A nervous disposition
General Medical Council v Jagjivan  EWHC 1247 (Admin)
On 26 May 2017, the High Court handed down its judgment in the hearing of an appeal by the General Medical Council (GMC) against the determination by the Medical Practitioners Tribunal (the Tribunal) in respect of the conduct of Dr Nilesh Jagivan.
This was the first case brought by the GMC under its new powers which were granted in December 2015.
Dr Nilesh Jagjivan was employed as a cardiology Registrar and on 22 October 2013, undertook a consultation with a 27 year old female (Patient A). It was alleged that during this consultation Dr Jagjivan made a number of inappropriate comments of a sexual nature, relating to how Patient A could raise her heart rate.
The Tribunal made adverse findings of facts regarding Dr Jagjivan’s conduct and accepted Patient A’s version of events. However, the Tribunal did not find that the conduct was sexually motivated, and whilst the conduct was deplorable and amounted to misconduct, determined that Dr Jagjivan’s fitness to practise was not impaired by reason of the 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:
The GMC contended that the Tribunal should have made a direction pursuant to section 35D of the Medical Act 1983, and appealed the Tribunal’s decision pursuant to section 40A. Their appeal was supported by the Professional Standards Authority (PSA), who were to seek permission to appeal out of time if the GMC did not have jurisdiction to appeal. Dr Jagjivan submitted that the GMC did not have jurisdiction to appeal the decision, and in the event it did, the appeal should be dismissed as the Tribunal’s decision was not wrong.
The Court noted the statutory provision relating to appeals stating that the GMC was provided with a right to appeal under section 40 of the Medical Act 1983 by the GMC (Fitness to Practise and Overarching Objective) and the PSA for Health and Social Care (References to Court) Order 2015.
It was submitted by the GMC that as the Tribunal made a decision not to give a direction under section 35D it therefore had jurisdiction to appeal under section 40A(1)(d) of the Medical Act 1983. Counsel on behalf of Dr Jagjivan submitted that section40(1)(d) does not provide jurisdiction to the GMC as the Tribunal could only have considered a direction under section 35(d) if it had concluded that Dr Jagjivan’s fitness to practise was impaired, which it was not.
The Court considered the ordinary wording of section 40A(1)A and determined the Tribunal did make a decision under section 35D because they determined not to give a direction. The Court considered the judgment in Ruscillo v Council for Regulation of Health Care Professions and other  EWCA Civ 1356;  1 WLR 717 which considered a similar point.
In rejecting Dr Jagjivan’s jurisdictional challenge, the Court noted that it would be ‘anomalous (to say the least) if the GMC’s right to appeal was confined to cases where the Tribunal had made a finding of impairment’.
Appeals under section 40A of the Medical Act 1983 are governed by CPR Part 52. The Court will allow an appeal it is ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings of the lower court’. The Court will correct material errors of fact and of law, but recognises that it does not have the professional expertise of a Tribunal. However,in this case the Court stated in matters, such as sexual misconduct, the it “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 Court noted that the Tribunal’s failure to find that there was a sexual motivation for Dr Jagjivan’s actions was ‘wrong and unsustainable’ and that on the facts the inference of sexual motivation was ‘irresistible’. The Court referred to Dr Jagjivan’s witness statement in which he placed blame on Patient A stating she had decided to raise her heart beat by pushing her hip against Dr Jagjivan’s hip, her hand near her groin and pressing her thighs together and that he had said anything further would be ‘clearly inappropriate’. The Court found that in expressing himself in those terms Dr Jagjivan recognised the obvious, inappropriate nature of such conduct during a medical examination, because of its sexual nature.
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.
The case clarifies the law with regards to the GMC’s power of appeal even where a finding of impairment is not made by a Tribunal, and therefore no direction under section 35D of the Act is made. The case illustrates that the GMC, due to this power of appeal, has an enhanced ability to protect patients in circumstances where the regulator considers that a decision by a Tribunal has been unduly lenient.
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