England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (AT MANCHESTER)

		Manchester Civil Justice Centre, 1 Bridge Street West, Manchester M60 9DJ
		2nd April 2014

Amanda Yip QC:

1. This is an appeal of Mr Angamuthu Arunkalaivanan (known as Mr Arun) under section 40 of the Medical Act 1983 against a decision of the Fitness to Practise Panel ("the Panel") of the General Medical Council (GMC) to suspend his registration for a period of 12 months.

2. The charges related to a consultation with a female patient (known in the proceedings as "Patient A") on 28^th October 2010. The Panel heard oral evidence and submissions over six days before determining on 11^th December 2013 that Mr Arun had conducted a breast examination in the absence of a chaperone and in an inappropriate manner and that his conduct was sexually motivated. As a result of the factual findings, the Panel concluded that Mr Arun's fitness to practice was impaired by reason of his serious misconduct. The sanction of suspension was imposed on 13^th December 2013.

3. The Appellant brings this appeal on the facts. Sensibly, he accepts that if I uphold the findings of the Panel, including that of sexual motivation, there can be no possible complaint about the determinations on misconduct, impairment and sanction. The Respondent invites me to reject the challenge on the facts and so dismiss the appeal. However, equally sensibly, Mr Hare for the Respondent confirmed that if I were to quash the finding that the conduct was sexually motivated the GMC would not seek to uphold the decisions on impairment and sanction, even if I upheld all other factual findings. In the circumstances, the challenge to the finding that Mr Arun's conduct was sexually motivated is by far the most significant aspect of this appeal.

The Court's Approach

4. An appeal under section 40 of the Medical Act 1983 is by way of rehearing (CPR Part 52 DPD 19.2) but as Foskett J observed in Fish v General Medical Council [2012] EWHC 1269 (Admin) at [28]:

"it is a rehearing without hearing again the evidence".

This Court will allow an appeal where the decision of the Panel was "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings" (CPR 52.11(3)). Here the allegation is that the decision was "wrong".

5. CPR 52.11(4) provides that the appeal court may draw any inference which it considers justified on the evidence.

6. It is well established that the court should give proper deference both to the Panel's specialist nature and to the fact that the Panel had the advantage of seeing and hearing the witnesses give evidence. The leading case on the nature of the appellate jurisdiction in this context is General Medical Council v Professor Sir Roy Meadow [2006] EWCA Civ 1390. The much quoted passage from the judgment of Auld LJ at paragraph 197 was cited by both Counsel:

"... it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:

i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;

ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;

iii) The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."

7. Further guidance as to the approach to be adopted was given by the Court of Appeal in Southall v General Medical Council [2010] EWCA Civ 407 where Leveson LJ said (at paragraph 47):

"First, as a matter of general law, it is very well established that findings of fact, particularly if founded upon an assessment of the credibility of witness, are virtually unassailable .... more recently, the test has been put that an appellant must establish that the fact finder was plainly wrong ... Further, the court should only reverse a finding on the facts if it "can be shown that the findings ... were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread" ...."

8. In Bhatt v General Medical Council [2011] EWHC 783 (Admin), having reviewed the authorities, Langstaff J concluded:

"... although the court will correct errors of fact or approach:

i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;

iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;

iv) credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;

v) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to ... other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair.

The Background Facts

9. While there was a significant factual dispute between the parties as to the breast examination itself, there was no real dispute about the background circumstances.

10. At the time of the incident, Mr Arun was a consultant obstetrician and urogynaecologist at the Sandwell and West Birmingham Hospitals. He was aged 45 and had been in that Consultant post for over 8 years. He qualified in India and worked there for some years, before coming to this country in 1995, by which time he had specialised in obstetrics and gynaecology. From then until 2013, he was continuously employed within the N.H.S. He had developed a particular specialism in urogynaecology and had an impressive curriculum vitae.

11. Up until this incident, there had been no hint of any impropriety on Mr Arun's part. The evidence went further. A number of references were produced to the Panel and to me. Such included letters from medical colleagues, nurses and former patients. Mr Arun was portrayed as a committed doctor about whom there was no gossip or concern about his sexual attitudes. He was described as having a strong reputation as a family man, dedicated to his wife (a consultant obstetrician) and his two daughters.

12. Patient A was in her early 50's. She was referred to Mr Arun in December 2009 and in February 2010 she underwent an operation to repair a prolapsed bladder under his care. Following that surgery, she saw him again in April 2010. There is no dispute that Mr Arun's care of Patient A up until the appointment in question was medically appropriate, of a high standard and properly documented in her notes. The previous appointments had involved intimate examinations including speculum vaginal examinations during which a nurse chaperone had been present. Patient A confirmed in a police interview on 23^rd December 2010 that Mr Arun had seemed nice and she had never felt uncomfortable with him before the October appointment.

