Gopakumar v General Medical Council

Factual and Procedural Background

This is an appeal by the Appellant, a 65-year-old general practitioner, against a decision of the lower court judge who dismissed his appeal under section 40 of the Medical Act 1983. The original decision, made by the Fitness to Practise Panel of the General Medical Council (GMC), ordered the erasure of the Appellant's name from the medical register due to findings of serious professional misconduct.

The Appellant faced two charges related to female patients, identified as Complainant A and Complainant B. Complainant A alleged that the Appellant pulled down her top and looked down her front without warning or consent during a consultation at the surgery. The Panel found this charge proved but agreed it alone would not justify erasure.

Complainant B alleged that during multiple consultations while the Appellant was working as a locum, he made inappropriate comments and, on one occasion, conducted an abdominal examination that involved inappropriate and indecent contact with her pubic area. The Panel found this charge proved as well, and this finding was challenged on appeal.

The hearing before the Panel lasted four days, involved various witnesses including experts, and took place under the old 1988 Professional Conduct Committee Rules. The Appellant was represented by medical defence solicitors and counsel at different stages.

Subsequently, the Appellant appealed to the lower court judge, who conducted a re-hearing and rejected multiple grounds of appeal, including challenges to the legal assessor's character direction and the admittance of further evidence regarding Complainant B's character. The Appellant then appealed to this court on limited grounds.

Legal Issues Presented

1. Whether the character direction given by the legal assessor to the Fitness to Practise Panel was inadequate and unfair to the Appellant.
2. Whether the lower court judge erred in refusing to admit further evidence concerning Complainant B's character, including her police caution and medical history, as fresh evidence on appeal.

Arguments of the Parties

Appellant's Arguments

• The legal assessor’s character direction was flawed because it treated all witnesses, including Complainant B, as being of good character without evidence, which would not be given in a criminal trial.
• The Appellant should have received an enhanced good character direction similar to that in criminal trials, reflecting his long unblemished service as a doctor, making it unlikely he committed the alleged misconduct.
• The lower court judge wrongly refused to admit fresh evidence relating to Complainant B’s police caution and history of drug use, which was crucial to assessing her credibility and was inadequately disclosed by the GMC.
• Applied for disclosure of further medical records and an adjournment to allow such disclosure, arguing that these materials were relevant to Complainant B’s reliability.

Respondent's Arguments (General Medical Council)

• The legal assessor’s direction was appropriate given the nature of the Fitness to Practise Panel, which is not analogous to a criminal jury and legal assessor is not a judge summing up evidence.
• The refusal to admit fresh evidence was justified because the Appellant and his legal representatives had access to the relevant records well before the Panel hearing and made a considered decision not to use them.
• The application for further disclosure and adjournment was a late and unpromising attempt to bolster an already unsuccessful appeal.
• The information about Complainant B’s antecedents was verified and accurate, and there was no miscarriage of justice in refusing to admit fresh evidence or grant an adjournment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first examined the nature of the Fitness to Practise Panel and the role of the legal assessor, emphasizing that the Panel is not a jury and the assessor is not a judge summing up evidence. The assessor provides legal advice but the Panel is master of both law and fact. Consequently, the analogy with criminal proceedings and the requirement for a criminal-style good character direction was rejected.

The court found that the legal assessor’s direction, which included a statement that all witnesses were of good character unless shown otherwise, was appropriate given no evidence to the contrary and did not cause substantive injustice or undermine the Panel’s decision. The absence of an enhanced good character direction was not fatal.

Regarding the admission of fresh evidence about Complainant B’s police caution and drug history, the court upheld the lower judge’s decision. It found that the Appellant’s legal representatives had access to this material well before the Panel hearing and had made a considered decision not to deploy it. The late attempt to introduce this evidence was therefore refused as it did not demonstrate a real risk of miscarriage of justice.

The court also addressed the Appellant’s claim that he was not consulted by his legal advisers but declined to resolve this factual dispute, noting that failure by legal advisers to adduce evidence is no excuse.

Finally, the court refused the application for further disclosure and an adjournment, viewing the request as an unpromising fishing expedition made too late in the process.

Holding and Implications

The court DISMISSED the appeal on both grounds.

The direct consequence is that the decision of the Fitness to Practise Panel to erase the Appellant from the medical register stands. No fresh evidence regarding Complainant B’s character was admitted, and the legal assessor’s character direction was upheld as proper and fair. The court did not set any new precedent but reaffirmed the established legal principles distinguishing disciplinary proceedings from criminal trials, particularly regarding the role of legal assessors and the approach to character evidence.