Arunkalaivanan v General Medical Council  EWHC 873 (Admin)
The Appellant appealed against a decision of the Fitness to Practise Panel of the General Medical Council (GMC) to suspend his registration for a period of 12 months.
The charges relate to the Appellant having conducted a breast examination in the absence of a chaperone and in an inappropriate manner, and that his conduct was sexually motivated.
The appeal was brought on the facts. The charge relating to a failure to have a chaperone was not challenged on appeal. As to the breast examination, sub parts of the charge were admitted however the Appellant denied having examined the patient from behind and that he cupped and squeezed her breasts with both hands. The findings in relation to these parts of the charge, the Appellant contends were wrong.
The Respondent accepted that should the findings of the panel in relation to sexual motivation not be upheld, then the decisions on impairment and sanction would also not be upheld.
The Court held that this was a classic case for the panel to hear oral evidence and to decide which version of events it preferred. The panel found the patient to be more credible than the Appellant and they placed reliance on the fact that the patient had had the time to find out how the breast examination should have been conducted and had shown concern for the impact such a complaint may have on the Appellant and his family. There was no basis for saying than the panel got it wrong.
However, the Court did believe it appropriate to reverse the finding that the Appellant's conduct was sexually motivated. That part of the decision, it was held, was plainly wrong and could not be supported by evidence.
The Legal Assessor had provided the panel with the appropriate advice, identifying that there was no direct evidence of motive but that it may be possible to prove sexual motivation by way of inference. He also stressed that a finding that the breast examination was inappropriate would not necessarily mean it was sexually motivated. Having considered the panel's reasons, the Court found that the panel had not weighed up the extent to which the Appellant's character might be relevant to the issue of sexual motivation. Further, they had not dealt with the question of whether there could be another explanation for an inappropriate examination.
On the basis that the finding of fact in relation to sexual motivation was quashed, the decision that the Appellant's fitness to practise was impaired and the sanction was also quashed.
The matter was to be remitted to a differently constituted panel of the GMC for consideration as to whether it would be appropriate to impose a warning in light of the judgment.