Srinivasa Reddy Krishna Thalagavara v General Medical Council and others: 2401740/2016

EMPLOYMENT TRIBUNALS

Case No 2401740/2016

Between

Srinivasa Reddy Krishna ThalagavaraClaimant

General Medical Council and othersRespondent

Before

Employment Judge Sherratt

Written representations for claimant

Date 20 July 2017

JUDGMENT

[1]The judgment of the Tribunal is that the claimant’s claims against Ms K Watkins are dismissed on the claimant withdrawing the claim against her in his composite amended particulars dated 10 March 2017. JUDGMENT

[2]The claimant’s application dated 13 July 2017 for reconsideration of the judgment

REASONS

[1]There is no reasonable prospect of the original decision being varied or revoked.

[2]The claimant seeks reconsideration of the judgment in respect of various allegations which were not struck out and where no deposit order was made. As the respondents’ applications did not succeed in relation to these allegations it is not considered necessary to reconsider these issues which will go on to be determined at the final hearing.

[3]The claimant seeks reconsideration in respect of allegations m and y which were struck out as having no reasonable prospect of success on the basis that the decision is wrong and amounts to an error of law. I remain satisfied that these matters are within the jurisdiction of the High Court and not the Employment Tribunal.

[4]The claimant seeks reconsideration in respect of allegation o which was struck out as having no reasonable prospect of success on the basis that the decision is wrong and amounts to an error of law. The claimant refers to some guidance notes that were not before me although they must have been available at the time of the hearing. I remain of the view that reminding the claimant as to payment of the annual registration fee was not done because the claimant had done a protected act but because he had not paid it. Case No: 2401740/2016

[5]The claimant seeks reconsideration in respect of allegation v which was pleaded by him as “the claimant submitted a formal complaint against Dr Seivewright on 13.10.2015 for preparing a prejudiced psychiatric report dated 02.07.2014. Regrettably the respondents have failed to acknowledge the complaint to this date, let alone act on it” and summarised by the respondents as a failure on the part of the first respondent to acknowledge his complaint in respect of Dr Seivewright. I remain satisfied that the complaint was acknowledged even if the claimant is not satisfied with the way in which the first respondent dealt with it. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the judgment on preliminary hearing sent to the parties on 29 June 2017 is corrected as set out in block type at paragraph 1 of the judgment and at paragraph 143 of the reasons. Employment Judge Sherratt 24 July 2017 Important note to parties: Any dates for the filing of appeals or reconsiderations are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment with reasons when appealing. EMPLOYMENT TRIBUNALS Claimant: Dr Srinivasa Reddy Krishna Thalagavara Respondents: 1. General Medical Council 2. Professor T Stephenson 3. Mr N Nickson 4. Mr V Donnelly 5. Mr K Done Ms J Farrell Ms C Couchman Mr J Barnard Ms H Eldridge

[10]Dr N Seivewright Heard at: Manchester On: 26 May 2017 Before: Employment Judge Sherratt Representation Claimant: Not present or represented but sent written representations on 15 May 2017 Respondent: Mr I Hare, one of Her Majesty’s Counsel CORRECTED JUDGMENT The judgment of the Tribunal is that: 1. The claimant’s allegations of detriment described in the respondents’ response to the claimant’s composite amended claim with particulars as items d, f, m, o, v and y are struck out under Rule 37 as they have no reasonable prospect of success. 2. All other applications are dismissed. CORRECTED REASONS

Introduction

[1]The claimant presented a claim on 21 June 2016 alleging direct and indirect discrimination on the grounds of race and disability, harassment and victimisation and the failure to make adjustments. The claimant subsequently provided a Schedule of Issues. At the second preliminary hearing before Employment Judge Holmes on 7 September 2016 the claimant provided further particulars. At a further preliminary hearing before Employment Judge Holmes on 16 January 2017 the claimant was ordered to produce an amended claim in a single document with the Employment Judge recording that: “There should be no question of the claimant seeking to raise anything further that could be said to be a new claim.”

[2]The claimant produced a single document, his fourth document, described by him as a composite amended claim with particulars on 10 March 2017 and the respondents responded in a document submitted to the Tribunal and copied to the claimant on 3 April 2017.

[3]In the final paragraph of the response it was stated that: “The respondents hereby apply for a preliminary hearing to strike out the claim in whole or in part on the grounds that it is out of time, otherwise outside the jurisdiction of the Tribunal, should not be brought against the individual respondents or has no reasonable prospect of success. In the alternative the respondents will seek a deposit order.”

[4]That application was listed for hearing on Friday 26 May 2017 and in advance of it the claimant sent written representations setting out his opposition to the applications. The General Medical Council (“GMC”)

[5]The General Medical Council is a body corporate having the functions assigned to it by the Medical Act 1983. The over-arching objective in exercising their functions is the protection of the public. Its objectives are to protect, promote and maintain the health, safety and wellbeing of the public, to promote and maintain public confidence in the medical profession and to promote and maintain proper professional standards and conduct for members of that profession.

[6]The GMC has statutory functions under section 35C of the Medical Act 1983 which apply where an allegation is made to the General Council against a registered practitioner that his fitness to practise is impaired. Impairment for the purposes of the Act can be by reason only of:(a) Misconduct,

(b) Deficient professional performance,

(d) Adverse physical or mental health…

[7]Section 35C(4) provides that the Investigation Committee shall investigate the allegation and decide whether or not it should be considered by a Medical Practitioners Tribunal (“MPT”) and thereafter the process follows the pathways laid down in the Medical Act 1983 and the General Medical Council ( Fitness to Practise) Rules 2004 until such time as it is concluded although interim orders can be made along the way.

[8]Section 40 of the Medical Act 1983 provides that some decisions of a Medical Practitioners Tribunal are appealable to the High Court. Those decisions are a decision of a Medical Practitioners Tribunal under section 35D giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration, or a decision under section 41(9) giving a direction that the right to make further applications under that section shall be suspended indefinitely. Other decisions are also appealable to the High Court. The High Court may on the hearing of an appeal dismiss it, allow it and quash the direction or variation appealed against or substitute another decision which could have been made by an MPT or remit the case to an MPT with directions as to its disposal at a further hearing.

[9]The power to impose interim orders is provided by section 41A in appropriate circumstances where an Interim Orders Tribunal (“IOT”) or an MPT is satisfied that it is necessary for the protection of members of the public or otherwise in the public interest or in the interests of the registrant for the registration to be suspended or made subject to conditions. Interim orders are also subject to an appeal to the High Court.

[10]The General Medical Council (Fitness to Practise) Rules 2004 deal with the process to be followed and provide for the investigation of allegations. Where the registrar considers an allegation falls within the appropriate section of the Act he shall refer the matter to a medical and a lay case examiner. The practitioner is informed of the referral of an allegation for consideration. The registrar shall investigate and may direct an assessment of the practitioner’s health. When the case examiners have completed their examination they can decide that the allegation shall not proceed or to issue a warning or to refer the allegation to the committee or to a Tribunal.

The Relevant Law

[11]In his composite amended claim the claimant limits his claims against the respondents to victimisation under section 27 of the Equality Act 2010 and instructing, causing or inducing contraventions under section 111 of the Equality Act 2010. The protected characteristics relied upon by the claimant are depression which amounts to disability under section 6, and his Indian ethnic origin as race under section 9 of the Equality Act 2010.

[12]Section 27 of the Equality Act 2010 provides that:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act - (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[13]Section 111 relates to Instructing, causing or inducing contraventions and provides as follows: “(1) A person(a) (A) must not instruct another

(b) (B) to do in relation to a third person

(c) (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do so in relation to a third person (C) anything which is a basic contravention. (3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention. (4) For the purposes of subsection (3) inducement may be direct or indirect. (5) Proceedings for a contravention of this section may be brought – (a) By B, if B is subjected to a detriment as a result of A’s conduct; (b) By C, if C is subjected to a detriment as a result of A’s conduct; and (c) By the Commission. (6) For the purposes of subsection (5), it does not matter whether – (a) The basic contravention occurs; (b) Any other proceedings are, or may be, brought in relation to A’s conduct. (7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B. (8) A reference in this section to causing or inducing a person to do something includes a reference to a attempting to cause or induce the person to do it. (9) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating – (a) In a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A and B, A is in a position to contravene in relation to B; (b) In a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B and C, B is in a position to contravene in relation to C.”

[14]The Equality and Human Rights Commission: Code of Practice on Employment (2011) at 9.16 refers to section 111(1) stating that: “It is unlawful to instruct someone to discriminate against, harass or victimise another person because of a protected characteristic or to instruct a person to help another person to do an unlawful act. Such an instruction would be unlawful even if it is not acted upon. It is also unlawful under subsections (2), (3) and (8) to cause or induce or to attempt to cause or induce someone to discriminate against or harass a third person or to victimise a third person because they have done a protected act.”

[15]According to the Code of Practice, for the Act to apply (section 111(7)): “The relationship between the person giving the instruction, or causing or inducing the unlawful act, and the recipient must be one in which discrimination, harassment or victimisation is prohibited. This will include employment relationships, the provision of services and public functions, and other relationships governed by the Act.”

[16]As to who is protected, the Code of Practice states that: “The Act provides a remedy for(a) the person to whom the causing, instruction or inducement is addressed and

(b) the person who is subjected to the discrimination or harassment or victimisation if it is carried out, provided that they suffer a detriment as a result.”

[17]Section 53 of the Equality Act 2010 refers to Qualifications bodies (A) providing, in summary, that they must not discriminate against a person (B). The GMC (A) accepts that it is a qualifications body for the purposes of the claimant's (B’s) claim.

[18]Section 120 of the Equality Act 2010 deals with jurisdiction, giving an Employment Tribunal jurisdiction to determine a complaint relating to a contravention of Part 5 (work), which includes section 53 dealing with Qualifications Bodies, but at (7) “Subsection (1) (a) does not apply to a contravention of section 53 in so far as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal”.

[19]Neither party referred me to the recent case of Hemdan v Ishmail and Al- Megraby,

UKEAT/0021/16/DM

at the Employment Appeal Tribunal on 10 December 2016 before Mrs Justice Simler (President), Mr Jenkins and Ms Sutcliffe. The case seems to me to be relevant because it concerned the making of deposit orders. In summary:-(1) A deposit order was wrongly imposed in circumstances where the Employment Judge recognised that the claimant would find it difficult to comply with its terms.

(2) In fact it was not practically possible for the claimant to comply with the deposit order, which was set at so high a level in context as to impede her access to justice because she could not comply with it.

(3) The order imposed was not therefore a proportionate and effective means of signalling to the claimant the low prospects of success and warning her as to costs.

[20]Having set out rule 39 the judgment states as follows: “(10) A deposit order has two consequences. First, a sum of money must be paid by the paying party as a condition of pursuing or defending a claim. Secondly, if the money is paid and the claim pursued, it operates as a warning, rather like a sword of Damocles hanging over the paying party, that costs might be ordered against that paying party (with a presumption in particular circumstances that costs will be ordered) where the allegation is pursued and the party loses. There can accordingly be little doubt in our collective minds that the purpose of a deposit order is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails. That, in our judgment, is legitimate, because claims or defences with little prospect cause costs to be incurred and time to be spent by the opposing party which is unlikely to be necessary. They are likely to cause both wasted time and resource, and unnecessary anxiety. They also occupy the limited time and resource of Courts and Tribunals that would otherwise be available to other litigants and do so for limited purpose or benefit. (11) The purpose is emphatically not, in our view, and as both parties agree, to make it difficult to access justice or to effect a strike out through the back door. The requirement to consider a party’s means in determining the amount of a deposit order is inconsistent with that being the purpose, as Mr Milsom submitted. Likewise, the cap of £1,000 is also inconsistent with any view that the object of a deposit order is to make it difficult for a party to pursue a claim to a full hearing and therefore access justice. There are many litigants, albeit not the majority, who are unlikely to find it difficult to raise £1,000 by way of a deposit order in our collective experience. (12) The approach to making a deposit order is also not in dispute in this appeal save in some small respects. The test for ordering payment of a deposit order by a party is that the party has little reasonable prospect of success in relation to a specific allegation, argument or response, in contrast to the test for a strike out which requires a Tribunal to be satisfied that there is no reasonable prospect of success. The test, therefore, is less rigorous in that sense, but nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or the defence. The fact that a Tribunal is required to give reasons for reaching such a conclusion serves to emphasise the fact that there must be such a proper basis. (13) The assessment of the likelihood of a party being able to establish facts essential to his or her case is a summary assessment intended to avoid cost and delay. Having regard to the purpose of a deposit order, namely to avoid the opposing party incurring cost, time and anxiety in dealing with a point on its merits that has little reasonable prospect of success, a mini-trial of the facts is to be avoided, just as it is to be avoided on a strike out application, because it defeats the object of the exercise…. (15) Once a Tribunal concludes that a claim or allegation has little reasonable prospect of success, the making of a deposit order is a matter of discretion and does not follow automatically. It is a power to be exercised in accordance with the overriding objective, having regard to all of the circumstances of the particular case. That means that regard should be had for example, to the need for case management and for parties to focus on the real issues in the case. The extent to which costs are likely to be saved, and the case is likely to be allocated a fair share of limited Tribunal resources, are also relevant facts. It may also be relevant in a particular case to consider the importance of the case in the context of the wider public interest. (16) If a Tribunal decides that a deposit order should be made in the exercise of the discretion pursuant to Rule 39, subparagraph (2) requires Tribunals to make reasonable enquiries into the paying party’s ability to pay any deposit ordered and further requires Tribunals to have regard to that information when deciding the amount of the deposit order. Those, accordingly, are mandatory relevant considerations. The fact they are mandatory considerations makes the exercise different to that carried out when deciding whether or not to consider means and ability to pay at the stage of making a cost order. The difference is significant and explained, in our view, by timing. Deposit orders are necessarily made before the claim has been considered on its merits and in most cases at a relatively early stage in proceedings. Such orders have the potential to restrict rights of access to a fair trial. Although a case is assessed as having little prospects of success, it may nevertheless succeed at trial, and the mere fact that a deposit order is considered appropriate or justified does not necessarily or inevitably mean that the party will fail at trial. Accordingly, it is essential that when such an order is deemed appropriate it does not operate to restrict disproportionately the fair trial rights of the paying party or to impair access to justice. That means that a deposit order must both pursue a legitimate aim and demonstrate a reasonable degree of proportionality between the means used and the aim pursued… (17) An order to pay a deposit must accordingly be one that is capable of being complied with. A party without the means of ability to pay should not therefore be ordered to pay a sum he or she is unlikely to be able to raise. The proportionality exercise must be carried out in relation to a single deposit order or, where such is imposed, a series of deposit orders. If a deposit order is set at a level at which the paying party cannot afford to pay it, the order will operate to impair access to justice.”

[21]In the case of Ms Hemdan the Employment Appeal Tribunal set aside the deposit orders made against her totalling £225 and determined a proportionate deposit order could not have been more than a nominal sum in respect of each allegation, and accordingly the Employment Appeal Tribunal substituted deposit orders of £1 in respect of each allegation, saying that: “Although these are nominal amounts, the warning in respect of costs that is one of the consequences of a deposit order will continue to have effect and force in relation to the two allegations if the sums are paid and the allegations are pursued but ultimately fail.”

