Doctors’ Sexual Misconduct and the Law – ‘Sexually Inappropriate’ Conduct in Medical Practice
The maintenance of professional boundaries is an important part of daily professional life for any medical doctor. Both patients and colleagues need to be able to trust the doctors that they come into contact with. Patients and colleagues should not be in fear of being the subject of unwarranted and unreciprocated sexual, amorous or romantic advances. Outside of work too, a doctor must act appropriately when coming into contact with others. Complaints of inappropriate conduct of a sexually harassing nature may be made to the General Medical Council (GMC) by anyone. Doctors must therefore take great care to be respectful of personal boundaries inside and outside of work.
Sexually Inappropriate Conduct of Doctors
It is obvious that doctors are going to have natural human attractions just like anyone else, including sexual or romantic feelings towards their colleagues, patients or others they come into contact with. However, the prohibition on doctors entering into emotional or sexual relationships with patients (and relatives of patients) is one that most people endorse and which has good public policy reasons for it to be strictly policed. Colleagues too ought to be able to go to work without being harassed and exposed to sexualised behaviour. And in the community in which a doctor lives, people have a right not to be sexually harassed.
Each year, a number of doctors are charged by the police or the General Medical Council (GMC) with indecent assault or sexually motivated conduct toward patients, colleagues or members of the public. Where a doctor is found guilty of sexually motivated conduct they are frequently (though not always) struck off the medical register. Those doctors who are struck off the register are unlikely to practise again – being deemed unsuitable to work with vulnerable (or any) patients for the rest of their life. Where a doctor receives a criminal conviction for sexually inappropriate conduct, erasure from the medical register is very likely to occur (but is not definite – each case turning on its own facts).
The GMC receives a significant number of complaints against doctors each year, which allege that a doctor has acted in a sexually inappropriate manner towards another person or a group of people. The GMC will always investigate such complaints.
A doctor must at all times comply with the code of conduct for doctors, as set out in Good Medical Practice. The code requires doctors to ensure that they at all times, whether in their public or private life, have regard to the importance of a doctor maintaining public confidence in the profession and themself. Good Medical Practice requires doctors to avoid situations that can easily be misunderstood by careful management of the situation. Chaperons are recommended for examinations that could lead to misunderstandings. Proper and verbal consent should also be obtained and documented. Respect for all persons is required. Relationships with patients (sexual or otherwise) are deemed to be inappropriate. Doctors are required to maintain the boundaries, as they are the professional. For further information on the guidance on maintaining professional boundaries, and avoiding inappropriate relationships, see also the GMC publication: Maintaining Professional Boundaries.
Where a doctor is considered to have deviated significantly from Good Medical Practice due to their sexually inappropriate conduct (sexually motivated misconduct), then formal professional misconduct charges will usually be laid against the doctor. Doctors who receive complaints are invited to provide a personal position statement in writing, in the first instance, but may later face a fitness to practise hearing before the Medical Practitioners Tribunal Service (MPTS) panels.
Where there appears to be a case to answer, the case may also be referred to an Interim Orders Tribunal, so that matters of public protection and public confidence can be considered. While not all doctors are suspended, there is always a risk of an interim suspension. Some doctors are given conditions of practice orders, which may require them to not care for certain vulnerable categories of patient, or not to perform any clinical examinations without a chaperone being present. Not all doctors who face allegations of sexually inappropriate conduct will have an interim order imposed, during the period of investigation or pre-FTP hearing. Each case will be assessed by the GMC cases examiners, to assess risk.
Good Medical Practice requires doctors to at all times respect the dignity of patients, patients’ relatives, professional colleagues, and members of the general public. Not all doctors manage to live by those standards, however. So what goes wrong? Why do doctors transgress?
The majority of complaints of sexually inappropriate conduct are made against men, which follows the general trend in society. Whatever the gender of the doctor, forensic psychologists who specialise in the treatment of sexual offending behaviour generally identify two types of offender: 1) those who offend because of emotional problems, 2) and those who offend out of a personal disposition to pursue sexual gratification at others’ cost. While there are recognised other categories and sub-categories, psychologists will seek to identify the cause of the sexual offending (crimes) or inappropriately sexualised behaviour (professional misconduct).
