A doctor who performed actions which were not clinically indicated and were sexually motivated lose erasure appeal.
In this case, the Tribunal determined that during two clinical examinations the Appellant, Dr Srinivasan, had performed actions which were not clinically indicated and were sexually motivated, in that:
i) During an examination, on 24 October 2014, he had lifted the top of a female Patient (Patient A) and stared at her bare breasts.
ii) During an examination on 6 October 2016, he touched the pubic area of a female Patient (Patient B) and attempted to digitally penetrate her.
Both Patients complained to hospital staff on the day that their examinations took place. Neither of the complainants were known to each other and there was no possibility of any cross contamination between their accounts which were separated in time and location.
The police investigated the complaint made by Patient A and interviewed the Appellant. In March of 2015 they closed their file. The case was reopened following the complaint made by Patient B. The Appellant was charged with criminal offences arising out of both examinations and stood trial at the Crown Court in November 2018. He was acquitted in respect of Patient A and the jury discharged in relation to Patient B. There was a retrial in May 2019 which resulted in a further not guilty verdict in respect of Patient B.
The Grounds of Appeal are that:
i) The Tribunal’s findings of fact in respect of the examinations of both Patient A and Patient B were wrong and/or irrational.
ii) The finding of impairment and the sanction of erasure were unfair and wrong insofar as they were based on erroneous findings of fact.
The second ground is dependent upon the first.
Mr Justice Sweeting dismissed both grounds of appeal. In doing so, he commented:
Three points are taken in relation to paragraph 92 of the Determination (points 20, 21 & 22) which I deal with compendiously since I regard none of them as having any force. The Tribunal was addressing the argument raised by the Appellant that the events described by Patient B were inherently improbable. Contrary to the Appellant’s submissions, the Tribunal gave reasons for rejecting the most cogent of these arguments, namely the presence of her friend and the likelihood of interruption, and for preferring the evidence of Patient B. Those reasons included the fact that Patient B was particularly vulnerable having just arrived in the United Kingdom speaking no English, that her friend would not have seen the intimate touching which took place inside the underwear and had no clinical knowledge as to whether the form of the examination was clinically appropriate or not and that the risk of being disturbed was on the Tribunal’s own experience mitigated by the fact that any other member of the medical staff would have asked before entering (a requirement reflected in the chaperone policy).
Paragraph 108 (Point 23) relates to the Tribunal’s identification of “some” similarities between the allegations made by Patient A and B and its conclusion that two separate allegations against the same clinician arising in similar circumstances in a comparatively short period of time made it more likely that the alleged incidents of sexual misconduct had occurred.
There was nothing illogical or wrong in principle with this approach. There was no suggestion of collusion, the complainants were both young women in a vulnerable position who were the subject of a similar examination by the Appellant in the absence of other medical staff in a private setting. Both complained almost immediately after the incidents had taken place. The interval between the complaints can properly be described as having taken place over a comparatively short time period, but little turns on whether that is an apt description or not. The fact that there were such similarities was a factor which the Tribunal identified as having “enhanced the probability that the Allegation occurred as it had found,” that is to say, once it had considered the evidence and reached findings on each allegation individually.
For the reasons set out above the matters raised by the Appellant and argued on appeal are not capable, in this case, of disturbing primary findings of fact made by the Tribunal in a careful determination handed down on the eighth day of the hearing. The Tribunal was satisfied that the events happened as described by the individual patients having considered each allegation and patient separately. The reasons given by the Tribunal for its conclusions were more than adequate for the appellant to understand why he had lost and provide cogent explanations in relation to the evidence which was accepted and rejected and for those allegations which the Tribunal found to have been proved as a result. The findings, in my judgement, accord with the evidence.