Charities and internal investigations
Dr Sathiyakeerthy Ariyanayagam v General Medical Council  EWHC 3848 (Admin)
Before Mr Justice Garnham
25 January 2016
Dr Ariyanayagam (the Appellant) appeared before a Fitness to Practise Panel (the Panel) of the General Medical Council (GMC) in July 2015. The Panel concluded that the Appellant, in contravention of his contract of employment, was absent from work on 91 days, in the period of 2011 to 2013. It is of note that 18 dates advanced by the GMC were not found proven. The Panel went on to find that the Appellant’s forgoing actions were dishonest.
The Panel found current impairment, and struck the Appellant from the medical register.
The misconduct which led to the Appellant’s referral to the GMC occurred over a two year period. At the material time the Appellant was a consultant physician specialising in sexual health. His employment, which commenced in 2007, was on a full time basis with Peterborough City Hospital. In 2011, he became the designated clinical lead for the department of sexual health.
Aside from his clinical duties, the Appellant had a range of managerial responsibilities. As is the case in respect of many employees, the Appellant’s contract of employment required him to work pursuant to a ‘job plan’. His specific job plan required him to be present at the hospital throughout the week, particularly on Mondays and Tuesdays.
The specific complaint referred to the GMC related to the Appellant’s absences from work on Mondays and Tuesdays.
Concerns were initially raised in relation to the Appellant’s absence from work by a nurse. On a particular occasion in April 2013, the Appellant could not be located anywhere in the hospital. This led to the instruction of an independent and external human resources consultant (herein referred to as ER) to conduct an investigation.
ER conducted a review of the ‘access data’, which are computer records indicating when employee swipe cards have been used to access different parts of the hospital. She also considered documentary evidence and interviewed staff. ER concluded that the evidence gathered suggested a pattern of prolonged periods of absence on the Appellant’s part.
It is of note that the Appellant did not engage with the internal disciplinary process conducted by his employers, and as such the hearings went ahead in his absence. The internal disciplinary panel found the factual allegation proven, this being a pattern of prolonged absence by the Appellant on Mondays and Tuesdays. The Appellant was thereafter dismissed without notice.
The matter was then referred to the GMC.
Impairment and Sanction
The GMC hearing commenced on 20 July 2015 and lasted a total of 13 days. The Panel heard evidence from eight witnesses called by the GMC.
In commenting on the evidence heard the Panel stated as follows:
“You told the Panel that you had a daily routine and were on site Monday to Friday. If this were the case, one would reasonably expect there to be some evidence of access data, Lilie activity, or email traffic……
The Panel considered your evidence that you often worked elsewhere in the building in addition to working in a consulting room in DoSH. You told the Panel that the door to the consultants' lounge on the first floor was often wedged open and therefore no swipe access was required. However, on many days when there is no dispute as to your presence on site and you used the consultants' lounge, there is swipe access data for that point. The Panel therefore rejected your assertion as inherently implausible that the consultants' lounge door was wedged open on each and every date under consideration…..
You told the Panel that for the majority of non-clinical work which you undertook for the Trust, there was no need to access your office computer or be present in the department. The Panel was not convinced by this evidence. As the clinical lead, it would have been expected of you to interact with departmental staff. The picture that emerged from the evidence of witnesses is that you were not seen in the department on Mondays and Tuesdays.
The Panel also found it compelling that after 16th April 2013 when you became aware that Ms Lynch was investigating your absence, there was a significant change in the use of your swipe card evidence in the access data” (paragraphs 17 to 21)
Having found the Appellant to be dishonest in relation to his attendance at work, the Panel found current impairment and erased him from the medical register.
The Appellant raised concerns about the evidence of a particular witness (herein referred to as Mr D). The specific concern was that Mr D had alleged that the Appellant had told him that he only worked three days a week. Whereas, during the course of cross examination, Mr D accepted that he could not confidently recall whether the Appellant had told him that he did not work on the remaining two days, or whether he had simply assumed that this was the position.
Mr Justice Garnham recognised that this was a potentially significant concession undermining one element of Mr D’s evidence. Mr Justice Garnham commented that although the Panel acknowledged the point, their expressions on the issue fell short because they simply stated:
"Mr D indicated that it may have been more of an inference he drew from what you told him".
Nonetheless, Mr Justice Garnham referred to the evidence of Mr D as being “but one piece of the jigsaw”. Overall, the evidence the Panel heard clearly left the impression that the Appellant did not appear to attend the hospital on Mondays and Tuesdays of most weeks.
