Facts of the Case
The case concerns allegations made by two female junior doctors of inappropriate and sexually motivated conduct against Dr Aruncahalam. The first complained of unwanted messages sent outside office hours with an inappropriate and overfamiliar, although not sexually explicit, tone. The second complained of four incidents of unwanted touching, including tickling, hugging and kissing.
The MPTS accepted the evidence of the junior doctors. The GMC submitted that the appropriate and proportionate sanction was suspension, which Dr Arunachalam conceded. However, the Tribunal imposed a sanction of erasure from the medical register.
Grounds of appeal
Dr Arunchalam advanced an appeal on the following grounds:
- The sanction of erasure was disproportionate, too severe and not the only means of maintaining public confidence and upholding proper standards of conduct
- The Tribunal listed but did not evaluate the mitigating features, or balance them with the aggravating ones. Suspension was rejected upon evaluation of the aggravating factors only
- The Tribunal erred in reasoning: having acknowledged that the sexually motivated conduct was at the ‘lower end of a spectrum', it then drew the wrong conclusion
- The unwanted messages, although inappropriate, were not sexually implicit. The touching was serious but not under the complainant’s clothing or of her private parts and she would have accepted an apology.
The GMC acknowledged it had not positively submitted erasure as an appropriate sanction however, it was for the tribunal to take a view as to the most appropriate sanction. Furthermore, the Tribunal made a decision based upon all of the circumstances and, accordingly, the court should not interfere.
Mr Justice Kerr allowed the appeal, concluding that whilst it was not wrong in principle for the Tribunal to take the view that the facts pointed to erasure rather than suspension, the decision was flawed by an error of approach: the Tribunal failed to properly evaluate the mitigating factors weighing the balance in favour of suspension and against erasure. As a result, he substituted the Tribunal’s decision with the sanction of suspension.
Mr Justice Kerr commented that the Tribunal should have considered the Dr Arunachalam’s good character, clinical competence and the glowing appraisals that were not written specifically for the purpose of the disciplinary proceedings but had arisen in unrelated contexts; Dr Arunachalam was not guilty of any further misconduct and posed no danger to patient safety. The only consideration of the impact on Dr Arunachalam appeared to be limited to the financial impact, which read as an afterthought rather than part of a balancing exercise.
Key points from the Judgment
- There was a lack of coherent reasoning and the tribunal failed to demonstrate proper evaluation of the mitigating factors in deciding the appropriate sanction. It is an error of law to leave that process until the final stage of considering erasure. (Wisniewska v Nursing and Midwifery Council )
- Personal mitigation counts for less than in other contexts because of the need to maintain public confidence in the profession. (Bolton v Stone)
- It is not the law that in sexual misconduct cases erasure should follow. The severity of the sanction required to maintain and preserve public confidence in the profession “must reflect the views of an informed and reasonable member of the public”. (Giele v GMC )
- The fact that Complainant B would have accepted an apology (had Dr Arunachalam had the wisdom to offer one) is a factor of some relevance to whether restoration of public confidence in the profession demands nothing less than outright erasure
- Despite a zero tolerance attitude towards sexual misconduct, the law is not so inflexible that every transgression of this kind must be met with erasure.
What this means for you
Whilst the Tribunal can impose sanction more severe than that sought by the regulator, it must provide proper reasoning for the reaching such a decision and must give adequate weight to mitigating factors in assessing whether suspension is appropriate. If the Tribunal errs in evaluating mitigation, then the decision will not stand.
It is imperative that professional boundaries in relation to colleagues, as well as patients, are properly respected and upheld. A failure to do so may result in a severe sanction.
Authored by Aliyah Hussain and partner Jane Lang.
Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.