In a number of instances, false allegations will be made against doctors, either due to a misunderstanding or due to malice. Good preparation for any GMC submission dates or MPT hearings can improve prospects of success. Experts will on occasions need to be instructed for the defence.
Not all allegations are found proved. In one case, the GMC/MPTS panel found that a doctor’s rather clumsy and rushed approach toward a patient during an outpatients consultation had caused a patient to believe that he had been sexually interfered with, when he had not. It was held that the doctor’s consultation had lacked the necessary, usual explanation of why a genital examination was necessary, so causing confusion on the part of the patient as to the purpose of the examination, such that it appeared to the patient to be unrelated to the reason he had attended for a consultation. The patient was extremely traumatised by the incident and the lack of explanation. The panel found that the doctor, a man of previous good character, had acted with good intentions and had not been sexually motivated during the consultation. For further reading, see our Chaperones and Doctors article.
A doctor might act deliberately and inappropriately for personal sexual gratification, and therefore need to show why the conduct came about. Reducing risk of repetition may include undergoing extensive therapy with a suitably trained therapist. A report should be obtained to present to the GMC/MPTS to show the programme of therapy, and the progress made.
Inconsiderate Conduct (Sexual Harassment)
Some conduct might constitute sexual harassment even if it was not meant to be so. A doctor should be careful about being jokey in the workplace on topics that are close to the bone or sexual in connotation, or which might be considered to be disparaging or upsetting banter by some. The touching of colleagues should mostly be avoided, whether they be male, female, trans or non-binary. Where a doctor is said to be crossing a line, they might face disciplinary action at work or be referred to the GMC. The GMC deals with alleged sexual harassment cases each year that relate to inappropriate text messages and overtures of friendship that are unwanted by the recipient, even if meant in a friendly way. Some conduct is obviously sexual harassment, while other conduct might be more subtle, but which forms an uncomfortable pattern for the recipient. Not all colleagues have the confidence to say “stop it”. And some doctors won’t take no for an answer, creating a hostile and unpleasant environment for colleagues. We have advised many doctors who have been in these situations.
Sexual harassment is unlawful: Section 26 of the Equality Act 2010
In Basson v GMC 2018 EWHC 505 (Admin), Mostyn J opined (at paras 14 and 17):
“(14) … a sexual motive means that the content was done either in pursuit of sexual gratification or in pursuit of the future sexual relationship.”
“(17) … the state of a person’s mind is not something that can be proved by direct observation. It can only be proved by inference or deduction from the surrounding evidence”. (Feb 2018)
Case Illustrations - Alleged Inappropriate Sexual Behaviour
A number of case illustrations may assist in understanding these concepts in greater detail. The cases also assist us in coming to an understanding of the way in which such cases are disposed of by the GMC. The following cases are genuine cases but the doctors names have been anonymised. The cases have been in the public domain at some point.
Doctor Masturbating Online – Misconduct
A doctor (lawfully) masturbating online via webcam in a public forum of an adults only sex site in their home city’s community chatroom, showing their face, where a patient saw them and complained. The doctor was highly visible within the community and accepted it was poor judgment. (Held to undermine public confidence in the profession due to community role – a warning was issued by the case examiners at the GMC investigations stage).
Breast Grabbing Doctor – Misconduct
A doctor randomly grabbed a colleague’s breast in the workplace (sexual conduct – but found to be emotionally motivated, with low risk of recurrence – leading to a suspension of several months being imposed upon the doctor).
Sexual Relationship with a Patient in Mental Health Setting – Misconduct
There was also the case of a doctor who repeatedly had sexual intercourse with his young vulnerable patient on the ward, in his consultation room (denied but found guilty – motivated by personal gratification – struck off).
Then there was the case of a doctor who was acquitted in the criminal courts of inappropriate conduct towards young men in his consultation rooms over a period of years (but found guilty at the GMC – motivated by personal sexual gratification – struck off).
Sexual penetration of anus, vagina or mouth without consent. A doctor was struck off for raping his wife. This was a finding by the MPT, not the criminal justice system. Cases at the GMC are determined on the balance of probabilities, making it easier to prove allegations. Inn the criminal courts, by contrast, the standard of proof is ‘beyond reasonable doubt’, now restated as “being satisfied so that you are sure” of the guilt of the person.