[22]Rule 37 of the Employment Tribunals Rules of Procedure 2013 provides that: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds –(a) That it is scandalous or vexatious or has no reasonable prospect of success;

(b) That the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious… (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”

[23]Rule 39 deals with deposit orders and provides: “(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit… (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order –(a) The paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and

(b) The deposit shall be paid to the other party…”

[24]Rule 42 deals with written representations and provides that: “The Tribunal shall consider any written representations from a party, including a party who does not propose to attend the hearing, if they are delivered to the Tribunal and to all other parties not less than seven days before the hearing.”

[25]Rule 47 deals with non attendance and provides that: “If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.”

[26]Counsel for the respondents referred me to Ukegheson v Harringey London Borough Council

UKEAT/312/14

, a judgment of Langstaff J (President) dealing with striking out claims under rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013. It was held that: “The correct approach to a request to strike out a claim was to take the allegations in the claim at their highest unless they could be conclusively disproved as demonstrably untrue and, while there was no blanket ban on the use of strike out in any particular class of case the discretion should be used sparingly and cautiously based on the claim form, which set out the essential facts a respondent was required to answer and which, if disputed, should not result in a case being dismissed by a strike out on the grounds of no reasonable prospect of success; but, since the Employment Judge had omitted to refer to the need to take the claimant's case at its highest and had found facts some of which were disputed, her approach was flawed and the appeal should be allowed unless her decision was plainly right in any other matters claimed…”

[27]Mr Hare referred to the case of Dr P J Jooste v General Medical Council & others

UKEAT/0093/12/SM

on the question of “continuing act”, in particular paragraph 45 where His Honour Judge McMullen QC sitting alone stated that: “The simple question is whether or not there was a continuing act in this case by the GMC by reason of its decisions. In my judgment, the rather liberal approach to continuing acts in cases relied on by Dr Jooste’s representative (for example, Hendricks v Commissioner of Police for the Metropolis

[2002] IRLR 95

) is not as appropriate for cases of continuing act allegations by a regulatory body. In BMA v Chaudhary

[2003] EWCA Civ 645

, Mummery LJ said the following: ‘(67) …Cases such as Rovenska and the instant case, in which applications are made for registration by regulatory authorities and are rejected, are distinguishable from the cases in which an employer continuously applies a requirement or condition, in the form of a policy, rule, scheme or practice operated by him in respect of his employees throughout their employment: see Barclays Bank PLC v Kapur, Cast v Croydon College, Owusu v London Fire & Civil Defence Authority’.”

[28]In the case of General Medical Council & others v Michalak

[2016] EWCA Civ 172

in the Court of Appeal before Lords Justices Moore-Bick, Kitchin and Ryder it was held that: “Section 120(7) of the Equality Act 2010 was a provision of general application designed to regulate competing jurisdictions and to ensure that the most specialist body heard the complaint; that, in the case of complaints of discrimination, harassment, victimisation, or unlawful treatment under section 53 of the Equality Act for which there was no statutory route of appeal, that body was the Employment Tribunal; that the general right to seek judicial review, though now enacted, did not constitute ‘proceedings in the nature of an appeal’ for the purposes of section 120(7) and could not oust the jurisdiction of the Employment Tribunal; and that, accordingly, the Employment Tribunal had jurisdiction under section 120(1) to hear the complaints raised under section 53.”

[29]The claimant also refers to Michalak and there will appear below an extract from the judgment of Lord Justice Moore-Bick.

[30]In GMC v Michalak counsel for the respondents referred to paragraph 29 in the judgment of Lord Justice Ryder as follows: “In Jooste v GMC Judge McMullen QC, again sitting in the Employment Appeal Tribunal, followed his earlier obiter reasoning in Tariquez-Zaman. Dr Jooste claimed that acts of an ‘interim order panel’ of the GMC suspending his registration were discriminatory under the Equality Act 2010. The Employment Appeal Tribunal held that the Employment Tribunal had no jurisdiction to hear the claimant’s claims against the GMC as the remedy available in judicial review was an alternative statutory remedy such that the Employment Tribunal’s jurisdiction was precluded by section 120(7) of the Equality Act 2010. The Employment Appeal Tribunal accordingly concluded that the Employment Judge had correctly struck out the claimant's claims.”

[31]In paragraph 33 Lord Justice Ryder states that: “Section 120(1) of the Equality Act 2010 describes the jurisdiction of the Employment Tribunal to determine a complaint under Part 5 of the Equality Act 2010. Section 120(7) provides that subsection (1)(a) does not apply to a contravention of section 53 insofar as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal. Where there is a defined statutory route of appeal for actions upon a medical practitioner’s registration, such as that described in sections 38 and 40 of the Medical Act 1983, the jurisdiction of the Employment Tribunal under section 53 is precluded. Khan v GMC

[1996] ICR 1032

remains authority for that proposition.”

[32]Counsel for the respondents referred to the judgment of her Honour Judge Eady QC sitting alone in the Employment Appeal Tribunal in the case of Mrs B Robinson v Royal Surrey County Hospital NHS Foundation Trust & others,

UKEAT/0311/14/MC

. In paragraph 25 of her Honour Judge Eady QC’s judgment: “The claimant further relies on authority from the civil jurisdiction that a claim should not be struck out without giving the party concerned an opportunity to amend if that would save the claim; see Soo Kim v Youg

[2011] EWHC 1781

QB: ‘However where the court holds that there is a defect in a pleading, it is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right…’ See also Lambrou v Cyprus Airways applying HM Prison Service v Dolby: ‘Alternatives to striking out, such as ordering further particulars, should be considered in the first instance’.”

[33]More specifically, in Romanowska v Aspirations Care Limited Langstaff P made clear that: “It would be wrong to strike out a case where it was necessary for the ET to assess what was in the employer’s mind; that could not be determined without hearing evidence from the employer.” The Alleged Protected Acts

[34]In his composite amended claim with particulars alleging victimisation the claimant sets out three protected acts as follows:20.1 On 25.11.2013, the claimant informed the respondent(s) regarding Cwm Taf University Health Board continuing to harass and victimise the claimant for making protected disclosures.

20.2 On 20.03.2014, the claimant informed Mr Dickson regarding Mr Donnelly and Mr Done subjecting the claimant to possible harassment by a threatening referral to FTP hearing, if he refused to consent for HA (a health examination).

20.3 In November 2014, the claimant submitted a formal complaint to Professional Standards Authority regarding Mr Dickson failing to protect disabled British minority ethnic whistle-blower from ongoing harassment, victimisation and disability discrimination by the respondent(s) and Cwm Taf University Health Board. The GMC Process

[35]On 4 October 2013 the Clinical Director, Mental Health Directorate of the Cwm Taf Health Board, wrote to the GMC in Wales with information that the claimant had been medically suspended since 23 August 2013 pending the outcome of a preliminary investigation into a number of concerns regarding his behaviour and performance.

[36]By 31 October 2013 the Head of HR at Cwm Taf made a telephone call to the GMC because the claimant had informed her that he was being investigated by the GMC. Certain medical issues were noted but will not be referred to in this judgment with a view to protecting the claimant's medical confidentiality.

[37]In February 2014 the claimant was invited to undergo a health assessment for the GMC. He initially agreed but withdrew partway through the assessment. The reporting doctor concluded that the claimant was not fit to practise.

[38]An interim orders panel of the GMC imposed conditions on the claimant's registration in November 2014, these conditions being renewed and/or varied at subsequent hearings on 30 September 2015 and 1 February 2016. The claimant did not challenge the interim orders in the High Court under section 41A of the Medical Act 1983.

[39]In 2015 the claimant returned to India and in May 2015 confirmed to the GMC that he would not agree to a health assessment.

[40]On 21 September 2015 it was decided that his case should be referred to a Medical Practitioners Tribunal.

[41]The claimant’s case came before the Medical Practitioners Tribunal on 16 May 2016. He chose not to attend. The MPT determined that the claimant should be invited to undergo a health assessment and adjourned the hearing until 8 August 2016.

[42]On 29 July 2016 the GMC acceded to the claimant's request for the administrative erasure of his name from the register and so his registration was removed at his own request. This removal brought the fitness to practise process involving the claimant to a conclusion. The Application to Strike Out or for a Deposit Order

[43]In their response to the claimant’s composite amended claim with particulars the respondents, at paragraph 25 onwards, set out the three alleged protected acts and then the claimant’s pleaded detriments, as they understand them, from (a) to (z).

[44]In his written submission the claimant has not suggested that the respondents have not properly captured in their response the detriments that he has alleged in his composite amended claim.

[45]When putting his case Mr Hare thought it appropriate to deal with some of the alleged detriments together because he was asking for them to be struck out or for a deposit for the same reason.

[46]The first ground of application is that when following the fitness to practise process through with the claimant the first respondent (and where appropriate the other respondents) acted in accordance with the GMC’s governing statute and regulations following the claimant being referred by his then employer and not because the claimant had done a protected act for the purposes of section 27 of the Equality Act 2010. The investigation process followed the referral on 4 October 2013. The claimant was aware of the GMC’s involvement before the claimant’s first alleged protected act which involved his letter dated 25 November 2013 to Cwm Taf which he copied to one of the first respondent’s investigating officers.

[47]The alleged detriments covered by this part of the application are those set out in the response at (a), (b), (c), (e), (i), (j), (q), (t), (w) and (z).

[48]An examination of the alleged detriments in question shows that they do seem to relate to steps taken by one or more respondents in relation to the GMC’s fitness to practise process.

[49]Detriment (f) is that the GMC threatened the claimant with administrative erasure from the register for failing to pay the annual registration fee on 14 July 2014 and detriment (o) is that on 17 December 2014 Ms Couchman threatened the claimant with administrative erasure again for not paying the annual registration fee.

[50]It was submitted on behalf of the respondents that payment of the annual fee is an administrative matter and that where a registrant does not pay the annual fee by the due date a letter is automatically sent by way of reminder without human intervention. The letter from Ms Couchman on 17 December 2014 dealt with a number of matters and with regard to fees she reminded the claimant of the requirement for all registered doctors to pay an annual fee for the retention of their name on the register, and that failure to pay would put him at risk of erasure.

[51]It was argued on behalf of the respondents that the correspondence with the claimant concerning outstanding fees was not sent because the claimant had done a protected act but because the claimant had not paid his fees.

[52]Item (s) in the list of detriments identified by the respondents is that the first respondent made two fresh allegations of misconduct against the claimant for refusing a health assessment and for breaching patient confidentiality on 22 June 2015.

[53]I was taken to a response to these allegations made by the claimant on 19 July 2015. With regard to an allegation of inappropriately disclosing the unredacted medical records of a particular patient the claimant pleaded guilty to the charge stating that at the time he believed it was his duty to disclose the patient’s details to public and statutory organisations in England and Wales. It was his belief based on the evidence made available to the GMC that the Health Board had exploited the patient’s vulnerability by colluding with a MIND advocate with the sole purpose of victimising him for expressing patient safety concerns.

[54]With regard to failing to be examined by the GMC health assessor he pleaded “the fifth” for various reasons involving the process being followed by the GMC.

[55]With regard to this alleged detriment the respondents submit that the claimant cannot make it out on the basis of his own admissions in respect of his conduct.

[56]Item (k) on the list of detriments identified by the respondents is that the GMC refused to investigate the claimant’s complaints made from July to September 2014 against some ten doctors (including Dr Joseph) at the Health Board and the GMC, the seventh respondent, Ms Couchman, and the third respondent, Mr Dickson, caused senior doctors at the Health Board to discriminate against him.

[57]With regard to the claimant’s allegations as to a refusal to investigate various complaints, the respondents have provided documentary evidence of their communications with the claimant in which they say the complaints were rejected following investigation.

[58]Alleged detriment (r) is that the eighth respondent, Mr Barnard, declined to review the decision made on behalf of the first respondent not to investigate Dr Joseph.

[59]In a letter dated 17 September 2015 written by Charlotte Binks, Corporate Review Manager, reasons were given, set out over 4 pages, for the decision of the Assistant Registrar that the decision to close the complaints about Dr Joseph should not be reviewed.

[60]Alleged detriment (p) involved Ms Couchman dismissing the claimant's grievances against Mr Donnelly, Mr Dickson and Ms Farrell on 16 April 2015.

[61]It is correct that in a letter dated 16 April 2015 Ms Couchman stated that she had already written to the claimant about Mr Donnelly. With regard to Ms Farrell and Mr Dickson she had looked back over the records of the claimant's case and could not see that Mr Donnelly, Ms Farrell or Mr Dickson had in any way acted inappropriately and the claimant was informed that his case was being progressed in line with the GMC’s usual procedures.

[62]Alleged detriment (v) is that the respondents failed to acknowledge the claimant's formal complaint against Dr Seivewright.

[63]On 13 November 2015 a letter was sent to the claimant concerning his complaint against Dr Seivewright stating that they would not be taking the matter any further for the reasons set out in the letter, thus acknowledging and dealing with the claimant’s formal complaint.

[64]Alleged detriment (m) is that Mr Donnelly and the GMC caused the interim orders panel to discriminate against the claimant, and item (y) is that the GMC continued to obtain extension of the conditions from the IOP/IOT and the High Court.

[65]Mr Hare submits that these are both governed by section 120(7) of the Equality Act 2010 which provides that the Employment Tribunal’s jurisdiction to determine a complaint relating to a contravention of Part V (work) “does not apply to a contravention of section 53 insofar as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal”.

[66]Both of these alleged detriments are ones that could have been the subject of an appeal to the High Court under section 40(7) of the Medical Act 1983 and therefore the Tribunal does not have jurisdiction to deal with them.

[67]Alleged detriment (d) is that Mr Done and the GMC at an unspecified date caused or induced or attempted to cause or induce Rhondda Cynon Taf Council Social Services to harass/victimise the claimant by establishing a child protection plan from 4 November 2013. Allegation (n) is that Mr Done, Mr Donnelly and the GMC caused the same Council to discriminate against the claimant by rejecting his housing and council tax benefit claims.

[68]Put simply on behalf of the respondents these are two new claims not previously referred to and there has been no application to amend. They should not be allowed to continue.

[69]Before dealing with further alleged detriments counsel for the respondents submitted that the respondents accepted that the ongoing fitness to practise proceedings before the GMC constituted a continuing act, but in his submission there were various stages along the way that had their own end points once particular decisions had been made and so were not part of the continuing act.

[70]In this category counsel referred to alleged detriments (g), where Mr Done and Mr Donnelly refused to obtain the claimant’s medical reports before the health assessment; and (h), whereby the tenth respondent, Dr Seivewright, lied in his report dated 2 July 2014 about the length of the claimant's depression.

[71]As to these matters counsel submitted that the relevance of the initial assessment in 2014 had a limited life. Anything older than 12 months would never be relied on in GMC hearings dealing with a registrant’s health. It was just part of the history.

[72]Alleged detriment (l) is that Mr Done and Mr Donnelly placed false information before the GMC’s case examiner leading to the decision on 14 October 2014 to refer his case to the IOP which caused the case examiner to discriminate against him.

[73]Mr Hare submits that once the determination has been made by the case examiner the examiner’s role in the proceedings is terminated.

[74]Alleged detriment (u) is that the GMC, Mr Donnelly, Mr Done and Dr Seivewright caused the case examiners to discriminate against the claimant.

[75]Alleged detriment (x) is that the ninth respondent failed to disclose all the documents to the MPT.