13. After the April appointment, Patient A was advised to monitor ongoing symptoms and to make a further appointment if needed. It was on that basis that she contacted the hospital and arranged the further appointment which took place on 28^th October 2010.

14. The appointment time had been fixed for 3:30 p.m. but at Mr Arun's request it was brought forward to 3:00 p.m. I do not think there is any dispute (and the evidence supports it) that the reason for this was that it was half-term week and that had impacted on the family's childcare arrangements. Mr Arun was responsible for picking his daughter up and that required him to leave the hospital at 3:30 p.m. Although Patient A had set out in good time, she unfortunately went to the wrong hospital so that she ended up being about ten minutes late.

15. When she arrived, Mr Arun came out to collect Patient A. She was conscious of being late knowing that the appointment had been brought forward as Mr Arun needed to get away. They entered the consultation room together. Patient A told the Panel that Mr Arun mentioned the need for him to pick his child up. He then asked about her symptoms which included urinary frequency and difficulty voiding her bladder. He explained that he needed to carry out an internal examination and asked her to remove her clothing below the waist and get on the couch. An internal examination took place. While Patient A was unable to recall the details of this, including whether a speculum was used, nothing seemed untoward. Mr Arun's demeanour was normal. No complaint is made about the vaginal examination.

16. At the end of the internal examination, Patient A revealed that she was getting intermittent pain in her right breast. There was some inconsistency about how this arose but I do not think much turns on it. Either Mr Arun asked whether Patient A had pain elsewhere and she volunteered that she had pain in her back/loin and breast or Mr Arun asked specifically whether she had any breast pain. The fact is that Patient A did have breast pain and she told the Panel that when it was mentioned she thought "Oh that's good because now he can have a look and maybe put my mind at rest ...". Given Patient A's age, medical history and the fact that she was undergoing hormone treatment, it is agreed that a breast examination was clinically indicated once the complaint of breast pain had been raised. Mr Forbes, a consultant obstetrician and gynaecologist, called as an expert on Mr Arun's behalf confirmed in a report dated 15^th November 2013 (paragraph 7) that "it would have been remiss of Mr Arun to have failed to examine the breasts, or, at least, to ensure that [Patient A] understood the importance of having them examined (for example by her GP)." As Patient A's evidence indicates, her preference was for Mr Arun to carry out the examination then and there. Accordingly, a breast examination was both clinically indicated and wanted by the patient.

17. Mr Arun said that he would have to examine Patient A's breasts. He asked her to sit up. She was still naked below the waist following the internal examination. He asked her to lift her top and bra which she did.

18. What then happened is the subject of a significant factual dispute, to which I shall return. Put shortly, Mr Arun's case is that he carried out a proper breast examination whereas Patient A maintains that he indecently assaulted her by groping her breasts.

19. Whatever the nature of the touching of the breasts, it was over fairly quickly. (Patient A was later to tell the police that the whole consultation seemed rushed.) Nothing inappropriate was said and Mr Arun's demeanour did not change. Patient A pulled her top and bra down and put her knickers and trousers on. After Patient A had dressed, she told the Panel "there was no sitting down and talking through the internal that he had just given me. We were both still standing up ... I was getting dressed and he was kind of putting his coat on and that to go out to collect his daughter ...". Mr Arun told her she needed an ultrasound scan and a bladder function test and that she should book the ultrasound before leaving the hospital. The whole consultation was over in ten or maybe fifteen minutes. As Patient A left the room, she walked past a nurse who had acted as a chaperone when Mr Arun had examined her on previous occasions. She booked her ultrasound scan before returning home.

20. The way in which Mr Arun had touched her breasts left Patient A feeling very uncomfortable. She said it "just didn't feel right". She did not feel it was the sort of examination that could have established whether anything was wrong with the breasts or not. It felt like he was groping.

21. She did not initially make any complaint to anyone. After a few days, she told her husband. She became very upset, as did he. However, at that stage, she was very unsure about what had happened. She continued to dwell on the incident and her husband advised her that she needed to speak to someone. Patient A was cautious and sensible in her approach. She first rang the local breast care clinic and spoke to a nurse to find out whether what Mr Arun had done was normal practice. When she gave her account, the nurse confirmed that was not normal practice and Patient A's reaction was "I'm not going crazy". She was advised to contact her General Practitioner. She rang the surgery and was advised to get in touch with the Patient Advocacy Liaison Service (PALS). Through that route, she was contacted by Pat Munday, Director of Nursing, for the hospitals Mr Arun worked at.