Mr Justice Garnham made clear that Panels are not obliged to analyse and reach individual conclusions on every piece of evidence they hear. The matter which is of utmost importance is that their determination sets out the facts found proved and explains to doctor why their case has failed. Mr Justice Garnham concluded that the Panel’s determination in the present case did precisely that. Specifically, the Panel explained that regardless of the accuracy of Mr D's evidence as highlighted above, other witnesses attested to the fact that they did not recollect seeing the Appellant at the hospital on days when he did not have a clinic. The Panel then went on to consider the Appellant’s response, which they discounted.
The Appellant also criticised the Panel's reliance on the access data. His specific criticism was that the access data should not have been relied upon because there were 42 occasions demonstrated by the evidence of ER when the swipe card records suggested he had not attended the hospital but other data obtained by her confirmed that he had.
In reviewing this point, Mr Justice Garnham accepted that the access data had been challenged by other evidence on 42 occasions, but the Panel did not reach its conclusions solely on the basis of the access data, and therefore the Appellant’s argument on this issue did not hold any weight.
In commenting on the Panel’s analysis of the access data, Mr Justice Garnham noted that the Panel formed the view that the access data did not provide the complete picture. The Panel went on to explain that there were occasions when the Appellant’s attendance at a clinic was recorded on the Trust's computer system, but there was no access data recorded. In the light of this evidence, the Panel made it clear that where there was any indication from other evidence of any professional activity on the Appellant’s part (i.e. the sending of emails) they would assume he was present at the hospital. In addition, where there was any evidence of other professional commitments, that evidence would also be construed in the Appellant's favour. It was on this basis that the Panel did not find 18 of the dates advanced by the GMC proven.
On the 91 remaining dates, the Panel concluded, in the light of all the witness evidence, the lack of access data and the lack of any convincing explanation from the Appellant, that it was more likely than not that he was absent from the hospital.
At paragraph 34 of the decision, Mr Justice Garnham stated as follows:
“In my judgment, that was a perfectly proper approach to adopt to the access data evidence. The Panel had made it clear that it was not content to rely simply on the access data and wherever there was other evidence that pointed in a different direction they would not rely on it. I see in that approach no unfairness or illogicality and no want of reasoning”.
Mr Justice Garnham found the Panel’s determination to be entirely adequate, and went as far as to call it a “model determination by a Panel on the facts” in that it set out conclusions on each of the charges, provided an adequate summary of the background to the allegation, summarised the Panel’s view of the witnesses evidence and commented on the quality of the evidence provided by the Appellant. Not only this, but the determination explained in some detail why some allegations were found not proved and others were found proven.
Given that the Panel had formed judgments on the credibility of the witnesses, which it had had the benefit of seeing and hearing from directly, Mr Justice Garnham saw no possible grounds for interfering with their conclusions.
As to sanction, the Appellant invited Mr Justice Garnham to read the transcript of the submissions on sanction made by Counsel on his behalf. Whilst accepting that powerful points were made, Mr Justice Garnham noted that this was a case of serious dishonesty over a prolonged period. Mr Justice Garnham noted that the Panel had taken account of the GMC's indicative sanctions guidance and bore in mind that the primary purpose of sanctions is to protect patients and the wider public interest. In so doing, the Panel appropriately considered each possible sanction and accepted that erasure is not necessarily inevitable where there has been dishonest conduct. In the present case, the Panel was concerned that the Appellant’s dishonest conduct was not isolated and that there was no compelling evidence of insight.
The Panel stated as follows:
"Your dishonesty was persistent and was an abuse of your position of trust. You put your own interests before those of the service by not being present at the Hospital when required. Although you were not absent on clinic days, you were expected to be available for any ad hoc work and were entrusted with providing support for the department. In these circumstances, the Panel determined that your dishonest conduct is fundamentally incompatible with continued registration and concluded that it must direct that your name be erased from the register in order to maintain public confidence in the profession and declare and uphold proper standards of conduct and behaviour."
Mr Justice Garnham dismissed the appeal on the basis that given the persistence and serious nature of the Appellant’s dishonesty, erasure was not just within the range of reasonable sanctions; it was inevitable.
Key learning points
Regulated professionals such as doctors, nurses and solicitors occupy professions which require integrity and probity. As highlighted in the decision in Bolton v Law Society  1W.L.R. “the fundamental object was maintaining the standards of the profession rather than punishing the offender”. Patients and the public at large must rest assured that those who treat them are not only knowledgeable and skilled clinicians, but they also understand and stringently adhere to the standards of conduct expected of them. This case reiterates the principle that a regulated professional who acts in a manner which is dishonest, thereby undermining one of the fundamental tenets of their profession, is likely to face a serious sanction. As also stated in Bolton: “Membership of a profession brings many benefits, but that is a part of the price”.
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