[76]As to item (x) the MPT did not in the end determine matters. The claimant’s name was voluntarily erased from the register.

[77]Putting documents before the MPT is an allegation of a procedural irregularity. Given the way the procedure went, the voluntary erasure, this could not amount to victimisation.

[78]Counsel accepted that these latter items were less clearly candidates for the strike out application that the others. He sought a deposit order if allegations of detriment were not struck out, noting from the claimant's submissions that he had very limited means. This did not mean the Tribunal should exclude a deposit order entirely. The procedure was designed to protect respondents who might not be able to recover any costs. It would be legitimate to impose a modest deposit order in respect of the last five items g, h, l, u and x.

[79]As to the individual respondents remaining parties, the claimant relied on section 111, but in counsel’s submission the doctrine of instructing, causing or inducing contraventions did not work here.

[80]In the response at paragraph 32.2 the respondents plead that: “Dr Krishna may not rely on section 111 of the 2010 Act against the individual respondents because of the effect of section 111(7): since the individual respondents were not capable of committing a basic contravention (as they are not themselves qualifications bodies), they can have no ancillary liability. In any event, it is disproportionate and contrary to the overriding objective to include the individual respondents where the GMC does not deny any potential liability for the conduct relied upon Dr Krishna.”

[81]As to the inclusion by the claimant of various named respondents, to include people merely because they had received letters sent to them by the claimant was, in the submission of counsel, unreasonable conduct. This was not an appropriate case for there to be named individuals as well as the first respondent. It was oppressive, particularly where there was a claim for exemplary damages. The first respondent did not deny any potential liability for the other respondents. Claimant’s Written Representations

[82]The claimant took the view that the following issues fell to be determined arising out of the application made on behalf of the respondents:(a) Does the Tribunal have jurisdiction to determine the claims?

(b) Is the claimant entitled to bring proceedings against the individual respondents?

(d) Do the claims have no reasonable prospect of success?

(e) Should the Tribunal consider deposit orders?

[83]As to jurisdiction, the respondents accept that the Tribunal has jurisdiction and so I will not set out the claimant’s representations on this point.

[84]As to bringing proceedings against the individual respondents, the claimant refers to section 110 of the Equality Act 2010 which provides that:(1) A person (A) contravenes this section if – (a) A is an employee or agent, (b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer or principal (as the case may be), and (c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).

(2) It does not matter whether, in any proceedings, the employer is found not to have contravened this Act by virtue of section 109(4).

(3) A does not contravene this section if – (a) A relies on a statement by the employer or principal that doing that thing is not a contravention of this Act, and (b) it is reasonable for A to do so…

[85]The claimant argues that the GMC and/or the individual respondents have contravened the Equality Act 2010. In either case and pursuant to section 110(2) the claimant exercises his right to pursue claims against the individual respondents.

[86]When considering the question whether the claims are out of time the claimant quotes section 123 of the Equality Act 2010 which provides as follows:(1) [Subject to section 140A] Proceedings on a complaint within section 120 may not be brought after the end of – (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment Tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of – (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment Tribunal thinks just and equitable.

(3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something – (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[87]The claimant submits that we are here dealing with acts extending over a period with time running from the end of the course of discriminatory conduct. According to the claimant the last discriminatory act occurred on 17 June 2016 and he submitted his claim on 21 June 2016 well within time.

[88]The claimant provides extracts from the cases of Hendricks v The Commissioner of Police of the Metropolis

[2002] EWCA Civ 1686

which refers to numerous alleged incidents of discrimination linked to one another as evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”, and the claimant also relies on Aziz v FDA

[2010] EWCA Civ 304

. Quoting from Lord Justice Jackson: “The claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs.”

[89]The claimant argues that the complaints in the amended particulars are so linked as to constitute an ongoing state of affairs.

[90]As to reasonable prospect of success, the claimant starts by setting out sections 27, 111 and 136 of the Equality Act 2010.

[91]When setting out section 111 in his written representations the claimant substitutes what he considers to be the appropriate parties for the letters A, B and C as follows:(1) A person (A) (GMC) must not instruct another (B) (individual respondent) to do in relation to a third person(C) (claimant) anything which contravenes Part …5…(a basic contravention)

(2) A person (A) (GMC) must not cause another (B) (individual respondent) to do in relation to a third person (C) (the claimant) anything which is a basic contravention.

(3) A person (A) (GMC) must not induce another (B) (individual respondent) to do in relation to a third person (C) (the claimant) anything which is a basic contravention.

(4) …

(5) Proceedings for a contravention of this section may be brought – (a) By B (individual respondent), if B (individual respondent) is subjected to a detriment as a result of A’s (GMC’s) conduct; (b) By C (claimant), if C (claimant) is subjected to a detriment as a result of A’s (GMC’s) conduct.

(6) For the purposes of subsection 5 it does not matter whether – (a) The basic contravention occurs; (b) The other proceedings are, or may be, brought in relation to A’s (GMC’s) conduct.

(7) This section does not apply unless the relationship between A (GMC) and B (individual respondent) is such that A (GMC) is in a position to commit a basic contravention in relation to B (individual respondent).

(8) …

(9) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating – (a) In a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A (GMC) and B (individual respondent), A (GMC) is in a position to contravene in relation to B (individual respondent); (b) In a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B (individual respondent) and C (claimant), B (individual respondent) is in a position to contravene in relation to C (claimant).

[92]The claimant then goes on to refer to section 136 of the Equality Act dealing with the burden of proof which states:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) (GMC and/or individual respondent) contravened the provision concerned, the court must hold that the contravention occurred.

[93]As to strike out the claimant sets out rule 37 of the 2013 Rules of Procedure.

[94]In the words of the claimant, the respondents deny victimisation of the claimant and reiterate that they were pursuing fitness to practice proceedings as noted in paragraph 31 of the ET3. The claimant relies on the case of Michalak v GMC

[2016] EWCA Civ 172

, a judgment of the Court of Appeal given by Ryder LJ, Senior President of Tribunals, Kitchin LJ and Moore-Bick LJ who added a few observations of his own, as follows: “I agree with Ryder LJ that, whereas qualifications bodies may be presumed to have special expertise in judging the skills and qualities required by a member of the profession in question, they cannot be presumed to have special expertise in recognising unlawful discrimination, victimisation, harassment or unlawful detriment. In the Equality Act 2010 Parliament has not only rendered acts of the kind described unlawful, but has provided a process by which a remedy can be obtained by means of a complaint to an Employment Tribunal. The remedies available include an award of damages, which in many cases will be what the claimant primarily seeks. Section 120(7) contains a provision of general application designed to regulate competing jurisdictions. One would therefore expect that it was intended to exclude from the jurisdictions of the Employment Tribunal only those cases in which some alternative provision has been made for obtaining a remedy for unlawful acts of the kind in question. Such a remedy is likely to found, if anywhere, in legislation which deals with the procedures governing the way in which a particular qualifications body reaches its decisions and provides an appeal process which extends to decisions infected by unlawful acts of the kind under consideration. In my view considerations of that kind point clearly towards the conclusion that the words ‘by virtue of an enactment’ in section 120(7) are directed to cases in which specific provision is made in legislation for an appeal, or proceedings in the nature of an appeal, in relation to decisions of a particular body, as, for example, in Khan v General Medical Council

[1996] ICR 1032

. They are not, in my view, intended to refer to the general right to seek judicial review merely because, since 1981, that happens to have been put on a statutory footing. In the present case the President of the Employment Appeal Tribunal considered it appropriate in the interests of the orderly development of the law to follow and apply the decision in Joost and cannot be criticised for having done so. Nonetheless, he clearly had some misgivings about the decision. For the reasons I have given I think Joost was wrongly decided. On its true interpretation section 120(7) of the Equality Act 2010 does not apply to a claim of the kind which Dr Michalak seeks to pursue in this case.”

[95]I have quoted rather more extensively from the judgment of Lord Justice Moore-Bick than the claimant did. The claimant only included in his submission the first sentence, but it seems to me that the whole of the quoted passage is relevant to this case.

[96]The claimant relies on the judgment of the House of Lords in the case of Swiggs & others v Nagarajan dated 15 July 1999 as setting down the correct test for unlawful victimisation with reference to inferences which may be drawn from findings of primary fact.

[97]The claimant also relies on Robinson v Royal Surrey County Hospital NHS Foundation Trust

UKEAT/0311/14/MC

with reference to paragraph 26 of the judgment given by Her Honour Judge Eady QC: “Langstaff P made clear it would be wrong to strike out a case where it was necessary for the ET to assess what was in the employer’s mind; that could not be determined without hearing evidence from the employer…Alternatives to striking out, such as ordering further particulars, should be considered in the first instance.”

[98]The claimant then extracts: “Where… there is a defect in a pleading it is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right…”

[99]The claimant refers again to the case of Robinson in which Her Honour Judge Eady refers to the well known cases of Anyanwu and Ezsias and state that: “The case law, however, cautions ETs against striking out a claim in all but the clearest of cases, particularly where that claim might involve allegations of discrimination or, by analogy, of whistle-blowing detriment.” And also that: “Strike out should be recognised as a draconian act.”

[100]The final case referred to by the claimant is Balls v Downham Market School

[2011] IRLR 217

with reference to the judgment of Lady Smith in particular paragraph 6: “Where strike out is sought or contemplated on the ground that the claim has no reasonable prospect of success, the structure of the exercise that the Tribunal has to carry out is the same; the Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success. I stress the word ‘no’ because it shows that the test is not whether the claimant's claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.”

[101]In concluding his written representations the claimant submits that there must be a full hearing of the evidence for the Tribunal to make findings of fact and reach appropriate inferences. The law is clear that the Tribunal must be extremely slow to strike out a discrimination claim at a preliminary hearing on the ground that it has no reasonable prospect of success. The claimant therefore invites the Tribunal to dismiss the strike out application and proceed to make Case Management Orders for a full liability hearing.

[102]As to a deposit order, the claimant sets out rule 39 and then by reference to earlier argument submits that the Tribunal should dismiss the deposit order applications. As to means: “The claimant has no savings and is entirely dependent on state benefits for his livelihood because of the detriment caused by the GMC and the individual respondents as noted in the ET1”.

Discussion and Conclusions

[103]The claimant was aware of the hearing on 26 May 2017 and he provided written representations in advance of it. He did not attend. I decided to proceed with the hearing in the absence of the claimant on the basis that he appeared to have made a conscious decision not to attend but to submit written representations instead.

[104]I remind myself that the correct approach to a request to strike out a claim is to take the allegations in the claim at their highest unless they can be conclusively disproved as demonstrably untrue, and that whilst there is no blanket ban on the use of strike out in any particular class of case the discretion should be used sparingly and cautiously based on the claim form which sets out the essential facts a respondent was required to answer and which, if disputed, should not result in a case being dismissed by a strike out on the grounds of no reasonable prospect of success.

[105]I shall look at the alleged detriments that the respondents seek to strike out in the order in which they were presented by Mr Hare in his application. He started with the allegations described in the response as (a), (b), (c), (e), (i), (j), (q), (t), (w) and (z). I have summarised his submission at 39 above as follows: “When following the fitness to practise process through with the claimant the first respondent (and where appropriate the other respondents) acted in accordance with the governing statute and regulations following the claimant being referred to the GMC by his then employer and not because he had done a protected act for the purposes of section 27 of the Equality act 2010. The investigation process followed the referral on 4 October 2013. The claimant was aware of the GMC’s involvement before the claimant’s first alleged protected act which involved his letter dated 25 November 2013 to Cwm Taf which he copied to one of the first respondent’s investigating officers.”

[106]I take the claimant’s claim as pleaded at its highest, and remind myself that in the case of complaints of victimisation against qualifications bodies under section 53 of the Equality Act 2010 for which there is no statutory route of appeal, the appropriate body to hear them is the Employment Tribunal.

[107]Looking at these particular allegations of detriment it does not seem to me that from the pleadings it can be conclusively disproved as demonstrably untrue that they were done because the claimant had done one or more protected acts and so I am unable to conclude that they have no reasonable prospect of

[108]Having reached that conclusion is there a proper basis for doubting the likelihood of the claimant being able to establish the facts essential to satisfy a tribunal that the alleged detriments were done because the claimant had done one or more protected acts? Given that the fitness to practise proceedings were commenced prior to the first alleged protected act, and given that these alleged detriments relate to the operation by the respondents of the fitness to practise process which is governed by statute and regulation, it seems to me that I can be satisfied that the claimant has little prospect of success in satisfying a Tribunal that the actions of the various respondents were done because the claimant had done a protected act. In my judgment it is more likely than not that the various actions of the respondents will be found to have been done because the claimant was referred to the first respondent and the statutory process thereafter had to be followed through to its conclusion.

[109]Alleged detriment (f) is the threat of administrative erasure from the register for failing to pay the annual registration fee (ARF) on 14 July 2014. In his amended claim with particulars the claimant says that as a result of the actions of his former employer, not a respondent, in dismissing him he was evicted from hospital accommodation on 25 June 2014 for rent arrears, and as a result “was left isolated, homeless, helpless and without money in the UK. Hence he could not pay his annual retention fee to the first respondent by the due date of 15.06.2014. Hence he was threatened with ‘administrative erasure’ on 14.07.2014”.

[110]I am satisfied that the letter sent from the first respondent to the claimant on 14 July was an automatic, computer generated response to his failure to pay the annual retention fee one month earlier on 15 June and not generated because the claimant had done a protected act. This alleged detriment will therefore be struck out as in my judgment it has no reasonable prospect of

[111]Alleged detriment (o) is a threat of administrative erasure on 17 December 2014, this time on the basis of the human intervention of Ms Couchman.

[112]In his composite amended claim with particulars the claimant says that: “Further on 17.12.2014, Ms Couchman threatened the claimant with administrative erasure for not paying ARF despite the knowledge about his mental health and financial problems.”

[113]I have seen a copy of the 17 December 2014 communication from Ms Couchman to the claimant reminding him that all registered doctors are required to pay an annual fee with failure to pay it putting him at risk of erasure from the register. She went on to explain to the claimant that it was open to him to apply to relinquish his licence if he was not practising medicine in the UK and she also informed him that there was a discount scheme offering a 50% discount if annual income was less than £31,000 in the registration year. I have also taken into account that the claimant has had ample opportunity to amend his pleaded case. Taking this allegation at its highest in my judgment it is not an allegation that the claimant was subjected to a detriment because he had done a protected act, but an allegation that following his continuing failure to pay the ARF the threat of administrative erasure was made “despite the knowledge about his mental health and financial problems”. I conclude that the alleged detriment as pleaded was not done because the claimant had done one or more protected acts and therefore that this allegation has no reasonable prospect of success. It is dismissed.

[114]Alleged detriment (s) relates to two fresh allegations of misconduct. According to the composite amended claim with particulars: “On 22.06.2015, the first respondent declared completion of the investigation but slapped the claimant with two new misconduct charges. They were a) Refusing second health assessment and b) Breaching patient confidentiality”

[115]From the way in which the alleged detriments are pleaded it seems to me that conscious decisions were made to add the new charges against the claimant as the fitness to practise process continued. It does not seem to me that I can find no reasonable prospect of success, but given the claimant's subsequent response to the new allegations as set out above at paragraphs 53 and 54 I conclude that this alleged detriment has little reasonable prospect of success on the basis that refusing the second health assessment related to the ongoing fitness to practise process and breaching patient confidentiality was an allegation the claimant accepted.