Maiming for Sexual Pleasure (S and M)
Causing injury that is more than “transient or trifling”, even where the participant has capacity to consent and does give consent. See the case of R v Brown  UKHL 19 (March 1993)
Possession of Unlawful Images
Extreme pornography possession can lead to convictions and a referral to the GMC. For a definition of extreme pornography, see the CPS Website. See also our article on: Child Abuse Images and Doctors
There is more recently a trend relating to inappropriate text messaging. A number of doctors have crossed boundaries by flirting and sexting via social media with patients (or staff), sometimes exchanging (with or without permission) images of a sexual nature (such as “dick pics”), but which have subsequently been viewed as unwelcome (and an abuse of position) by the recipient. Doctors who conduct themselves in this way, especially towards patients, are in breach of a number of codes. See our article on Doctors who Text and Flirt with Patients
Other Examples of Sexually Inappropriate Conduct by Doctors
Other cases have included doctors who have made inappropriate remarks to colleagues (or inappropriate touching), with sexual overtones, leading to GMC proceedings.
Rule 7 Stage of the GMC Investigation
The ‘Case Examiners’ at the Rule 7 (and Rule 8) stage are made up of two individuals: an independent lay member and and an independent medical member. They alone will determine whether there is a case (for the doctor) to answer in the legal sense. For more information on that stage of the investigatory process, see our GMC Investigations page. The GMC has a screening policy to dispose of cases that do not meet the evidential threshold, and weak cases will generally not go past the investigation stage. Where there is a prima facie case that there is a reasonable prospect of establishing the alleged facts (if the complainant is believed over the doctor), along with findings of misconduct and impairment, the case is almost certain to be referred to a fitness to practise hearing. Within GMC policies that the GMC case examiners work to (at the GMC Rule 7 Stage), there is a presumption that a doctor’s fitness to practise will be impaired where allegations of a sexual nature appear to be well-founded.
The policy guidance to the Case Examiners is clear. Where there has been an acquittal of a doctor at a criminal trial (no criminal conviction), the GMC will generally bring professional misconduct charges against the doctor. The two cases examiners must agree about the route for disposal of the case. If they cannot agree, the matter will be referred to the Investigating Committee for a decision to be made.
The GMC guidance to the case examiners states, at paragraph 24:
‘Presumption of impaired fitness to practise
There are certain categories of case where the allegations, if proven, would amount to such a serious failure to meet the standards required of doctors, that there will be a presumption of an issue of impaired fitness to practise. These tend to fall within the following headings, and we have emphasised those relevant to cases concerning sexual allegations. If sexual violence has occurred, then the violence category will also be met, as might the category about harming others:
a sexual assault or indecency
b sexual or improper emotional relationships with a patient or someone close to them
e unlawfully discriminating in relation to characteristics protected by law
f knowingly practising without a licence
g gross negligence or recklessness about a risk of serious harm to patients.
In the case of a criminal conviction, the GMC’s Registrar will usually refer the doctor to a fitness to practise hearing, for further consideration. However, not all convictions are so referred, and so the case examiners may still be involved in making a decision on whether to close the case or refer the allegation to a fitness to practise hearing.
For more information on when then the GMC will bring a case against a doctor, in the event of a failed criminal prosecution, read our article: GMC ‘Prosecutes’ Doctors Acquitted of Crimes. The GMC additionally investigates allegations that have not been made to the police but which have instead been made directly to the GMC. The GMC will instruct its own solicitors to investigate the allegation, in order to obtain statements and relevant evidence. Expert witnesses will, on occasions, be instructed to provide an opinion on a matter within the case. The defence may well need to obtain a defence expert’s report, too.
GMC CHARGES OF SEXUALLY MOTIVATED MISCONDUCT:
The GMC will lay formal charges against a doctor. A GMC/MPTS misconduct charge might typically read as follows:
a) On 1 March 2012, you touched the breast of Patient A.
b) Your conduct was sexually motivated.
c) Your fitness to practise is impaired by reason of your misconduct.
In the event that a doctor is referred to a full fitness to practise hearing, to determine the issues, the allegations are tried on the balance of probabilities. This is a lower standard of proof than the criminal standard: beyond reasonable doubt. There is therefore a greater likelihood of a doctor being found guilty of the facts alleged in fitness to practise hearings, when comparing conviction rates in the criminal courts. For this reason, doctors should be cautious about responding to the GMC without taking legal advice.