22. It is clear that Patient A thought long and hard about making a complaint. She was worried she might have got things wrong. She showed concern for the impact on Mr Arun's career and family if she had misinterpreted his actions. However, she was offered support from the hospital and PALS and did initiate a complaint.

23. On 2^nd December 2010, Mr Arun was notified that a complaint had been made. The summary sent to him referred to the patient's belief that "she had been inappropriately examined on the breasts by the consultant". It also referred to the absence of a chaperone. On 3^rd December, Mr Arun attended Pat Munday's office. He said that he had not slept since reading the complaint summary and that he was very concerned about the allegation. He recalled that it was half-term and that he was rushed because of child-care problems and the patient being late. He suggested he did not have a chaperone because the nurses were busy and then said "just tell me one thing, have I missed a breast cancer?"

24. The hospital's investigation was then proceeding but Patient A became dissatisfied with the way it was being handled and felt that Mr Arun was not taking it seriously enough. It is clear from the hospital's records that she became more distressed as time went on. She spoke to Pat Munday on 8^th December 2010 and the record of that call contains the following:

"[She] told me how she had confided in her sister yesterday and told her everything that has happened. [She] described her sister as a counsellor who deals with people who have been abused. [She] said that following her conversation with her sister she was now sure that the consultant knew what he was doing."

25. Patient A referred to the conversation with her sister in her police interview. The relevant part of the transcript is page 43 of the bundle. I will not set it out in full but note that Patient A was very upset when she called her sister. Her sister said she had to do something about it then said "you do realise this is probably pre-meditated ... He gained your trust. He knew you were coming that day and he chose not to have a chaperone in the room ... You've got to do something about it because he's just going to do it to somebody else again."

26. On 9^th December 2010, Pat Munday met Mr Arun in the company of another consultant. The note from that meeting describes how Mr Arun recalled the appointment with Patient A due to the patient being late when he was rushed because he had to pick his child up. Mr Arun seemed not to fully understand what was being alleged but when it was made clear to him he appeared shocked. He said he had not had a chaperone due to being rushed and because he knew the patient. He could not remember the breast examination in detail but did not disagree with Patient A's description. According to the note, he suggested this was how he had been taught to do breast examinations in Madras. Following that meeting, Mr Arun reported the matter to the Medical Defence Union.

27. Having become dissatisfied with the complaints process, Patient A decided to report the matter to the police. She was interviewed on video on 23^rd December 2010. The transcript of that interview was available to the Panel and to me and I have already quoted from parts of it.

28. On 2^nd June 2011, Mr Arun attended Kings Heath Police Station with his solicitor. He was advised to make no comment in interview but attended with a prepared written statement. Two further hand-written statements were prepared and given to the police that day. Copies of all three were provided to the Panel and to me. In the first statement he said that he could not remember doing a breast examination. However, in the third statement he said that he carried out a bona fide clinical examination.

29. The police referred the matter to the General Medical Council.

The Allegations and Areas of Dispute

30. The allegations were divided into three paragraphs as set out in the Notice of Hearing dated 25^th October 2013. The first related to the failure to have or to offer a chaperone while an intimate examination was being conducted and an associated failure to note this in the records. The second alleged that Mr Arun conducted a breast examination in respect of which he:

a. asked Patient A to pull up her top,

b. asked Patient A to pull up her bra,

c. examined Patient A from behind,

d. cupped Patient A's breasts with both hands,

e. squeezed Patient A's breasts with both hands,

f. failed to record details of the breast examination in Patient A's notes.

The third paragraph alleged that the conduct in relation to the first two paragraphs was sexually motivated.

31. The hearing was vigorously contested with both Patient A and Mr Arun being subjected to lengthy cross-examination. I note that the experience must have been particularly unpleasant for Patient A who was required to share intimate details of her medical history.

32. Mr Arun had initially asserted that a chaperone had been present for the vaginal examination but not for the breast examination. He conceded in cross-examination that a chaperone may not have been present at all. In the event all the allegations relating to the failure to have a chaperone were found proved and that is not challenged on appeal.

33. As to the breast examination, sub-paragraphs a. b. and f. were admitted. Mr Arun denied that he had examined Patient A from behind and cupped and squeezed her breasts with both hands.

34. The disputed allegations turned on the evidence of Patient A who had consistently maintained that this is what happened. Mr Arun denied that was what he had done, claiming that he had done a proper clinical breast examination in accordance with his usual practice. Expert evidence produced on both sides confirmed that if Mr Arun had handled the breasts as described by Patient A he could not be considered to have carried out an appropriate clinical examination. However, if he had examined her as he described, such would be appropriate and consistent with best practice.

