Jain v General Medical Council [2019] EWHC 1841 (Admin)
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Jain v General Medical Council [2019] EWHC 1841 (Admin) concerned an appeal by a psychiatrist, Dr Rajesh Raju Jain, against the imposition of conditions on his registration for eighteen months by a tribunal of the Medical Practitioners Tribunal Service, which Mr Justice Kerr dismissed.
Dr Jain had been found in breach of professional standards following consultations with four patients between February and April 2015. The tribunal found proved allegations that in respect of Patient A on 27 February 2015, he failed to maintain a professional manner by moving very close to her, sitting with his legs apart, rubbing his thighs, staring intently at her and darting his tongue in and out of his mouth, conduct attributable to a chronic motor tic disorder. The tribunal found he had acted unprofessionally by not explaining his mannerisms to the patient. He also asked Patient A inappropriate questions at length about her sex life, failed to make an accurate record of those questions, knew the record was inaccurate and his actions were misleading, although not dishonest. In relation to Patient B, Dr Jain failed to communicate appropriately by denying that memories of childhood abuse “go that far back” and failed to make an appropriate record on 26 February 2015. At a second appointment on 24 April 2015, he failed to prescribe medication appropriately by increasing her dose of sertraline without clearly explaining the reason, asked whether she lined up her two ex-husbands and decided which to sleep with, and persisted in discussing her sex life after she and her ex-husband indicated they did not wish to discuss it. Concerning Patient C on 10 March 2015, Dr Jain responded to her disclosure that she had been raped by stating along the lines that it was “impossible to be raped from both ends without lubrication being used”. He also failed to make an adequate record of the consultation. In respect of Patient D on 17 April 2015, Dr Jain failed to obtain an adequate history, dominated the consultation with excessive questions about her sex life and libido, suggested that if she carried on seeing a certain male friend he would have to admit her to hospital, and offered her a list of medications asking which she would like to try without adequately discussing possible side effects. He prescribed sodium valproate which was not clinically indicated and contrary to authoritative guidance for a woman of child-bearing age.
The tribunal found this conduct amounted to serious misconduct bringing the profession into disrepute. It found Dr Jain’s level of insight to be limited, that his misconduct was remediable but that there was a risk of repetition and a continuing risk to patients. The tribunal imposed conditions for eighteen months including restrictions on working hours, a requirement for a mentor and reporting process, and approval by the General Medical Council of any appointment. The tribunal also made an immediate order preserving interim conditions pending appeal. The disciplinary process had lasted nearly four years from the initial complaints in May 2015 to the final sanction hearing in January 2019, with a fifteen-day hearing in July 2017, further hearings extending into February 2018, an adjournment in July 2018 for a health assessment, and the sanction hearing in January 2019.
Dr Jain advanced six grounds of appeal. The principal ground concerned inordinate delay. The judge accepted that the process had taken nearly four years but found that Dr Jain did not attack the delay as affecting fairness per se but rather as affecting the reliability of the tribunal’s findings. Mr Jotangia, appearing for Dr Jain, challenged the factual findings in respect of each patient. In relation to Patient A, he submitted Dr Jain had not become aware of his chronic motor tic disorder until April 2018 and should not have to declare a disability to patients. He also challenged the findings that Dr Jain had asked inappropriate questions about her sex life, suggesting the tribunal may have mixed up evidence concerning Patient A and Patient D. Concerning Patient B, Mr Jotangia relied on the fact that she was not called to give oral evidence and alleged inconsistencies between her written evidence and that of her ex-husband, Witness F, who did testify. In relation to Patient C, Dr Jain raised a procedural irregularity regarding the manner in which her evidence was taken. Patient C gave evidence by video link with the assistance of an intermediary, Ms Lorna Coulson, a psychotherapist. It emerged during the hearing that Ms Coulson had been involved in receiving Patient C’s complaint, making her a potential witness of fact, and that a complaints manager, Dawn Walbridge, was also present in the room but not visible over the video link. The chair of the tribunal dealt with the issue by requiring Ms Coulson to be visible and arranging for a neutral observer, Ms Jo Thompson, to be present. Dr Jain contended this irregularity contaminated Patient C’s evidence. As to Patient D, Mr Jotangia argued she ought not to have been treated as reliable because “she was a worrier” and pointed to alleged minor inconsistencies in her evidence. He also challenged the severity of the sanction, emphasising that there was no finding that Dr Jain’s conduct was sexually motivated or dishonest and relying on the onerous nature of the conditions restricting his ability to find work.
