Arunoday Arunoday v General Medical Council [2026] EWHC 1746 (Admin)

[2026] EWHC 1746 (Admin)IN THE HIGH COURT OF JUSTICEKING’S BENCH DIVISIIONADMINISTRATIVE COURTAND IN THE MATTER OF an appeal under section 40 of the Medical Act 1983AC-2025-LON-004590Date 10/07/2026
Before
MR JUSTICE POOLE
Between
ARUNODAY ARUNODAYAppellantGENERAL MEDICAL COUNCILRespondent
Alexandra Felix KC (instructed by the Medical Defence Union) for AppellantDavid Hopkins (instructed by GMC Legal) for RespondentHearing Hearing date: 2 July 2026
APPROVED JUDGMENT

Introduction

[1]This is an appeal under the Medical Act 1983 (“MA 1983”) s40 against the determination of a Medical Practitioners Tribunal (“the Tribunal”) that the appellant Dr Arunoday’s fitness to practise is impaired and that his name should be erased from the register. There is no argument that the Tribunal was entitled so to decide if its findings of fact were sustainable. The appeal is, in essence, against those findings. The appellant’s case is that on a proper consideration of the evidence, no reasonable tribunal could have made the findings the Tribunal made.[2]The Tribunal, which comprised three members, made its findings in a written determination of facts on 20 November 2025, day nine of the hearing, having heard applications on the first day, oral evidence over four days, and closing submissions on day six. It took two days for deliberations and then gave determination on the facts the following day. The findings all concerned Dr Arunoday’s conduct towards another employee of the Trust where he worked. She was Ms A. Two allegations had been admitted by Dr Arunoday, and one was found not proved. All the other disputed allegations were found proved. The charges containing the allegations are set out in Appendix 1 to this judgment. They included allegations of inappropriate sexualised messaging between 1 June 2021 and 12 August 2021, rape in an on-call room at the Trust’s hospital on 20 June 2021, rape at Ms A’s home on 12 July 2021, and unwanted sexual conduct towards Ms A on 26 July 2021 whilst at work with her.[3]The grounds of appeal are that the findings that the allegations were proved were procedurally flawed and/or wrong because: “(i) The Tribunal made errors of principle in its approach in failing properly to analyse the evidence and thus to make a rounded assessment of Ms A’s reliability in that it: a) failed to take into account relevant considerations; b) took into account irrelevant considerations; (ii) Consequently, the Tribunal reached findings of fact that were not open to it as a matter of principle, (iii) The only conclusion that any reasonable Tribunal could have reached on the evidence was that the allegations were not proved so that the findings of the Tribunal were wrong.” a) failed to take into account relevant considerations; b) took into account irrelevant considerations;[4]In the present case there were no independent witnesses to the alleged conduct, only Ms A and Dr Arunoday. The Tribunal did hear from witnesses with whom Ms A had raised concerns about Dr Arunoday both at work and outside work. They were Mr S, a clinical lead, and Mr L, Ms A’s ex-partner. The Tribunal also received written evidence from Ms F, a lead practitioner the Northern Care Alliance NHS Foundation Trust which employed both Dr Arunoday and Ms A (“The Trust”). Ms A reported sexual conduct by Dr Arunoday towards her to which she had not consented. However, no-one except Dr Arunoday and Ms A were parties to or saw messaging between them, no-one else was present at the time of any sexual harassment, or during or in the immediate aftermath of the alleged rapes. Nor was there any forensic scientific or medical evidence before the Tribunal.[5]Dr Arunoday’s answer to the allegations against him was that he and Ms A had had a short consensual sexual affair which had begun with sexualised messaging. She was as much the instigator as he was. Hence there were no rapes; only consensual sex. In that context, the messaging and other conduct was neither inappropriate nor sexual harassment. It was reciprocal and enjoyed by both of them. He denied some of the alleged contents of his messaging but not that he engaged in what is commonly called “sexting”. He denied ever having sent Ms A a picture of his penis. He also denied having had anal sex with Ms A on 12 July 2021 as alleged. Otherwise, the sexual acts were largely accepted save that he denied using any force and denied that Ms A did not consent – she was a willing partner.