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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thilakawardhana v The Office of the Independent Adjudicator [2015] EWHC 3285 (Admin) (13 November 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/3285.html Cite as: [2015] EWHC 3285 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
2 Park Street Cardiff |
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B e f o r e :
____________________
RAVINDU SAHAN ![]() |
Claimant |
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- and - |
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THE OFFICE OF THE INDEPENDENT ADJUDICATOR |
Defendant |
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-and- |
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THE UNIVERSITY OF LEICESTER |
Interested Party |
____________________
Ms Aileen McColgan (instructed by E J Winter & Son) for the defendant
Ms Claire Darwin (instructed by Watson Burton LLP) for the interested party
Hearing dates: 9 November 2015
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Crown Copyright ©
HH Judge Jarman QC :
i) Did the appeal panel take into account the claimant's evidence relating to the nature and context of his conduct and if not was it irrational for the appeal panel not to make findings and not to give adequate reasons;
ii) Did the appeal panel take into account all relevant mitigating circumstances and consider other sanction options and if not was that irrational or was there a failure to give reasons;
iii) As a result of the consideration of the above matters was it irrational for the defendant to have concluded that the claimant's complaint in respect of the appeal panel decision was not justified.
"you fucked up! you cock sucker, after hanging out with us lankans for the past few years, you have the balls to tell [A] not to hang out with us……When you mess with a lankan, you mess with all of us……i hope you learn a lesson from this, when you are so insincere to the people around you, your little fairy tale world will collapse eventually, i'll make sure it will. [R] has seen right through your shit for years and he knew what kind person you are, so dont even look at him. i dont want to see you on a night out in leicester, or in the UK. "
"This letter is to formally address the complaint made against myself by [PS]. I would like to reassure you that I did not intend to make any kind of threat of death or injury towards him, and have never had any intention of harming him. There was an isolated incident of conflict, and since it occurred there has been no ongoing communication between the two of us. I am a committed medical student, and I have a good ethical sense and awareness of the conduct expected of a medical student. My emotions got the best of me in the heat of the moment because of legitimate grievances at [PS]'s behaviour in the period up to the incident. The "threat" which you are referring to is an internet meme in circulation which humorously refers to a line used by an actor in a popular thriller movie. I posted it on his facebook wall, and it was taken down within minutes. As such it was meant to convey humour as well, but I appreciate that it could have been perceived seriously, but such was my upset at that moment that I did not consider this. In addition to this I sent [PS] a message outlining why I was so upset at him. I said " I don't want to see you on a night out, or in the UK." I understand now that in the context of the meme that was sent, that could be perceived as a further threat."
"The reason for this decision being reached is that the action of posting a public 'message' on a social media site that could be construed as threatening cannot be ignored. This was a serious act of misconduct and regardless of your subsequent remorse and recognition that your behaviour was improper an appropriate penalty is being imposed.
Your account of events and the mitigation you refer to, along with your readiness to apologise to [PS] have been noted and will be taken into account within your department.
The form of reprimand will be that you are asked to:
1) Arrange to attend a course of 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."
"I sent you a Facebook message and posted a meme on your wall which in combination could have been interpreted as threatening. If you actually did feel threatened by me, you should know that I am not a person who would never mean you any physical harm. You've known me for three years and I believe I have never come across as threatening. I wish you had come to me straight and told me how you felt and we could have sorted things our then and there. I am sending you this email to apologise for my behaviour by which you felt threatened. I assure you that you should not in any way feel threatened by me. Hope you are well."
"..had not properly accepted responsibility for your actions, had not tried to work out a plan to correct your mistakes, and lacked the necessary degree of insight, notwithstanding the opportunities for reflection which the disciplinary and fitness to practise proceedings had provided. These failings gave the Panel little confidence in your capacity to reach the standards of professionalism which would be required to enter practice."
"The Panel reviewed its conclusions on the two allegations together and agreed that you had substantially failed to meet the standards required to recommend you to the General Medical Council [the GMC] as fit to practise; and that your conduct was not the sort which would be acceptable to the general public in a doctor. It considered whether there were any sanctions or remedial actions which could be put in place which might address the shortcomings before the completion of your course, but it concluded that your lack of insight and failure to respond in the past reflected a fundamental unsuitability for the profession of medicine which could not now be corrected.
The Panel's decision is therefore that your registration as a student on the MB ChB programme should be terminated. Since the intercalated Bsc programme does not require you to meet fitness to practise standards, you will remain registered as a student in order to complete that course."
"i) there have been procedural errors,
ii) the decision was and remains disproportionate and unfair; and
iii) as a consequence of the above, and for the reasons spelt out below, the decision was and remains unlawful."
"With regard to the Facebook message, it is argued on your behalf that you did not intend to cause the recipient to feel under any threat and that they would be treated by the recipient as putting him the belief that he was under any serious threat. This is supported by the statement that [PS] did not refer the matter to the police…This latter point is factually incorrect. In Dr Harrup's…report it states quite clearly that PS did seek advice from the police and that he chose not to press the charges….The fact that he reported to the police and the University indicates strongly that PS did feel threatened by the message.
It is argued that the [panel] appeared to have made the decision it did on the mistaken belief that you had issued a threat to kill without going on to consider whether there was any intention on your part or whether [PS] could reasonably belief that he was under any such threat. The Appeal Panel found this very hard to follow. In addition to the words quoted above the message, which contained seriously obscene language which, in our view, adds menace to the words, are statements such as "When you mess with a Lankan, you mess with all of us" and "I don't want to see you on a night out in leicester (sic), or in the UK." The Panel found it impossible to see how this could be taken in any other way than a threat of violence. While it is conceivable that [PS] might not have thought that he was actually going to be killed, it is abundantly clear to us that any recipient of such a message would have a real and justified fear that he would be subjected to violence. We find the sending of this message to be completely unacceptable behaviour and such that it renders the send of it unfit to practise medicine."
"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 and under Regulation 11.165 confirms the decision… 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 leads to a finding of unfitness to practice."
i) to note that PS felt sufficiently concerned at the time to raise the issue with the university and the police and to conclude that "any recipient" of such a message would have a real and justified fear of violence;
ii) to conclude that the meme and the message amounted to behaviour which was completely unacceptable in the context of fitness to practise;
iii) to view the meme and the message objectively to determine whether together they were likely to undermine the trust of a reasonable member of the public in the profession, regardless of whether members of the public saw the same and regardless of whether PS felt threatened;
iv) to regard the posting of itself as sufficiently serious to lead to the conclusion that the claimant is not fit to practise as a doctor and it was therefore unnecessary for detailed consideration to be given to lesser sanctions.
i) The review involves conducting, in accordance with a broad discretion, a fair and impartial review of the complaint on the materials before it, also drawing on its own experience of higher education;
ii) It is not the function of the defendant to determine the legal rights and obligations of the parties or to conduct a full investigation into the underlying facts;
iii) The courts will be slow to interfere with the review decisions when they are adequately reasoned. They are not required to be elaborately reasoned, the intention being that the defendant's operation should be more informal, more expeditious and less costly that legal proceedings.
"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. One must look to the nature of the complaint before the OIA and how the OIA responded in far more general terms than might be the case when reviewing a decision of a judge. 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. It addressed the substance of the complaints. Even if no errors had been made the result would have been the same."