35. Accordingly, the issue in relation to the appropriateness of Mr Arun's handling of Patient A's breasts was a straightforward factual one to be determined having considered the evidence of the only two people who were present when it happened, that is Patient A and Mr Arun.

36. The Panel heard and saw those two witnesses give evidence and concluded that Patient A's account was to be preferred. The allegations in relation to the breast examination were accordingly found proved. However, Mr Arun contends on appeal that the findings in relation to c. d. and e. were wrong.

37. The next question for the Panel was whether Mr Arun's conduct was sexually motivated. The submissions made to the Panel on behalf of each party focused on the witnesses' differing factual accounts and the reasons for preferring one version or the other. Submissions as to the issue of sexual motivation were rolled up with those on the underlying factual dispute. However, the Legal Advisor reminded the Panel that "The fact that the experts agree that if conducted in the way alleged by Patient A the breast examination was inappropriate does not necessarily mean that it was sexually motivated. That also is an issue for the Panel to decide."

38. The Panel decided that Mr Arun's conduct was sexually motivated. He challenges that finding on appeal on the basis that it was made on "an insubstantial and unsatisfactory evidential basis."

The Appeal Against the Primary Factual Findings

39. I can deal with this part of the appeal fairly shortly. Mr Hockton, Counsel for the Appellant, took me through various inconsistencies in Patient A's evidence. However, as Mr Hare for the G.M.C. pointed out, that was an exercise he had done at length before the Panel. It could be said that there were some inconsistencies in Patient A's evidence but she had always maintained the key points that she had been examined from behind and that both breasts had been cupped and squeezed at the same time. There were also inconsistencies in Mr Arun's evidence about which Mr Hockton did not address me.

40. Mr Hockton criticised the Panel's approach to witness credibility, maintained that the findings of fact were wrong and alleged that the reasons given for the findings were deficient. He also alleged that the Legal Assessor's advice was deficient in that no advice was given in relation to the recent complaint evidence (specifically that recent complaint was not corroborative) and the direction in relation to the standard of proof was insufficient.

41. None of these matters can be relied upon to overturn the primary findings of fact as to how the breast examination was performed.

42. This was a classic case for the tribunal to hear oral evidence and, having done so, to decide which version of events it preferred. The appropriate standard of proof, namely the balance of probabilities, was applied. Although the Panel did make reference to Patient A's evidence being corroborated by other witnesses, I am doubtful that they meant this in the way that might be understood by lawyers.

43. What was called for was a comparative evaluation of each party's evidence. It is clear that the Panel undertook that exercise before reaching their decision. They found Patient A to be more credible than Mr Arun. They set out their reasons sufficiently for Mr Arun, and indeed for this Court, to know why they had reached the findings they did. It is true that they did not deal with each and every point raised in submissions but that is not what is required.

44. They placed reliance on the fact that Patient A had gone to some trouble to find out how a proper breast examination should be performed before making a complaint and had shown concern for the impact of a complaint on Mr Arun's career and family. I also regard that as a significant feature and one that can properly be put in the balance. Against that, the Panel properly weighed evidence of Mr Arun's good character.

45. As Leveson LJ said in Southall (above), "findings of fact, particularly if founded upon an assessment of the credibility of witness, are virtually unassailable". The findings in relation to the manner in which the breast examination was performed fall squarely into this category. There is no basis for saying that the Panel got it "wrong". The primary findings are unassailable in this case and I wholly accept the Panel's determination that Patient A's factual description of the breast examination was correct.

The Appeal in Relation to the Finding of Sexual Motivation

46. The position is somewhat different in relation to the finding that Mr Arun's actions were sexually motivated. Although, this is a finding of fact, it depends not on direct evidence but on the inference to be drawn from the primary facts as found by the Panel and the surrounding circumstances.

47. I note the specific provision in CPR 52.11(4) that the appeal court may draw any inference which it considers justified on the evidence.

48. Mr Hockton submitted that this court is as well-placed as the Panel to decide whether it is proper to draw an inference that Mr Arun's actions were sexually motivated. I agree. This part of the decision making process does not involve an assessment of the direct evidence but rather a careful weighing of the primary facts and an analysis of whether that leads to the conclusion that Mr Arun was sexually motivated. To that extent, I am not disadvantaged by not having seen the witnesses give evidence. Indeed, my task in looking at this issue is made easier by not having to grapple with the significant dispute about the primary facts in the way that the Panel did.

