This judgment was handed down remotely at 2pm on Friday 20th June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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MR JUSTICE MOULD
MR JUSTICE MOULD :
Introduction
- This is an appeal brought by the General Medical Council ["the GMC"] under section 40A of the Medical Act 1983 ["the Act"] against the decision of the Medical Practitioners Tribunal ["the Tribunal"] notified to the Respondent, Dr Varaha Konathala, by letter dated 12 February 2024 ["the decision"]. By that decision, the Tribunal imposed on the Respondent the sanction of suspension of his registration as a medical practitioner for a period of 12 months, with a direction for a review to take place shortly before the end of the period of suspension.
- In short summary, the basis for the GMC's appeal is that the sanction imposed by the Tribunal on the Respondent was not sufficient for the protection of the public. The GMC contends that the appropriate and proportionate sanction which, properly directing themselves, the Tribunal should have imposed was erasure from the register. The GMC contends that in imposing the sanction of suspension for 12 months with a direction for review, the Tribunal made a determination which fell outside the bounds of what they could properly and reasonably decide.
- The Respondent contends that the Tribunal made no error of approach and reached an evaluative decision which was within the bounds of what they, as a specialist adjudicative tribunal, could properly and reasonably decide in the light of their conclusions as to the Respondent's misconduct and impairment of fitness to practise. The sanction of a 12-month suspension with a direction for review was sufficient for the protection of the public.
- Before turning to the substance of the GMC's appeal, I must deal with the question raised by Mr Scott Ivill on behalf of the Respondent as to the validity of the appeal itself.
A valid appeal?
- Section 40A(5) of the Act provides that the GMC may not bring an appeal under that section after the end of the period of 28 days beginning with the date on which notification of the relevant decision was served on the person to whom the decision relates.
- Paragraph 4.1 of Practice Direction 52B requires that an appellant's notice in Form N161 must be filed and served in an appeal to the High Court. The appellant's notice must be accompanied by the appropriate fee.
- In this case, an appellant's notice using Form N161 was filed on behalf of the GMC. Sections 1 to 13 inclusive of Form N161 were completed. The lawyer representing the GMC signed and dated the Statement of Truth on page 9 of the form in support of the evidence in section 11. Section 11 was completed by referring to the Grounds of Appeal settled by leading counsel on 29 February 2024 which were attached to the appellant's notice. However, section 14 of Form N161, which states "The notice of appeal must be signed here" and provides a box for signature by the Appellant's legal representative, was not signed.
- The GMC's appellant's notice was sealed by the Administrative Court Office on 11 March 2024.
- On 25 March 2024 a skeleton argument was filed on behalf of the GMC. On 5 November 2024 the court office notified the parties that the appeal had entered the warned list. On 25 November 2024 the appeal was fixed for hearing on 13 March 2025. On 10 February 2025 the GMC's lawyers filed the hearing bundle. The Respondent's skeleton argument dated 2 February 2025 was included in the hearing bundle. During these procedural stages, neither the court nor the parties raised the fact that section 14 of the appellant's notice had not been signed.
- On 28 February 2025, judgment was handed down in Nathadwarawala v General Medical Council [2025] EWHC 459 (Admin) ["N"]. In that case, the GMC was represented by Ms Alexis Hearnden, who also appeared on behalf of the GMC in the present appeal. For reasons which will shortly become clear, Ms Hearden very properly drew Mr Ivill's attention to the decision of Mr Alan Bates (sitting as a deputy High Court judge) in N. Having considered that decision, on 12 March 2025, Mr Ivill equally properly submitted a brief supplementary skeleton argument on behalf of the Respondent raising the question whether the lack of a signature in section 14 of the submitted Form N161 rendered the GMC's appeal invalid, with the result that this court lacked jurisdiction to hear the appeal.
- On 12 March 2025, Ms Hearden filed a brief supplementary skeleton argument in response. Having heard succinct oral submissions from both counsel, I allowed some time for further research, following which both counsel provided very helpful supplemental skeletons after the hearing of this appeal.
- The material facts of N may be shortly stated. The appellant in that case acted in person. His appeal was against a decision of the Tribunal deemed to have been served on him on 5 June 2023. He needed to bring his appeal by no later than 3 July 2023. On 28 June 2023, he emailed an appellant's notice on Form N161 to the Administrative Court Office, together with his grounds of appeal and other supporting documents. He paid the requisite fee. He had omitted, however, to sign the Form N161. On 9 July 2023, the appellant received an email from the court office enclosing a letter dated 5 July 2023, informing him that he had omitted to sign his Form N161 in the signature box which appears in section 14 of that form. On 11 July 2023, he emailed a signed version of his Form N161 to the court office.
- At the substantive hearing of the appeal in N, the GMC's position was that the court had no jurisdiction to determine the appeal, since it had not been brought within the 28-day period prescribed under section 40(4A) of the Act, which was in absolute terms. There was no discretion to extend time. Accordingly, at [13] in N the deputy judge said that the first question which he needed to address in order to decide whether the court had jurisdiction to hear the appeal was –
"Did the filing by the appellant of the appeal form and accompanying documents on 28th June 2023 suffice to constitute the bringing of an appeal for the purposes of section 40 of the Act?"
- The deputy judge addressed that question in [18]-[21] of his judgment.
"18. [Paragraph 4.1 of Practice Direction 52B] requires Form N161 to be used for bringing an appeal but does not expressly state that the form must be signed. In my judgment, however, it is implicit that the form must be duly completed in order to constitute a valid appeal. By this, I do not mean that any minor error or omission will necessarily render a form that has generally been completed a nullity. But a significant omission – such as, for example, a failure to clearly identify the decision being appealed against – is likely to vitiate the validity of the appeal form as constituting a valid appeal.