It should be noted that all of the written submissions made by a doctor to the GMC at the investigations stage can be taken into account (whether as an admission or as a statement that is later found to be inconsistent with later testimony) at the fitness to practise stage. Doctors should therefore ensure that their statements are accurate before submitting them. Further, it is not always wise to make written submissions at the investigations stage because of the lack of sight of the full evidence against the doctor, beyond a mere allegation.
In cases of sexual contact with children, an erasure order is highly likely. Downloading or viewing child pornography often also leads to erasure, but not always. See our article: Doctors and Child Pornography
In some cases of inappropriate sexual conduct, doctors will admit that they have transgressed and they will present mitigation evidence of why it is that they should otherwise be seen as still fit to practise as a doctor. In such cases, the GMC/MPTS will carefully evaluate the level of risk posed to members of the public and patients, of a doctor continuing to practise in the future as a registered medical practitioner.
Where a doctor has a criminal conviction for a sexually motivated offence, the MPTS will scrutinise the sentence imposed, and determined whether the doctor can remain on the register at all.
Assessing Risk and Public Policy Considerations
A key case in understanding the MPTS/GMC assessment of risks involved in permitting a doctor to remain on the register is the case of Council for the Regulation of Health Care Professionals v General Dental Council & Fleischmann  EWHC 87 (Admin). This case is known as Fleischmann for short.
In Fleischmann (a child pornography related criminal conviction case) the appeal court determined that a 12 month suspension order, imposed by the panel, should be replaced with an erasure order, for the following reasons:
a) A suspension of 12 months would not cover the three year period of the Community Rehabilitation Order that had been imposed. b) A suspension of only 12 months would not cover the period in which the doctor had to attend a Sex Offender’s Treatment Programme, which would take more than 12 months to complete. c) The 12 month suspension did not appear to take into account the fact that the doctor would be on the sex offender’s register for a period of five years.
The appeal court judge held [at para 54] that:
“I am satisfied the Committee did not sufficiently consider the significance of the sentence which had been imposed by the Crown Court. His duty of disclosure to his patients would require that patients were informed of the sentence and the conditions attached to it. I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained.” per Newman J, (February 2005)
In Opare v. Nursing and Midwifery Council  EWHC 1851 (Admin) the High Court held that a panel tasked with considering sanction should determine the appropriate sanction prior to considering whether Fleischmann would apply. In the Opare case the panel had decided to strike the nurse’s name from the register, and so the Fleischmann judgment did not apply. (2019)
Appeal Cases Concerning Sexual Misconduct:-
Finding that Conduct was Not Sexually Motivated was Wrong
A tribunal had erred in not finding sexually motivated conduct proved: GMC v Harris  EWHC 2518 (admin). The court gave guidance on how charges might be reformulated in the future to make things clearer, referring to the language of the sexual offences Acts. (September 2020)
Sexually Motivated Conduct Must be Alleged by the GMC
In GMC v Rajeshwar  EWHC 2973 (Admin) it was held that an explicit charge should have been included, to allege that the conduct relied upon by the GMC, to prove the case, was sexually motivated. Such an approach enables all involved to know the issues that a doctor needs to deal with, when faced with allegations of a sexual nature. (December 2005)
In Haris v General Medical Council (Rev 1)  EWCA Civ 763 the court of appeal held that allegations should be clear that the conduct alleged was sexual, or sexually motivated. Further, the inference to be drawn, of whether a doctor had so acted, did not require evidential proof; rather, it was a matter of judgement by way of inference. The absence of a plausible explanation may be one such factor to draw an inference from. (May 2021) See also the first instance decision of General Medical Council v Dr RH  EWHC 2518 (Admin) (2020)
Finding of Sexually Motivated Conduct was Wrong
In Sait v General Medical Council  EWHC 3160(Admin) the appeal court held that the findings of fact (and consequential findings) should be set aside as (a) the GMC had not put its case to the doctor that certain conduct was “sexually motivated”, and, (b) the MPT tribunal’s reasoning was deficient. (November 2018)
In Angamuthu Arunkalaivanan v. General Medical Council  EWHC 873 (Admin) the appeal court held that the tribunal had acted correctly on the evidence in finding that Dr Arun, as he was known, had conducted a breast examination in an inappropriate manner. The judge quashed, however, the tribunal’s finding that the conduct had been sexually motivated. The case was remitted case for further consideration by a newly appointed tribunal, to consider whether a warning should have been imposed on the doctor, on the basis of a non-sexually motivated, inappropriate breast examination.(April 2014) Note: There is no reference to a warning against the doctor’s name on the GMC website, so it appears that a waring was not imposed.