[116]Alleged detriment (k) is identified by the respondents as the GMC refusing to investigate the claimant’s complaints against ten doctors at Cwm Taf and that the GMC, Ms Couchman and Mr Dickson caused senior doctors at Cwm Taf to discriminate against him. The claimant pleads that: “It emerged that senior medical professionals at CTUHB had lied and/or provided misleading information to the First Respondent. As a result, they had caused or induced or attempted to cause or induce, the First Respondent to discriminate against or harass the Claimant because of his protected characteristics and to victimise the Claimant because he had done a protected act. Hence the claimant submitted formal complaints against Dr A Shetty, Dr M Self, Dr R Hailwood and Dr H Griffiths on 31 July 2014; against Dr C Jones, Dr M Winston, Dr R Quirke and Dr M Tidley on 22.08.2014; against Professor J P Richards on 16.09.2014; and against Dr S Joseph on 19.09.2014. Unfortunately the first respondent refused to investigate the complaints and caused the claimant to lose faith in the professional regulatory system.”

[117]Again the pleaded case is such that in my judgment I am unable to find that it has no reasonable prospect of success but I am able to conclude that the allegation that the first respondent did not investigate the named doctors because the claimant had done one or more protected acts has little reasonable prospect of success because I have been taken to copies of letters written on behalf of the first respondent in which they explain to the claimant why they cannot proceed to investigate his complaints because it is not within their jurisdiction to do so. The refusal to investigate is thus a matter of jurisdiction unrelated to the claimant’s protected acts.

[118]Alleged detriment (r) concerns Mr Barnard declining to review the decision made on behalf of the first respondent not to investigate Dr Joseph. The claimant pleads that Ms Couchman: “Acknowledged the claimant's concerns about Dr S Joseph, CTUHB, and agreed to pass on the same to Mr Barnard, rule 12 investigation manager. Unfortunately Mr Barnard, after five months i.e. on 17.09.2015, declined to review the decision not to investigate Dr S Joseph by lying about the content of the letter from CTUHB dated 27.08.2013.”

[119]A letter sent to the claimant on 17 September 2015 concerning his complaint about Dr Joseph sets out a reasoned decision as to why the earlier decision would not be reviewed. Again taking the pleaded allegation of detriment at its highest I am unable to find that this is a matter with no reasonable prospect of success, but given the reasoned letter sent to the claimant explaining the reasons for the refusal to review I conclude that this allegation has little reasonable prospect of success.

[120]Alleged detriment (p) as pleaded by the claimant is that: “Subsequently on 16.04.2015, Ms Couchman dismissed the claimant's grievances against Mr Donnelly, Mr Dickson and Ms Farrell and threatened him with referral to FTP, if he refused HA…”

[121]Again I am unable to conclude that this alleged detriment as pleaded has no reasonable prospect of success but having seen the letter in which the claimant's grievances were dismissed, the reasons for dismissal do not seem to me to relate to the claimant having carried out one or more protected acts. The letter explains in straightforward terms why Ms Couchman acted as she did, which was not for a reason related to the alleged protected act. For these reasons it seems to me that this allegation has little reasonable prospect of

[122]Alleged detriment (v) concerns a complaint concerning Dr Seivewright with the claimant pleading that: “Further the claimant submitted a formal complaint against Dr Seivewright on 13.10.2015 for preparing a prejudiced psychiatric report dated 02.07.2014. Regrettably the respondents have failed to acknowledge the complaint to this date, let alone act on it.”

[123]I have been provided with an email sent to the claimant on 13 November 2014 in connection with his complaint concerning Dr Seivewright in which his complaint is rejected. It therefore seems to me that the allegation that there was a failure to acknowledge the formal complaint against Dr Seivewright is an allegation that has no reasonable prospect of success and should be dismissed.

[124]Alleged detriments (m) and (y) relate to the decisions of the interim orders panel.

[125]Given that the claimant had a statutory route of appeal to the High Court in respect of these decisions I conclude that these allegations have no reasonable prospect of success as the Tribunal has no jurisdiction to hear them. The claimant could, and should, have made application to the High Court in respect of these matters.

[126]Alleged detriments (d) and (n) are said to be new claims not previously referred to with no application from the claimant to amend his claim to allow them.

[127]Perusal of the earlier pleadings does not reveal that these allegations have been made previously so I find that they are new matters. Employment Judge Holmes specifically told the claimant that there should be no question of him seeking to raise anything further that could be said to be a new claim. It seems to me that these are new allegations of detriment, although there has been no application to include them, and that it is appropriate that they should be struck out on the basis that the Tribunal has no jurisdiction to consider them.

[128]Alleged detriments (g), (h) and (l) are categorised by the respondents as related to limitation. Where a Tribunal might proceed to hear otherwise out of time claims in appropriate circumstances where it was felt just and equitable to do so, I do not find it appropriate to conclude that these allegations have no reasonable prospect of success or little reasonable prospect of success where the respondents have accepted that the GMC fitness to practise process amounts to a continuing act.

[129]Alleged detriments (u) and (x) relate to the fitness to practise process and in my judgment should be allowed to proceed, it not being possible to say that they have no reasonable prospect of success or little reasonable prospect of success. The way the claimant puts these allegations, and the fact that the respondents have not included with the other allegations related to the fitness to practise process leads me to conclude that they are allegations of a different character.

[130]As to the claimant’s claims brought under section 111 relating to instructing, causing or inducing contraventions, Mr Hare simply submits, as pleaded, that the claimant may not rely on section 111 because of the effect of section 111(7) as set out above. In his submission since the individual respondents were not capable of committing basic contraventions (as they are not themselves qualifications bodies) they can have no ancillary liability.

[131]The claimant in his written representations with reference to the individual respondents refers to section 110 dealing with liability of employees and agents, arguing that the GMC and the individual respondents have contravened the Equality Act. He submits that in either case, and pursuant to section 110(2), he exercises his right to pursue his claims against the individual respondents.

[132]I take from paragraph 16 of the claimant's composite amended claim with particulars a sample allegation under section 111 adding the letters used in section 111(3) to the various parties: “Previously on 01.10.2014, Mr I Harrison, Senior Finance Assistant, RCT Council, (B) had rejected the housing and council tax benefit claim submitted by the claimant (C) on 04.07.2014, stating, ‘you are currently unable to return to paid employment within your profession in the UK whilst GMC assesses your fitness to practice’. Mr Done, (A), Mr Donnelly, (A), and the first respondent (A), had caused or induced, or attempted to cause or induce, Mr Harrison and RCT Council (B) ,to discriminate against or harass the claimant because of his protected characteristics and to victimise the claimant because he had done a protected act.”

[133]In this allegation C is subjected to detriment as a result of A’s conduct and section 111(6) allows C to bring proceedings against A.

[134]Having considered the way that the claimant pleads his various claims, I am satisfied that the individual respondents might be capable of committing basic contraventions for the purposes of section 111 taking into account section 110 of the Equality Act dealing with liability of employees and agents, and also bearing in mind section 109 which deals with the liability of employers and principals.

[135]It seems to me that these are matters to be determined at the final hearing rather than being dealt with summarily at this stage in the proceedings.

[136]As to the respondents’ contention that it is disproportionate and contrary to the overriding objective to include the individual respondents where the GMC does not deny any potential liability for the conduct relied upon by the claimant, I have considered this and also the claimant's written representations and I am not persuaded that it is right to remove individual respondents for the reasons described by the respondents in their submission. Whether to order a Deposit

[137]I have set out above the reasons why I have concluded that 14 of the claimant’s alleged detriments, described by the respondents by the letters a, b, c, e, i, j, k, p, q, r, s, t, w and z, have little reasonable prospect of success and so the Tribunal may make an order requiring the claimant to pay a deposit not exceeding £1,000 as a condition of continuing to advance those allegations or arguments.

[138]The only information I have concerning the claimant’s means is that which has been provided by him and it is to the effect that he is living off benefits with no assets. I am aware that he is no longer a registered medical practitioner.

[139]I remind myself from Hemdan that an order to pay a deposit must be one that is capable of being complied with. A party without the means or ability to pay should not be ordered to pay a sum he is unlikely to be able to raise. A deposit order should not operate to impair access to justice.

[140]The making of a deposit order is a matter of discretion. Under Rule 39(5) the consequences to a respondent of a Tribunal deciding a specific allegation against the claimant for substantially the reasons given in the deposit order are that the claimant shall be treated as having acted unreasonably in pursuing the specific allegation for the purposes of Rule 76, which deals with when a costs order shall be made, and that the deposit shall be ordered to be paid to the respondent.

[141]The making of an order for costs at the end of a hearing is another exercise of discretion for the Tribunal which may make such an order, where a party has acted unreasonably, and in reaching its conclusion it may have regard to the paying party’s ability to pay.

[142]Given that the making of deposit orders at the start of a case and costs orders at the end are both matters of judgment for the Tribunal, taking into account, as well as the outcome of the case, the means of the claimant, it does not seem to me to be to be fair, just or proportionate to order the claimant, with the limited means described, to pay a deposit in order to proceed with the allegations that, in my preliminary view on the pleadings, have little reasonable prospect of success.

Conclusion

[143]The claimant’s alleged detriments described by the respondents as d, f, m, o, v and y are struck out because they have no reasonable prospect of success. All other applications are dismissed.

Conclusion

[1]We heard Dr Krishna’s claim over 7 days in the Manchester Employment Tribunal on the above dates. Dr Krishna gave evidence and on behalf of the GMC and the other named respondents we heard from the following (the job titles described are those that the witnesses held at the time of these events): Vincent Donnelly, Investigations Manager & Assistant Registrar Kieren Done, Investigating Officer Hannah Eldridge, Legal Advisor Dr Nicholas Sievewright, Consultant Psychiatrist Joanna Farrell, Head of Investigations Carl Thomas, Investigating Officer.

[2]At the outset of the hearing Dr Krishna stated that he was happy to be referred to as Dr Krishna rather than Dr Thalagavara. Dr Krishna has an ongoing mental health condition of depression and anxiety; adjustments to the hearing to accommodate his condition were explored with him as described below.

[3]During the hearing we were referred to documents contained within a hearing bundle compiled by the respondents’ solicitor and a bundle of additional documents compiled by Dr Krishna. In this judgment, we refer to the first respondent as the GMC and all other respondents by name.

The Issues

[4]Dr Krishna’s claim has a lengthy procedural history. Since he issued proceedings on the 21st of June 2016 there have been 5 preliminary hearings, some of which Dr Krishna did not attend. Dr Krishna is a consultant psychiatrist who had worked in the UK for some time before the events at issued occurred. Since then he has been mainly living in India but is in email contact with the respondents’ solicitors and the tribunal. Dr Krishna’s claim originally included discrimination on grounds of race and disability, victimisation, harassment, and failure to make reasonable adjustments; subsequently he withdrew various elements and at a preliminary hearing on 26th May 2017, several allegations of detriment were dismissed as having no reasonable prospect of success; with the effect that the issues in the case have narrowed significantly and it is now a claim of victimisation only.

[5]On review of the correspondence and preliminary hearings, a pattern of failing to engage with directions and cooperate with the respondents’ solicitors in the process of disclosure and preparation of the hearing bundle by Dr Krishna was apparent. Rather than focus on agreeing an index for the bundle and despite directions to do that, Dr Krishna sent thousands of pages of documents by email attachments to the respondents’ solicitor.

[6]On the 8th of November 2017 a preliminary hearing was held by Employment Judge Franey in which Dr Krishna took part by telephone and the list of issues to be decided by the Tribunal was identified at Annex B. The issues laid out five protected acts upon which Dr Krishna relied, resulting in 24 detriments as follows: 1. Are any, or all, of the following protected acts for the purposes of s. 27 of the EqA?(i) on 25 November 2013, Dr Krishna copied to one the GMC’s Investigating Officers (among 18 others) a six-page email he had sent to a Professor Hawley of the Cwm Taf Local Health Board (the Health Board) in which Dr Krishna made various complaints about the victimisation he had received from the Health Board

(ii) on 20 March 2014, Dr Krishna wrote to the Third Respondent (“Mr Dickson”) complaining that he felt harassed and victimised by the “threat” of referral to an FPP if he declined to undergo a health assessment made by the Fourth (“Mr Donnelly”) and Fifth (“Mr Done”) Respondents

(iii) on 3 November 2014, Dr Krishna complained to the Professional Standards Authority (“PSA”) about the GMC’s pursuing fitness to practise proceedings against him

(iv) on 6 November 2014, Dr Krishna complained to the PSA about the GMC’s pursuing fitness to practise proceedings against him, and

(v) on 7 November 2014, Dr Krishna complained to the PSA about the GMC’s pursuing fitness to practise proceedings against him. 2. Are the facts such that the Tribunal could conclude that the Respondents subjected Dr Krishna to the following detriments because of the any protected acts in any or all of the following respects? As regards (i) above: (a) Mr Done on 3 February 2014 harassed him to consent to a Health Assessment; (b) Mr Donnelly on 18 February 2014 harassed him to consent to a Health Assessment; and (c) Mr Done on 18 March 2014 threatened to him with referral to an FPP if he refused to consent to a Health Assessment by 25 March 2014; As regards (i) and (ii): (d) Mr Done continued with the investigation after 21 March 2014; (e) Ms Farrell (on behalf of Mr Dickson) on 22 April 2014 threatened him with referral to an FPP if he refused a Health Assessment; (f) The GMC, Mr Done and Mr Donnelly refused to obtain his Occupational Health, psychology and psychiatric reports before the Health Assessment with the Tenth Respondent (“Dr Seivewright”); (g) Dr Seivewright lied in his report dated 2 July 2014 about the duration of his depression and the association of physical health and depression; (h) The GMC harassed him into seeing another health examiner on 4 July 2014; (i) Mr Donnelly informed him on 15 August 2014 that the investigation may continue despite an application for voluntary erasure; (j) The GMC refused to investigate his complaints (made in July to September 2014) against Dr Shetty, Dr Self, Dr Hailwood, Dr Griffiths, Dr Jones, Dr Winston, Dr Quirke, Dr Tidley, Professor Richards and Dr Joseph; (k) The GMC, Mr Dickson and the Seventh Respondent (“Ms Couchman”) on 26 September 2014 dismissed his grievances against Mr Donnelly; (l) The GMC, Mr Dickson and the Ms Couchman on 26 September 2014 refused to investigate his complaint against Dr Jones; (m)The GMC, Mr Done, Mr Donnelly and Dr Seivewright placed false information before the GMC’s Case Examiners; (n) The GMC and Mr Donnelly sought an interim order of conditions for 12 months; As regards (i)-(v): (o) Ms Couchman threatened him with referral to the FPP if he refused a Health Assessment on 17 December 2014; (p) The Eighth Respondent (“Mr Barnard”) declined on 17 September 2015 to review the decision not to investigate Dr Joseph by lying about the content of the letter from the Health Board dated 27 August 2013; (q) The GMC on 22 June 2015 made two fresh allegations of misconduct against him for refusing the Health Assessment and for breaching patient confidentiality; (r) The GMC, Mr Donnelly, Mr Done and Dr Seivewright caused the Case Examiners to discriminate against him; (s) The Case Examiners referred him to the FPP on 23 September 2015; (t) The GMC resisted postponement of the MPT hearing; (u) The Second Respondent (“Professor Stephenson”) failed to respond to his complaint dated 13 May 2016; (v) The Ninth Respondent (“Ms Eldridge”) failed to disclose all the documents to the MPT; (w) The GMC on 15 June 2015 rejected his request for administrative erasure; and (x) The GMC on 17 June 2016 threatened him with conditions for up to three years or suspension of his registration for up to 12 months if he refused to comply with the requests for a Health Assessment. 3. If so, can the Respondents nevertheless show that they did not contravene s. 27 of the EqA? 4. Are the claims in time or should time be extended? 5. What is the appropriate remedy, if any?