49. However, that does not mean that I can simply reject the Panel's inference and proceed to draw my own. I must still accord the Panel's decision appropriate respect. Insofar as the issue of sexual motivation was akin to a jury question to which there may reasonably be different answers, I must be particularly careful.

50. The Legal Assessor's advice to the Panel as to how to approach this question was appropriate. He identified that there was no direct evidence of motive but that it may be possible to prove sexual motivation by way of inference. He advised that the Panel would have to be satisfied on a balance of probabilities that sexual motivation should be inferred from all the circumstances and made specific reference to the character evidence being relevant in that exercise. As already identified, he also stressed that a finding that the breast examination was inappropriate would not necessarily mean that it was sexually motivated.

51. Mr Hockton's criticism that the legal assessor should have given advice about the recent complaint evidence does not apply to this part. I do not accept that the direction in relation to standard of proof was deficient. The formulation set out by Lord Carswell at paragraph 28 In re D [2008] UKHL 33 to which Mr Hockton referred is particularly apt in this case. Lord Carswell gave the example of a bank manager committing "a minor peculation, that could entail very serious consequences for his career, so making it less likely that he would risk doing such a thing." While I would never compare any indecent assault to a "minor peculation", what is alleged is a short assault which appeared to offer limited opportunity for sexual gratification before Mr Arun then rushed off to collect his child. It is inherently unlikely that he would risk an eminent career as a urogynaecologist on that basis. Having said that, the very nature of abuse of trust cases is that the perpetrator takes advantage of that unlikelihood. It therefore cannot be said that the fact that Mr Arun had a lot to lose means that he was not sexually motivated.

52. This is then one of the background circumstances that must be put into the balance and weighed against the other evidence. The advice given by the Legal Assessor including the specific reference to character evidence was appropriate. However, I note that the Panel made no reference at all to this aspect in their reasoning on the issue of sexual motivation. Having considered their reasons, they appear to have taken the character evidence into account in the first stage when determining the factual dispute between Mr Arun and Patient A. However, having decided that Patient A was the more credible and reliable witness (which they were perfectly entitled to do), they apparently did not weigh up the extent to which the evidence of Mr Arun's character might be relevant to the final issue of whether he was sexually motivated. This, in my judgment, is a material omission.

53. The Panel's reasoning in relation to sexual motivation was very closely tied up with their decision that Patient A was the more credible and reliable witness. Despite the Legal Assessor's advice, it is not clear from their reasons that they approached this decision on the basis that the fact that the breast examination was inappropriate would not necessarily mean that it was sexually motivated.

54. At page 797 B, the Panel said this:

"In believing Patient A's account the Panel has to ask itself why you behaved in the manner found proved .... The Panel have heard no valid medical reason for a bona fide breast examination to be carried out in this manner. The Panel have concluded that there can be no innocent explanation for your actions and that these actions were sexually motivated. The Panel has decided that you sought to cover up an extremely inappropriate breast examination hoping that the event would go unnoticed."

55. From their reasons, it does seem to me that, despite being advised not to, the Panel has equated "inappropriate" with "sexually motivated". They have not dealt with the important question as to whether there could be any other explanation for an inappropriate examination. They do not seem to have considered the alternative explanation now suggested by Mr Hockton at paragraph 15 of his Skeleton Argument that Mr Arun may "have performed a clumsy and inappropriate breast examination, as described by the complainant, without any sexual motive".

56. To be fair to the Panel, they were grappling with two very different versions of events and submissions that urged acceptance of one account or the other. It is often difficult for tribunals and courts at first instance to consider all possible permutations that might follow from their findings as to the primary facts. There were in reality three scenarios for them to consider:

(i) This was an appropriate breast examination as contended by Mr Arun.

(ii) This was not a medical examination but was a sexually motivated touching of the breasts as contended by the G.M.C.

(iii) A medically indicated breast examination was performed so poorly and inappropriately that it led Patient A to believe it was a sexual touching although in fact there was no sexual motivation on Mr Arun's part.

57. Once they made their primary findings of fact, option (i) fell away so that they then needed only to balance the evidence to decide whether (ii) or (iii) was more likely. That did not involve going back to consider whether the examination was "appropriate" or whether there was a "valid medical reason" for what was done. Their findings at the first stage discounted that. Yet this is what the Panel did and in doing so they confused the issue that existed under paragraph 3 of the charges.

58. Once it is appreciated that, after making the findings of fact that they did, the choice for the Panel was effectively between a clumsy, inappropriate (and I would add) insensitive examination or a sexual assault, there is no real justification within their reasons for finding one rather than the other.