19. In my judgment, the omission of a signature is itself a significant omission vitiating the validity of an otherwise completed Form N161 as constituting a valid appeal. Even in this modern age when a court form may be signed electronically (such as by 'pasting in' an image of one's signature, or simply by typing one's name into the signature box), the signing of a court form remains a significant act; it is not a mere formality. The affixing of a signature, by whatever method, indicates that the form has been completed (i.e. it is no longer a working draft) and confirms the information stated in the form. Further, the necessity of signing Form N161 is expressly stated within the form: the text in the heading above the signature box (section 14) states with absolute clarity that "The notice of appeal must be signed here."
20. In the supplementary written submissions I permitted her to file after the hearing, the GMC's Counsel, Ms Hearnden, properly and commendably (given that the Appellant was a litigant in person) drew attention to a point in the Appellant's favour. This was the fact that the Guidance Notes on completing Form N161 do not state that the form must be signed. In that respect, the N161 Guidance Notes differ from, for example, the Guidance Notes on completing the Appellant's Notice form used for Family Court proceedings (Form FP161), which state:
"The Appellant's Notice MUST be signed by the appellant or by the appellant's solicitor if legally represented. Unsigned forms will be returned by the court which could lead to the appeal being dismissed if it is out of time."
In my judgment, however, this point is ultimately of no assistance to the Appellant, given that Form N161 itself contains text that makes clear that it must be signed in section 14.
21. As the Appellant's first appeal form was not signed, it was not, in my judgement a valid Appellant's Notice bringing an appeal. The [Administrative Court Office] staff were therefore right to reject it".
- For the Respondent, Mr Ivill submitted that there was no material difference between the facts in N and those in the present appeal. Here, as in N, the would-be appellant had failed to sign the box in section 14 of the submitted Form N161. The language of Form N161 was in clear and mandatory terms. The appellant's legal representative "must" sign in the box in section 14. As the deputy judge said at [19] in N, the affixing of a signature (whether manually or electronically) both indicates that the form has been completed and confirms the information stated in the form. It is a significant act, because it confirms that the appellant's notice is no longer a working draft. It has been completed and establishes the requisite details of the appeal for the benefit of the court and the respondent. There was no material distinction to be drawn between an appeal brought under section 40 of the Act, as in N, and one brought under section 40A of the Act, as in the present case. It was submitted that I should follow the deputy judge's approach and reasoning in N. As the GMC's Form N161 was not signed, there was no valid appellant's notice and accordingly no valid appeal under section 40A of the Act.
- For the GMC, Ms Hearnden understandably did not seek to challenge the approach and reasoning of the deputy judge in [18]-[21] of N which I have set out above. Nor did she suggest that there was any material distinction to be drawn between the provisions of sections 40 and 40A of the Act. Her argument was that there is a critical difference between the material facts in N and those in the present case. She stated (and Mr Ivill did not dispute) that the appellant in N had omitted to sign his appellant's notice in Form N161 which he emailed to the court on 28 June 2023 at all. In other words, not only had he omitted to sign in the box in section 14, but he had also omitted to sign the statement of truth on page 9 of Form N161. In short, his appellant's notice bore no signature at all. The deputy judge had been correct in finding that to be a significant omission which invalidated the appellant's notice and the appeal in N. Lacking any signature, the appellant's notice in N was inchoate. The court office had been correct to decline to process it and the deputy judge to find it to be invalid for purpose of bringing the proposed appeal.
- Whereas, it was submitted, the factual position in the present case is quite different. Here, the GMC's Form N161 was signed by their legal representative. That person had signed the statement of truth on page 9 of the form, which verified the attached grounds of appeal and gave the requisite declaration in relation to contempt of court. That was sufficient to indicate that the appellant's notice was in its completed form. It follows that the omission to sign in the box in section 14 of Form N161 in the present case was properly to be regarded as a minor error. It did not render the appeal invalid. That conclusion is supported by the fact that, in this case, the appellant's notice was sealed by the court on 11 March 2024, within the 28-day period for bringing the appeal under section 40A(5) of the Act. The appeal thereafter proceeded through its procedural stages without any point being taken on the lack of a signature in the box in section 14 of Form N161.
- In my view, the lack of a signature in the box in section 14 of the GMC's appellant's notice is a significant omission. Form N161 clearly requires that the notice of appeal must be signed in that box. As the deputy judge said in N, in signing the box in section 14 of Form N161 the appellant indicates to the court that the appellant's notice is in its completed form. Had the Administrative Court Office returned the GMC's Form N161 in this case to their lawyers for completion by signing the box in section 14, the GMC would have had no cause to complain.
- However, that is not what happened in this case. Instead, the court office sealed the GMC's appellant's notice on 11 March 2025. In Walton v Pickerings Solicitors and Brophy [2023] EWCA Civ 602; [2023] 1 WLR 3545, the Court of Appeal rejected the argument that there was power under the Civil Procedure Rules enabling the court to backdate the issue of a claim form under CPR Part 7, by sealing it as if issued on an earlier date to that on which the court's seal had been affixed. Giving the only substantive judgment, at [21] and [22] Nugee LJ referred to CPR 7.2(1) and (2) and CPR 2.6(1) –
"CPR 7.2 How to start proceedings
(1) Proceedings are started when the court issues a claim form at the request of the claimant.
(1) A claim form is issued on the date entered on the form by the court.
CPR 2.6 Court documents to be sealed
"(1) The court must seal (GL) the following documents on issue –
(a)The claim form; and
(b) any other document which a rule or practice direction requires it to seal.
(3) A document appearing to bear the court's seal (GL) shall be admissible in evidence without further proof".
- At [23] Nugee LJ said that "(GL)" indicated that "seal" was included in the Glossary, which is a guide to the meaning of certain legal expressions used in the Civil Procedure Rules, but is not to be taken as giving them a different meaning from that which they have in law generally (CPR 2.2(1)). The entry for "Seal" in the Glossary is –
"A seal is a mark which the court puts on a document to indicate that the document has been issued by the court".
