Jain v General Medical Council

The appellant (Dr Jain) is a doctor and psychiatrist. He appeals against disciplinary sanctions imposed on him by a tribunal of the Medical Practitioners Tribunal Service (MPTS). This was the culmination on 25 January 2019 of a process lasting nearly four years. The allegations arose from consultations with patients from February to April 2015. The tribunal

The tribunal also made an immediate order preserving interim conditions of

I question the fairness of this rule but cannot alter it. I wish those with the power to do so would exercise that power to change it. The sooner I can give my judgment, the less the injustice caused by delay consequent on exercising the right of appeal. I therefore hasten to give my judgment now, to minimise the impact of the arbitrary and penal consequence of exercising the statutory right of access to the High Court.

The respondent (the GMC) is responsible for ensuring appropriate standards of conduct and discipline in the medical profession. It operates the disciplinary regime for doctors pursuant to statutory provisions in the Medical Act 1983 and rules which set the standards of conduct required and the procedure for dealing with alleged breaches. Decisions are taken by an independent tribunal of the MPTS, established under the statutory provisions.

The conditions imposed by the tribunal on Dr Jain’s registration are detailed. Some are confidential and relate to his health. Among those not confidential are that he must keep the GMC informed of his employment position, allow the GMC to exchange information with his employer and have a mentor and a reporting process. He must not work out of hours or on call, must not work more than nine sessions a week, nor work outside the United Kingdom. The GMC must approve any appointment.

Although the bundle of documents lodged (excluding numerous authorities)

The principles applicable in an appeal of this kind are now so well known that the field has become overburdened with hundreds of cases which, as I have commented previously, are often unnecessarily cited. The propositions to be applied were not controversial. They are briefly these.

I can only allow the appeal if I am satisfied the decision of the panel was wrong or unjust because of a serious procedural irregularity. Appropriate deference is due to the judgment of the tribunal below in view of its special expertise, especially in cases regarding professional practice. The court can correct material errors but its judgment on application of principles to the facts is a secondary one.

The court is reluctant to overturn findings of fact, in particular as to credibility of witnesses where that turns on demeanour and subtleties of expression which are only evident to someone at the hearing; and must respect the professional judgment of the panel below, especially in relation to failures in clinical treatment and care. On sanction, the court should not conduct a resentencing exercise, substituting its view for the tribunal’s.

Dr Jain was working as a locum adult psychiatrist in early 2015 for Plymouth Community Healthcare. While working there, he saw four patients, called patients A-D inclusive, from 11 February to 24 April 2015.

In August 2015, Dr Sant referred the matter to the GMC for investigation into four complaints from patients A-D. After that, the protracted investigation and evidence gathering process started, punctuated by interim hearings to determine whether interim conditions should be imposed. Interim conditions were in place for some but not all of the time leading up to the eventual substantive hearing.

A hearing lasting 15 days took place during July 2017. There were numerous witnesses. Further hearings took place on 14 December 2017 (further evidence), 29 January 2018 (closing submissions), 30 January 2018

Many of the charges were found not proved. I will omit those matters from my account, though they are important as context, since the complaints included allegations that Dr Jain’s conduct had been sexually motivated, a proposition the tribunal rejected and that he had acted dishonestly, which the tribunal also rejected. The allegations were many. The tribunal considered them in turn, explaining their reasoning in each case. They found 17 allegations proved.

The GMC sought interim conditions at a hearing before an interim orders tribunal. That tribunal refused to impose interim conditions, at a hearing on 7 June 2018. The matter then returned to the tribunal dealing with the substantive case on 16 July 2018. It was listed for four further days to consider the issues of misconduct, impairment of fitness to practise and sanction. Submissions were made on admissibility of evidence. Various rulings on satellite issues were made.

On the second of the four days, the tribunal decided to adjourn the matter

The GMC sought interim conditions in view of the adjournment for a health assessment. The tribunal agreed to this. The assessment was not available in writing until 30 November 2018. Two psychiatrists, Dr Feinmann and Dr

Dr Jain, then represented by leading counsel, no longer opposed interim conditions restrictive of his right to practise. There was debate about the wording of the restrictions. An order for interim conditions was imposed, to last until 16 April 2019. Two days later, Dr Jain made a witness statement seeking the lifting of those restrictions. I was told at the hearing of the appeal that they have operated so as to render him virtually unemployable.

