What did he do once he stops the examination?

A: He walked to the sink, and started washing his hands and said, "I do not think you are pregnant".

13. As already mentioned, Dr. Gopakumar had no recollection of this consultation. Nor is there any note of it - either because none was made or because it was subsequently lost or destroyed. (Although Mr. Ramasamy in his closing submissions to the Panel drew attention to this as possibly sinister, I would not myself attach much weight to it because, as noted above, Miss B's notes would not have been available, and in those circumstances it would be unsurprising for a note not to have been made at all or to have gone astray.) But his evidence was that he would certainly not have performed an abdominal examination in order to check for pregnancy. He might have done so if he had cause to suspect some other condition – for example, pelvic infection, urinary tract infection, very early appendicitis or early ectopic pregnancy. But if he had performed an examination for some such reason, he would certainly not have pressed on the pubic bone or – still less – have gone (as it was put in submissions) "further south". Nor would he have palpated in the left and right "groin" by which, as was later clarified, Miss B meant the "creases" between the abdomen and the top of the thigh; but he might well have palpated just above them. His oral evidence in chief relating to this examination concluded as follows:

Q: Dr Kumar, do you think that you might have, during the course of this examination, put your hand underneath Miss B's underwear?

A: No. The only area where the fingers might have encroached is the area between the pubic bone and there. I drew a picture somewhere here. There is a triangle of area where the underwear cannot be moved without exposing the upper part of the private parts, and you do not ask them because it is a lady. Instead of asking them to pull it further down, lifting their bottom and then pulling it down, exposing their private parts, you confine your examination by maybe letting the finger go one or two centimetres.

Q: Whereabouts on her skin might that have been – at the top of the legs?

A: At the top of the legs nearer to the pubic symphysis, the pubic junction.

Q: The top of the legs close to the ---

A: I will show you.

Q: The top of the legs close to the mons pubis?

A: The mons pubis – that is it. It is actually the outer part of the mons pubis that I must have touched that she is making a big fuss about. I do not think it is the labia. I do not think anybody will go to touch the labia of a lady without having gloves on.

Q: Dr Kumar, to be fair, she does not say you touched the labia. She says you touched the point of her skin just above the division – the commencement of the labia.

A: I have been nowhere there. There is no need to go there – absolutely no way. It is totally unbelievable and she does not say that at the beginning, does she?

Q: Let me ask you this question, because it will be put to you: did you in fact take advantage of this young woman on 18 February to undertake an examination for your own gratification?

A: No. I am palpating so many abdomens every day, and if I am going to be getting gratification by each examination or something, I will be exploding with gratification rather than all the pain I am going through now. It is nothing but madness – nothing else. I am sorry I am using that word, but it is degenerate to think like that. It is absolutely degenerate for anybody to think that I have done it. I have no hesitation in using that word.

14. It was Miss B's evidence that following the consultation she had a further discussion with Dr. Gopakumar. Her evidence in cross-examination was as follows:

Q: After that examination, you had a chat with him about having a blood test, did you not?

A: Yes. It was this anaemia/diabetic thing, because I was still feeling run down, and he said, "I will do an appointment for a fasting blood test to check that your blood levels are okay".

Q: And you stayed in his consultation room after the examination and discussed that with him, did you not?

A: The first question I asked him was, "I have an appointment set up with you to check my skin and I no longer need it because my skin is fine, so I am going to cancel." He said, "Do not cancel, still come for your appointment." I said, "Why, because I do not need it?" and he said, "Still come for your appointment."

Q: You did not leave that consultation after the examination in a rush, did you?

A: It did not sink in at first.

15. According to Miss B, she mentioned to her mother the same evening what had happened during the consultation with Dr. Gopakumar: she told her to make a complaint, but Miss B did not do so at that stage. However, when she took her baby to the surgery on 26^th February 2004 on a routine appointment with the Health Visitor, Melanie Ellis, she did tell Mrs. Ellis what she said had happened. Mrs Ellis's note, written on 3^rd March 2004, starts by recording that she had asked Miss B how she was feeling and had been told that there were "a few issues that were concerning her", one being that Dr. Gupta had recently had her and her family taken off the list and that she was having to find a new GP. (I should say that the reason why she was taken off the list had nothing to do with any of the matters in issue in this appeal. It seems to have been the result of a perception that Miss B was regarded as an over-demanding patient and/or the fact that she had complained that Dr. Gupta had failed to diagnose a serious illness in her son.) The note continued:

Miss B stated she wasn't bothered by this and she had lost confidence in Dr Gupta and felt that Dr Kumar was too familiar. Miss B informed me that Dr Kumar had diagnosed her as having impetigo and commenced antibiotics. Miss B had been concerned that the antibiotics could interfere with the contraceptive pill she was taking and had discussed this with him (I am unsure if this was at the subsequent appointment). Miss B was ten days late with her period, Dr Kumar asked if she had any abdominal pain, Miss B said she had (she told me she thought it was due to her period being late). Dr Kumar examined her abdomen and Miss B felt he had examined her abdomen too low down as he was feeling her pubic bone. Miss B also informed me that Dr Kumar had told her she was attractive. She had wanted to complain but had "not got enough credit on her mobile phone". I told Miss B if she felt that Dr Kumar had been inappropriate she had every right to complain. I asked for the telephone number for Patient's Complaints at the GP's Reception Desk and was given Carol Hutchinson's contact number which I gave to Miss B.