59. The Panel accepted as a fact that the consultation was rushed due to patient A's late attendance and Mr Arun's childcare situation but rejected this and the suggestion that the clinic was busy as being explanations for not getting a chaperone. It is implicit that they regarded the failure to have a chaperone as supporting the case that there was a sexual motivation.

60. However, in regarding this as evidence of sexual intent, they do not seem to have given sufficient weight to the fact that a chaperone was not present during the vaginal examination which was conducted appropriately. Neither did they weigh the fact that a clinical need for a breast examination arose during the consultation. Whether Mr Arun directly asked Patient A whether she had breast pain or whether she volunteered that fact, it is the case that the need for a breast examination legitimately arose towards the end of the consultation. In those circumstances, it is difficult to infer that he deliberately avoided the presence of a chaperone so that he could handle Patient A's breasts sexually.

61. When arguments about credibility and the inappropriate nature of the examination are stripped away, the Respondent's Skeleton Argument and oral submissions on the appeal contained little basis for supporting the finding of sexual motivation. The strongest argument advanced by Mr Hare was that once the Panel rejected Mr Arun's account as to how he carried out the examination, they were "highly likely to find his motivation to be suspect". He went so far as to suggest he might have "run the wrong defence" and said that denying the substance of the factual allegations was bound to call into question his motivation.

62. That is right but there remains a need for proper scrutiny of all the evidence in order to determine whether a sexual motivation could be inferred. Mr Hare, correctly, concluded his submissions on the findings by inviting the court to look at all the evidence, including the facts of what happened, the history and the Appellant's character.

63. The following matters can be put in the balance to support a finding of sexual motivation:

(i) The nature of the touching. Cupping and squeezing the breasts from behind would in most contexts be considered a sexually motivated act.

(ii) The fact that Patient A felt that it was a sexual act. Although this must be tempered by the knowledge that she was very uncertain about this at first and that her belief evolved over time. In particular, she became sure that Mr Arun "knew what he was doing" after speaking to her sister who is involved in counselling those who have been abused. The sister had no direct knowledge of the facts of this case so her contribution was necessarily her own interpretation of what Patient A told her. It seems to have materially altered Patient A's own interpretation.

(iii) Mr Arun's failure to admit to facts that have been found to be true. This does call into question his reason for not being truthful and one explanation is that he sought to cover up an indecent assault. However, it must be remembered that people lie for all sorts of reasons and another possible explanation is that he was not willing to admit that he had carelessly examined Patient A in a way that fell below professional standards. There is also some evidence that his initial reaction was to admit Patient A's description.

64. Against that, matters suggesting an absence of sexual intent are:

(i) Mr Arun's high professional standing and reputation as demonstrated by the character references.

(ii) The history of previous contact with Patient A and the appropriateness of that.

(iii) The absence of any sexual remarks or evidence of overstepping boundaries at this or any previous consultation.

(iv) The otherwise appropriate clinical management of Patient A before, during and after the consultation. The incident occurred in a normal clinic setting, the appointment having been made in the normal way and the patient was referred on for a proper investigation and encouraged to make an appointment (which necessarily involved speaking to another member of staff) before leaving.

(v) The normality of the vaginal examination which occurred before the breast examination.

(vi) The clinical indication for a breast examination to occur when it did.

(vii) The agreed fact that the appointment was rushed which could provide a reason for a hurried examination and perhaps for Mr Arun to be distracted.

(viii) Evidence from an Indian textbook which demonstrated part of the examination being performed from behind and refers to palpation between the pulps of the fingers and thumb. It cannot in any way be said that Mr Arun was following the procedure advised in that text which refers to careful inspection and systematic palpation. However, it is possible that he was cutting corners and simply having a "quick feel" of both breasts with a view to feeling for lumps, albeit that was woefully inadequate as an examination.

(ix) The lack of any evidence of sexual gratification. Mr Arun's demeanour remained entirely normal throughout.

(x) The inherent improbability of a man with an unblemished history and a long record of working in gynaecology suddenly committing an indecent assault on a day when he was in a hurry to pick up his child and in fact did hurry away at the end of the appointment. Had he knowingly sexually assaulted his patient it might be thought more likely that he would have taken time to judge her reaction and not simply rush her towards another member of staff to whom a complaint might then have been made.

(xi) Mr Arun's immediate reaction to the complaint being to question whether he had missed a breast cancer. Having considered how the complaint was first notified to him, I cannot say he ought immediately to have appreciated what the allegation was. Pat Munday, a witness called by the G.M.C., thought he was shocked when the allegation of sexual impropriety was put to him. His initial concern that his examination had missed detecting a cancer is likely to have been genuine. Added to this, one of the reasons Patient A thought the examination was inappropriate was that she did not think it would have detected anything wrong. These factors are perhaps consistent with a rushed and poorly performed examination.