Relevance of Good Character in Relation to Historic Sexual Allegations
In GJB  EWCA Crim 867 it was held that the judge in the criminal hearing should have referred to not only the good character of the defendant but also that there was no evidence of any other offences against children having been committed for a period of 10 years. The failure to emphasise this led to the conviction being quashed, among other failings. (01 April 2011) This could be a relevant issue and therefore a relevant legal direction in GMC/MPTS fitness to practise cases.
Assessing the Gravity of Misconduct, Insight and Sanction
In Ujam v General Medical Council  EWHC 520 (Admin) the appeal court held that a course of sexually motivated conduct toward colleagues was capable of being misconduct. The MPTS/GMC panel’s decisions were upheld, including the imposition of a period of suspension of six months duration. (13 March 2012). See also the further judgment in the same case Ujam v General Medical Council  EWHC 683 (Admin) (20 March 2012). Both cases usefully summarise the approach of a tribunal to assessing the gravity of misconduct, a doctor’s insight, and the appropriate sanction.
“Undoubtedly, the erasure of this appellant’s name from the Register of Osteopaths is a loss to the profession and I refer, again, to the testimonials which with one voice refer to the great work which the appellant has done in this profession and in relation to many patients, but that is the price which this profession is prepared to pay to uphold its reputation generally and instil confidence in the public in the high standards which this profession rightly sets itself. The panel determined that this strong message needed to be sent out to the public and I am not prepared to say it was wrong in so doing.” (April 2019)
In General Medical Council v Ahmed  EWHC 403 (Admin) the court clarified that there is a spectrum of seriousness of sexually motivated misconduct. (February 2022)
The case of Arunachalam v. GMC  EWHC 758 (Admin) was also considered, which noted that there was a spectrum of inappropriate conduct. Mr Justice Kerr stated: “
In our system of justice, the law jealously guards the rights of women workers to protection against predatory, ignorant men who feel entitled to prey on female colleagues in the way that this doctor did; but our system is not so inflexible that every transgression of this kind must be met with erasure. This appellant’s conduct was not at the very bottom of the scale; it was very serious, but it was not anywhere near the top of that scale. The mitigation, for what it was worth, was there. No patient’s safety was endangered. The appellant was of previous good character. He had some insight into his offending behaviour, although it was given slight weight and came late. He had a long record of unblemished service, which included about two and a half years after the second incident without any further offending.” (February 2018)
Range of Seriousness in Sexual Misconduct Cases
While almost all misconduct that is sexually motivated will be deemed serious when it comes to considering sanction, the question of where the degree of seriousness falls within the spectrum of seriousness must still be considered. In other words, not all sexual misconduct requires erasure. See by way of example: General Medical Council v Mok  EWHC 1651 (Admin) (29 June 2022)
Veracity of Complainants
In Yaacoub v General Medical Council (GMC)  EWHC 2779 (Admin) the appeal court set aside a fitness to practise panel’s determination for lack of adequate reasons, in a case concerning allegations of sexual misconduct, including an allegation of rape. It was clear that the complainant had changed her testimony over time to a significant extent; the panel had failed to properly assess those changes. The credibility of the complainant had to be assessed to a greater degree than had been indicated by the panel’s reasons. (October 2012)
In Yeong v The General Medical Council  EWHC 1923 (Admin) – it was held that there are a certain class of cases that require a finding of impairment, such as cases of sexual misconduct, even where the doctor shows insight and has remediated.