In her oral evidence Mrs. Ellis essentially confirmed that the note reflected exactly what Miss B had said to her, except that the phrase "pubic bone" in her note was hers - Miss B having pointed to "her pubic bone region".

16. Following that conversation Miss B made a formal complaint. The matter was initially referred to the police, who took a s. 9 statement but in the event took no further action, and then to the General Medical Council. The accounts given in the s. 9 statement and in the complaint to the Council are very close to the evidence which she in due course gave to the Panel.

The Appellant's Submissions

17. It was Mr. Jay's submission that on the basis of that evidence the Panel should not have been, nor could I be, sure that Dr. Gopakumar had acted as alleged. I review the points relied on by him, and by Miss Lambert before the Panel, as follows.
18. First, Mr. Jay submitted that this was not necessarily, as the Panel appear to have approached it, a case which depended on the credibility of Miss B, in the sense of whether she was telling the truth as she recalled it. Plainly Miss B could not have been mistaken as to whether an abdominal examination had taken place, but the examination itself was not the subject of the complaint, since the Panel had confirmed to Miss Lambert that it may have been clinically justified. But he submitted that her account of what had happened in the course of that examination might be mistaken, in the sense of being a tale that had grown in the telling. It had, he submitted, the hallmarks of such a tale. It was noteworthy that Miss B did not appear at first to have been seriously concerned about the examination. On her own account, immediately after it occurred she said nothing about it to Dr. Gopakumar but stayed and asked him about further tests. Although she says she mentioned to her mother the same evening what had happened, she did nothing about it for over a week: if the reason was really that she had no credit on her mobile phone, that does not suggest she was very seriously concerned. When she did mention matters to Mrs. Ellis on 26^th February she did so only after a discussion of other points of concern about Dr. Gupta; and the impression that she conveyed to Mrs. Ellis was that Dr Gopakumar was "too familiar" and "had examined her abdomen too low down" - which was significantly less serious than the allegation eventually made. This might therefore, he submitted, be a case where the crucial element which unequivocally established indecency rather than mere "over-familiarity" – i.e. pressing at the top of the labia – was a subsequent subconscious embellishment. Mr. Jay also pointed out that Mrs. Ellis's note, confirmed in her oral evidence, was that Miss B had told her that she had told Dr. Gopakumar that her period was late – which was inconsistent with her later evidence. The inconsistency is not central in itself; but the fact of such a discrepancy is evidence that the story had changed in at least one material respect and that Miss B's recollection was not as reliable as she claimed.
19. This point was closely related to another, namely that Miss B appears to have misunderstood the purpose of the examination. She thought that she was being examined for signs of pregnancy: she was, she said, familiar with having her abdomen palpated when pregnant. In fact, however, if Dr. Gopakumar did carry out an examination – as plainly he did, unless Miss B's evidence was deliberately false – it would not have been to look for signs of pregnancy. It was common ground that such an examination would have been pointless: an early pregnancy cannot be detected by palpating the abdomen. If he was carrying out a clinically legitimate examination it would have been because something she had said (probably her reference to abdominal "twinges" and/or to frequency of micturition) led him to think it worth checking for signs of some other condition. Such an examination – looking for, e.g., pelvic inflammatory disease or a bladder infection or an ectopic pregnancy - would have been significantly different from the kind of pregnancy examination with which Miss B was familiar. If Dr. Gopakumar did not explain himself properly (as the Panel had found occurred in the case of Miss A and which he acknowledged to be a weakness in his practice), she would indeed have been puzzled at what he was doing. Mr. Jay submitted that this mismatch between the kind of examination that she expected and the examination that she in fact received may well have sowed the seed which germinated into the distorted account which eventually emerged.
20. Pausing there, these points by themselves carry some weight, but not in my judgment very much. Tales no doubt do sometimes grow in the telling, and Mr. Jay's suggestion of why that might have happened in this case is not impossible. But the fact is that the elements here which Mr. Jay says represent the "new growth" would in fact involve a complete transformation of the original memory: the putting of the hand under the thong, the pressing on the pubic bone and, still more, the pressing on the top of the labia are completely different in kind from anything that Dr. Gopakumar might have done in the course of a normal abdominal examination. Such a drastic overlay of false memory would be possible; but it is not in my judgment at all likely. The facts that Miss B did not complain at once and that her first complaint to Mrs. Ellis was neither immediate nor very specific are not in my view particularly striking. Dr. Gopakumar's alleged actions, although undoubtedly indecent, were not so dramatic that Miss B would necessarily have been moved to take immediate action: on the contrary, it is just the sort of "low-level" misconduct that a patient might take time to think about before deciding to complain.
21. There is of course an alternative possible reason why Miss B may have given false evidence - namely deliberately, in order to make trouble for the practice. There is clear evidence that Miss B was upset with Dr. Gupta about the alleged misdiagnosis of her son, and for having suggested that her impetigo was chicken-pox. She had also, by the time that the complaint was made, heard that Dr. Gupta had had her removed from his list: in fact the letter was received the day after the consultation with Dr Gopakumar. It is clear from Mrs. Ellis's note that that had created real problems for her, and it might reasonably be assumed that she was angry and upset. It would not have been particularly rational on her part, let alone fair, to make false allegations against Dr. Gopakumar in order to get at Dr. Gupta; but troubled and angry patients do not always act rationally. However, this explanation was not advanced – at least explicitly – before the Panel. Miss Lambert had brought out the basic facts but had never put it directly to Miss B, or submitted to the Panel, that her allegations were malicious. That created some difficulty for Mr. Jay; but he submitted that I should nevertheless take this possibility into account. I am prepared to do so, since these are quasi-criminal proceedings; but inevitably the weight which I attach to this possibility is reduced by the fact that neither I nor the Panel had the benefit of Miss B's response to so serious an allegation.
22. So far I have focused on the reliability of Miss B's evidence. But Mr. Jay submitted that to the queries about her reliability have to be added what he says is the inherent implausibility of Dr. Gopakumar acting in the manner alleged. What is alleged against him is a minor act of indecency, without any context suggesting a sexual motivation (subject to such weight as might be given to his alleged remarks at the earlier consultations). The circumstances of the alleged indecent touching were hardly propitious, with two children in the room (even if the curtains round the couch were drawn). More importantly, as already discussed, Dr. Gopakumar had been in practice for over thirty years without any known complaint of this kind, and his previous good character made it highly implausible that he would have acted in the way alleged. It is true that the Panel had before them also the complaint of Mrs. A; but that counted for nothing since they had found no indecency. He also drew my attention to Dr. Gopakumar's adamant and emotional denial that he could ever have acted in such a way.
23. Again, those points have some weight; but not in my judgment very much on their own. Acts of sexual misbehaviour are often committed in circumstances when, viewed coolly, the circumstances are unpropitious; and on the first occasion that such behaviour occurs, or is detected, it can always be said to be "out of character". The Panel were also entitled to take into account, as supporting evidence, the 'strange' remarks attributed by Miss B to Dr Gopakumar at this earlier consultation.