[6]Although Dr Arunoday did not formally admit that he had had sexual intercourse and oral sex with Ms A at her home on 12 July 2021 (allegations 5(d)(i) and (iii)) he did accept that he had done so in his written and oral evidence.[7]The Tribunal’s determination of facts has been published with information as to Dr Arunoday’s specialism and the name of the Trust at which he worked included, but with Ms A’s anonymity preserved and certain other information redacted or removed. I have adopted the same approach in this judgment save that I have included dates of events which were redacted in the published determination. I do not believe that publication of the dates, which aids understanding, will be liable to identify Ms A.[8]I have a bundle of the written evidence before the Tribunal, transcripts of oral evidence given to it, and its written determinations. I have received written and oral submissions from Counsel for the appellant and respondent for which I am most grateful.[9]Dr Arunoday qualified as a doctor in 1998 and registered with the GMC in August 2005. He was employed as a Consultant Neonatologist at a hospital operated by the Trust. Ms A also worked for the Trust but had been shielding during the Coronavirus pandemic and returned to work in March 2021. Dr Arunoday had joined the Trust whilst she had been shielding at home and so they had not previously met. In short, Ms A stated that friendly messaging from Dr Arunoday swiftly escalated into unwanted personal and then sexual communication. She felt bombarded with his messages. Dr Arunoday was in a position of authority over her, and she found it difficult to negotiate his messaging and conduct towards her. He cajoled her into using Snapchat, a messaging platform where messages disappear soon after having been read, and it was when on Snapchat that the sexualised messaging began. He sent her a picture of his penis. She alleged that he used his role at the Trust and his awareness of her health condition to manipulate her and to persuade her to go to his on-call room on 20 June 2021. There, as he began to touch her sexually and tried to kiss her, she froze but told him she wanted him to stop. He persisted. He put his hand over her mouth. He used his body weight on top of her and an arm across her chest and had penile/vaginal sexual intercourse with her. About three or so weeks later he attended her house uninvited. Again, he made unwanted sexual advances and she froze. She did tell him to stop but he persisted, pushing her down on the bed and pinning her there. His penis penetrated her vagina, anus, and mouth on this occasion, she alleged.[10]Ms A reported professional concerns about Dr Arunoday to Mr S on 5 August of which Ms F was made aware. It was felt that “things weren’t quite right” and so Ms F followed up with Ms A the following day. In their discussion, Ms A opened up about Dr Arunoday’s conduct, including what Ms F referred to as non-consensual sex between him and Ms A in the on-call room. Ms F decided, against Ms A’s wishes, to report the information to her senior managers. Ms A then made a statement to the Trust about Dr Arunoday’s conduct on 10 August 2021 but no further action was taken. She then had sickness absence for six months before returning with arrangements that meant that her and Dr Arunoday would not work together. Nevertheless, Ms A maintained, Dr Arunoday made contact with her, and she decided to report matters to the police. She gave an interview on 16 September 2022. Dr Arunoday was subsequently arrested, interviewed, and bailed. In April 2024, the police released him from bail and decided to take no further action. Dr Arunoday self-referred to the GMC in October 2022.[11]Ms A was cross-examined by Ms Felix KC before the Tribunal over the course of two days. Dr Arunoday gave oral evidence over the course of a day, being cross-examined by Counsel for the GMC (not Mr Hopkins). He maintained that Ms A enjoyed sex with him and enjoyed the sexting which they engaged in together. It had all been reciprocal. She had no reason to be distressed by the messaging. He accepted that he had referred to his “inner Lucifer” in messaging with Ms A but said this referred to his being unfaithful to his wife rather than to any inappropriate sexual conduct with Ms A, or indeed her rape by him.[12]The messaging on Snapchat was not available to the Tribunal, nor was much of the other messaging between Dr Arunoday and Ms A, but the Tribunal did have some Facebook messaging from 2 to 9 August 2021 which I have also seen and which is of a non-sexual nature, but includes complaints by Ms A about Dr Arunoday. Both of them had deleted earlier Facebook or other messaging.