At [para 50]:
“…the FTPP (acting on behalf of the GMC) is entitled to have regard to the public interest in the form of maintaining public confidence in the medical profession generally and in the individual medical practitioner when determining whether particular misconduct on the part of that medical practitioner qualifies as misconduct which currently impairs the fitness to practise of that practitioner. Where a medical practitioner violates such a fundamental rule governing the doctor/patient relationship as the rule prohibiting a doctor from engaging in a sexual relationship with a patient, his fitness to practise may be impaired if the public is left with the impression that no steps have been taken by the GMC to bring forcibly to his attention the profound unacceptability of his behaviour and the importance of the rule he has violated. The public may then, as a result of his misconduct and the absence of any regulatory action taken in respect of it, not have the confidence in engaging with him which is the necessary foundation of the doctor/patient relationship. The public’s confidence in engaging with him and with other medical practitioners may be undermined if there is a sense that such misconduct may be engaged in with impunity.”
At [para 51]:
“…where a FTPP considers that fitness to practise is impaired for such reasons, and that a firm declaration of professional standards so as to promote public confidence in that medical practitioner and the profession generally is required, the efforts made by the practitioner to address his problems and to reduce the risk of recurrence of such misconduct in the future may be of far less significance than in other cases, such as those involving clinical errors or incompetence. In the former type of case, the fact that the medical practitioner in question has taken remedial action in relation to his own attitudes and behaviour will not meet the basis of justification on which the FTPP considers that a finding of impairment of fitness to practise should be made. This view is also supported to some degree by the judgment of McCombe J in Azzam at  (distinguishing the case before him, which involved clinical errors, in respect of which evidence of remedial steps and improvement was relevant, from a case involving “a rape or misconduct of that kind”, in relation to which – by implication – such evidence might be less significant).”
In General Medical Council v Mok  EWHC 1651 (Admin) the High Court upheld a tribunal’s decision to impose a 12 month suspension from the register, followed by a Review, where findings of fact had been made of anal penetration without consent. (29 June 2022)
In the General Medical Council v Khetyar  EWHC 813 (Admin) the court overturned a sanction of suspension and imposed a sanction of erasure, where there was conduct of a sexually motivated nature. See paras 28 to 40 for a summary of the conduct of concern, which was recorded as including sexual assault. (March 2018)
Dhoorah v Nursing and Midwifery Council  EWHC 3356 (Admin) – an MPT can direct that a review of a sanction order imposed by them, to take place a number of months later. The doctor will need to participate in such a process to satisfy the MPT that their fitness to practise is no longer impaired.
Where a review takes place, each of the fundamental principles set out in the overarching may be relied upon to justify a further finding of continuing impairment. (December 2020)
Interim Orders – Conditions of Practice where Sexual Allegations have been made
Chaperone Requirements are Lawful
In Dr E.Y. v GMC  EWHC 860 (Admin) the appeal court upheld interim order of conditions of practice, which required the doctor to be chaperoned while undertaking certain procedures. The doctor had felt that the interim order was not workable and so essentially prevented him from obtaining suitable work. The court held that in light of nature of the substantive allegations, of sexual impropriety toward a patient, which were serious, and in light of the fact that the case was destined for a fitness to practise hearing, the interim order was reasonable. (April 2013)
An Extramarital Affair – Poor Judgement?
In Dr MXM v General Medical Council  EWHC 817 (Admin) the appeal judge overturned a interim order of suspension and directed that an interim order of conditions would have been sufficient. The case concerned an alleged sexual affair, whereby the doctor had also briefly treated his sexual partner and her husband as patients, and had allegedly had sex on clinical premises, so bringing the doctor’s judgement as a doctor into question. The name of the doctor was also anonymised, on application. (April 2022)
For additional guidance, see the Professional Standards Authority (PSA) Sexual Boundaries Policy Summary. The PSA is the super-regulator of healthcare regulators such as the GMC, NMC, and HCPC.
Training and Remediation: A doctor who undergoes a tailored self-awareness course may find that they are assisted in coming to an understanding of what types of behaviours are considered inappropriate, inside and outside of work, so that they can change their style of interactions with others. Evidence of self-reflection and insight may be useful in demonstrating that the future risk of repetition is much reduced, in light of the steps the doctor has taken since being made aware of the allegations against them.
The GMC since 2015 has had the power to appeal sanctions considered to be inappropriate in light of the history. Pursuant to Section 40A(3) of the Medical Act 1983 (as amended), the GMC may appeal a sanction decision that ‘they consider…is not sufficient (whether as to a finding or a penalty or both) for the protection of the public’. ‘Protection of the public’ requires an analysis of the sanction to see whether it is sufficient:
(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the medical profession; and
(c) to maintain proper professional standards and conduct for members of that profession.