The disciplinary allegations were at last dealt with in January 2019, from 21 to 25 January. Evidence was heard from Dr Feinmann and Dr O’Flynn and others. Dr Jain produced a number of testimonials and other documents. On 24 January 2019, the tribunal produced a written determination of seven interlocutory issues forming annexes A-G of its written determination.

On the substance, the tribunal found in its written determination of 24 January 2019 that the charges that were proved amounted to misconduct and that Dr Jain’s fitness to practise was impaired. Dr Jain’s then counsel did not argue positively against those propositions, saying he would leave consideration of those issues to the tribunal.

The tribunal went through the charges that were proved in respect of the

They found Dr Jain’s level of insight into his conduct to be “limited”. The tribunal considered that his misconduct was “remediable”. He needed to address the issues that were causing it. He had a “tic” disorder which should be addressed by cognitive behavioural therapy (CBT). There was a risk of repetition of his conduct and a continuing risk to patients, the tribunal said.

The next day, 25 January 2019, the tribunal addressed the question of the

There are six grounds of appeal. They are wide ranging and diffuse. This is not entirely a matter of Mr Jotangia’s making. He was instructed as counsel for Dr Jain in the appeal only after Dr Jain had advanced his own grounds of appeal without the benefit of legal training or experience. Mr Jotangia did not address the grounds in the order in which they were advanced. I will not do so either.

The first ground is that there was inordinate delay. This is correct on the facts, since the process took nearly four years. That is because the way the rules are operated and the prevailing culture pay very little attention to the maxim that justice delayed is justice denied. The procedural regime and the

But, though he might well have done, Dr Jain does not attack the length of

The tribunal found that on 27 February 2015, at his only consultation with

The tribunal noted that Dr Jain suffered from a “habit disorder” since childhood causing the involuntary movements without awareness of them at the time, though Dr Jain has been made aware of them by others. The tribunal accepted that these were mannerisms that could be off-putting to patients. They found that he had acted unprofessionally by not explaining his mannerisms to patient A.

Mr Jotangia submitted that Dr Jain had not become aware of his chronic motor tic disorder until April 2018 and that the tribunal had been wrong to hold it against him. Dr Jain had not had to warn patients in the past about his tic disorder. He should not have to declare a disability to patients and there was not a sufficient basis for finding misconduct.

I sympathise with the embarrassment Dr Jain feels when his mannerisms are discussed with him or when attention is drawn to them. But I reject the submission that the tribunal was not entitled to find that he 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 heading off in advance

Next, the tribunal found four linked charges proved concerning patient A:

Dr Jain had denied asking intrusive questions about patient A’s sex life, but said any he had asked were clinically appropriate. The tribunal accepted that it was legitimate to ask some questions about reckless behaviour, but that Dr Jain had gone into too much detail by asking her whether she had a boyfriend, how frequently she had sex and whether it was unprotected. His notes did not reflect these questions and he knew they were thus inaccurate.

Mr Jotangia’s criticism of the tribunal’s findings on these issues amounts to a challenge to their factual conclusions. He pointed out that the consultation was short, only about 15 minutes, and even suggested that the tribunal may have mixed up evidence about patient A and evidence about patient D. I find no support in the tribunal’s decision for the latter proposition.

As for the attack on the findings of fact, those findings were properly made and not open to criticism merely because Dr Jain still denies asking the intrusive questions about patient A’s sex life which the tribunal found he did ask her. Mr Jotangia also criticised the tribunal for apparently relying on evidence from an expert instructed by the GMC, a Dr Constable, whose evidence did not impress the tribunal. I do not see how that invalidates its findings of fact in relation to these allegations.

Dr Jain had two relevant consultations with patient B. The first was on 26 February 2015. At that consultation, the tribunal found, Dr Jain failed to communicate appropriately to her by denying to her that memories of

At patient B’s second appointment on 24 April 2015, Dr Jain, the tribunal found, failed to prescribe medication appropriately by increasing her dose of sertraline without clearly explaining the reason for doing so. He also communicated inappropriately with her and her ex-husband, who was present, by asking 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 had said they did not wish to discuss this.

Mr Jotangia’s submissions attempted to impugn these findings of fact by making forensic points. He complained that the tribunal should not have preferred the evidence for the GMC to that given by Dr Jain. He pointed out that Patient B was not called to give oral evidence, while her ex-husband,

“witness F”, was. He pointed to what he said were inconsistencies between the evidence of witness F and the written evidence of patient B.