The Tribunal’s Determination

[13]The Tribunal’s written determination on the allegations (what is referred to as Stage 1 of its proceedings) runs to some 30 pages. Having recorded some preliminary matters, the allegations and admissions, and the witnesses from whom it had received evidence, the Tribunal set out its approach. It was assisted not only by submissions from Counsel but also by the advice of the Legally Qualified Chair. Save for one issue in relation to whether evidence was truly “corroboratory”, no point is taken by Ms Felix KC that the Tribunal misdirected itself as to the law. It referred to the burden and standard of proof. It adopted Ms Felix’s reference to Jones v Birmingham City Council [2023] UKSC 27, para. 51 concerning the inherent improbability of an event having occurred as a relevant factor to take into account when considering the evidence.[14]The Tribunal referred to the guidance about assessing credibility of witnesses and the fallibility of human memory, from Gestmin SGPS S.A. v Credit Suisse [2013] EWHC 3560 (Comm). It reminded itself to consider the evidence as a whole and to consider documentary evidence before assessing an oral witness’s credibility. It reminded itself that in cases of flat denial it is common for there to be inconsistency and confusion in some of the detail but that the Tribunal had to consider whether the core allegations were true. It referred to the statutory definition of harassment under the Equality Act 2010 and cautioned itself against making assumptions about “typical” responses to rape. It directed itself as to the issue of consent to sexual relations. It gave itself a “good character” direction.[15]Importantly, the Tribunal expressly reminded itself that English was not Dr Arunoday’s first language and that this may impact the quality of his evidence. It referred to the Equal Treatment Bench Book in this respect. It reminded itself further of this factor when analysing the evidence in detail.[16]The Tribunal then analysed the evidence and made its findings from paragraphs 43 to 134. The analysis was crisp and clear. The Tribunal reviewed the evidence in relation to the early messaging between Dr Arunoday and Ms A and its escalation to sexual content. It recorded that it found her evidence in relation to the core of her allegations to have been consistent, including when being cross-examined, whereas Dr Arunoday had been evasive during cross-examination and his version of events had changed over time prior to the hearing. It concluded that Dr Arunoday had instigated discussion of sexual matters over Snapchat, sending Ms A a large number of sexual messages which had been inappropriate. Later the Tribunal referred to evidence from others that Ms A was distressed by receiving messages from Dr Arunoday and said that this added “significant weight to the account of [Ms A] and her reliability as a witness.”[17]As to the allegation that Dr Arunoday had sent a picture of his penis to Ms A, the Tribunal did not have any messages or pictures from the relevant time and so had to assess the credibility of Dr Arunoday and Ms A accordingly. It found his explanation that he had sent an image but that it was only of his upper thighs, not to be credible.[18]The Tribunal went on to make findings in respect of other messaging and requests by Dr Arunoday which, it determined, were part of a pattern of behaviour by him following his instigation of inappropriate, sexualised messaging. It recorded that Dr Arunoday had accepted, for example, that he had said to Ms A that he wanted to ejaculate inside her (but had denied her allegation that he had added that he would do so even if she said he could not, or words to that effect). It found that Ms A had been consistent in making complaints, for example to the police, and had no reason to embellish her account. It made the findings accordingly.[19]As to the allegation of Dr Arunoday watching Ms A’s location on Snapchat, the Tribunal noted his acceptance that he had used a location function on Snapchat but that he had done so that she could see where he was as he approached her house. The Tribunal found that the balance of the evidence proved that allegation.[20]The Tribunal noted that Dr Arunoday admitted he had asked Ms A on more than one occasion to go to his on-call room for sex but denied this was inappropriate because it was part of an ongoing mutual sexual relationship. He accepted that they had kissed in that room as alleged but objected that the word “tried” in the relevant allegation implied that his kissing her was unwanted, whereas it was wanted. The Tribunal found that he had tried and succeeded in kissing Ms A and the allegation was proved.[21]As to the very serious allegation of rape on 20 June 2021, the Tribunal took care to review the evidence provided to it. Dr Arunoday had said that he did put his hand over Ms A’s mouth but only to encourage her not to make a loud noise (they were having sex in a work environment). His evidence had been that he was “keen to have sex with her as I found [her] very attractive and I was excited by the idea, but I did not put any pressure on her …” He said that she had come into the room and undressed and lain on the bed. She had never asked him to stop during sex.[22]The Tribunal weighed up the consistency of the accounts and the importance of complaints to others. It determined that “[Ms A]’s account was more credible and it was more likely than not that Dr Arunoday had carried out the actions at paragraph 3 of the allegation without her consent.” It found that he did not have a reasonable belief that she was consenting.[23]A similar analysis followed in respect of the alleged rape and other sexual assaults at Ms A’s home on 12 July 2021. The Tribunal regarded Ms A’s complaints to Ms F in early August 2021 as “corroboratory”. It found the allegations regarding this date as proved and that Ms A neither consented nor did Dr Arunoday genuinely believe that she had consented to the sexual activity which they found had occurred.[24]The Tribunal found that Dr Arunoday’s conduct amounted to sexual harassment and recorded:
“The Tribunal concluded that Dr Arunoday set out to pursue a sexual relationship with [Ms A] using work-related premises and by exploiting his seniority, playing on [Ms A]’s vulnerabilities and instigating sexual communications and interactions. It determined that Dr Arunoday’s course of conduct and the way that he carried it out was an abuse of his more senior position.”