- At [25], having accepted the submission that the effect of CPR 7.2(2) was to require the court to enter the date when the claim form is in fact issued, Nugee LJ said –
"As appears from r 7.2, proceedings are not "started" until the Court issues the claim form. On issue the Court must seal the claim form (r 2.6(1)(a)), and the very purpose of the seal is to indicate that the claim form has been issued by the Court (see the Glossary). So until the claim form is marked with the seal the document has not been issued and the proceedings have not been started".
- The corollary to that reasoning is that once the claim form has been sealed by the court signifying that the claim form has been issued, the proceedings have begun. There is no express requirement for the court to seal an appellant's notice either in CPR Part 52 or in any of the practice directions which apply to appeals under CPR Part 52. Nevertheless, in my view, in the absence of any express contrary rule or direction, I should treat the court's seal on the GMC's appellant's notice as indicating that the appellant's notice has been issued and the appeal proceedings have begun.
- Therein, in my judgment, lies the material difference between the circumstances faced by the deputy judge in N and those which have arisen in the present case. In that case, the appeal proceedings had not been begun within the 28-day period laid down by section 40(5) of the Act. The appellant's notice filed on 28 June 2023 was returned by the court to the appellant unsealed. Whereas in the present case, the court sealed and thereby issued the GMC's appellant's notice on 11 March 2024. The appeal proceedings had begun.
- I am, therefore, able to exercise the general power given by CPR 3.10 to remedy the GMC's omission to sign the box in section 14 of Form N161: see Jennison v Jennison [2023] EWCA Civ 1682; [2023] Ch 225 at [59]. In my judgment, it is right that I should do so in the circumstances of this case. Firstly, although the GMC's failure to sign the box in section 14 of Form N161 was a significant omission, their sealed appellant's notice included full details of their proposed appeal, including the grounds on which the appeal was brought, which had been verified by the GMC's legal representative who signed the statement of truth on their behalf. Secondly, the Respondent raised no objection to the validity of the appeal until shortly before the substantive hearing. Nor has the Respondent argued that he suffered any prejudice in preparing or arguing his response to the appeal as a result of the GMC's omission to sign the box in section 14 of Form N161. Finally, the appeal raises matters of considerable importance not only to the parties but also to the wider public interest, which speak strongly in favour of the court exercising its powers under CPR 3.10 in this case. I shall make an order remedying the GMC's failure to sign the box in section 14 of their appellant's notice in this appeal.
- For these reasons, I conclude that the GMC's appeal was begun within the period of 28 days provided by section 40A(5) of the Act. I therefore turn to consider the substantive appeal.
The regulatory proceedings
- The Respondent qualified as a medical practitioner in India in 1982. After moving to the UK in 2003 he practised in hospitals in Liverpool and in London. He qualified as a General Practitioner in 2009. At the time of the events which resulted in these regulatory proceedings against him, the Respondent was the senior GP at the practice where he worked.
- These regulatory proceedings arise from allegations as to his conduct in respect of Patient A during a consultation on 28 June 2019. Patient A had attended the appointment complaining of ankle pain. She also requested contraception. The GMC's case against the Respondent was that during the consultation he performed an examination of Patient A's breasts, back and chest during the course of which he lifted her top, touched her back, turned her around from her hips, pushed her breasts out of her bra and squeezed her breasts.
- The GMC alleged that the Respondent had failed to obtain informed consent for the examination or to offer a chaperone. It was alleged that the Respondent had failed adequately to communicate with Patient A and to explain his reasons for carrying out that examination. He did not ask Patient A about her repeat contraceptive prescription. The GMC alleged that the Respondent had failed to record the examination of Patient A or his findings of that examination. The GMC alleged that the Respondent's actions in performing the examination of Patient A on 28 June 2019 were not clinically indicated but were sexually motivated. It was the GMC's case that the matters alleged against the Respondent constituted professional misconduct by reason of which his fitness to practise as a medical practitioner was impaired.
- On 11 July 2019 Patient A made a complaint to the Metropolitan Police. A GMC online complaint form was completed on behalf of Patient A by her mother-in-law on 24 July 2019. On 14 September 2019 the Respondent was interviewed by the police. On 31 December 2019, the Respondent's lawyers received notice from the Metropolitan Police that the police were to take no further action.
- The Tribunal first convened to consider the GMC's case against the Respondent on 12 September 2022. On 15 September 2022 the Tribunal adjourned to enable further information of relevance to the proceedings to be obtained. On 15 May 2023 the Tribunal reconvened and thereafter sat for a series of public and private sessions until 23 May 2023. On 15 May 2023 the GMC called Patient A to give evidence. On 15 May and 16 May 2023 Patient A was cross-examined before the Tribunal on behalf of the Respondent. The Respondent was present to hear Patient A's evidence.
- On 23 May 2023 the Tribunal again adjourned the proceedings until the end of January 2024.
- On 31 January 2024, the Respondent gave evidence before the Tribunal. He was cross-examined on behalf of the GMC. On 1 February 2024, the Tribunal heard the parties' closing submissions on the facts.
- On 6 February 2024, the Tribunal handed down their determination of the facts. The Tribunal said that on 28 June 2019 Patient A had attended a consultation with the Respondent at his GP Practice. Patient A complained of ankle pain and, later in the consultation, she also requested contraception. Patient A had made allegations that the Respondent touched her inappropriately during this consultation. She had stated that she filled in forms answering questions about her lifestyle, that the Respondent looked at her foot and then discussed the contraceptive pill. On Patient A's account, the Respondent said he would need to do a general health check and then started to lift her top, touched her back, chest and breasts. She stated that she found the Respondent's actions to be "really creepy and strange" and that "the way he was touching me did not feel like a doctor checking me".