Here are the judgments in a number of such appeal cases, where sexually motivated conduct has been found proved:-
In General Medical Council v Stone  EWHC 2534 (Admin) the GMC appealed a Medical Practitioners Tribunal decision. The MPT had imposed a sanction of suspension on a doctor who had had a sexual relationship with a vulnerable patient. The sanction was overturned by the High Court, and a sanction of erasure was imposed instead. This is an important judgment to understand the insight and remorse that a doctor will need to demonstrate if they are to remain on the register – following a serious departure from the standards expected of a doctor’s conduct. (October 2017)
In Dr Mohammed Yasin v General Medical Council  EWHC 677 (Admin) it was held that the Medical Practitioners Tribunal’s decision to erase the doctor’s name from the register was entirely appropriate in light of the circumstances. The doctor was foundry the tribunal to have ‘sexually assaulted’ two female nurses over a period of around two hours, which had included, it was said, pressing his erect penis against them. He was a doctor without previous complaints but the appeal court held that the tribunal was entitled to erase the doctor’s from the register to promote and maintain public confidence in the profession and to uphold standards within the profession, more generally.
The full report discloses that the appeal judge opined as follows (para 37-38):
’37. …I can see that this is a case in which more than one outcome was possible. However, much must depend on the impression gained by the Tribunal who heard all the evidence. It may well be that there has been a recent shift in attitudes to sexual misconduct of this nature. It is possible that this sort of low level sexual assault is now regarded more seriously than it once was particularly when committed in a work environment. It would be hard to argue that that is a bad thing. It appears that counsel who appeared at the Tribunal on behalf of Dr Yasin acknowledged the recent change in public perception, in his submissions he made reference to opening the newspapers and seeing reports of sexual misconduct.
38 Certainly, it is right that Dr Yasin’s actions did not amount to very serious sexual offending but that is not to minimise what he did. He took advantage of two young women who were at an early stage of their health care careers while they were going about their normal work and rubbed his erect penis up against their bodies.’
(March 2018, source: Lawtel Report AC5002192 )
Srinivasan v General Medical Council  EWHC 1606 (Admin) – allegations of sexually motivated conduct relating to two patients found proved. Doctor erased. Appeal unsuccessful. The allegations were set out by the appeal court at para 2, and some findings were set out at para 6, as follows:
“2. The Tribunal determined that during two clinical examinations the Appellant, Dr Srinivasan, had performed actions which were not clinically indicated and were sexually motivated, in that:
i) During an examination, on 24 October 2014, he had lifted the top of a female Patient (Patient A) and stared at her bare breasts.
ii) During an examination on 6 October 2016, he touched the pubic area of a female Patient (Patient B) and attempted to put his fingers inside her vagina…
“6. Both Patients complained to hospital staff on the day that their examinations took place. Neither of the complainants were known to each other and there was no possibility of any cross contamination between their accounts which were separated in time and location.”
Case Law: Not all sexually motivated conduct should automatically lead to erasure
Order of Erasure overturned and substituted with 12 Months Suspension in case that found fcpnduct to have been ‘Sexually Motivated’
In Arunachalam vThe General Medical Council  EWHC 758 (Admin) an erasure order imposed by a Medical practitioners Tribunal was overturned and a suspension of 12 months was substituted. The case related to alleged sexually motivated conduct. Mr Justice Kerr stated: “
- On balance, it seems to me likely that a reasonable, informed member of the public might well not take a harsher view than did the GMC of the pathetic and disgusting sexual pestering of the kind that occurred in this case. There are some who would regard erasure as appropriate; that would represent almost a complete zero tolerance approach to sexual harassment, which would mean that any transgression, even from a first time offender, would nearly always lead to erasure.
- In our system of justice, the law jealously guards the rights of women workers to protection against predatory, ignorant men who feel entitled to prey on female colleagues in the way that this doctor did; but our system is not so inflexible that every transgression of this kind must be met with erasure. This appellant’s conduct was not at the very bottom of the scale; it was very serious, but it was not anywhere near the top of that scale. The mitigation, for what it was worth, was there. No patient’s safety was endangered. The appellant was of previous good character. He had some insight into his offending behaviour, although it was given slight weight and came late. He had a long record of unblemished service, which included about two and a half years after the second incident without any further offending.