65. I consider that the failure to record a breast examination in Patient A's notes is essentially neutral. There is reference to breast pain there. Had there been a deliberate attempt to conceal that the breasts had been examined, it would seem unlikely that there would be any mention of the breasts. Mr Arun did not deny the breast examination so it was not to his advantage not to record it. Likewise, I do not think the fact that nurses were available to act as chaperones takes the case much further one way or the other. It can be argued that the fact that a nurse was apparently available suggests an underlying motive other than mere rushing for not securing a chaperone. However, the fact that Mr Arun would have been aware that nurses were in the immediate vicinity and that he simply rushed off at the end leaving Patient A the opportunity to speak to other medical staff would suggest otherwise.

66. In the end, it is not a case of numeric assessment of the factors on each side. Rather, a broad view must be taken putting all the circumstances into the balance and coming to a conclusion on the balance of probabilities. When that analysis is done, I conclude that the determination of the Panel on this issue was plainly wrong. It is unlikely that Mr Arun's actions were sexually motivated and far more likely that he carried out an inappropriate examination because he was rushing, probably distracted and so clumsy and insensitive to Patient A. As a result, he left her feeling violated even though he did not intend to touch her sexually.

Conclusion

67. It follows that while I decline to interfere with the Panel's primary findings of fact as to how Patient A's breasts were handled by Mr Arun, it is appropriate to reverse the finding that his conduct was sexually motivated. That part of the decision was, in my judgment, plainly wrong and cannot be supported by the evidence.

68. It follows that I must quash that part of the determination on the facts. The decision that Mr Arun's fitness to practise was impaired and the sanction imposed must also be quashed. Mr Hare indicated that in such circumstances, the G.M.C. would not contend that Mr Arun's fitness to practise was impaired on the basis of the remaining findings.

69. I cannot leave this judgment without saying something about Patient A's position. Nothing I have said is in any way to be taken as a criticism of her. It is quite clear that she has acted in an entirely proper way throughout. She showed appropriate concern and restraint before making a complaint. She was genuinely made to feel that she had been violated. She was entirely right to bring this to the attention of the authorities. I note her altruistic desire that no other woman should have the same experience. It is regrettable that she had to go through a fully contested hearing at which she was subjected to detailed cross-examination about intimate matters. Having seen the transcript, it is clear she coped well with that but it must have been distressing for her. I regret that this judgment might add to her distress. However, a careful and full analysis of all the evidence shows that it is very unlikely that Mr Arun did intend to touch her sexually and I hope that might provide some comfort to her eventually.

70. As to Mr Arun, he has not emerged unscathed. It is extremely unfortunate, to say the least, that he left Patient A feeling the way that she did. He compounded the situation by not being entirely frank throughout the investigation and the proceedings. I am very pleased to learn that he has since undertaken further training including specific training in clinical breast examination and a workshop entitled "Mastering Open Disclosure". It is to be hoped that this episode together with his further training will avoid any risk of repetition of conduct that leaves his motives open to such serious questions.

Disposal

71. Having circulated the draft judgment in this matter, the parties have been unable to agree all the terms of the order which should follow. Written submissions and alternative draft orders have accordingly been submitted to me and I am asked to determine two matters:

i. Whether the matter should be remitted to the Fitness to Practise panel to consider whether in light of the judgment it would be appropriate to impose a warning under Rule 17(2)(l) of the General Medical Council (Fitness to Practise Rules) 2004.

ii. The amount of the Respondent's liability for the Appellant's costs.

72. The allegations against the Appellant were set out in the Notice of Hearing dated 23^rd October 2013. The allegations were set out in three paragraphs. The first paragraph contained allegations relating to the carrying out of an intimate examination without a chaperone. The second paragraph detailed factual allegations about how the breast examination was carried out. The final paragraph alleged that the conduct under paragraphs 1 and 2 was sexually motivated.

73. The allegations in the first paragraph were admitted. My judgment concluded, in summary, that the Panel's decision that the allegations under paragraph 2 were made out was to be upheld but that the decision that the conduct was sexually motivated was wrong and should be quashed.

74. It is accepted by the Respondent that the conclusion that the Appellant's fitness to practise was impaired cannot be supported following the quashing of the finding that his conduct was sexually motivated. However, Rule 17(2)(l) allows for a warning to be imposed in circumstances where the practitioner's fitness to practise is not found to be impaired. The Respondent invites me to remit to the Panel for consideration to be given to that course.