- The Respondent had denied all of the matters alleged against him by the GMC. He stated that Patient A had filled out a form which he briefly reviewed and used the electronic system to call her into his consultation room. The Respondent had stated that, in line with his standard practice, he started the consultation by asking Patient A relevant history relating to her ankle and then examined it. He stated that he could not remember what clothing or footwear Patient A was wearing but that he would have needed line of sight to both ankles. The Respondent stated that he "did not ask Patient A to adjust or remove clothing as her lower legs were visible". He stated that, following the ankle examination, Patient A asked for a repeat of her contraceptive pill and that he sought further medical history as she had not previously been prescribed this by his Practice. He stated that he took Patient A's blood pressure and prescribed a contraceptive pill. The Respondent strongly denied touching Patient A in the way alleged and denied that his actions during the consultation were not clinically indicated. He denied touching her top, back, hips or breasts.
- In [57] of the decision, the Tribunal said that they were impressed with the way that Patient A expressed her thought processes in terms of the incident and were of the view that such evidence had the decided ring of truth about it. The Tribunal considered that Patient A recalled these things because such thoughts had actually gone through her head at the time. Moreover, the Tribunal considered that it was perfectly plausible that such thoughts would go through a victim's mind during such an untoward examination. Accordingly, the Tribunal concluded that such details would be unlikely in a fabricated account. The Tribunal therefore formed an initial view that the evidence given by Patient A was persuasive and credible.
- Nevertheless, the Tribunal then considered the alleged inconsistencies in Patient A's evidence which had been put to her during cross-examination. Having done so, in [60] of the decision the Tribunal found that Patient A's evidence that the Respondent had inappropriately touched and squeezed her breasts had been consistent and in accordance with Patient A's initial comments to the police which were closest in time to the alleged incident. The Tribunal noted that Patient A's oral evidence took place some four years after the incident, so inconsistencies or variations were to be expected and unavoidable. However, the Tribunal did not consider the oral evidence that she gave detracted from or negated the core allegation that Patient A's breasts were inappropriately touched and squeezed by the Respondent.
- At [67] of the decision, the Tribunal stated that the Respondent had consistently denied Patient A's allegations of inappropriate touching, both in his police interview and in his witness statement dated 6 April 2022. As to the relative improbability of the Respondent behaving as alleged, the Tribunal took account of his good character, his unblemished career of some considerable years, lack of previous GMC history, and his consistent denials of the allegations. The Tribunal also noted the various positive testimonials provided about the Respondent, including from other female patients who had been treated by him.
- At [68] and [69] of the decision, the Tribunal stated that they nevertheless had concerns about the Respondent's credibility. Their concluded view was that there were aspects of the Respondent's evidence that they found to be implausible. It appeared to them during the course of the Respondent's cross-examination that he knew the answers to questions put to him, but his responses were at times suggestive of someone who was being evasive and searching for time to get his thoughts in order at certain points. There was also a difficulty, in both written and oral evidence, in distinguishing between what the Respondent was saying would be his normal practice and what he was saying that he could actually recall in terms of what actually happened with Patient A during the consultation which took place on 28 June 2019. The Tribunal then set out the specific points which had caused them those concerns.
- In [71] to [73] of the decision the Tribunal stated their overall conclusions on the evidence of Patient A and the Respondent.
"The Tribunal considered all of the above factors before deciding whether to prefer the evidence of Patient A or [the Respondent]. It considered that Patient A's account regarding the core allegation that [the Respondent] had physically examined her in an inappropriate way, during which he had squeezed her breasts with both hands, had been consistent, right from her first account to the police 18 days after the incident. All of her three GMC witness statements were consistent with what she had said in that initial interview, with the exception that she provided further information of how [the Respondent] manipulated her bra in order to access her breasts (by her saying that he pushed them out of her bra rather than lifting her bra). The Tribunal sees no significant variation in her account. Any apparent discrepancies are either on peripheral matters or have been rebutted by plausible explanations. Further, Patient A's oral evidence contained references to matters (such as her thought processes) which the Tribunal considers would likely not be in a fabricated account because such thoughts would not occur to someone who was simply making up a story. In addition, her account is corroborated by credible evidence from Mr B and Ms C. In particular, the Tribunal considers that Patient A's evidence both about her distress in recalling the incident and giving evidence (corroborated by Mr B) is consistent with her putting herself "through the ordeal" of making such a complaint, and her stated motive for making her complaint being to prevent the same thing happening to others, is commensurate with her more likely than not to be telling the truth. Finally, Patient A stood up well to Mr Ivill's probing cross-examination.
72. The Tribunal took full account of [the Respondent's] good character and gave it significant weight. However, the Tribunal found him to be a less impressive witness than Patient A, with various unexplained inconsistencies and implausibilities in his account (as outlined above).
73. Overall, the Tribunal was satisfied - given its critical analysis of the whole of the evidence - that something untoward happened during the consultation in question. The Tribunal found Patient A's account to be credible and that her immediate reaction of being upset and calling Mr B and Ms C was particularly plausible. In contrast, the Tribunal has not understood some aspects of [the Respondent's] evidence, as explored above in further detail, and found elements of his evidence to have been evasive. Accordingly, on balance, the Tribunal determined that it preferred the evidence of Patient A."
- In [74] to [124] of the decision, the Tribunal stated their determination of the facts in relation to each of the specific charges alleged by the GMC against the Respondent. They found proven the allegation that during the consultation with Patient A on 28 June 2019 at his Practice the Respondent had performed an examination of Patient A's breasts, back and chest during the course of which he lifted her top, touched her back, turned her around from her hips, pushed her breasts out of her bra and squeezed her breasts. The Respondent had failed to obtain informed consent for that examination or to offer a chaperone. He had failed adequately to communicate with Patient A and to explain his reasons for carrying out that examination. He had failed to record the examination of Patient A or his findings of that examination.