The court rejected every ground of appeal. Mr Justice Kerr found no fault with the tribunal’s conclusion that Dr Jain was aware of his condition in early 2015 even if unaware of his actual body movements at the time and that he needed to act professionally by warning patients in advance about his mannerisms. The judge held that the tribunal’s findings concerning the inappropriate questioning of Patient A and the inaccurate record keeping were properly made and not open to criticism merely because Dr Jain still denied asking the intrusive questions which the tribunal found he did ask. The forensic criticisms of the findings relating to Patient B were not persuasive. The tribunal was well aware that the weight to be attached to Patient B’s evidence was diminished by the lack of oral evidence and had made that point explicitly. The inconsistencies relied upon were not substantial and the evidence of Witness F and Patient B was consistent with the findings made. As regards the procedural irregularity concerning Patient C’s evidence, the judge accepted there had been an irregularity in that Ms Coulson’s involvement in the factual history ought to have been considered earlier and Ms Walbridge ought not to have been present at all. However, the irregularity was not serious so as to create a real risk of contamination of Patient C’s evidence. The chair had dealt with the issue carefully and sensitively, balancing Patient C’s vulnerability against the need to ensure fairness of the hearing. The transcript made clear what had happened and why Ms Coulson was allowed to continue supporting Patient C. In relation to Patient D, Mr Jotangia’s criticisms amounted to no more than forensic points about the evidence, quite inappropriate for an appellate hearing before a court which had not seen and heard the witnesses. The examples given of alleged inconsistency were minor and did not constitute points of substance. The judge found no fault whatever with the tribunal’s treatment of the facts. On the question of sanction, Mr Justice Kerr held that the tribunal’s findings in relation to misconduct, impairment and sanction were not properly open to criticism. The facts as found clearly constituted misconduct. Dr Jain’s then counsel had not seriously argued otherwise and had not positively argued against the proposition that fitness to practise was impaired. At the sanctions stage, Dr Jain’s counsel had agreed with counsel for the General Medical Council that the appropriate sanction was to impose conditions on his registration, so Dr Jain could not now legitimately complain that the tribunal did exactly that. While the judge sympathised with the adverse impact the current restrictions might have on Dr Jain’s ability to find employment, that could not of itself mean the tribunal was wrong to impose the conditions for the protection of the public.
The court applied the established principles governing such appeals. The appeal could only be allowed if the decision was wrong or unjust because of a serious procedural irregularity. Appropriate deference was due to the judgment of the tribunal in view of its special expertise, especially in cases regarding professional practice. The court was reluctant to overturn findings of fact, particularly as to credibility where that turned on demeanour and subtleties of expression only evident at the hearing, and must respect the professional judgment of the panel below. On sanction, the court should not conduct a resentencing exercise substituting its view for the tribunal’s. The judge observed that Dr Jain could apply for early lifting of the sanctions under the rules and noted that the disciplinary rules themselves penalise a doctor for appealing by extending the period of conditions beyond that which the tribunal decided was necessary to protect the public, since the eighteen-month period did not begin until the conclusion of the appeal. Mr Justice Kerr questioned the fairness of this rule but stated he could not alter it and expressed the hope that those with power to do so would change it.
In short, the court found that the tribunal’s factual findings were not open to challenge on appeal, that the procedural irregularity concerning Patient C’s evidence was not serious, and that the imposition of conditions was entirely appropriate in the circumstances, so the appeal was dismissed.