75. The Appellant disputes that this is an appropriate course. The first point made by the Appellant is that the only allegation in this case was one of sexually motivated conduct. The Appellant refers me to R (on the application of El-Baroudy) v GMC [2013] EWHC 2894 (Admin) and highlights that it is settled law that when considering the impact of findings of fact the panel is confined to the alleged facts as set out in the Notice of Hearing.

76. In this case, the alleged facts were set out in three paragraphs. It was open to the Panel to find that paragraphs 1 and 2 were made out but that the allegation of sexual motivation was not made out. That is the practical effect of my judgment.

77. It is suggested by the Appellant that the only allegation was of sexually motivated conduct and that an allegation of inappropriate conduct was not included in the Notice of Hearing.

78. I do not agree with the Appellant's analysis. Paragraphs 1 and 2 clearly set out factual allegations which have been made out. In relation to paragraph 2 there was no dispute that if a breast examination had been carried out in the way described it was inappropriate. It was perfectly plain to the Appellant that paragraph 2 contained an allegation of an inappropriate breast examination. Paragraph 3 added the additional allegation that the conduct was sexually motivated. The Respondent has properly accepted that without sexual motivation the Appellant's fitness to practise should not be considered impaired but the rules allow for a warning to be given once that stage has been reached.

79. The Appellant then contends that there can be no real prospect of a warning being given in this case and highlights various matters which would suggest that this case does not meet the threshold for a warning to be given.

80. I can see that there may be some force in the some of the matters relied upon as being reasons for not imposing a warning. However, I cannot say that a warning could never properly be given in this case. Whether a warning should be given is a matter for the Panel having regard to guidance and to any further evidence and representations to be offered by the parties.

81. The practical objections made on the Appellant's behalf can be overcome and are insufficient to amount to reasons not to remit the matter. I agree that the matter should be remitted to a differently constituted panel to avoid the perception of unfairness that Dr Arun would otherwise have were it to be remitted to the original panel. However, I do not believe this will add significantly to the costs. My judgment clearly sets out the factual findings and the background circumstances and the Panel will be able to take that as the starting point.

82. I should add in light of the submission made at paragraph 3 of the Respondent's written submissions that nothing in my judgment can be taken as amounting to a further allegation to be considered when deciding whether to issue a warning.

83. The factual allegations which have been made out are those at paragraphs 1 and 2 of the Notice of Hearing.

84. Further the fact that I am remitting the matter to the Panel is not to be taken as an encouragement to them that they should issue a warning. That is a matter for the Panel after considering all relevant matters in accordance with the guidance.

85. As to costs, it is agreed that in principle there should be an order that the Respondent pay the Appellant's costs of the appeal. The Appellant has put forward a schedule detailing costs of £14,150.08. By way of compromise and on a broad basis, the Appellant proposes an order assessing the costs at £12,000.

86. The Respondent suggests a reduction to £7,000. In contending for a reduction of 50%, the Respondent first points out that the appeal did not succeed in full and secondly contends the Appellant's costs are too high in any event. As to the suggestion that the costs are generally too high, I have considered each parties' schedules and conclude that the Appellant's costs are broadly reasonable and proportionate. Inevitably further work must be done by an appellant on an appeal even allowing for the fact that the same representatives have appeared at the hearing below. The disparity between the Appellant's costs and those of the Respondent is not great in the circumstances. I accept the Appellant's submissions that Counsel's fees are comparable albeit claimed on a different basis. A very detailed analysis would no doubt identify some savings that might have been made in the preparation of the appeal but I consider that can be dealt with by way of some rounding down after I have dealt with the point of principle as to whether there should be a percentage reduction.

87. In my judgment, there should be some reduction in respect of the Appellant's conduct of the appeal. Although the appeal succeeded, the Appellant also unsuccessfully challenged the factual findings as to how the breast examination was carried out. This added to the length of the submissions, both those made in writing in the skeleton arguments and the oral submissions at the hearing. There was no proper basis for challenging clear factual findings made by the panel after hearing the evidence. This was a continuation of the Appellant's conduct in refusing to accept that the examination took place as described by Patient A.

88. It would not be appropriate to reduce the Appellant's costs by as much as 50% when the appeal has succeeded but it is my judgment that it is appropriate to make some reduction to reflect the time taken in dealing with the challenge to the facts and the persistent conduct of the Appellant in refusing to accept the allegations or the clear findings of fact. I consider an appropriate reduction is one in the order of 25% and, after the minor additional rounding down I have indicated I will make, I arrive at a sum of £10,500.

89. Having seen my judgment on the disputed points in draft, Counsel have now finalised an appropriate order, which is the order I make.