- In the circumstances, I am clear that the decision was flawed and cannot stand. I have the power to remit the matter to the same or a differently constituted tribunal or to substitute a different sanction. In the unusual circumstances of this case, I am persuaded after reflection to substitute the sanction of suspension which both parties plainly considered appropriate when the case was argued before the tribunal.” Per Mr Justice Kerr (February 2018)
Anonymity in GMC Cases
It is a rare thing indeed for a doctor’s name to be anonymised. While all patients are anonymised automatically, there is no similar right for doctors facing GMC/MPT proceedings. The GMC is resistant to anonymisation, in the public interest. However, there is one case where a doctor was able to persuade the High Court (on judicial review) that anonymisation should be maintained, owing to the risk of their commiting suicide if their sexuality and gender were published. The case is: GMC v X  EWHC 493 (Admin). The case at the GMC had involved alleged sexualised conduct towards a notional minor (by way of a sting operation conducted by a lay, anti-paedophile vigilante group). (January 2019)
Directions to Tribunals – fantasists and previous allegations of a sexual nature
In Arowojolu v General Medical Council  EWHC 3155 (Admin) the appeal court quashed a finding of fact made by a tribunal on the basis that there was a misdirection and wrong approach to evidence relating to an alleged false complaint against another party, other than the doctor. Such evidence should have been more thoroughly examined, as it potentially went to the issues of whether the complainant was a fantasist, and made false allegations, and had a propensity to do so. (December 2019) The case was subsequently re-heard and the doctor was found guilty and was struck off. A further appeal was lodged but the appeal was dismissed. See: Arowojolu v General Medical Council  EWHC 2725 (Admin) (October 2021)
Integrity – Conduct Towards a Colleague
Beckwith v Solicitors Regulation Authority  EWHC 3231 (Admin) no breach of standards at a law firm’s party – (November 2020). While this is not a case relating to doctors, the court’s analysis may be helpful in exploring whether a notional doctor has fallen below standards when showing interest in a colleague.
False Memory – Expert Witness Evidence
Expert testimony is not admissible when commenting on the credibility of a witness, as that role is reserved to the tribunal in GMC cases (or a jury in criminal cases). However, where an expert is to comment on the reliability of memory (where there is an argument that the complainant’s memories are significantly unreliable), the courts might allow the expert evidence to be admitted. For an overview of cases on the subject, see H v R  EWCA Crim 1555 (July 2014). Whether such an opinion is admissible will be fact specific and dependent on the way the expert approaches their analysis and explains their reasoning. Such reasoning should be open to judicial scrutiny and be logical, defensible and fall within a reasonable body of opinion: Bolitho.
Reasonable Body of Opinion
See Bolitho v. City and Hackney Health Authority  UKHL 46;  AC 232;  4 All ER 771;  3 WLR 1151 (13th November, 1997):-
“in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. stated  1 W.L.R. 583, 587, that the defendant had to have acted in accordance with the practice accepted as proper by a “responsible body of medical men.” Later, at p. 588, he referred to “a standard of practice recognised as proper by a competent reasonable body of opinion.” Again, in the passage which I have cited from Maynard’s case, Lord Scarman refers to a “respectable” body of professional opinion. The use of these adjectives -responsible, reasonable and respectable–all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”
See also our guidance on: Remediation
Doctors Defence Service represents doctors who are facing false allegations of indecent assault or rape in the criminal courts. Doctors Defence Service also represents doctors who have been found guilty in the criminal courts who face GMC proceedings, or whom wish to plead guilty at the GMC to inappropriate conduct. Doctors Defence Service also represents doctors who are facing GMC/MPTS proceedings in relation to allegations of sexually motivated conduct. Doctors Defence Service respects the confidentiality of all doctors and doctors can therefore rest assured that our lawyers will approach any allegations a doctor is facing with the utmost sensitivity.To speak in confidence with one of our specialist lawyers, call: 0800 10 88 739
Original article published 2012, and updated since. The titles of the article are for academic reference and do not imply that the doctors or anyone else named in the case law were sexually inappropriate or indecent. Many doctors (and other professionals) clear their names at a MPT hearing or other hearing or on appeal. The cases are cited to show how the tribunals and appeal courts operate in practice.