[7]That list is subject to the following revisions;7.1 Mr Hare conceded that the matters identified as protected acts laid out in Annex B were all protected acts for the purposes of Section 27 of the Equality Act 2010.

7.2 Mr Hare confirmed that a jurisdictional issue on time limits was raised in respect of detriments (j) and (p) only; that the GMC had refused to investigate Dr Krishna’s complaints against several doctors and that Mr Barnard, the 8th respondent, had declined to review the decision not to investigate one of the doctors; Dr Joseph.

[8]Dr Krishna served his witness statement on the 6th of February 2018. It was not structured by reference to Annex B as EJ Franey had suggested, but was essentially a chronology of correspondence. Some passages appeared not to be relevant to the issues, some issues appeared not to have been addressed.

[9]On the 11th of February 2018, Dr Krishna provided about 10,000 documents in a series of 84 emails. He later reduced that to around 6,000 pages. On the 9th of March 2018, he served a revised witness statement, cross referenced with his bundle.

[10]A further preliminary hearing was held by telephone on the 9th of April 2018 by EJ Franey upon the respondents’ application, raising concerns about Dr Krishna’s continued failure to comply with case management orders. In his Order, EJ Franey recorded that ‘the respondents had sent the claimant a draft index to the final hearing bundle on the 22nd of December 2017, in accordance with directions, given for agreement by the 12th of January 2018. Over a few days from the 9th of January 2018 the claimant sent a series of emails attaching a substantial volume of additional documents. The respondent considered that a number did not appear relevant to the issues for determination and no agreement was reached on the index.’

[11]EJ Franey was concerned that Dr Krishna might be having difficulty identifying what was relevant to the issues and what was not and refused his request to rely on any documents which were not in the respondent’s bundle, which was 678 pages long. However, EJ Franey noted that the possibility that something relevant had been missed couldn’t be excluded and to enable Dr Krishna and the tribunal to identify whether that was so, he ordered the respondent to prepare a version of Annex B, cross referenced with the bundle so that Dr Krishna could see, at a glance which documents were already in the bundle, relevant to each of the issues. EJ Franey told Dr Krishna to consider if there was any missing document of importance to the issues and explained that it was in Dr Krishna’s own interests to tell the respondent if there were any missing documents as soon as possible, as ‘if the respondents agree that they can go into the evidence, the tribunal need not spend time dealing with this at the final hearing. If there’s no agreement the tribunal will determine at the final hearing whether additional documents can be relied upon.’

[12]Dr Krishna ignored this advice and did not contact the respondent. Instead, on the morning of this hearing he provided 6 copies of his own bundle of documents, extending to some 500 pages, without an index; Dr Krishna explained he’d forgotten to print an index out.

[13]Dr Krishna made an application to admit his documents, supported by a written application which referred to the documents by item, not page number. The application was resisted by Mr Hare on the grounds of relevance and proportionality. On pragmatic grounds, he did not object to a small number of the documents being admitted, although he questioned their relevance and these documents were put into a bundle described as ‘the claimant’s additional documents’.

[14]We considered Dr Krishna’s application and refused to admit any further documents except those few referred to above. We decided that the vast bulk of the documents were not relevant to the issues in the case. Most were only relevant to Dr Krishna’s dispute with his former employer; the Health Board. The documents that were admitted, by consent, were; a report of an interview with the Assistant Director of the GMC; Anna Rowland; a report from Professor Louie Appleby on the impact of GMC investigations upon doctors, reports and interviews raising concern at the disproportionate number of referrals of doctors from BME communities to the GMC and at the experience of doctors who ‘whistle-blow’; GMC’s ‘Guidance for decision makers on directing a health assessment’ and a letter from Dr Krishna to the Health Board dated 29th October 2014.

[15]Further, applying the overriding objective we considered that it would be disproportionate to allow Dr Krishna to introduce this significant amount of additional documentation, given the inevitable impact upon the listed hearing and its length and his history of not engaging properly with the process of preparing an agreed bundle of documents for the hearing, despite many opportunities to do so.

[16]Dr Krishna’s bundle also contained documents which he considered relevant to remedy. We decided that we would only hear evidence on matters relevant to liability; make our decision on whether Dr Krishna’s claim succeeded and, if so, then decide what documents were relevant to remedy.

[17]It had been recorded in an earlier preliminary hearing held by EJ Feeney that Dr Krishna might need additional time to formulate his questions and identify relevant documents during the hearing because of the effects of his mental health condition of depression and anxiety. Dr Krishna confirmed that this was still the position; he was managing his anxiety/depression with the aid of medication. With that in mind and considering that, whilst Dr Krishna is an educated and intelligent man of professional standing, he is a litigant in person, without the assistance of legal advice, pursuing a claim of some complexity with a substantial number of allegations, we accommodated all those matters with a sensible and realistic timetable which Dr Krishna agreed at the outside of the hearing as follows: Day 1 am - preliminary matters, pm - reading Day 2 - claimant’s evidence Day 3 - Mr Donnelly Day 4 am - Mr Done, pm - Miss Eldridge Day 5, am - Dr Sievewright, pm - Miss Farrell Day 6, am - Mr Thomas/ submissions, pm - deliberations Day 7 - deliberations, judgement, directions on remedy, as appropriate.

[18]Dr Krishna’ witness statement did not address causation at all. Mindful of the factors described above, we exercised a good deal of latitude in allowing Dr Krishna to give explanations and evidence relevant to causation, detriments and more generally, during his evidence and in cross examination. Likewise, Dr Krishna was permitted to question the respondents and witnesses on a range of matters that often strayed beyond the list of issues and had little, if any, relevance. Mindful of the Tribunal’s obligations to ensure a fair hearing, that the parties are on an equal footing and that the proceedings are conducted in a proportionate and timely manner, I intervened regularly, encouraging Dr Krishna to focus on the relevant issues and where necessary rephrasing questions so that the witness understood what was being put to him or her. Save for a moment of frustration early on in his cross examination of Mr Donnelly, Dr Krishna cooperated with the timetable agreed and all the parties and witnesses conducted themselves in a courteous manner. The findings of fact relevant to the issues

[19]Dr Krishna is a doctor formerly registered with the GMC. The GMC is the regulator of the profession of doctor in the United Kingdom under the Medical Act 1983. The other Respondents are current or former employees, office holders or independent contractors of the GMC who have been involved in some way with Dr Krishna’s fitness to practise proceedings or have been sent correspondence by him.

[20]There is little dispute between Dr Krishna and all the respondents on the essential facts of this case in that all agree that the events described in evidence took place. Almost all of the contact between Dr Krishna and the respondents was through email and letters. The dispute centres on how those events are characterised. Dr Krishna views the respondents’ actions as a sequence of detrimental acts arising from his disclosures whereas the respondents portray them as a simple application of the GMC’s statutory duty in investigating Dr Krishna’s fitness to practise, unconnected to his disclosures. The GMC’s statutory functions

[21]In closing submission, Mr Hare provided the following overview of the GMC’s duties and powers relevant to this case, which we adopt: The main or over-arching objective of the GMC is the protection of the public (s. 1(1A) [610] Medical Act): 1(1A) The over-arching objective of the General Council in exercising their functions is the protection of the public. (1B) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives—(a) to protect, promote and maintain the health, safety and well-being of the public,

(b) to promote and maintain public confidence in the medical profession, and

(c) to promote and maintain proper professional standards and conduct for members of that profession. Under the General Medical Council (Fitness to Practise) Rules 2004 (“the 2004 Rules”), allegations against registered doctors are first considered by the Registrar who is required to refer them to the Case Examiners if they fall within the statutory definition of an allegation that a doctor’s fitness to practise is impaired. Rule 4 of the 2004 Rules [571-572] provides: An allegation shall initially be considered by the Registrar. (2) Subject to paragraphs (3) to (5) and rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8. Rule 2 provides: “allegation” means an allegation that the fitness to practise of a practitioner is impaired and includes an allegation treated as arising by virtue of section 35CC(3) of the Act and an allegation relating to a person whose registration is suspended; Section 35C of the MA provides: 35C.— Functions of the Investigation Committee (1) This section applies where an allegation is made to the General Council against— (a) a fully registered person; or (b) a person who is provisionally registered, that his fitness to practise is impaired. (2) A person's fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of— (a) misconduct; . . .

(d) adverse physical or mental health; The Registrar is empowered to carry out investigations, including directing a Health Assessment where appropriate. Rule 7 provides: (2) The Registrar shall carry out any investigations, whether or not any have been carried out under rule 4(4), as in his opinion are appropriate to the consideration of the allegation under rule 8. (3) The Registrar may direct that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2. The Registrar also has the power to refer an allegation to an Interim Orders Tribunal (formerly an Interim Orders Panel) under Rule 6: If, at any stage, the Registrar is of the opinion that an Interim Orders Tribunal should consider making an interim order in relation to a practitioner, he shall refer the allegation to the MPTS for them to arrange for it to be considered by such a Tribunal accordingly. Once referred by the Registrar, allegations must be considered by the Case Examiners who have the following powers under Rule 8: (1) An allegation referred by the Registrar under rule 4(2), 5(2), 12(6)(b) or 28(2)(b) shall be considered by the Case Examiners. (2) Upon consideration of an allegation, the Case Examiners may unanimously decide– (a) that the allegation should not proceed further; (b) to issue a warning to the practitioner in accordance with rule 11(2); (c) to refer the allegation to the Committee under rule 11(3) for determination under rule 11(6); or (d) to refer the allegation to the MPTS for them to arrange for determination by a Medical Practitioners Tribunal [formerly known as the fitness to practice panel]. The events

[22]Dr Krishna was suspended by the Health Board on the 4th of October 2013. The GMC was informed by letter of 4th of October 2013 that; ‘Dr Krishna has been medically suspended since the 23rd of August 2013 pending the outcome of a preliminary investigation into a number of concerns regarding his behaviour and performance. He is also receiving support and treatment through our Occupational Health department’. Enclosed with that letter was copies of the correspondence sent to Dr Krishna by the Health Board suspending him from duty and inviting him to an investigation to explore a number of allegations that were laid out in the letter as follows: ‘allegations from staff and patients that you display a rigidity in your approach and will not listen to other opinions, specifically;  you appear not able to work effectively in a multidisciplinary team e.g. you display an inappropriate rigidity to your practise and an adherence to the dogma of the medical model which has led to team tensions e.g. staff had reported feeling disrespected by you  you have displayed an inappropriately emotional response in several meetings e.g. a SPE meeting, team meeting, meetings with your CD, culminating in your leaving the meetings at an inappropriate time  you displayed inappropriate behaviour towards patients during a ward round on ward 22 on the 10th of July 2013; which led to two patient advocates making a formal complaint about your consultation with these patients and the patients asking not to be treated by you again  you appear unable to manage to run a clinic at a pace expected of a middle grade doctor despite the issue being discussed several times with you e.g. the excessive length of time of your consultations and unnecessarily lengthy letters  you failed to exercise appropriate clinical judgement when you refused to respond to a potentially critical clinal episode involving a patient with chest pains  you have failed to engage appropriately with your CD regarding your sickness absence and to comply with reasonable management requests’ The Health Board’s letter and enclosures were referred to the GMC’s triage team who determined that it amounted to an allegation that could call into question Dr Krishna’s fitness to practise in accordance with Section 35(c)(2) of the Medical Act and/or rule 4(2) of the Fitness to Practise rules.

[23]We were referred to the GMC’s ‘Guidance on the Meaning of Fitness to Practise’ and the Guidance for Decision Makers on Assessing Risk in Cases Involving Health Concerns’. It was clear that the information provided by the Health Board contained information that properly gave rise to a question of fitness to practise in accordance with those rules.

[24]A decision having been made that further investigation was required, the issue was referred to Mr Jordan, Investigation Officer, a member of the GMC’s investigation team which sits within the Fitness to Practise Directorate. Dr Krishna was informed by letter of the 28th of October 2013 and replied that he was ‘unable to respond at this stage due to a number of factors’.

[25]On the 31st of October 2013 the Head of HR at the Health Board contacted Mr Jordan and told him that the Board had serious concerns about Dr Krishna’s mental health; that Dr Krishna had threatened suicide on several occasions and that they were considering whether Dr Krishna should be sectioned under the Mental Health Act.

[26]Mr Jordan referred the matter to a Medical Case Examiner for advice on whether a health assessment of Dr Krishna would be appropriate. A Medical Case Examiner is a senior member of GMC staff who has authority to make decisions on a case such as whether a doctor under investigation should be invited to undergo a health assessment. The Medical Case Examiner’s advice was that, before inviting Dr Krishna to undergo a health assessment, it would be appropriate to establish if he had access to continuing support at a local level; It would be sensible to obtain up to date information about his state of health and the risk of suicide from Occupational Health. Please obtain confirmation from doctors’ treating team/advisors that he is well enough to attend the health assessment as an invitation could exacerbate his health problems.’

[27]Mr Jordan sought advice from his Investigations Manager, Mr Donnelly, as to what steps should be taken. Mr Donnelly also exercised the functions of an Assistant Registrar in addition to his role as Investigation Manager. Mr Donnelly asked Mr Jordan to get an update from the Health Board. Mr Jordan contacted Dr Quirke, deputy medical director of the Health Board who told him that Dr Krishna had been admitted under the Mental Health Act and that his wife and son were under the care of social services. Dr Quirke forwarded a letter from Dr Krishna in which he had written; ‘I’m talking about an escape option not just for me but for the whole of my family involving my wife and my 5-year-old son. They might not agree with the option as I’m talking about suicide pact.’ In evidence Dr Krishna was keen to point out that, in fact, he had been a voluntary in-patient, but agreed that he had been admitted to a psychiatric ward.

[28]Mr Donnelly explained that he had been extremely concerned that Dr Krishna may represent a credible suicide risk and instructed Mr Jordan to bear in mind the sensitive nature of the case and the effect any correspondence may have on his mental health. He asked to see all correspondence before it was sent and instructed Mr Jordan to make further enquiries.

[29]On the 18th of November 2013, Mr Jordan was informed by the Health Board that Dr Krishna would soon be discharged. Mr Donnelly reviewed the case and instructed Mr Jordan to contact Dr Krishna’s treating psychiatrist, Dr Huw Davis, stating; ‘we need to know if Dr Krishna is still in the Princess of Wales hospital or if he has been discharged. If Dr Krishna is still an in-patient is there any indication of when he’s likely to be discharged? If he’s been discharged we need to establish whether he’s still under the care of Dr Davis. Dr Davis understandably may be reluctant to disclose information to us, you need to stress that our primary concern is not to aggravate what is already a fragile situation. Our main concern is that we do not do anything which is likely to have a detrimental impact on Dr Krishna’s health. But we also need to ensure that he does not pose any risk to the public if he were to continue to practise unrestricted. Advise Dr Davis that in situations like this we would like his opinion of when Dr Krishna is well enough to engage with us in the investigation process. If Dr Krishna has been discharged we need to raise an IOP [Interim Orders Panel – now Tribunal] decision with the CEs [case examiners] immediately’.