Legal Framework

[25]A right of appeal to challenge the decision of a Medical Practitioners Tribunal is granted to medical practitioners. MA 1983 s40 provides: "40. (1) The following decisions are appealable decisions for the purposes of this section, that is to say— (a) a decision of a Medical Practitioners Tribunal under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration;” Appeal is to the High Court of Justice. MA 1983 s40(7) provides that on appeal the court may: “(a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Medical Practitioners Tribunal; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit.” (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Medical Practitioners Tribunal; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit.”[26]By CPR Rule 52.21:
"(1) Every appeal will be limited to a review of the decision of the lower court unless— (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (3) The appeal court will allow an appeal where the decision of the lower court was— (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (4) The appeal court may draw any inference of fact which it considers justified on the evidence."
[27]By CPR PD52D, paragraph 19, this statutory appeal is by way of re-hearing. In Ghosh v General Medical Council [2001] 1 WLR 1915 Lord Millett addressed the issue of the court’s (then the Board’s) jurisdiction and powers under MA 1983 s40:
“Practitioners have a statutory right of appeal to the Board under section 40 of the Medical Act 1983, which does not limit or qualify the right of the appeal or the jurisdiction of the Board in any respect. The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes.”
[28]In R (Dutta) v GMC [2020] EWHC 1974 (Admin), at para. 21, Warby J referred to the nature of the re-hearing when a statutory appeal is essentially against a determination of facts. In referring to Raschid v GMC [2007] EWCA Civ 46, [2007] 1 WLR 1460, Gupta v GMC [2001] UKPC 61, [2002] 1 WLR 1691 Yassinv GMC [2015] EWHC 2955 (Admin), Meadow v GMC [2006] EWCA Civ 1390, Southall v GMC [2010] EWCA Civ 407, and Casey v GMC [2011] NIQB 95, Warby J extracted the following points of importance:
“(1) The appeal is not a re-hearing in the sense that the appeal court starts afresh, without regard to what has gone before, or (save in exceptional circumstances) that it re-hears the evidence that was before the Tribunal. “Re-hearing” is an elastic notion, but generally indicates a more intensive process than a review: E I Dupont de Nemours & Co v S T Dupont (Note) [2006] 1 WLR 2793 [92-98]. The test is not the “Wednesbury” test. (2) That said, the appellant has the burden of showing that the Tribunal’s decision is wrong or unjust: Yassin [32(i)]. The Court will have regard to the decision of the lower court and give it “the weight that it deserves”: Meadow [128] (Auld LJ, citing Dupont [96] (May LJ)). (3) A court asked to interfere with findings of fact made by a lower court or Tribunal may only do so in limited circumstances. Although this Court has the same documents as the Tribunal, the oral evidence is before this Court in the form of transcripts, rather than live evidence. The appeal Court must bear in mind the advantages which the Tribunal has of hearing and seeing the witnesses, and should be slow to interfere (4) Where there is no question of a misdirection, an appellate court should not come to a different conclusion from the tribunal of fact unless it is satisfied that any advantage enjoyed by the lower court or tribunal by reason of seeing and hearing the witnesses could not be sufficient to explain or justify its conclusions: Casey [6(a)]. (5) In this context, the test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Yassin [32(v)]. (6) The appeal Court should only draw an inference which differs from that of the Tribunal, or interfere with a finding of secondary fact, if there are objective grounds to justify this: Yassin [32(vii)]. (7) But the appeal Court will not defer to the judgment of the tribunal of fact more than is warranted by the circumstances; it may be satisfied that the tribunal has not taken proper advantage of the benefits it has, either because reasons given are not satisfactory, or because it unmistakably so appears from the evidence: Casey [6(a)] and cases there cited, which include Raschid and Gupta (above) and Meadow [125-126], [197] (Auld LJ). Another way of putting the matter is that the appeal Court may interfere if the finding of fact is “so out of tune with the evidence properly read as to be unreasonable”: Casey [6(c)], citing Southall [47] (Leveson LJ). 22. Ms Hearnden places heavy reliance on another passage from Southall [47], where Leveson LJ observed that “… it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable.”