- The Tribunal found that the Respondent's actions in performing the examination had not been clinically indicated but were sexually motivated –
"The Tribunal has found that [the Respondent] performed the Examination, which consisted of the breasts, back and chest - and that his actions were not clinically indicated. Although it could be argued that, by themselves, touching Patient A's back and turning Patient A around from her hips would not on the face of it, be actions which were sexually motivated, the Tribunal considered that lifting Patient A's top, pushing Patient A's breasts out of her bra, and squeezing her breasts, absent any clinical indication or innocent explanation, were actions which could only have been for [the Respondent's] sexual gratification. However, taking all the actions together since they occurred within the same limited timeframe and were essentially one combined action, the Tribunal concluded that all the actions detailed above were sexually motivated. The Tribunal could not think of any alternative explanation for [the Respondent's] conduct other than that there was a clear sexual motivation and his actions were done for his own gratification. Accordingly, the Tribunal found this subparagraph of the Allegation proved".
- On 7 February 2024 the Tribunal proceeded to stage 2 of the regulatory proceedings, where they considered the question of misconduct and impairment of fitness to practise. The Tribunal were provided with a bundle of documents on behalf of the Respondent, which included his reflective statement dated 6 February 2024 and an unredacted testimonial bundle. The defence bundle also included additional reflections, Continuing Professional Development (CPD) certificates and associated documentation on the areas of 'Intimate Examinations and Chaperones', 'Communication Skills', 'Contraception', and 'Record Keeping'.
- The Respondent's reflective statement was in the following terms.
"Reflective Statement of Dr Konathala
I have been working at [the Practice] as a GP Principal for 14 years. I enjoy every day working as a doctor.
I understand that the allegations found proved are very serious.
I recognise that what has been found proved could have a great impact on my patients, colleagues and the reputation of the profession. In particular, I have heard how Patient A has described the impact on her. Although I deny what is claimed, I am nonetheless sorry that Patient A feels the way she has described.
I understand that it is important for doctors to uphold the reputation of the medical profession and for society to be able to trust doctors. The proven conduct seriously damages these aspects. It is essential to uphold the trust placed in us by patients. I understand the need to work in accordance with Good Medical Practice which includes the requirement to ensure that my conduct justifies the trust placed in me by my patients and the public's trust in the profession.
There is a power differential between doctor and patient, and it is the doctor's responsibility to ensure professional boundaries are maintained. The doctor should preserve the patient's dignity at all times.
I have reflected since the complaint and have undertaken continued learning which I have found beneficial. I attach further reflections in relation to the continued learning. I have incorporated this learning into my day-to-day practice. I have received no complaints in the four and a half years since the consultation. I have found the investigation and these proceedings extremely stressful. I can reassure the Tribunal that there will continue to be no repetition of what has been found to have occurred in this case".
- In [151] to [160] of the decision, the Tribunal summarised the submissions made by counsel on behalf of the Respondent. At [154]-[156] -
"154. Mr Ivill also referred to the case of Blakely v GMC [2019] EWHC 905 (Admin), where it was said that the doctor had to demonstrate, given the Tribunal's findings, that he or she could reassure the Tribunal that sufficient insight had been acquired and that the doctor knew and understood why the conduct was considered unacceptable and could not be repeated.
155. Mr Ivill submitted that [the Respondent] had demonstrated insight by showing an understanding of the significance of the proven behaviour. He referred to [the Respondent's] reflective statement and stated that [the Respondent] made it clear that he appreciated the seriousness of the findings and the impact of such behaviour upon patients, colleagues and the public. Mr Ivill stated that [the Respondent] also remarked upon the impact on Patient A and that he was sorry that she felt the way she had described. Mr Ivill stated that [the Respondent] could not, of course, apologise for conduct which he denies he engaged in. Mr Ivill stated that [the Respondent] understood the importance, as set out in his reflective statement, of trust and of the responsibility of maintaining professional boundaries and patient dignity. Mr Ivill stated that [the Respondent] had provided evidence of CPD with a view to addressing the concerns raised in this case, along with his reflections in relation to the various aspects".
156. Mr Ivill stated that [the Respondent] had no previous fitness to practise history and that the proven conduct could properly be described as an isolated episode in a long and otherwise unblemished career. In terms of the lapse of time, Mr Ivill stated that there had now been a period of more than four and a half years without concern. He submitted that this was more than just words, this was action that demonstrated - for a prolonged period - that there had been no further concerns raised. Mr Ivill submitted that there was nothing to suggest that [the Respondent] had been practising in anything other than an appropriate, professional manner during that period. He submitted that the fact the proven conduct had not been repeated was relevant to insight but also as to whether the conduct was remediable and the likelihood of repetition. Mr Ivill stated what better evidence that the conduct was remediable was there than there having been no repetition of it?"
- The Tribunal said that the Respondent's examination of Patient A on 28 June 2019 had been inappropriate, not clinically indicated and sexually motivated. The Respondent had failed to obtain Patient A's informed consent or to offer a chaperone. The Respondent had failed to explain his reasons for carrying out the examination or to record it in Patient A's medical notes. The Respondent had breached Patient A's trust in him and in the medical profession. He had failed to act with integrity or to respect Patient A's right to dignity. He had failed to ensure that Patient A received good care and treatment.
- The Tribunal referred to the expert evidence which had been provided by Dr F which stated –
"Were Patient A's version of the consultation to be accepted, then I opine that [the Respondent's] examination of her breasts, chest or back in the context of an ankle injury, along with failing to gain Patient A's consent for same, or offer a chaperone, causes his standard of care to fall seriously below the standard expected of a reasonably competent GP. Such examination and patient treatment seems gratuitous, and bring disrepute to general practice."
The Tribunal stated that they both adopted and accepted Dr F's conclusion. The Tribunal also noted that when assessing seriousness, they were entitled to take account of the fact that, in the GMC's Sanctions Guidance, sexual misconduct was regarded as a particularly serious matter.
- In [181] of the decision, the Tribunal found the Respondent's conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to misconduct.
- The Tribunal turned to consider whether the Respondent's fitness to practise is currently impaired by reason of his misconduct. For that purpose, the Tribunal stated that they had regard to a number of factors including whether the Respondent had demonstrated insight, remediation, and the likelihood of repetition. They had in mind the over-arching objective set out in section 1 of the Act, the relevant legal advice given to them and case law references.
