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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Pandian v General Medical Council [2024] EWHC 629 (Admin) (26 March 2024) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2024/629.html Cite as: [2024] EWHC 629 (Admin) |
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CO/2269/2023 |
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
DR NITHYA SANTHANALAKSHMI SHUNMUGAVEL PANDIAN | Appellant |
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- and - |
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THE GENERAL MEDICAL COUNCIL | Respondent |
____________________
Rory Dunlop KC (instructed by GMC) for the Respondent
Hearing dates: 5 March 2024
____________________
Crown Copyright ©
Mr Justice Sheldon:
Factual Background
"That being registered under the Medical Act 1983 (as amended):
1. On 24 March 2019 you consulted with Patient A and wrote in her emergency assessment document in the box headed:
a. cardiovascular, next to heart sounds, 'S1 + S2 +';
b. respiratory, 'clear';
c. abdomen, 'soft, non tender'.
(These allegations were admitted).
2. You knew that you had not, at the time of your actions at:
a. paragraph 1a, listened to Patient 's heart;
b. paragraph 1b, listened to Patient's breathing;
c. paragraph 1c, examined Patient 's abdomen.
3. Your actions at:
a. paragraph 1a were dishonest by reason of paragraph 2a;
b. paragraph 1b were dishonest by reason of paragraph 2b;
c. paragraph 1c were dishonest by reason of paragraph 2c."
(The allegations at 2 and 3 were denied by Dr Pandian).
The Tribunal's judgment
"Tribunals should be wary of placing too much reliance on the demeanour of individuals, however impressive, when assessing the accuracy of their recall of events, without being aware of the fallibility of memory and the importance and greater accuracy of contemporaneous documents".
"could appreciate that, while not ideal, the "errors" could perhaps be understandable. There were some parts in Dr Pandian's notes that she had crossed out and then replaced with a correction and so this appeared to have been a developing situation in which Dr Pandian was checking certain aspects with Patient A as she was writing and re-writing her notes. For example, under the heading "Presenting complaint", Dr Pandian told the Tribunal that the words "chest pain" were obtained from the nursing notes, and crossed out by her subsequently and replaced with the word "palpitation" as this is what Patient A would have told her."
"very convincing in that the trigger for her complaint was when she saw the words "soft, non tender" in her medical notes and was aggrieved and immediately complained."
The Tribunal went on to say that:
"The specific recollection of Dr [Khan] underlining certain words added credence to her account. The Tribunal was of the view that, despite being worried and upset, Patient A was in a position where she would have known whether she had been examined or not. The Tribunal did not find it to be credible that Patient A would have missed a physical examination on the account provided and the evidence before it as a whole."
"Dr Pandian could not specifically recall these events in relation to Patient A but was, nonetheless, adamant that she never makes mistakes of this nature. On the other hand, the Tribunal found Patient A's recollection to be persuasive for the above reasons and determined that it was more likely than not that Dr Pandian had not examined Patient A".
The Appeal
"Any appeal must be lodged at the relevant court within 28 days of the date on which notification of this decision is deemed to have been served on you. Notification will be deemed to have been served on 18 May 2023 and therefore any appeal must be lodged on or before 15 June 2023."
The Grounds of Appeal
I. The Tribunal's determination of fact, based upon the evidence, in relation to Allegations 2 and 3 was wrong, in that the Tribunal based its decision upon "persuasive demeanour" and memory which was clearly fallible. This was the incorrect approach based upon the authorities: (See: Dutta v General Medical Council [2020] EWHC 1974 (Admin) and General Medical Council v Khan [2021] EWHC 374 (Admin));
II. The GMC failed to present evidence from Dr Khan, the consultant supervising Dr Pandian, which contributed to the wrong decision by the Tribunal;
III. The Tribunal's decision to allow Patient A's employment to be elicited was procedurally incorrect. The fact was irrelevant and therefore inadmissible.
The Statutory Framework and relevant legal principles
"12. . . First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at §§16 to 20. …
13. Secondly, the governing principle remains that set out in Gupta §10 referring to Thomas v Thomas. The starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge's more general expertise in making determinations of fact: see Gupta, and McGraddie v McGraddie at §§3 to …
14. Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below. (However the reference to "virtually unassailable" in Southall at §47 is not to be read as meaning "practically impossible", for the reasons given in Dutta at §22.)