I did not find the forensic criticisms of the tribunal’s findings of fact persuasive. The tribunal was well aware that the weight to be attached to patient B’s evidence was diminished by the lack of any oral evidence from her and the absence of testing of her written evidence through crossexamination. The tribunal made this point explicitly when stating their assessment of each witness at the start of the written determination.

It is well known that the function of finding the facts is properly that of the tribunal and I would have to convinced by more than forensic argument that a finding of fact was wrong before I could properly interfere with it. The inconsistencies relied on by Mr Jotangia were not, with respect, substantial and the evidence of witness F, given orally, and of patient B, in writing, was consistent with the findings made.

Dr Jain saw patient C twice, so far as relevant for present purposes. The second time was on 10 March 2015. The tribunal found that on that occasion, Dr Jain failed to communicate appropriately with her in that when she stated that she had been raped, he responded along the lines that it was

“impossible to be raped from both ends without lubrication being used”.

Dr Jain denied saying these words. The tribunal simply preferred patient

Mr Jotangia complained of procedural irregularity in the way patient C gave her evidence. It was agreed that she was a vulnerable witness due to her fragile mental health. She gave her evidence over a video link. The tribunal had ruled that she should have assistance from an intermediary, a Ms Lorna Coulson who was a psychotherapist.

A concern arose that Ms Coulson, not visible over the video link but present

When these matters came to light, the chair of the tribunal naturally became

The chair indicated that Ms Coulson was not an appropriate person to assist patient C. She wanted someone else to take over from Ms Coulson. Patient C, however, then indicated that she needed the support of Ms Coulson and

I accept the submission of Mr Jotangia that there was a procedural

The chair dealt with the issue carefully and sensitively, balancing patient

Dr Jain had only one relevant appointment with patient D, on 17 April 2015. On that occasion, the tribunal found, Dr Jain failed to obtain an adequate history from her; the consultation was dominated by excessive questions about her sex life and libido. He thereby also failed to communicate appropriately with her. He also, the tribunal found, communicated inappropriately with her by suggesting to her that if she carried on seeing a certain male friend of hers, he would have to admit her to hospital.

Yet further, the tribunal found that he failed to prescribe medication appropriately for her, in that he offered her a list of medications and asked her which she would like to try, or words to that effect; and did not follow authoritative guidance published by various organisations in respect of his prescription of a drug called sodium valproate; and prescribed that drug which was not clinically indicated.

The tribunal’s reasoning in support of those findings was detailed. It was set out over some nine pages in the written determination. The tribunal preferred the account of patient D and accepted evidence from Dr Constable that the questioning was inappropriate and excessive. They accepted patient

In relation to the inappropriate prescribing practice, the tribunal accepted

The tribunal also found that sodium valproate was not appropriate because patient D was of child bearing age and there was not sufficient need for patient D to take it nonetheless; while it is often given to women of child bearing age, that was a contra-indication and there were not sufficient adverse changes in patient D’s mental health condition to justify prescribing it.

Mr Jotangia’s criticisms of the tribunal’s findings in relation to Patient D’s care and treatment amounted to no more than forensic points about the evidence, quite inappropriate for an appellate hearing before a court which has not seen and heard the witnesses giving their evidence. He argued that patient D ought not to have been treated as a reliable witness because, in his phrase, “she was a worrier”.

He said that her evidence had not been consistent but the examples he gave were minor. He said patient D was unclear on whether Dr Jain had overtly stated, or merely implied, that she, patient D, had “prostituted” herself; and

Mr Jotangia criticises the severity of the sanction imposed on Dr Jain. He

I do not regard the tribunal’s findings in relation to misconduct, impairment and sanction as properly open to criticism. The facts, as found, were clearly misconduct. Dr Jain’s then counsel did not seriously argue otherwise. Nor did his then counsel positively argue against the proposition his fitness to practise was impaired.

At the sanctions stage, Dr Jain then counsel agreed with counsel for the GMC that the appropriate sanction was to impose conditions on his registration. I do not see how Dr Jain can now legitimately complain that the tribunal did exactly that. I sympathise with the adverse impact the current restrictions may have on his ability to find employment; but that cannot of itself mean the tribunal was wrong to impose the conditions for the protection of the public.

For those reasons, I do not consider that any of the grounds of appeal advanced have any merit and I dismiss the appeal.

I note that Dr Jain can apply for early lifting of the sanctions, under the rules. He can pray in aid, to the extent that it is relevant (and it may well be) the inordinate amount of time it has taken to reach a decision in his case and that the rules themselves then penalise him for appealing, by extending the