[30]An Interim Orders Panel – now known as Tribunal – consists of members appointed through open competition by the Medical Practioners’ Tribunal Service. A doctor can be referred to an IOT if the GMC receives concerns about them which may suggest that action is needed to protect the public, the wider public interest or the doctor’s own interests until the matter is resolved. Referrals can only be made by the registrar or assistant registrar or by a case examiner.

[31]On the 25th of November 2013, Dr Krishna copied the GMC into a six-page email he’d sent to Professor Hawley of the Health Board in which he complained about the victimisation and harassment he’d received from the Health Board (protected act (i)). Dr Krishna copied his email into a range of professionals and bodies concerned with his son’s care, the Health Board, his mental health physicians and his wife and young son.

[32]Mr Jordan contacted the Consultant Psychiatrist who had treated Dr Krishna in hospital, Dr Paul Emmerson, asking whether inviting Dr Krishna to a health assessment would have an adverse impact on his health. Dr Emmerson replied by email on the 29th of November 2013, stating; ‘Dr Krishna is currently a patient under my care and has been an in-patient in Ward 14 of Princess of Wales hospital in Bridgend. He’s currently suffering from moderate depression and anxiety. This has been caused by stress largely related to his employment including an ongoing internal investigation there. In my opinion it would be detrimental to his health and wellbeing to invite him to an IOP while the outcome and any potential repercussions of the other investigation are unknown. I feel this would add extra stress which would be difficult for him to deal with currently and may lead to a deterioration of his mental state. If you require any further information please do not hesitate to contact me. Dr Krishna is being discharged from the ward within the next couple of days and his care will return to his community consultant Dr Huw Davis.’

[33]The GMC was copied into a further letter from Dr Krishna on the 29th of November 2013 explaining that he was leaving for India the following day to stay indefinitely with his family. Mr Donnelly sought advice from Assistant Director Peter Swain as to the next steps, who advised; ‘assuming it remains the position that we have no evidence of Dr Krishna working or seeking to work elsewhere in the UK I suggest we seek a cancellation of this IOP referral on the basis of the lack of evidence of risk to patients combined with the risk to Dr Krishna’s own interests were we to progress an IOP referral. We might then explore with Dr Emmerson how Dr Krishna might respond to a carefully worded invitation to health assessment. Another option would be to write to Dr Emmerson asking him with Dr Krishna’s consent to provide a medical report to us as evidence of Dr Krishna’s impairment following which we propose to invite Dr Krishna to accept undertakings. Of course, if Dr Krishna has indeed left the country there may be nothing we can do until he returns.’

[34]At the beginning of December 2013, Mr Done took over as Investigating Officer and on the 15th of January 2014 he contacted Dr Huw Davis who advised that ‘an IOP hearing would be catastrophic to Dr Krishna’s health’, however Dr Davis was supportive of a health assessment; as Mr Done recorded; ‘Dr Davis was very clear that this [an invitation to a health assessment] would be good for the doctor. He said that he has a differential diagnosis for Dr Krishna and the extra layers provided by the health assessment would be beneficial for the doctor. He said Dr Krishna might actually like the process. Dr Davis reported that Dr Krishna is flying back to the UK for a forensic assessment – an assessment that he initiated and requested himself. Dr Davis was clear that Dr Krishna might enjoy the health assessment process and it certainly wouldn’t be detrimental.’ As Mr Donnelly explained, although he thought that Dr Krishna was in India, the GMC had no certainty as to where he was and when he might be returning to the UK.

[35]On the 2nd of February 2014, Dr Krishna emailed the GMC stating; ‘I’d again plead GMC to expedite the investigation and help me return to pain employment, enjoy family life, and moreover recover from anxiety and depression.’ As was the case in all correspondence sent by Dr Krishna over this period, his email was copied to various family members, various health professionals involved with him and his family, various individuals at the Health Board, housing officers and other individuals.

[36]By email of the 3rd of February 2014, Mr Done asked Dr Krishna if he was still in the UK or had returned to India stating; “I ask because we’d like to invite you to a health assessment which will involve you meeting with two psychiatrists. I appreciate that you want the GMC’s investigation to be expediated; it was placed on hold whilst you were in India.’ In evidence, Mr Done explained that this email was a preparatory step to ascertain whether Dr Krishna was available for a health assessment if a decision to refer him for one was made. This email is detriment (a).

[37]Mr Done sought further advice from the case examiner on whether Dr Krishna should be invited to a health assessment and in the light of Dr Davis’s view, the medical health examiner replied on the 10th of February 2014 that; ‘I previously provided advice in this case advising caution in asking the doctor to attend the health assessment, however I note the recent telephone note from a call with Dr Davis . . . please invite Dr Krishna to attend the health assessment with the likely diagnosis of F32 depressive episode’. Mr Donnelly then sent a health assessment invitation letter to Dr Krishna on the 18th of February 2014. (detriment (b)). As Mr Donnelly explained in evidence, the form of the letter was a template produced on the GMC’s electronic case management system ‘Seibel’. The GMC operates a paperless case management system so all correspondence and communication is captured and retained on Seibel.

[38]The letter stated; “as you are aware the GMC has received information about you from Cwn Taf Local Health Board. I enclose a copy for your reference as listed in Annex A to this letter. The information suggests that your fitness to practise may be impaired on health grounds by reason of F32 depressive episode. We invite you to agree to be examined by two medical examiners and to the examiners providing us with reports on your fitness to practise . . . the examiners will be asked to report on your physical and mental health and whether they consider you to be fit to practise either generally or on a limited basis. . . if the reports recommend medical supervision or any limitations on your practise you may be invited to give undertakings on the basis of the reports . . .”

[39]Dr Krishna was asked for his consent and to provide details of treating physicians, as; ‘the medical examiners may contact Dr Davis, your general practitioner and any other doctors who treated you recently’. The letter went on to state that ‘the rules require me to tell you that if you decline to be examined or if having agreed you subsequently fail to attend the medical examinations or if you do not reply to me within 14 days of the date of this letter the question of your fitness to practise may be referred for formal hearing by a fitness to practise panel. The panel have powers to restrict or supervisor your registration’.

[40]A range of documentation including ‘guidance and help for doctors’, a fact sheet, a doctor support service leaflet, a copy of the General Medical Council fitness to practise rules 2004, consent forms and so on were attached to the letter.

[41]By letter of 26th of February 2014, Dr Krishna replied that he agreed to be medically examined according to GMC policies and procedures but he qualified his consent to contacting doctors stating; ‘I agree for medical examiners to contact the following doctors who’ve been involved in either only assessments or both assessments and treatment subject to my consent for release to medical examiners after me checking for accuracies of facts in the reports. Please let me know if GMC is agreeable with my above requests so that I can send the names and addresses for the doctors at the earliest.’

[42]By email of the 28th of February 2014, Mr Done replied ‘I acknowledge that you are willing to undergo a health assessment and agree that the GMC can contact your treating doctors. Please could you complete the consent form I sent you.’

[43]In a sequence of correspondence thereafter, copied in by Dr Krishna to a range of different organisations and individuals, Mr Done sought to obtain a completed consent form from Dr Krishna and Dr Krishna repeatedly raised his allegations of harassment, victimisation and discrimination against the Health Board and other organisations, emphasised the extent of his anxiety and depression, and asked the respondent to provide documentation.

[44]Mr Done provided Dr Krishna with further copies of all the information received by the GMC and reassured him that ‘anything the GMC receive during an investigation is disclosable to you’.

[45]On the 5th of March 2014, Mr Done wrote to Dr Krishna stating; ‘I think it would be better for all concerned if the health assessment process begins as soon as possible. The first step is to return the signed consent form. The GMC can then start contacting assessors and arranging appointments. In the meantime, you can send any other information you feel is relevant. However, please note that as the GMC is being copied into much correspondence between yourself and other organisations there is no need to duplicate the information you have already provided.’

[46]On the 12th of March 2014, Mr Done again explained to Dr Krishna; ‘I think it would benefit all parties if we begin the health assessment as soon as possible and so I would be grateful if you could complete and return the consent form. You can be sure that the assessors will have knowledge of the case and you can be sure that I will send you copies of the assessors’ reports as soon as receive them.’

[47]The extent of Dr Krishna’s mental distress at that time was illustrated by several emails sent by him about the health board to a range of organisations and people, including the GMC, in which he stated; ‘the bastards are playing a cruel joke with my life and career leaving me living dead by shamelessly torturing a mentally ill doctor. I don’t know how long my ordeal will last please give me strength to see through this torture for the sake of my family friends and patients I hope I can rest in peace’; ‘psychopaths must have just finished partying or in deep sleep right now nevertheless I am made to suffer for their sins please give me strength to bear the pain’ and ‘to GMC and company to see that pain in me sooner yours victim of Rhonda mafia’; ‘oh Lord mental pain is unbearable give me strength to bear the unbearable’.

[48]On the 18th of March 2018, Mr Done wrote to Dr Krishna stating; ‘Please could you confirm in writing whether you agree to be examined and return the consent form by the 25th of March 2014 if you don’t reply by this date your case may be referred to a fitness to practise panel. If you have any queries or concerns please do not hesitate to contact me.’ (detriment (c)).

[49]In response, Dr Krishna emailed a request for clarification of various issues and by letter of the 20th of March 2014 addressed to Niall Dixon, Chief Executive and Registrar of the respondent, complained that; ‘I regret to mention that I feel coerced by Mr Vincent Donnelly Assistant Registrar and Mr Kieron Done Investigating Officer to provide below declaration with fear and anxiety of serious repercussions from GMC . . . . the eventuality of possible harassment and victimisation by GMC by threatening referral to fitness to practise panel repeatedly if I were not to comply with Mr Donnelly and Mr Done’s request.’ In his letter Dr Krishna again consented to be examined. That letter is protected act (ii).

[50]By email of the 21st of March 2014, Mr Done replied to points raised by Dr Krishna; clarifying that the investigation was ongoing, providing a copy of the health assessment bundle, and explaining the purpose of the health assessment as ‘the health assessment helps the GMC to consider whether a doctor’s fitness to practise is impaired on health grounds . . .’ and ‘the purpose of the GMC’s investigation is not to resolve any employment disputes, the GMC’s sole remit it terms of an investigation is to consider whether a doctor is currently fit to practise and patients are protected’.

[51]Dr Krishna’s complaint was considered by Joanna Farrell, Head of Investigation. As Miss Farrell explained in her evidence, at any one time the GMC’s Investigations Directorate deals with some 2,000 investigations, carried out by Investigation Officers and overseen by a team of 7 or 8 Investigation Managers who report to her. This was her first involvement in Dr Krishna’s case.

[52]As Mr Done, Mr Donnelly and Miss Farrell all confirmed, it was common for doctors under investigation to raise concerns or complaints about the process. Given the large volume of investigations, they emphasised that the GMC is rigorous in ensuring that investigative procedures are adhered to, irrespective of whether a doctor raises any concerns or complaints. We found Mr Donnelly, Mr Done and Miss Farrell to be convincing and consistent and their evidence was supported by the wealth of documentary evidence, including the GMC’s guidance and procedures, that this was the approach that they all took. In fact, the documentary evidence illustrated the considerable lengths to which Mr Done, the other Investigating Officers and Mr Donnelly went to accommodate Dr Krishna’s fragile mental health in all their dealings with him. What was apparent during Dr Krishna’s evidence was that he did not appreciate that he had a responsibility to co-operate in investigations; quite the opposite, as his continuous prevarication demonstrated.

[53]By letter of the 22nd of April 2014, Miss Farrell replied; ‘I’m sorry you have felt coerced into complying to our request to undergo a health assessment. I know that Mr Donnelly and Mr Done haven’t intended to make you feel this way. It’s however important that you understand what may happen if you don’t agree to a health assessment. As a doctor registered with the GMC you have certain responsibilities to help us with our investigations. Any doctor who does not cooperate with out investigations may be referred to a fitness to practise panel because that is the only route open to us if we cannot investigation concerns appropriately’. Dr Krishna relies upon this letter as detriment (e).

[54]Appointments were made for Dr Krishna to be examined by two medical examiners; Dr Sievewright on the 30th of June 2014 and Dr Jamil on the 4th of July 2014. In the meanwhile, Dr Krishna continued to copy the GMC and various staff members into emails about other matters such as his housing situation and family circumstances.

[55]Dr Krishna alleged as detriment (f), that Mr Done and Mr Donnelly refused to obtain his Occupational Health psychology and psychiatric reports before the health assessment with Dr Sievewright. As Mr Done explained in evidence, the GMC’s procedure on health assessment was that the health assessor would be provided with documents which the investigating officer considered relevant and the medical assessor would obtain any further medical or other reports that he or she felt appropriate. This is reflected in the letter of instruction to Dr Sievewright dated 23rd of June 2014 which states; ‘further information: Dr Krishna has provided consent for you to approach other doctors involved in his care and a copy of the consent is enclosed with the papers. Having spoken to the doctors concerned it’s left to your discretion whether to seek copies of medical records subject to the appropriate consents being available or whether to consult other professional and personal acquaintances of the doctor.’ This was also explained to Dr Krishna in Mr Donnelly’s letter of 18th of February 2018.

[56]Dr Krishna met with Dr Sievewright on the 30th of June 2014 and Dr Sievewright’s report was dated 2nd of July 2014. Dr Sievewright had seen copies of Dr Krishna’s letter of the 25th of November 2013 and other emails regarding the investigation. As he reported; ‘The ones I have seen are significant in themselves expressing much anger at the Health Board who have dismissed him, the GMC and the social services who took action against him being with his wife and child after he alluded to a possible suicide pact’ and ‘it was clear that he was very tense and he became quickly very angry when the subject turned to the Health Board, the GMC, social services, or others who he sees as having ruined his life . . . he swore angrily about the perceived injustices’.

[57]Under ‘background history’, Dr Sievewright recorded personal information that Dr Krishna had told him. At the Tribunal hearing, Dr Krishna accused Dr Sievewright of telling lies and insisted that some of these details were untrue. Dr Sievewright explained, as we accepted, that he was simply recording what Dr Krishna had told him. Likewise, under ‘general medical history’, Dr Sievewright recorded that, following a diagnosis of Hodgkin’s Lymphoma, Dr Krishna had a period of depression. Dr Sievewright’s opinion was that; ‘Dr Krishna has had some physical health problems as indicated above while psychiatric problems appear to have been more recent. I do not consider that he has a personality disorder and there had been no evidence of substance abuse. On the basis of the limited interviews to which he agreed at the time I very strongly suspect that he has a severe depressive illness and I will use the ICD-10 category F33.2 as he may have had more than one episode. The category is major depressive disorder recurrent severe without psychotic features meaning that I have not classed him as psychotic at the present time. However his concerns about his situation definitely extend to ideas of a paranoid nature and I view his very frequent angry and sometimes abusive emails to various people in the context of his illness. . . Dr Krishna believes that he is too unwell to practise at present and furthermore feels that there should not be active investigations underway whilst he’s ill on certified sickness. My own opinion is that he is not fit to practise currently . . . he is definitely in need of continued psychiatric treatment’.