- The Tribunal found that the Respondent had shown "only limited insight" into his misconduct. In so finding, the Tribunal made the following observations about the Respondent's reflective statement -
"185. In terms of [the Respondent's] reflective statement, the Tribunal noted that [the Respondent] said that he recognised that the facts found proved were serious; discussed the impact on Patient A, patients generally, colleagues and the reputation of the profession; and referred to his understanding that it was important for doctors to uphold the reputation of the medical profession and for society to be able to trust doctors.
186. The Tribunal understood that [the Respondent] denied the allegations of inappropriate touching of Patient A, which he was entitled to do. However, the Tribunal was of the view that the reflective statement produced did not give a full enough analysis of the situation and of the learning required. The Tribunal was of the view that [the Respondent] had not demonstrated that he fully understood the impact of his actions upon Patient A, of what went wrong, and why he did what he did. The Tribunal appreciated that, in the context of continuing to deny any impropriety, it was more difficult to display insight but the Tribunal was of the view that the statement produced did not go far enough. The Tribunal was conscious that [the Respondent] had said that, although he denied what was claimed, he was nonetheless sorry that Patient A felt the way that she had described but he did not appear to have acknowledged the full impact of his actions upon her (as she had described in her oral evidence). Accordingly, the Tribunal determined that [the Respondent] had only shown limited insight into his misconduct".
- In relation to remediation, the Tribunal gave only limited weight to the testimonials as they had been written without knowledge of the Tribunal's findings that the allegations which formed the GMC's principal case against the Respondent had been proven. The Tribunal noted the various courses and CPD undertaken by the Respondent, and the chaperone policy and training carried out at the Respondent's practice. They noted, however, that although the Respondent had read the GMC guidelines on professional boundaries, he had not reflected upon them and did not appear to have been on a professional boundaries course, which the Tribunal considered would have been relevant and of benefit to him.
- In relation to the risk of repetition, at [189] of the decision the Tribunal accepted that the experience of being subject to investigation and these regulatory proceedings for some four to five years had had an impact on the Respondent –
"Accordingly, with regard to the risk of repetition, the Tribunal determined that, while the risk had not been eliminated, the risk of repetition in this case was low predominantly for that reason".
- The Tribunal concluded that the Respondent's fitness to practise was impaired on a public protection basis. In so concluding, the Tribunal referred to the test endorsed by this court at [76] in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin) –
"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."
- In [190] of the decision, the Tribunal stated their view that limbs (a) to (c) of that test were engaged in the Respondent's case, in that the Respondent –
"had acted so as to put patients at unwarranted risk of harm, he had brought the medical profession into disrepute, and had breached a fundamental tenet of the profession".
- The Tribunal also concluded that the Respondent's fitness to practise was impaired on a public interest basis, and that all three limbs of the over-arching objective were engaged –
"Given the serious nature of [the Respondent's] actions, a finding of impaired fitness to practise was required and necessary to protect and promote the health, safety and wellbeing of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of that profession".
- On 8 February 2024 the Tribunal heard the parties' submissions on sanction. On 9 February 2024, the Tribunal issued their determination, suspending him from practice with immediate effect for a period of 12 months and directing a review hearing shortly before the end of that period of suspension.
- The Tribunal noted that they must exercise their own judgment in order to determine the appropriate sanction to impose, if any, in this case. They stated that in reaching that decision, they had taken account of both the Sanctions Guidance and of the over-arching objective. They had borne in mind that although they may have a punitive effect, the purpose of the sanction is not to be punitive, but to protect patients and the wider public interest. The Tribunal noted the agreement of both parties that, due to the seriousness of the matters found proved, realistically the Tribunal was presented with two choices, namely whether to suspend the Respondent or to erase him from the register. The Tribunal further noted that both parties agreed that, if it found the matters finely balanced, then it should opt for the lesser sanction on the basis that this demonstrated that suspension was viable and therefore a proportionate outcome.
- The Tribunal identified a number of aggravating and mitigating factors. The aggravating factors were that the Respondent's actions amounted to sexual misconduct, as the inappropriate examination was not clinically indicated and was sexually motivated; and that his misconduct represented an abuse of his professional position. However, the Tribunal found that the Respondent's behaviour had not been "predatory" but instead was "opportunistic in its nature".
- The mitigating factors were that the Respondent had "shown some insight, albeit that it is currently limited". He had been in practice for 42 years with no previous fitness to practise history. Testimonials had been provided showing him to be a good clinician. He had attended various courses and undertaken CPD that showed learning and steps taken in terms of remediation. There had been no repetition of the proven conduct in the four and a half years since the inappropriate examination on 28 June 2019 and no suggestion that he had failed to adhere to the principles of Good Medical Practice (GMP) during that time. The proven misconduct consisted of a single episode and could properly be described as out of character and an isolated event. The Respondent had engaged with the process throughout and the Tribunal had heard that he is committed to maintaining high standards in the future.
- It is necessary to set out in full the Tribunal's reasons in [235] to [244] of the decision for their determination that suspension was a sufficient and proportionate sanction in this case.
"Suspension
235. The Tribunal then went on to consider whether suspending [the Respondent's] registration would be appropriate and proportionate.
236. The Tribunal determined that the factors set out at paragraph 97(a), (e), (f) and (g) of the SG, as quoted in full above, were present in this case. It concluded that [the Respondent's] misconduct represented a single isolated episode in 42 years of practice and was out of character. It determined that [the Respondent] had engaged and undertaken some remediation. The Tribunal did not see evidence before it that demonstrated that remediation was unlikely to be successful and there was no evidence of repetition of similar behaviour either before or since the incident.