Conclusion

24. Reviewing these points overall, what they seem to me to come down to is this. There were some factors which could have led the Panel to doubt Miss B's evidence, but there were none which required them to do so. If they found her to be convincing in the way she gave her evidence, and were unimpressed by Dr. Gopakumar's evidence, there was no reason why they should not have been sure that her allegations were true. It is evident that they did indeed find her convincing. They said so; and in fact even from the printed page it is plain that her evidence was clear, consistent and confident - Mr. Ramasamy in submissions described her evidence as "unshaken", and Miss Lambert acknowledged that she had been spirited and robust. It is precisely in cases of this kind that an appellate tribunal should be slow to differ from the assessment of the tribunal which has heard the evidence. If, like the Panel, I had heard Miss B and seen nothing in her demeanour to cause me to suspect deliberate untruthfulness or subconscious embellishment, and been less impressed by Dr. Gopakumar, I would have been satisfied to the criminal standard that her account was true. I can accordingly see no error in the Panel's decision on this point.
25. Once that point is reached, the Panel's findings as regards Dr. Gopakumar's remarks at the earlier consultations are of no separate significance. But plainly there could be no basis for overturning the findings in this respect either.

THE COMPLAINT BY MRS. A

26. If the findings as regards Miss B stand, whether the Panel were right in their conclusion on Mrs. A's complaint is immaterial. Mr. Jay in any event conceded that his only arguable ground of appeal in relation to Mrs. A was the failure to give a proper good character direction. Since I have rejected that argument, I need say no more about this part of the appeal.

SANCTIONS

27. Mr. Jay submitted that even if the Panel's finding of serious professional misconduct stood, the decision to erase Dr. Gopakumar from the Register was unnecessarily severe. This was a case of a fleeting indecent touching, in the course of an examination which was clinically justified. The Panel was wrong to infer that the motive was sexual gratification. I cannot accept this. If events occurred as Miss B said they did, it is not realistic to think that there motivation was anything but sexual. No doubt in the context of indecent touchings by doctors it was minor. But I can well understand a judgment by the Panel that any indecent touching of this kind is too serious a matter to be dealt with otherwise than by way of erasure: I note in this regard the observations of the Privy Council in Sreenath v. General Medical Council [2002] UKPC 56, at para. 20.

CONCLUSION

28. The appeal is accordingly dismissed.