15. Fourthly, the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows: - where "any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusions": per Lord Thankerton in Thomas v Thomas approved in Gupta; - findings "sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread" per Lord Hailsham in Libman; - findings "plainly wrong or so out of tune with the evidence properly read as to be unreasonable": per in Casey at §6 and Warby J (as he then was) in Dutta at §21(7); - where there is "no evidence to support a … finding of fact or the trial judge's finding was one which no reasonable judge could have reached": per Lord Briggs in Perry after analysis of McGraddie and Henderson. …
16. Fifthly, I consider that, whilst noting the observations of Warby J in Dutta at §21(1), on the balance of authority there is little or no relevant distinction to be drawn between "review" and "rehearing", when considering the degree of deference to be shown to findings of primary fact: Assicurazioni §§13, 15 and 23. Du Pont at §§94 and 98 is not clear authority to the contrary. Rather it supports the proposition that there may be a relevant difference when the court is considering findings of evaluative judgment or secondary or inferential findings of fact, where the court will show less deference on a rehearing that on a review. …
(2) The credibility of witnesses and corroborating evidence
17. First, the credibility of witnesses must take account of the unreliability of memory and should be considered and tested by reference to objective facts, and in particular as shown in contemporaneous documents. Where possible, factual findings should be based on objective facts as shown by contemporaneous documents: Dutta §§39 to 42 citing, in particular, Gestmin andLachaux.
18. Secondly, nevertheless, in assessing the reliability and credibility of witnesses, whilst there are different schools of thought, I consider that, if relevant, demeanour might in an appropriate case be a significant factor and the lower court is best placed to assess demeanour: Despite the doubts expressed in Dutta §42 and Khan §110, the balance of authority supports this view: Gupta §18 and Southall at §59.
19. Thirdly, corroborating documentary evidence is not always required or indeed available. There may not be much or any such documentary evidence. In a case where the evidence consists of conflicting oral accounts, the court may properly place substantial reliance upon the oral evidence of the complainant (in preference to that of the defendant/appellant): Chyc at §23. There is no rule that corroboration of a patient complainant's evidence is required: see Muscat §83 and Mubarak §20.
20. Fourthly, in a case where the complainant provides an oral account, and there is a flat denial from the other person concerned, and little or no independent evidence, it is commonplace for there to be inconsistency and confusion in some of the detail. Nevertheless the task of the court below is to consider whether the core allegations are true: Mubarak at §20."
Extension of Time
Ground 1
Submissions on behalf of Dr Pandian
"First, the Tribunal approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness's uncorroborated evidence about events ten years earlier, only then going on to consider the significance of unchallenged contemporary documents. Secondly, the Tribunal's assessment of the witness's credibility was based largely if not exclusively on her demeanour when giving evidence. Thirdly, the way the Tribunal tested the witness evidence against the documents involved a mistaken approach to the burden of proof and the standard of proof."
Mr Thomas submitted that the same criticisms could be made of the Tribunal in this case.
Submissions on behalf of the GMC
Discussion and analysis
Ground 2
Ground 3
Conclusion
Note 1 Gupta v General Medical Council [2001] UKPC 61 [2002] 1 WLR 1691 at §10 (citing Thomas v Thomas [1947] AC 484 [1947] AC 484 487-488 ); E.I. Dupont de Nemours v S.T. Dupont [203] EWCA Civ 1368 at §§84-98 esp at §84 and §98; Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 at §§13-22, 197; Chyc v General Medical Council [2008] EWHC 1025 (Admin) at §23; Muscat v Health Professions Council [2008] EWHC 2798 (Admin) at §83; Mubarak v General Medical Council [2008] EWHC 2830 (Admin) at §§5, 20; Southall v General Medical Council [2010] EWCA Civ 407 at §47 and §§50-62 (citing Libman v General Medical Council [1972] AC 217 [1972] AC 217 221F); Casey v General Medical Council [2011] NIQB 95 at §6; O v Secretary of State for Education [2014] EWHC 22 (Admin) at §§58 to 64, 66; R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin) at §§21-22, 38-43; Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm) ; McGraddie v McGraddie [2013] UKSC 58 ; Henderson v Foxworth [2014] UKSC 41 at §§48 and 58-67; Perry v Raleys Solicitors [2019] UKSC 5 at §52, and the US case Anderson v City of Bessemer (1985) 470 US 564 at 574-57 ; and Khan v General Medical Council [2021] EWHC 374 (Admin). This list of authorities is set out in Byrne at §10. [Back] Note 2 I was told during the course of the hearing that the Medical Practitioners Tribunal Service has not amended the letter that is sent out to the parties. To avoid the same situation arising again, it would obviously be sensible for the wording of the letter to be amended.
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