However, it is clear from paragraph [47] read as a whole, that this sentence does not purport to represent a distinct principle, imposing a more exacting test than those I have identified. Rather, it is intended to be a distillation of the jurisprudence I have summarised. Southall [47] also shows that the passage I have quoted from Casey [6(c)] reflects high authority. It is a variation of words used by Lord Hailsham, sitting in in the Privy Council, in Libman v General Medical Council [1972] AC 217, 221F.”[29]In Yassin v GMC (above) the court was concerned with an appeal against a decision to erase a medical practitioner from the register, the appeal being confined to the determination of facts made by the GMC’s Fitness to Practise Panel. Mr Justice Cranston summarised the principles to be applied on such an appeal:(i) The Panel’s decision is correct unless and until the contrary is shown: Siddiqui v. General Medical Council [2015] EWHC 1996 (Admin), per Hickinbottom J, citing Laws LJ in Subesh v.Secretary of State for the Home Department [2004] EWCA Civ 56 at [44];(ii) The court must have in mind and must give such weight as appropriate in that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: Gosalakkal v. General Medical Council [2015] EWHC 2445 (Admin); iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not; iv) The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v. General Medical Council [197], per Auld LJ; v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577, [197], per Ward LJ; vi) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council [2010] EWCA Civ 407, [47] per Leveson LJ with whom Waller and Dyson LJJ agreed; vii) If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui, paragraph [30](iii). viii) Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall v. General Medical Council [2010] EWCA Civ 407, [55]-[56]. ix) A principal purpose of the Panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani and Raschid v. General Medical Council [2007] EWCA Civ 46, [19], per Laws LJ.”[30]Ms Felix KC has referred the court to further authorities regarding the deference with which the appeal court should approach the determinations of a Tribunal which has professional experience - see Byrne v GMC [2021] EWHC 2237 (Admin), PSA v Danial and GDC [2024] EWHC 2610 (Admin), and GMC v Foy-Yamah [2025] EWHC 2846 (Admin). The authorities have become rather complex on this issue, but it is established that the deference or respect afforded will depend on the nature of the issues. The nature of the allegations in the present case was not such that the professional expertise of the Tribunal was particularly relevant to its determination of the facts.[31]I am assisted also by the dicta in Volpi v Volpi [2022] EWCA Civ 464 in which Lewison LJ held that the following principles apply to an appeal on a pure question of fact:
“i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
These important and well-established principles apply equally to a statutory appeal against determinations of fact as they do to appeals from judges. They apply equally to an appeal by way of re-hearing as they do to an appeal by way of review.[32]In relation to findings of fact, the Tribunal determination included the following dicta from Jones v Birmingham City Council [2023] UKSC 27 para. 51:
“…the inherent improbability of an event having occurred will, as a matter of common sense, be a relevant factor when deciding whether it did in fact occur. As a result, proof of an improbable event may require more cogent evidence than might otherwise be required. However, the seriousness of an allegation, or of the consequences which would follow for a defendant if an allegation is proved, does not necessarily affect the likelihood of its being true. As a result, there cannot be a general rule that the seriousness of an allegation or of the consequences of upholding an allegation justifies a requirement of more cogent evidence where the civil standard is applied.”
The burden of proof was on the GMC and the standard of proof was the balance of probabilities.[33]The appeal is not brought on the grounds that the Tribunal gave insufficient reasons. Nevertheless, Ms Felix KC contended that the absence of detailed reasons in the Tribunal’s determination demonstrated its lack of analysis of the evidence. Mr Hopkins, for the GMC, assisted the court by referring to the judgment of Morris J in Byrne v GMC [2021] EWHC 2237 (Admin), paras. [24] to [27]. Where the Tribunal is faced with a choice as to the credibility of competing accounts of two witnesses, the adequacy of reasons given will vary.

