General Medical Council v Jagjivan  EWHC 1247 (Admin)
The High Court quashed the decision not to find sexual motivation and remitted the case to the MPTS in what was the first review under the provisions of section 40A of the Medical Act 1983 ("the Act").
Dr Nilesh Jagjivan was employed as a cardiology registrar. The relevant conduct took place at a consultation with a 27 year old female patient ("Patient A") on 22 October 2013.
Issues arose as to what Dr Jagjivan suggested to Patient A should be done to raise her heart rate. Patient A alleged, but Dr Jagjivan denied, that Dr Jagjivan had:
(i) said there were 3 different places to get excited and pointed at her nipples and vagina;
(ii) said she could put pressure "down there" and pointed towards her vagina;
(iii) said "it's a bit 80's and some people aren't comfortable doing this", and
(iv) said she could stimulate "down there", referring to her vagina, to excite herself and raise her heart rate.
It was also alleged by Patient A, but denied by Dr Jagjivan, that whilst Patient A's hand was hovering above her vagina on top of her trousers he:
(i) told Patient A there was another way to make her heart beat faster;
(ii) indicated towards Patient A's vagina; and
(iii) placed his hand on top of Patient A's hand.
The Tribunal made adverse findings of fact about Dr Jagjivan's conduct during the consultation, and accepted Patient A's account of what Dr Jagjivan had said and done as set out above.
However the Tribunal did not find that the conduct was sexually motivated. The Tribunal held that the conduct was deplorable and amounted to misconduct, but did not find that Dr Jagjivan's fitness to practise was impaired by reason of misconduct.
In setting out its reasons for not finding Dr Jagjivan’s actions to be sexually motivated, the Tribunal noted that ordinarily it would be likely to be sexually motivated, however, provided three reasons for not making a finding in this case. The three reasons were that:
- There was extensive testimonial evidence which showed that no one had heard Dr Jagjivan engage in the slightest of sexual banter or inappropriate communication of a sexual nature;
- The Tribunal had borne in mind, and accepted, Dr Jagjivan’s evidence about his sexuality; and
- The Tribunal found no evidence to support the GMC’s contention that Dr Jagjivan was seeking to pursue a sexual relationship with Patient A.
The GMC appealed under section 40A of the Act contending that there should have been a direction pursuant to section 35D of the Act. Their appeal was supported by the Professional Standards Authority.
Dr Jaglivan submitted that the GMC had no jurisdiction to appeal the decision on the basis that the Tribunal could only have made a direction under section 35D if it had found that Dr Jagjivan's fitness to practise was impaired.
The GMC submitted that the Tribunal had made a decision not to give a direction under section 35D and so section 40A (1) (d) provided jurisdiction to appeal.
Under section 35D of the Act the MPTS upon finding a registrant's fitness to practise is impaired has the power to direct that the registrant is erased from the register, is suspended from the register or is made subject to a conditions of practise order. If there is no finding of impairment there is the power to issue a warning.
Section 40A of the Act allows the GMC to appeal a 'relevant decision' of the MPTS including decisions giving directions in respect of sanction pursuant to sections 35D and a decision not to give a direction under section 35D
It was held that:
- There was jurisdiction to appeal.
- the ordinary wording of section 40A(1)(d) The Tribunal in this case did make "a decision not to give a direction under section 35D " because at the conclusion of the hearing involving the allegations against Dr Jagjivan, a direction under section 35D had not been given.
- That this point on construction is supported by the reference in section 40(A)(3) to "a finding or a penalty or both" since that wording demonstrates that a finding for the purposes of section 40A(3) , need not be a finding of impairment, but may be a finding that there is no impairment.
- Dr Jagjivan's construction of section 40A(1)(d) involved inserting at the end of the relevant subsection words to this effect: "after determining that the person's fitness to practise is impaired" when those words are not present and do not require to be read into the section.
- This analysis was supported by the Ruscillo v Council for Regulation of Health Care Professions and other  EWCA Civ 1356;  1 WLR 717 which considered a similar point.
- The well settled approach followed in section 40 appeals applies to section 40A appeals. Namely, the Court will allow an appeal it is ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceeding’. The Court will correct material errors of fact and of law but will give due deference to the findings of the lower tribunal and recognises that it does not have the professional expertise of a Tribunal. However, there are some matters such as dishonesty or sexual misconduct, where the Court “is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself”.
- The Tribunal's failure to find that there was a sexual motivation for Dr Jagjivan's actions was wrong and unsustainable. On the facts as found in such an inference was irresistible. Notwithstanding the fact that Dr Jagjivan had not been seen to have acted in any similar manner before and what Dr Jagjivan himself said about his sexuality and that he was not sexually attracted to patient A, there could have been no motivation other than a sexual one for making statements to a partially dressed patient about intimate body parts and the stimulation of her vagina.
The Court quashed the Tribunal’s findings that paragraphs 2(d) and 2(e) of the allegation were not sexually motivated and found that those actions were sexually motivated. They remitted the case back to the Tribunal to determine impairment and if impairment was found, whether a sanction should apply.
Although section 40A of the Act came into force on 31 December 2015 this is the first time an appeal brought under this provision has been considered by the High Court and can be considered an important landmark. For practitioners the case provides useful guidance as to the approach likely to be adopted in appeals brought under section 40A in what is likely to be the first of many such cases.