237. The Tribunal considered whether it was satisfied that [the Respondent] had insight and did not pose a significant risk of repeating his behaviour, in accordance with paragraph 97(g) of the SG. The Tribunal referred to its comments at the impairment stage as to the limited insight shown by [the Respondent] and the low risk of repetition. The Tribunal determined that, even in circumstances where he has robustly defended his case - as is his right, there was no evidence to suggest that it was not possible for [the Respondent]to reflect on the findings and gain insight that could be demonstrated to a future Tribunal. It could not discount, at this stage, the possibility of the development of further and full insight and the completion of remediation, particularly given that [the Respondent] has really only had to fully confront the issue having received the Tribunal's determination on the facts on 6 February 2024.
238. The Tribunal also referred to its comments at the impairment stage that, while the risk of repetition had not been eliminated, it was low predominantly for the reason of the impact of these proceedings upon [the Respondent] within the last four to five years. The Tribunal was of the view that a period of suspension would allow [the Respondent]to show that he had developed further and sufficient understanding about what motivated his actions, so that not wishing to go through this regulatory process again would be just one of a broader set of factors preventing him from repetition of the misconduct.
239. The Tribunal was of the view that the matters and considerations in this case were finely balanced. It determined to suspend [the Respondent's] registration as it considered that, although [the Respondent'] actions represented a serious breach of GMP, complete removal from the Medical Register at this stage would not be in the public interest. Although the breach was so serious that any sanction lower than suspension would be insufficient to uphold the overarching objective, suspension did adequately protect the public. Further, the Tribunal considered that it was in the public interest to give [the Respondent] this opportunity to fully remediate. It noted that [the Respondent]is highly thought of as a clinician, that the evidence showed that his misconduct was an isolated incident, it was not predatory behaviour, and there was no evidence of any other instances within the 42 years of practice.
240. In all the circumstances, the Tribunal determined that [the Respondent's] misconduct was not fundamentally incompatible with his continued registration. Although his actions were serious and caused Patient A considerable distress, it was a single isolated incident which was not predatory. However, having said that, the Tribunal wishes to make it clear that, for instance, had there been more than one such incident, or had more than one patient been targeted, it is likely that the Tribunal would have arrived at a different decision.
241. The Tribunal determined that suspension of a period of 12 months would be necessary and appropriate in all of the circumstances. It was of the view that this time period would adequately demonstrate the seriousness of what [the Respondent] has done and send out a message to other medical practitioners, and the wider public, that this conduct would not be tolerated. It would also ensure that [the Respondent] had sufficient time to further remediate and develop additional insight. The Tribunal concluded that any period less than 12 months would not properly uphold the overarching objective of protecting the public.
242. The Tribunal wished to be clear that it had also had regard to the factors at paragraph 109 of the SG (as quoted above), where any of the factors being present may indicate that erasure is appropriate (The Tribunal's emphasis). The Tribunal was of the view that, with reference to paragraph 109(a) there had been a serious departure from the principles set out in GMP but the behaviour was not fundamentally incompatible with being a doctor. In terms of paragraphs 109(b), (d), (f) and (i), the Tribunal agreed with Ms Barbour that there had been a deliberate disregard for the principles set out in GMP, that [the Respondent] had abused his position, the misconduct was of a sexual nature, and that he had put his own interests before those of Patient A. Further, in respect of paragraph 109(c), the Tribunal noted the effect upon Patient A, who was still distressed at recalling the events even after four and a half years, but there was no medical evidence before it to indicate that there was "serious harm". The Tribunal did not consider that paragraph 109(j) of the SG applied in that it did not believe there to have been a persistent lack of insight shown by [the Respondent] into the seriousness of the actions or the consequences.
243. While the Tribunal was mindful that a number of the factors at paragraph 109 of the SG applied in this case, it was clear that erasure was not mandatory. It agreed with Mr Ivill that some of the clauses under paragraph 109 were likely to be present, to a greater or lesser extent, in many cases where a doctor's misconduct required the sanction of suspension but where erasure would be disproportionate. The Tribunal had regard to all the circumstances of this case and to the principle of proportionality, and by considering the least restrictive option and working upwards to the most appropriate and proportionate sanction. The Tribunal concluded that the key point was within paragraph 107 of the SG, namely that a Tribunal may erase a doctor's name from the Medical Register "where this is the only means of protecting the public." (The Tribunal's emphasis) The Tribunal concluded that it did not consider that erasure was currently the only means of protecting the public in this case and that suspension for a period of 12 months, with a review hearing, was sufficient and appropriate for all of the reasons above. It concluded that, as matters stand, erasure of [the Respondent's] name from the Medical Register would be inappropriate and disproportionate.
244. Having said that, however, [the Respondent] must understand that he still has work to do and that one of the reasons for imposing the maximum suspension was because the Tribunal considered it proportionate (bearing in mind his previous unblemished career) to allow him time to demonstrate that he has developed full insight into his misconduct. If he fails to take such an opportunity, the reviewing Tribunal would still have the option of erasure as a final sanction."
Legal framework
- Section 1(1A) and (1B) of the Act state –
"(1A) The over-arching objective of the General Council in exercising their functions is the protection of the public.
(1B) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives—
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession".
- Section 40A of the Act includes the following provisions –
"This section applies to any of the following decisions by a Medical Practitioners Tribunal -
(a) a decision under section 35D giving -
(i) a direction for suspension, …
…
(2) A decision to which this section applies is referred to below as a "relevant decision".
(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of 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.
…
(6) On an appeal under this section, the court may –
(a) dismiss the appeal;
(b) allow the appeal and quash the relevant decision;
(c) substitute for the relevant decision any other decision which could have been made by the 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".
- The principles to be applied were summarised by the Divisional Court in General Medical Council v Jagjivan [2017] EWHC 1247 (Admin); [2017] 1 WLR 4438 at [40] (omitting some case citations) –
"In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong'….
iii) The court will correct material errors of fact and of law…. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing….
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.21(4).
v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460 at paragraph 16, and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169 at paragraph 36.
vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep Med 365 at paragraph 11, and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 at 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".
vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.
viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall v General Medical Council [2010] EWCA Civ 407; [2010] 2 FLR 1550 at paragraphs 55 to 56)".