Submissions

[34]For Dr Arunoday, Ms Felix KC’s “overarching submission” is that since the allegations against him were of very serious criminal offences it was “inherently improbable” that he would have behaved in that way, such that the quality of the evidence had to be sufficiently high to support the findings.[35]She criticised the Tribunal’s determination for lacking recognition and analysis of important details in the evidence. Ultimately, however, her submission was that even allowing for a generous ambit for disagreement as to conclusions, no reasonable tribunal could have properly concluded that the evidence was sufficiently cogent to allow for the findings to be made against him. It was irrational for the Tribunal to have found the allegations to be proved.[36]Recognising, as she did, that this was a high hurdle for the appellant to overcome, Ms Felix KC set out in her written skeleton argument, supplemented by her oral submissions, a detailed analysis of several parts of the evidence. For the sake of economy, I shall not set out Ms Felix KC’s detailed analysis of the evidence in this judgment but I shall refer to some parts of importance.[37]In Ms Felix’s submission, the Tribunal reached impermissible conclusions as to the early stages of the messaging between Dr Arunoday and Ms A. The Tribunal then relied on those conclusions to make findings about the rape and other allegations. In short, the Tribunal’s errors concerning the allegations at paragraph 1 of the charges infected the remainder of its determinations.[38]Ms Felix KC submitted that the Tribunal failed to take into account relevant evidence about the initial messaging, including contradictory evidence regarding when messaging had begun. Ms A said that relations had been purely professional but that the sexual messaging started when the parties had begun using Snapchat at Dr Arunoday’s suggestion. This was after she had begun a family holiday on 7 June 2021. The Tribunal did not take into account contradictory evidence from Dr Arunoday’s Facebook page or from Mr L. Ms A herself had admitted during cross-examination that she may have sent sexual messages to Dr Arunoday, but the Tribunal did not take that evidence into account.[39]Ms Felix KC submitted that the Tribunal took into account irrelevant considerations in relation to whether the messaging had been “inappropriate”: the speed with which messaging via Snapchat was introduced, inconsistencies in Dr Arunoday’s evidence which, if any, could be accounted for by language difficulties, and his perceived evasiveness during cross-examination.[40]It was submitted further that: i). The Tribunal’s finding that Dr Arunoday’s account that he sent only an image of his thighs (not his penis) was not credible, was not based on sufficiently reliable evidence. ii). The Tribunal disregarded evidence which undermined Ms A’s credibility. Records show that she had spent over an hour on the phone to Dr Arunoday on one day, only two to three weeks after she alleges he raped her, using force, in her own home. This, argued Ms Felix, tended to show that she had not in fact been raped by him. Messaging from August 2021 showed that Dr Arunoday asked Ms A’s permission to visit her at home which undermined her case that he was a violent rapist who had come to her house uninvited on 12 July 2021. On 2 August 2021, she responded to Dr Arunoday’s message that he was sorry he had “passed out last night” in a way that showed that she knew why he had done so, when her evidence was that she had had no dealings with him the night before. There were other examples put forward in submissions.[41]As to the findings regarding the rape in the on-call room on 20 June 2021, Ms Felix KC submitted that the quality of the evidence was simply insufficient to support the findings made. The Tribunal omitted to consider why she had gone to the on-call room rather than to go home if she was unwell, or not to attend there at all.[42]Ms Felix KC submitted that the findings of rape on 12 July 2021 were clearly unjustified. It was so inherently improbable that Dr Arunoday would turn up uninvited at Ms A’s home and then use force to rape her vaginally, orally, and anally, that particularly cogent evidence was required. There had been no reason to dismiss Dr Arunoday’s evidence that they had arranged the meeting and he had bought wine in advance of it. Dr Arunoday had given a frank and free-flowing account to the police when they had interviewed him (without a solicitor present, at his own choice) after turning up at his home in 2022. He had had no time to prepare a case and English was his second language. He gave an account of having had sexual intercourse with Ms A on a number of occasions, not just the two which were alleged to have involved rape. There was no advantage to him in saying so. He ought to have been found to have been telling the truth. His account could not simply be discounted.[43]Ms Felix KC took issue with the Tribunal’s finding at paragraph 120, that, in relation to the allegations at paragraphs 3 and 4 of the charges, there was “corroboratory evidence supporting [Ms A]’s version of events.” The Tribunal was referring to Ms A’s complaints to her line managers about Dr Arunoday. These witnesses could only speak to previous consistent statements by Ms A and did not provide any independent corroboration.[44]I asked Ms Felix KC, who represented Dr Arunoday at the Tribunal as well as on appeal, what his case had been as to why Ms A had lied about not consenting to the messaging and sex. She properly reminded me that there was no burden of proof on Dr Arunoday to show why Ms A might not be telling the truth but that the case put to her was that her untruthful reporting in 2021 was connected to the difficulties she was experiencing on returning to work after a long absence, Dr Arunoday having picked her up on some errors she had made.[45]Mr Hopkins submitted that the court must assume, in the absence of compelling evidence to the contrary, that the Tribunal took into account all the evidence before it. It expressly referred to the evidence it had received. It was not obliged to resolve every dispute in the evidence, but to focus on the core issues. The fact that it did not, for example, expressly address evidence from Mr L about when Ms A started using Snapchat – evidence which contradicted her own account – did not mean that it had not taken his evidence into account.[46]Mr Hopkins submitted that the authorities were clear that the court should not interfere with determinations of facts of the kind under consideration unless there were exceptional circumstances. Such findings are “virtually unassailable” (Southwell above). When the crux of the case before the Tribunal was whether agreed sexual conduct had been consensual or not, and the determination turned on the credibility of Dr Arunoday and Ms A, the advantage that the Tribunal had over this court from having seen and heard both of them give evidence at length, was highly significant.[47]It was submitted that the Tribunal’s determination was detailed, it covered each allegation and set out reasons for each conclusion. The important evidence was addressed and the whole of the evidence can be taken to have been considered. The weight to be given to the evidence was a matter for the Tribunal. There was no error in its self-directions (the appellant does not allege any such error). The decisions are unassailable and should be upheld. The determinations at Stages 2 (impairment of fitness to practise) and 3 (the sanction of erasure) inevitably followed.