[58]Dr Krishna believes that Dr Sievewrights’ report suggested that his mental health had arisen from his physical health conditions. However, as Dr Sievewright explained and was clear from the report, he was not attributing Dr Krishna’s current mental health to that cause. Dr Krishna was unable to identify any ‘lie’ told by Dr Sievewright in that Occupational Health report and it was clear that Dr Sievewright had not lied.

[59]Several days later Dr Krishna attended the appointment with the second medical assessor Dr Jamil. Dr Jamil reported that Dr Krishna had told her that he did not consent to a psychiatric assessment and so she had asked him to leave but that subsequently she had been bombarded with emails he was sending to various individuals and with whom he had conflicts, commenting; ‘I consider this an inappropriate behaviour I can forward the emails if you wish but it does highlight his hostility and unusual state of mind.’ Dr Krishna relied upon this second appointment as detriment (h); that the GMC harassed him into seeing another health examiner on the 4th of July 2014. However, there was no evidence in the bundle or shown to us by Dr Krishna to support this. His attendance was clearly voluntary and there was no contact with the GMC between the two appointments.

[60]As Dr Krishna accepted in evidence and was clear from his conduct and his own correspondence at the time; for example, on the 22nd of September 2014 he stated, ‘unfortunately I do not think I’m fit to practise straight away without treatment’, and from the report of Dr Sievewright, Dr Krishna was undoubtedly suffering from a severe mental health condition which gave rise to legitimate concerns about his fitness to practise.

[61]During August and September 2014, Dr Krishna complained to the GMC about several former colleagues at the health board whose conduct and integrity he wanted the GMC to investigate. The GMC refused to investigate his complaints as not calling into question those doctors’ fitness to practise; explaining that it was not within the GMC’s jurisdiction to become involved in disputes between colleagues; ‘these types of concerns can be considered under the NHS grievance process or an employment tribunal.’ In respect of Dr Krishna’s specific complaint about Professor Richards’ professional conduct, he was advised, ‘should the outcome of any local investigation processes find that Professor Richards had acted inappropriately we may be able to reconsider whether we should open an investigation’. (detriment (j)). During the hearing Dr Krishna reduced the scope of this detriment to his complaints about Dr Jones, Dr Winston, Dr Quirke, Professor Richards and Dr Joseph.

[62]Dr Krishna sought a review of the decision not to investigate Dr Joseph which was dealt with by an Assistant Registrar, Mr Barnard and communicated to Dr Krishna on the 17th of September 2015 (detriment (p)). Mr Barnard reviewed the decision and upheld it, finding that there were no grounds for a review, as the original decision ‘had not been materially flawed nor was necessary for the protection of the public’. Dr Krishna’s allegation that Mr Barnard had lied about the content of the letter from the Health Board dated 27th of August 2013 was not substantiated in his evidence.

[63]Dr Krishna complained again about Mr Donnelly to which Miss Couchman, Head of the Corporate Review team replied by letter of 26th of September 2014, stating; ‘in relation to your complaint regarding Vincent Donnelly I can see that Joanna Farrell, Head of Investigation, recently addressed this in her letter to you dated 5th of September 2014. I’ve looked at our correspondence to you and I agree with Joanna that Vincent has sent you many letters and updates on the progress of your case. I can see no evidence of victimisation or harassment by him or any other members of our staff. If you’re able to provide specific evidence to support your concerns I’ll be happy to look at it for you, however based on the information I’ve seen no further action will be taken regarding this.’(detriment (k)).

[64]In July 2014, the Health Board raised a further matter for investigation, that Dr Krishna had inappropriately disclosed the unredacted medical records of a patient to the Health Inspectorate of Wales, The Public Services Ombudsman for Wales and the Police.

[65]Mr Donnelly made a further referral for a case examiner’s opinion, explaining that ‘In his most recent communications with the GMC he has indicated that he will return to the UK on 7th October 2014 to undergo psychiatric treatment….It is 9 months since the case examiner last considered whether Dr Krishna should be referred to IOP. Since then we have had very little information as to whether or not Dr Krishna has been receiving treatment for his condition whilst in India and have no indication as to whether or not he intends to seek work now he has returned to the UK..’ The case examiner decided on the 14th of October 2014 that; ‘Dr Krishna should be referred to an IOP [Interim Orders Panel] for determination. The case examiner was concerned that the GMC had no confirmation as to Dr Krishna’s whereabouts and that the conduct and performance issues that brought Dr Krishna to the attention of the GMC and his more recent issue of breach of patient confidentiality all appeared to arise because of the doctor’s severe mental health problems . . . there is credible evidence that the doctor’s fitness to practise might be impaired and that an IOP referral was warranted in the interests of the doctor and the protection of members of the public. … The tone of much of his recent correspondence suggests that his language and communication remains inappropriate for a doctor. Although he does not appear to be working – he’s not under the governance of a stable employer – his variable insight and financial pressures have the potential to lead him to seek locum work if he deemed himself to be better. The situation presents a real risk for patient safety’, and ‘it remains the case that while the doctor’s registration continues to be unrestricted patient safety and public confidence in the medical profession cannot be assured’.

[66]On the 3rd of November 2014, Dr Krishna complained to the Professional Standards Authority about the GMC’s handling of his case. He sent a copy of his complaint by email to the GMC (protected act (iii). On the 4th of November 2014, Mr Donnelly wrote to Dr Krishna advising him that an IOP hearing would be held because; ‘information suggests your fitness to practise may be impaired by recent misconduct and adverse mental health and in view of a) behavioural and performance concerns as referred to the GMC by Cwn Taf University Health Board, b) the opinion of the GMC health advisor who diagnosed ICD-10 classification F33.20’.

[67]The hearing was held on the 12th of November 2014, Dr Krishna did not attend and the panel imposed restrictions on Dr Krishna’s ability to practise medicine for a 12-month period to allow the GMC to complete its investigation, including arranging a further health assessment.

[68]During this Tribunal hearing, Dr Krishna withdrew his allegation that the respondent and Mr Donnelly had sought an interim order for restrictions for 12 months (detriment (n)).

[69]Dr Krishna alleged that the respondent, Mr Done, Mr Donnelly and Dr Sievewright had placed factually incorrect and prejudiced information before the respondent’s case examiners, (detriment (m)), which he believed led to the decision to refer to the IOP. We looked at those documents and they did not include factually incorrect and prejudiced information as Dr Krishna alleged. It became apparent during his evidence that Dr Krishna’s concern was about the contents of Dr Sievewright’s report, our findings about which have been explained above.

[70]Dr Krishna continued to email various members of the GMC’s staff raising concerns, queries and complaints and the GMC continued to encourage him to participate in a further health assessment. On the 17th of December 2014, Miss Couchman emailed Dr Krishna in her role as Head of the Corporate Review team in response to the very large number of emails sent by him in the previous months stating; ‘I believe that the majority of the points you raised have already been responded to by me or my colleagues within our fitness to practise directorate. However, I feel it would be helpful to again set out our position here”. Under ‘health assessment’ she stated ‘in order to properly assess your fitness to practise we would like to complete the health assessment you previously agreed to undergo. In your previous correspondence you asked that we postpone this assessment until such time as you are able to start treatment. I understand that this is a very distressing time and that you may not agree that a health assessment is necessary. However, I would be grateful if you could let us know whether you are now prepared to complete the health assessment’. Around that time Dr Krishna had also been making enquiries about the effect of non-payment of his registration fees and Miss Couchman explained, ‘can I also take this opportunity to remind you of the advice my colleague Joanna Farrell gave you in her correspondence dated 5th of September that all registered doctors are required to pay an annual fee for the retention of their name on the register (‘the ARF’). Failure to pay the ARF would put you at risk of erasure from the register. As of today’s date I can see your ARF remains outstanding. It may be helpful to explain that it’s open to you to apply to relinquish your licence if you are not practicing medicine in any capacity in the UK. Relinquishing your licence (but maintaining your registration) would mean that you would pay a significantly lower fee. Currently the annual fee for registration without a licence to practise is £140. if you’d like to relinquish your licence please write to us to confirm that is the case and we would be happy to arrange that for you’.

[71]At detriment (o), Dr Krishna alleged Miss Couchman had threatened him with referral to the FPP if he refused a health assessment, however during his evidence to us, he accepted that there was no reference to such a referral in her email.

[72]The difficulties faced by the GMC in dealing with the volume and content of Dr Krishna’s correspondence was explained by Miss Couchman in her email when she stated; ‘we understand that being the subject of a GMC fitness to practise investigation can be a difficult and stressful experience. However, over the preceding months you’ve sent us very many emails which have been copied to a wide range of people at the GMC. Further many of the emails are not connected to our investigation. This approach makes it very difficult for us to provide you with appropriate, consistent and timely responses’.

[73]On 6th and the 7th of November 2014, Dr Krishna sent further complaints to the Professional Standards Authority about the GMC’s handling of his investigation stating, ‘please be informed that I remain frightened of reprisal from GMC for having expressed concerns about mishandling of my case.’ These emails are protected acts (iv) and (v).

[74]During early 2015, the GMC continued to correspond with Dr Krishna and to seek his consent to a further health assessment and Dr Krishna continued to raise a range of concerns, copied to many individuals within the GMC and the Professional Standards Authority.

[75]By May 2015, no progress had been made and Dr Krishna’s position was; ‘I do not agree for health assessment as I’m still undergoing psychological treatment and waiting for an independent psychiatrist’. As Mr Donnelly told us, the investigation could not progress any further because Dr Krishna was refusing to cooperate and so, in accordance with the GMC’s ‘rule 7’ process, a letter was sent to Dr Krishna on the 22nd of June 2015 informing him that the GMC was considering a referral to a fitness to practice panel (now known as the Medical Practitioners Tribunal). The letter enclosed copies of all information gathered and set out the allegation which the case examiners would consider when deciding whether to refer his case to a fitness to practise panel, as; ‘by reason of the matters set out about your fitness to practise is impaired because of your; a) misconduct, b) adverse physical or mental health, being major depressive disorder recurrent severe without psychotic features’. This letter is detriment (q).

[76]By email of the 19th of July 2015, Dr Krishna replied; ‘charge 1 inappropriately disclosing the unredacted medical records of patient RD, comment; I plead guilty to the above charge, though at the time I believed it was my duty to disclose patient RD’s details to public and statutory organisations’ and ‘charge 2, failing to be examined by a GMC health assessor comment; I plead the fifth to the above charge for the following reasons’ and Dr Krishna laid out the various concerns and complaints that he had about the GMC’s processes thus far.

[77]On the 28th of July 2015, Abbie Sedwell, Investigating Officer, referred the matter to the case examiners stating; ‘Dr Krishna’s been asked many times whether he’ll agree to the assessment and advised of the implications if he doesn’t cooperate. In the circumstances I think the only way to proceed with the case is to refer Dr Krishna to a fitness to practise panel’. The case examiners decided that Dr Krishna should be referred to a fitness to practise panel.

[78]Detriment (r) was that the GMC, Mr Donnelly, Mr Done and Dr Sievewright had caused the case examiners to discriminate against him. In evidence, Dr Krishna could give no specific information or provide any substance to that allegation and it remained entirely unclear as to what he meant by it; this despite Dr Krishna having been asked by the respondents’ solicitor during case preparation, on many occasions, to provide further details. In any event, it was clear from the evidence of Mr Donnelly, Mr Done and Dr Sievewright, and from the documentation provided to the case examiners which was contained within the bundle, that none of those individuals or anyone else at the GMC had taken steps or caused the case examiners to discriminate against him in reaching the decision to refer him to a FPP. In fact, the case examiners’ decision was based, in large part, on Dr Krishna’s own correspondence; ‘we’ve noted the extensive bundle of comments written by Dr Krishna to various bodies and individuals, some of which employ inappropriate and abusive language . . . and which suggest a lack of insight about his state of health and its impact upon his working and person circumstances . . .’.

[79]The case examiners also took account of Dr Sievewright’s opinion and stated; ‘the case examiners agree that the conduct and performance issues that have brought Dr Krishna to the attention of the GMC and the more recent issue of his breach of patient confidentiality through his circulation of unredacted patient records to third parties are all likely to be related to the doctor’s mental health problems. We therefore agree that allegation 7 [which was the breach of patient confidentiality] should not be considered separately as a probity issue but as a further symptom of the doctor’s mental illness. We agree on an evidential basis that the allegations meet the realistic prospect test. We agree the doctor’s lack of insight in relation to his health problem and his failure to fully engage with GMC health procedures preclude the offer of health undertakings. Accordingly, we refer Dr Krishna to a fitness to practise hearing for a determination.’

[80]The decision to refer Dr Krishna to the FPP was communicated to Dr Krishna by letter of the 23rd of September 2015 and the allegations were set out in an annex to the letter; being his ‘conduct in refusing to engage with the GMC’s health procedures such that his fitness to practise was impaired because of his adverse mental health’, (detriment (s)).

[81]The FPP hearing was arranged for the 16th to the 20th of May 2016. In email correspondence on 12th and 13th May 2016, copied to 23 recipients in various organisations, Dr Krishna stated that he was unable to engage due to illness, that he felt unable to request a postponement because of his continuing ill health but that if the hearing proceeded in his absence he would be prejudiced. Mr Thomas, Investigating Officer, was unable to clarify Dr Krishna’s position with him and so informed the panel’s listing team, stating; ‘please can you make the MPTS case manager aware of the correspondence and let them decide whether to treat it as a postponement request. Should this be classified as a formal postponement request the GMC remains neutral on the application but I would like to draw the case manager’s attention to the fact that the doctor has provided no medical evidence except for his correspondence that he is too ill to attend or engage with proceedings and it is a pure health case where the doctor has not cooperated with the health assessment process. There’s no evidence that, should the tribunal be postponed, the doctor will be able to attend in the future, nor that he is actively seeking treatment.’

[82]The application was refused by the MPTS (medical practitioners tribunal service) case manager, Ms McCain. She noted that the GMC’s position was neutral. Miss McCain’s reasons related to the lateness of the application and the absence of any medical evidence or indication as to when Dr Krishna might be fit to attend any future hearing. Miss McCain went on to state; ‘I find it surprising that Dr Krishna says he’s unfit to engage in proceedings to any extent even to formally make a postponement request. Despite this position he’s been able to craft 3 separate communications to the GMC over the 12/13 May period seeking a de facto postponement. Despite being able to prepare these letters, one of which he appears to have circulated to the addressee and 23 further recipients, Dr Krishna maintains he is unable to take any further steps to participate including, presumably, instructing a representative . . . and it’s my further assessment that on the basis of his parallel litigation arising from the same circumstances and from his recent communications with the GMC he has the capacity to both formally seek a postponement and to give instructions to a representative to appear at the hearing . . . the allegation is significant and in the absence of any evidence to support the doctor’s position I conclude that the public interest requires the case to proceed’.

[83]At detriment (t), Dr Krishna alleges that the GMC resisted postponement of the MPT hearing, however it was apparent from this correspondence that the GMC adopted a neutral position, albeit highlighting the absence of medical evidence.

