Two bites of the apple- limitation in professional negligence cases
Ravindu Sahan Thilakawardhana v The Office of the Independent Adjudicator v The University of Leicester  EWHC 3285 (Admin)
Before His Honour Judge Milwyn Jarman QC
The claimant completed a three year course leading to a degree in medicine at the University of Leicester (the University). Shortly thereafter he commenced a gap Bachelor of Science (BSc) degree at the University.
A fellow student and friend of the claimant (PS) distributed explicit photographs of another friend of the claimant’s by mistake. Following this the claimant posted on PS’s Facebook page an image of a well-known actor with the following message “I will look for you, I will find you, and I will kill you". The claimant also sent PS a private message on Facebook, which when taken in conjunction with the post could be construed as threatening.
PS complained to the University staff and the police in relation to the claimant’s actions. PS subsequently decided not to pursue criminal proceedings, but the University instigated disciplinary proceedings against the claimant; as a result of which he received a reprimand.
The claimant’s actions in relation to PS gave rise to a question as to whether he was fit to practise, as a medical student.
In April 2014, a panel of the University decided that the claimant was not fit to practise. This decision was upheld by an appeal panel (the Panel) of the University in July 2014.
The claimant made a complaint to the Office of the Independent Adjudicator (the defendant) about the termination of his registration as a medical student. In May 2015, the defendant determined that the complaint was not justified; a decision which the claimant sought to judicially review.
Grounds for judicial review
The claimant cited eight grounds of challenge. Permission to pursue all grounds was granted by His Honour Judge Bidder QC. A ninth ground was added on the morning of the hearing with permission of His Honour Judge Milwyn Jarman QC (the Judge).
The main issues cited by the claimant were irrationality and a failure to give proper reasons, which can be summarised as follows:
Key facts in the case
In responding the PS’ complaint, the claimant wrote to the director of administration to apologise for his behaviour. He made the following points, amongst others:
On 15 January 2014, the claimant sent a letter to the University investigating officer. In that letter he referred to the following key points, amongst others:
The claimant stated that the Panel had failed to take into account the full contents of the aforementioned letter in making its decision.
On 22 January 2014 the investigating officer having concluded the investigation advised the claimant that his acts were serious, amounted to misconduct and could not be ignored despite his subsequent insight and remorse.
The form of the reprimand imposed stated as follows:
“1) Arrange to attend a course in social media training. Please ask for advice on this from the medical school
2) Apologise to [PS] for any distress caused by arranging reconciliation with him directly.”
In February 2014, the matter was referred by a professional concerns group within the medical school (the school) to the school’s fitness to practise committee. The director of undergraduate medical education (the director) at the school met with the claimant, noting subsequently that he had received five previous warnings regarding his professionalism. Mr H was thereafter appointed as investigating officer in the fitness to practise proceedings.
Before submitting his report, Mr H met with the claimant and the director. During the meeting the director stated that at his previous meeting with the claimant he had not given any indication of a plan to correct his failings, and also seemed to be of the view that the disciplinary investigation and outcome was the end of the matter.
The fitness to practise hearing took place on 10 April 2014. Four minutes before this hearing the claimant sent PS a further Facebook message to apologise for his behaviour. The claimant handed a copy of the apology to the fitness to practise panel (FTPP).
In reaching its decision, the FTPP stated that the claimant’s apology was conditional and critical of PS, and further, he had not arranged reconciliation. The FTPP also found the claimant to have a persistent disregard of warnings which significantly undermined their confidence that he was able to practice safely in the future. The FTPP terminated his student registration.
On appeal, the claimant cited procedural errors, that the FTPP’s decision was disproportionate and unfair and further unlawful.
The Panel stated as follows in dismissing the claimant’s appeal:
“We are aware that in determining that you were not fit to practise medicine the original panel took into account both this conduct and the previous professional warnings which had been issued. The Appeal Panel disregarded the latter issues. It nevertheless concluded that the original outcome was not unsafe in part……This is because the Appeal Panel is under no doubt that the posting of the Facebook message is, of itself, conduct of a type which should inexorably lead to a finding of unfitness to practise.”
The claimant submitted his complaint to the defendant on 15 July 2014 on the grounds that the Panel decision was beyond its powers, the Panel was improperly constituted and had imposed a penalty what amounted to unreasonable double punishment and further that the penalty was ‘disproportionate, unreasonable, irrational, and a breach of equity’ (paragraph 20). The defendant notified the claimant that his complaint was unjustified on 16 March 2015.
The claimant’s solicitors wrote to the defendant on 28 March 2015 including a letter from PS. The letter stated that the claimant had sincerely apologised, and he now understood that the claimant had not meant to threaten him. Additionally, PS also stated that had he known how serious the repercussions of the matter would be, he may not have made the complaint. In response, the defendant’s deputy amended the complaint outcome, but the decision to terminate the claimant’s student registration remained.
Decision of judicial review
All parties agreed that the relevant test to be applied in the case was whether the decision of the defendant was one which no reasonable decision maker possessed of the expertise reasonably to be expected would have made.
Citing a number of cases, those representing the defendant emphasised its role in reviewing complaints. In R (Burger) v Office of the Independent Adjudicator  EWCA Civ 1803, Hallett LJ sated as follows at paragraph 50:
“The OIA was set up to provide speedy, effective and cost effective resolution of student’s complaints. It was not set up as a court or a tribunal or other judicial body. Any court asked to review its decisions, must, therefore, act with caution….Here the OIA did its very best with a very far ranging series of complaints made by the appellant. It followed rational and fair procedures and gave adequate reasons for its decisions and recommendations……Even if no errors had been made the result would have been the same.”
In summing up the Judge stated as follows:
The Judge accepted that the paragraph in the Panel’s decision which dealt with the intention of the claimant and the belief of PS was not entirely clear. The Judge stated as follows at paragraph 32:
“In my judgement, it is tolerably clear by this the appeal panel was referring to an objective view of whether the meme and the message was threatening, and it must be remembered that the claimant in his emails accepted that they could be perceived seriously and as a threat”.
The Judge stated that in its conclusion the Panel clearly stated that the claimant’s act of sending the message and the posting were in themselves actions of a kind which led to the finding that he was unfit to practise, and as such, the Panel did not need to expressly refer to the claimant’s intentions or PS’ belief.
As to the severity of the sanction, the Judge stated that the Panel’s reasoning, albeit brief, was adequate, as the Panel had considered whether there were any sanctions or remedial action which could address the claimant’s conduct before the completion of his course. In this vein the Panel found that the claimant was fundamentally unsuitable for the profession, and this could not be remedied, thereby justifying their decision on sanction.
The Judge dismissed the claim on the basis that he was not satisfied that the “high hurdle” of the test had been reached meaning that no reasonable decision maker possessed of the expertise reasonably to be expected of the defendant would have made the same decision.
This case reiterates the Courts reluctance to interfere with the evaluation of evidence and determinations by fitness to practise panels, but in this case it was the decision of the defendant which was the relevant one for consideration.
This case also demonstrates how the use of social media in a manner which is offensive, inappropriate, threatening and ill-considered can lead to serious repercussions for regulated professionals and students. So much so, that it ends their career. It is a lesson to all professionals to stop and think before sending social media messages or posts, as they can have serious consequences.
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