Analysis and Conclusions

[48]Although the allegations before the Tribunal were of the utmost seriousness and required anxious consideration, they were not complex. The allegations were not difficult to understand. There was no scientific or medical evidence to consider. The documentary evidence was very limited and the Tribunal did not have copies of messaging alleged to have been inappropriate and highly sexualised. Witnesses other than Ms A and Dr Arunoday gave no evidence that was contemporaneous with the alleged conduct. Subject to some disputes about particular elements of alleged conduct, such as whether Dr Arunoday sent a picture of his penis or of his upper thighs, many of the alleged interactions were not contested: Dr Arunoday accepted that he had sent sexualised texts to Ms A, and that they had sex in the on-call room and at her home on the dates alleged. The core issue was whether these were the interactions of two consenting adults or whether Ms A had been an unwilling participant in the messaging and had not consented to intercourse and other sexual acts.[49]The fact that the allegations were very serious does not mean that the Tribunal could not properly find them proved on evidence that was overwhelmingly dependent on Ms A’s testimony. The Tribunal had to be mindful of the need for the evidence to be sufficiently cogent. It had to eschew stereotypical assumptions, including about how a victim of rape might react or behave. It had to take into account the doctor’s own particular circumstances, including that English was not his first language. It had to take his good character into account in relation to his credibility and propensity. The Tribunal reminded itself of all these matters. The Tribunal also expressly considered the inherent improbability of Dr Arunoday acting as alleged.[50]This was not a case in which the doctor flatly denied that certain interactions had taken place at all. Rather, subject to two disputed factual allegations, the dispute was about the context of the interactions between him and Ms A. Was it all consensual and reciprocal, or was she an unwilling, non-consenting party? Did he know that she was? The Tribunal was not obliged to resolve every evidential issue in its determination. It had to keep its eye on the core issues and the particular allegations.[51]It might have been open to the Tribunal to find that even if some of the interactions between Dr Arunoday and Ms A were consensual, some were not. Or it could have found that even if all of them were consensual, Dr Arunoday’s conduct was nevertheless inappropriate. But it did not. It concluded that, except for one relatively minor matter, all the allegations were proved.[52]The Tribunal saw and heard both Ms A and Dr Arunoday give evidence including, in each case, under prolonged cross-examination. It was entirely proper that it did so. The process of cross-examination allows for full scrutiny of the witness’s evidence, tests their reliability and credibility, and enables the court or tribunal to assess the oral evidence alongside the written witness and documentary evidence and the oral testimony of other witnesses. The Tribunal had a significant advantage over this court from hearing and seeing Dr Arunoday, Ms A, and the two other witnesses give evidence under cross-examination by Counsel. As it set out in its determination, the Tribunal found Ms A’s evidence to be credible. She had been consistent in her allegations. It found that her conduct and her interactions with others during and shortly after the period when the alleged conduct occurred, were consistent with her account, and that the accepted facts and the context for the relationship between her and Dr Arunoday supported her allegations. The Tribunal recognised some inconsistencies and gaps in her evidence but found her core allegations to be credible and reliable. In contrast, the Tribunal found that there were inconsistencies in Dr Arunoday’s evidence which were of more significance, that he was evasive under scrutiny at the hearing, and that the undisputed facts, the context of the relationship, and Ms A’s interactions with others were inconsistent with his account.[53]It is not for this court to decide whether different conclusions could, or even should, have been reached. The assault on the Tribunal’s determinations of fact is that they were not open to it: no tribunal acting rationally and reasonably could have reached those conclusions on the evidence before the Tribunal. Ms Felix KC has put up a determined fight for the appellant but, as she recognised, findings of fact in a case such as this are “virtually unassailable”.[54]I found Ms Felix KC’s detailed, forensic analysis of the evidence to be unpersuasive. Indeed, in relation to the important findings as to the initial stages of the messaging, Mr Hopkins was able to refer me to the actual findings which undermine Ms Felix’s submissions. Ms A’s evidence was not inconsistent with the Facebook posts relied upon by Dr Arunoday. The parties had agreed that at first they had had a friendly professional relationship. The Tribunal concluded at [63] that:
“… it was more likely than not that Dr Arunoday had asked [Ms A] to download Snapchat whilst she was away on holiday from the week commencing 7 June 2021. It also concluded that Dr Arunoday had instigated discussion of sexual matters with [Ms A] and that his actions in doing so under the circumstances were inappropriate.”