[84]At detriment (u), Dr Krishna complains that Professor Stephenson failed to respond to his letter of the 13th of May 2016, in which he complained that any decision in his absence would be prejudiced. Professor Stephenson was the Chair of the GMC and had not been involved in Dr Krishna’s investigation and fitness to practice proceedings. Dr Krishna’s letter was considered and addressed by Miss McCain and he received a reply from the Tribunal service and a copy of her full reasons for refusing to postpone the hearing.

[85]Miss Eldridge was the legal advisor who prepared the case to be heard by the FPP [referred to in correspondence from then on as the MPT]. She compiled the documentation into a bundle and explained by email to Dr Krishna that she would forward a copy for his input or agreement. She organised two telephone conference to clarify the issues and necessary documentation. However, Dr Krishna did not participate. It was clear from the documentation and Miss Eldridge’s evidence that she went to great lengths to engage Dr Krishna in the process, to keep him informed, and to obtain any documentation or submissions from him.

[86]By letter of 21st of March 2016, Miss Eldridge provided Dr Krishna with details of the hearing, an index to and copy of the proposed hearing bundle and a copy of the 2004 (Fitness to Practice) rules. She explained that information relating to allegations investigated by the Health Board or any conclusions relating to the same had been removed to avoid any prejudice to Dr Krishna; ‘i.e. it would be prejudicial if the medical practitioners’ tribunal were to view material which raises concerns about you which does not form part of the charges’.

[87]The charges to be considered by the MPT was that; ‘on 30th of June 2014 you were medically examined by Dr A who diagnosed you as suffering from a medical condition the nature of which is set out in schedule 1 and that by reason of the matter set out above your fitness to practise is impaired because of adverse physical or mental health’.

[88]At detriment (v), Dr Krishna alleged that Miss Eldridge had failed to disclose all the documents to the MPT. However, he was unable to clarify what documents he meant. In any event, Dr Krishna was given many opportunities to include any documents he wanted the MPT to consider in the bundle but he did not do so.

[89]Dr Krishna emailed Mr Thomas on the 14th of June 2016 stating; I suggest that you go ahead with this administrative erasure for not paying ARF. Mr Thomas replied by email the next day, ‘as you have informed the GMC that you are unable to engage with GMC procedures due to ill health I don’t think that a decision to provide administrative erasure would be granted to a doctor suffering from ill health. I suggest that you read the relevant pages on our website that deal with voluntary erasure, details of which can be found here’ and a link was provided. As Mr Thomas explained in his witness statement he was not refusing administrative erasure, which was not a decision that he was entitled to make. Mr Thomas’s witness statement was not challenged by Dr Krishna and we accepted Mr Thomas’s account as accurate. He felt that an application for voluntary erasure would be more appropriate in the circumstances given that Dr Krishna had already indicated that he intended to apply for voluntary erasure just a week previously. Detriment (w), that a request for administrative erasure was refused on the 15th of June 2016, was not factually correct.

[90]The MPT proceeded in Dr Krishna’s absence. It decided to adjourn and directed that a health assessment be carried out. Dr Krishna was informed of this by letter of the 17th of June 2016, from Ms Cunliffe, Assistant Registrar, Medical Practitioners Tribunal Service (detriment (x)). He was told the consequences of failing to cooperate; ‘if you refuse or otherwise fail to comply with the tribunal’s direction to undertake an assessment it will consider this when it reconvenes. The tribunal will consider whether or not you’ve failed to comply with the direction. It will also consider whether or not there was a good reason for your refusal or failure to comply. If the tribunal makes a finding of non-compliance it may exercise its power under paragraph 5(a)(3)(d) of schedule 4 of the Act and can direct that your registration be made subject to conditions for up to 3 years or suspension for up to 12 months’. This letter was simply informing Dr Krishna of the tribunal’s powers in the event of a finding of non-compliance, in any event, it was not sent by the GMC or any of the named respondents.

[91]On the 8th of June 2016, Dr Krishna applied for voluntary erasure from the GMC register stating that he could not see himself ‘going through GMC fitness to practise hearings and IOP hearings any more’. Consequently, a case examiner was asked to advise the Registrar on ‘whether there was a public interest in not removing Dr Krishna from the register but instead continuing with fitness to practise proceedings’. The Assistant Registrar advised that the ongoing fitness to practise proceedings involving Dr Krishna should not be a bar to his erasure from the medical register and administrative erasure was granted on the 29th of July 2016, upon which the fitness to practise proceedings were discontinued.

The Law

[92]These proceedings are brought against the GMC as a Qualifications body under S53 Equality Act 2010 and against the named respondents for ancillary prohibited conduct at Ss 109-112 of the Act.

[93]Section 53(5) of EqA provides: (5) A qualifications body(a) (A) must not victimise a person

(b) (B) upon whom A has conferred a relevant qualification— (a) by withdrawing the qualification from B; (b) by varying the terms on which B holds the qualification;

[94]Section 27 of EqA provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[95]There is no requirement to identify a comparator for a claim of victimisation to succeed.

[96]Detriment is defined broadly and subjectively: Shamoon v Chief Constable of the RUC

[2003] UKHL 1

;

[2003] ICR 337

, at [35], per Lord Hope; ‘But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah

[1980] QB 87

[1979] 3 All ER 833

, at p 104B of the former report, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”: Barclays Bank plc v Kapur and others (No 2)

[1995] IRLR 87

. But, contrary to the view that was expressed in Lord Chancellor v Coker and Osamor

[2001] ICR 507

[2001] IRLR 116

on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence.’ 96. As Elias LJ held in Deer v University of Oxford

[2015] IRLR 481

; ‘the concept of detriment is determined from the point of view of the claimant: a detriment exists if a reasonable person would or might take the view that the employer’s conduct had in all the circumstances been to her detriment; but an unjustified sense of grievance cannot amount to a detriment…’

[97]Taking detriment to mean ‘anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage’, the requirement of reasonableness requires an element of objectivity. This is emphasised in the recent case of Fanutti v The University of East Anglia

UKEAT/0182/17/DM

, in which HHJ Barklem found that the Tribunal did not err in law in holding that a reasonable person faced with the institution of disciplinary proceedings would recognise the requirement for allegations of misconduct to be investigated; ‘it seems to me the task of the Employment Tribunal, following Shamoon, requires an objective approach to the determination of reasonableness’.

[98]As to the reason for the treatment, it is not a simple “but for” test. Rather the Tribunal should address and determine the “reason why” issue (Greater Manchester Police v Bailey

[2017] EWCA Civ 425

, at [12]). As the House of Lords explained (in relation to the similar provisions of the Race Relations Act 1976) in Chief Constable of West Yorkshire v Khan

[2001] UKHL 48

at [29] and [77]; Lord Nicholls stated; ‘Contrary to views sometimes stated, the third ingredient (‘by reason that’) does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the ‘operative’ cause, or the ‘effective’ cause. Sometimes it may apply a ‘but for’ approach. For the reasons I sought to explain in Nagarajan v London Regional Transport

[2001] 1 AC 502

, 510–512, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases ‘on racial grounds’ and ‘by reason that’ denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.’ ‘Was the reference withheld “by reason that” Sergeant Khan had brought the race discrimination proceedings? In a strict causative sense it was. If the proceedings had not been brought, the reference would have been given. The proceedings were causa sine qua non. The language used in Section 2(i) is not the language of strict causation; the words “by reason” suggest to my mind that is the real reason, the core reason, the causa causans, the motive for the treatment complained of that must be identified.’

[99]The burden of proof provisions of s.136 of the EqA apply to victimisation claims. S136 Equality Act provides as follows: ‘Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[100]On the application of the burden of proof, the Tribunal was guided by what is commonly known as the revised Barton guidance; Barton v Investec Henderson Crossthwaite Securities Ltd

2003 ICR 1205

, as set out in revised form in Wong v Igen Ltd

2005 ICR 931

. The Tribunal reminded itself, following Madarassy v Nomura International plc

2007 IRLR 246

, that there has to be more than simply a difference in treatment and status before a tribunal can conclude that an act of discrimination has occurred. In Laing v Manchester City Council and others

2006 IRLR 748

, in relation to the two-stage process of analysing the evidence, the EAT provided clarification that a tribunal should have regard to all the facts at the first stage of the process to see what proper inferences can be drawn.

[101]As it was established that Dr Krishna had done protected acts, the question for us was whether the GMC or other named respondents had subjected him to a detriment because of any of those protected acts in the sense that any of the protected acts had any material influence on subsequent detriment treatment. That required consideration of the mental processes of the decision maker in each instance.

[102]That exercise had to be approached in accordance with the burden of proof. If Dr Krishna proved facts from which we could reasonably conclude that any of his protected acts had a material influence on subsequent detrimental treatment, his case would succeed unless the respondents could establish a non-discriminatory reason for that treatment. We approached that exercise having considered all the evidence before us. It followed that if we concluded that a protected act played no part in the treatment of Dr Krishna, the victimisation complaint would fail. The Tribunal’s Conclusions

[103]For the reasons explained below we decided that none of the detriments alleged by Dr Krishna were detriments in the sense envisaged by Shamoon, in that they arose from Dr Krishna’s refusal to co-operate in the process and his unjustified sense of grievance.

[104]Dr Krishna does not dispute that during these events he was suffering from severe mental illness and there was ample evidence from Dr Sievewrights’ report, Dr Krishna’s copious, lengthy and widely disseminated correspondence, documentation from a range of other sources, and Dr Krishna’s own admissions; that his overwhelming sense of injustice at his treatment by the Health Board had extended into a paranoid view of all authority and the GMC, in particular. This caused Dr Krishna to view every action of the GMC as further acts of vindictive, oppressive and unfair behaviour. In reality, as was overwhelmingly apparent from the evidence of all the respondents and from the contemporaneous documentation, the GMC and the other respondents were simply complying with the GMC’s statutory duties and obligations by carrying out a fitness to practice investigation and proceedings in a reasonable and fair manner. In their dealings with Dr Krishna, all the respondents went to considerable lengths to accommodate his distressed mental state.

[105]Some of the detriments identified by Dr Krishna had no factual basis. In respect of all the detriments that did have a factual basis, we decided that a reasonable Doctor, about whom a complaint has been made, which met the threshold criteria, would accept that the GMC had a duty to carry out an investigation in accordance with its procedure and would take steps to co-operate in that process. Dr Krishna did not do so, he persistently frustrated the process, borne from his powerful but unreasonable sense of grievance against the GMC. The steps which the GMC took to progress the investigation in the face of Dr Krishna’s resistance were reasonable and proportionate and were not detrimental to him.

[106]Dealing with the detriments individually our conclusions were:(a) This was simply an inquiry, not an instruction or a request and certainly not harassment. We accepted Mr Done’s explanation and found that this was not a detriment as described above.

(b) This was a request in response to Dr Krishna indicating his consent in his letter of the previous day. It was not harassment and did not amount to a detriment as described above.

(c) This was simply a statement of the rules informing Dr Krishna of the possible consequences of not cooperating with a health assessment. It did not amount to a threat and was not a detriment.

(d) Mr Done was simply continuing with an ongoing investigation in the context of Dr Krishna himself acknowledging he was not fit and seeking support. It would not be within his power to cease such an investigation, in any event. This was not a detriment.

(e) Miss Farrell did not issue a threat, she was simply replying to Dr Krishna’s complaint and clarifying the position to him. This was not a detriment.

(f) These individuals did not refuse to obtain reports. Dr Krishna was aware of the process and had the opportunity to provide any reports which he wished the health assessor to see. This was not a detriment.

(g) Dr Sievewright did not lie in his report and there was no detriment.

(h) There is no factual basis for this allegation and it does not amount to a detriment.

(i) This allegation was withdrawn by Dr Krishna during the proceedings.

(j) It was not a detriment for the GMC to consider Dr Krishna’s complaint and decide that it was not able to investigate as the matters raised were not fitness to practise issues.

(k) The complaint against Mr Donnelly was unfair and unfounded and arose from Dr Krishna’s unjustified sense of grievance. In these circumstances the dismissal of his complaint, communicated to him with a clear explanation of why, was not a detriment.

(l) This allegation was withdrawn.

(m) The GMC, Mr Done, Mr Donnelly and Dr Sievewright did not place factually incorrect and prejudiced information before the GMC’s case examiners and hence it did not amount to a detriment.

(n) This allegation was withdrawn.

(o) Miss Couchman did not threaten Dr Krishna with referral to the FPP and hence there is no detriment.

(p) The same apply as (j); it was not unreasonable to uphold the decision upon review and does not amount to a detriment.

(q) Dr Krishna had pleaded guilty to the first allegation and the second was merely the consequence his failure to participate in the health assessment process. This does not amount to a detriment.

(r) There was no evidence to support this allegation. The GMC, Mr Done, Mr Donnelly and Dr Sievewright did not cause the case examiners to discrimination against Dr Krishna and there was no detriment.

(s) The referral to a fitness to practise tribunal was an inevitable consequence of Dr Krishna’s failure to participate, which arose from his own unjustified sense of grievance. As the respondents explained, there was no other option open to them. The claimant had caused the situation through his own unreasonable behaviour and the referral did not amount to a detriment.

(t) The GMC did not resist a postponement of the hearing and this does not amount to a detriment. The claimant was provided with clear reasons for the refusal to postpone the hearing, in any event, that decision was not made by the GMC or any of the other respondents. Given that Dr Krishna was given clear reasons for the refusal to postpone, the absence of a personal reply from Professor Stephenson does not amount to a detriment. (v) There is no evidential basis to this allegation. Miss Eldridge provided all relevant documentation to the panel and Dr Krishna was given the opportunity to add anything further that he felt appropriate. This does not amount to a detriment. (w) There was no rejection of a request for an administrative erasure on the 15th of June and this does not amount to a detriment. (x) This was a statement of fact rather than a threat and does not amount to a detriment.

[107]Even if we are wrong about our findings on detriment; Dr Krishna could not point to any evidence of a connection between the protected acts and the GMC’s actions, throughout this process. There was no evidence before us of a causal link, in the sense of material influence, between any of the protected acts and the detriments. Causation was not even referred to in Dr Krishna’s witness statement and he provided no evidence in cross examination for the basis of his belief of a causal link.

[108]All the respondents and their witnesses gave clear and compelling accounts of why they took the steps that they did and denied any causal link with the protected acts and we accepted their evidence. Except for Dr Sievewright, none of the individual respondents had ever met Dr Krishna and the entirety of their communications with and about him were recorded within the documentation, within which there was nothing to suggest that his protected acts had any material influence on their decision making. Our conclusion is further supported by the fact that the complaint had been identified as requiring investigation, and that process had commenced before the first protected act was even made.

[109]Even if there was evidence before us from which we could reasonably decide that the respondents’ actions were influenced, to Dr Krishna’s detriment, by his protected acts, we accepted the evidence of all those involved in the investigation and decision making process as to why they took the steps that they did; carrying out their duties and responsibilities to respond appropriately to a complaint and to investigate Dr Krishna’s fitness to practice in accordance with GMC statutory obligations, policies and procedures.

[110]Given our conclusions, it is not necessary to address the jurisdictional point in respect of detriments (j) and (p) in detail, save that taking into account his serious mental health issues at the time and his challenging personal and family circumstances; notwithstanding that he was capable of entering into extensive correspondence with many organisations on a range of matters and was alleging victimisation and harassment; we decided it would be just and equitable to extent time to allow those claims to proceed and so we made our findings about them alongside the others.

[111]For the reasons laid out above, Dr Krisha’s claim of victimisation fails and is dismissed.