‘Sexually Inappropriate’ Doctors

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 [2020] 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 [2005] 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) [2021] 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 [2020] EWHC 2518 (Admin) (2020)

Finding of Sexually Motivated Conduct was Wrong

In Sait v General Medical Council [2018] 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. The appeal court referred to section 78 of the Sexual Offences Act 2003 was referred to, which provides a definition:

“For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.”

(November 2018)

In Angamuthu Arunkalaivanan v. General Medical Council [2014] 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

Assessing the Gravity of Misconduct, Insight and Sanction

In Ujam v General Medical Council [2012] 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 [2012] 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.

In General Medical Council v Ahmed [2022] 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 [2018] EWHC 758 (Admin) was also considered, which noted that there was a spectrum of inappropriate conduct. Mr Justice Kerr stated: “

1. 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 [2022] EWHC 1651 (Admin) (29 June 2022)

Veracity of Complainants

In Yaacoub v General Medical Council (GMC) [2012] 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)

Impairment

In Yeong v The General Medical Council [2009] 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 [51] (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).”

Sanction

In General Medical Council v Mok [2022] 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 [2018] 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)

Reviews

Dhoorah v Nursing and Midwifery Council [2020] 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)

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Interim Orders – Conditions of Practice where Sexual Allegations have been made

Chaperone Requirements are Lawful

In Dr E.Y. v GMC [2013] 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 [2022] 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.

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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 [2017] 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 [2018] 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):

(March 2018, source: Lawtel Report AC5002192 )

Srinivasan v General Medical Council [2022] 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.”

(June 2022)

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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 [2018] 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: “

1. 1. 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.

1. 1. 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.

1. 1. 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)

In Giele v General Medical Council [2005] EWHC 2143 (Admin) the appeal court overturned an erasure order, where a doctor was found to have had an “improper sexual relationship” with a patient. The doctor was held in high regard and could contribute a great deal to the public in being able to return to clinical practice. The judge stated (at para 33):

33. There can be no doubt that the improper sexual relationship which was established in this case could have merited erasure. However, the mitigation and in particular the testimonials might well have tipped the balance against it. But the Panel approached the issue of sanction in the wrong way, clearly believing that there should be erasure unless exceptional circumstances existed. Accordingly, I am entitled to form my own view. I am entirely satisfied that erasure was not required and that public confidence in the profession, which must reflect the views of an informed and reasonable member of the public, would not be harmed if suspension was imposed. Suspension for 12 months is itself a severe penalty for any practitioner and I am satisfied that for the misconduct in this case it will provide an appropriate sanction.

(14 October 2005)

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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 [2019] 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 [2019] 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 [2021] EWHC 2725 (Admin) (October 2021)

Integrity – Conduct Towards a Colleague

Beckwith v Solicitors Regulation Authority [2020] 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 [2014] 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.

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Reasonable Body of Opinion

See Bolitho v. City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232; [1997] 4 All ER 771; [1997] 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 [1957] 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.”

Doctors and Child Pornography (Child Abuse Images)

Can a doctor practise while on the Sex Offenders Register?