[55]It appears to me that even if Ms L’s evidence was that Ms A started using Snapchat before her holiday on 7 June 2021, the Tribunal was entitled to find that she had only done so later, and that none of the other conclusions at para. 63 are inconsistent with the evidence Ms Felix KC relies upon.[56]The difficulty with a detailed analysis of the evidence is that it simply invites a re-run of the exercise carried out by the Tribunal. This is an appeal by way of re-hearing but, as set out in the authorities above, it is not a full re-hearing and testing of the evidence. I have been assisted by Ms Felix KC’s written submissions to scrutinise the evidence in detail but, in doing so, have found no basis for deciding that the Tribunal’s conclusions were impermissible. Indeed, the exercise has tended only to reinforce why the Tribunal reached its conclusions.[57]The Tribunal may have used the term “corroboratory” in paragraph [120] loosely. It is reasonably clear that they meant that Ms A’s previous complaints to others were consistent with her evidence to the Tribunal and that this supported her version of events. Earlier in its determination, the Tribunal held that Ms A’s reports to others that Dr Arunoday’s messaging was causing her distress, and the observations by others of her distress, “added significant weight to the account of [Ms A] and her reliability as a witness.” The evidence of distress was not at all consistent with Dr Arunoday’s evidence that the two of them were enjoying reciprocal, sexual messaging which would not cause Ms A any distress at all – indeed, that she was enjoying it.[58]Some of Ms Felix KC’s submissions strayed into areas that she agreed the Tribunal should not enter, namely relying on assumptions about stereotypical responses to unwanted sexual messaging, or to rape. For example, she submitted that it was “highly unlikely” that Ms A would not tell her family about the content of the messaging from Dr Arunoday when her family noticed the messaging during a family holiday. But the evidence was clear that whilst they knew she was being troubled by messaging, they did not know anything about its content. Ms A explained, in her own words, that her relationship with other family members, such as her father, was not such that she would open up to them about “sexting”. That is a perfectly credible account and certainly one which the Tribunal was entitled to find credible. Likewise, Ms A’s account of how she felt manipulated by Dr Arunoday, who was in a position of authority over her at a time when she was vulnerable having only recently returned to work after a long absence, and when she had a health condition, might well explain why she continued to have contact with him even after the rape, and why she took his calls and answered some (but by no means all) of his non-sexual messages with courtesy.[59]The Tribunal’s determination must be read as a whole. It had to start somewhere and it went through the allegations one by one. However, in essence this was a case about the credibility of the two central persons. Read as a whole, it is quite clear why the Tribunal decided to rely on the evidence of Ms A over that of Dr Arunoday across all the allegations. It was clearly entitled to observe that he had been evasive during cross-examination. It was not obliged to adopt Dr Arunoday’s view of the Facebook evidence or the consistency of his accounts over time. Given his own evidence about the nature of their sexual messaging, the Tribunal was entitled to reject his evidence that upon Ms A asking him to send a photograph of his penis, he sent only a photograph of his thighs. It took into account the power imbalance and the particular circumstances. It identified a pattern in Dr Arunoday’s conduct. It found the evidence of the other witnesses to be consistent with Ms A’s account. The oral testimony of Dr Arunoday and Ms A at the hearing was important but the Tribunal took into account the wide canvas of the whole of the evidence.[60]I have described the determination as crisp. Another Tribunal might have given more detailed reasons, but I have no doubt that Dr Arunoday, familiar with the evidence as he is, is able to understand why the findings were made. He does not accept them but that is a different matter. In this appeal Dr Arunoday merely seeks a second opinion on the evidence before the Tribunal but the Tribunal was much better placed to assess the important oral evidence than this appeal court.[61]No procedural errors are alleged neither are any errors of law (other than the minor point about the use of the word “corroboratory”).[62]At the risk of being accused, as the Tribunal has been, of not addressing every detail of the evidence, my own survey of the evidence as a whole leads me in no doubt that in relation to every allegation it considered, the Tribunal was entirely justified in reaching its conclusions.[63]The appeal is therefore dismissed.