- In Bawa-Garba v General Medical Council [2018] EWCA Civ 1879; [2019] 1 WLR 1929 at [60]-[67], the Court of Appeal said that since the decision as to appropriate sanction following a finding that a medical practitioner's fitness to practise had been impaired was an evaluative one based on many factors, the appellate court should only interfere if there had been shown to be an error of principle in carrying out the evaluation, or for any other reason, the evaluation was wrong, in that it fell outside the bounds of what the specialist adjudicative body (in this case, the Tribunal) could properly and reasonably decide. At [61] the Court of Appeal said –
"The decision of the Tribunal that suspension rather than erasure was an appropriate sanction for the failings of Dr Bawa-Garba, which led to her conviction for gross negligence manslaughter, was an evaluative decision based on many factors, a type of decision sometimes referred to as "a multi-factorial decision". This type of decision, a mixture of fact and law, has been described as "a kind of jury question" about which reasonable people may reasonably disagree…It has been repeatedly stated in cases at the highest level that there is limited scope for an appellate court to overturn such a decision".
- In Haris v General Medical Council [2021] EWCA Civ at [11], the Court of Appeal identified the approach confirmed by the court in Bawa-Garba as appropriate to appeals by the GMC under section 40A of the Act where the challenge is to an evaluative determination of the Tribunal.
- In General Medical Council v Bramhall [2021] EWHC 2109 (Admin) at [34] and [36], Collins Rice J explained that a sanction decision should be considered in the full context of the Tribunal's overall determination and of the evidence and submissions made during the course of the regulatory proceedings. A narrow textual analysis was inappropriate to a decision of a regulatory tribunal. The determination must be read fairly, as a whole, to understand and assess its reasoning. However, on the facts of that case where the "authoritative steer" of the Sanctions Guidance was plainly towards erasure from the register as the appropriate and proportionate sanction –
"…while that does not necessarily constrain a tribunal's final decision, it does properly engage a duty to state clear reasons for departure (PSA v HCPC v Doree [2017] EWCA Civ 319) in the form of a careful and substantial case-specific justification (GMC v Khetyar [2018] EWHC 813). This requires something more (a) clear, (b) substantial and (c) specific in the way of reasons than would be required if the steer of the Guidance were being followed. This determination does not provide that. While the GMC's submissions were noted, the engagement of the erasure indicators is not even acknowledged as such in the MPT's reasoned determination… Failure to deal with erasure indicators where they are engaged produces determinations which are simply incomplete. There is an important part of the picture missing, or a 'missing link' (GMC v Mmono [2018] EWHC 3512 (Admin) at [27]). That is a fundamental flaw – an error of principle. The decision does not fully make sense and the reader cannot see how it is proportionate.".
The Sanctions Guidance
- The parties referred to numerous paragraphs in the GMC's Sanctions Guidance, the purpose of which is to provide guidance to tribunals on imposing sanctions on a doctor's registration, including why a tribunal should impose sanctions and what factors it should consider. It is made clear that the list of factors which is given in the Sanctions Guidance in relation to particular sanctions is not intended to be treated as exhaustive. Tribunals are advised to use their own judgment and to consider all factors, including those listed, which they consider should be brought into account in order to determine whether, and if so, which sanction is necessary and proportionate to the case before them.
- The Sanctions Guidance advises that the Tribunal should take a proportionate approach to imposing sanctions -
"20. In deciding what sanction, if any, to impose the tribunal should consider the sanctions available, starting with the least restrictive. It should also have regard to the principle of proportionality, weighing the interests of the public against those of the doctor (this will usually be an impact on the doctor's career, eg a short suspension for a doctor in training may significantly disrupt the progression of their career due to the nature of training contracts).
21. However, once the tribunal has determined that a certain sanction is necessary to protect the public (and is therefore the minimum action required to do so), that sanction must be imposed, even where this may lead to difficulties for a doctor. This is necessary to fulfil the statutory overarching objective to protect the public".
- Paragraphs 91 to 106 give guidance on the sanction of suspending the doctor's registration. Paragraphs 92 and 93 advise –
"92. Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession).
93. Suspension may be appropriate, for example, where there may have been acknowledgement of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated. The tribunal may wish to see evidence that the doctor has taken steps to mitigate their actions (see paragraphs 24–49)".
- Paragraph 97 identifies factors the presence of which may indicate that suspension is appropriate –
"97. Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate.
a. A serious breach of Good medical practice, but where the doctor's misconduct is not fundamentally incompatible with their continued registration, therefore complete removal from the medical register would not be in the public interest. However, the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors.
b. In cases involving deficient performance where there is a risk to patient safety if the doctor's registration is not suspended and where the doctor demonstrates potential for remediation or retraining.
c. In cases that relate to the doctor's health, where the doctor's judgement may be impaired and where there is a risk to patient safety if the doctor were allowed to continue to practise even under conditions, or the doctor has failed to comply with restrictions or requirements.
d. In cases that relate to knowledge of English, where the doctor's language skills affect their ability to practise and there is a risk to patient safety if the doctor were allowed to continue to practise even under conditions.
e. No evidence that demonstrates remediation is unlikely to be successful, eg because of previous unsuccessful attempts or a doctor's unwillingness to engage.
f. No evidence of repetition of similar behaviour since incident.
g. The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour".
- Paragraphs 107 to 111 of the Sanctions Guidance give guidance on the sanction of erasure of the doctor's name from the register. Paragraph 107 identifies factors the presence of which may indicate that erasure is appropriate -
"107. The tribunal may erase a doctor from the medical register in any case – except one that relates solely to the doctor's health and/or knowledge of English – where this is the only means of protecting the public.
108. Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor.
109. Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive).
a. A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor.
b. A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety.
c. Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients (see further guidance below at paragraphs 129–132 regarding failure to provide an acceptable level of treatment or care).
d. Abuse of position/trust (see Good medical practice, paragraph 65: 'You must make sure that your conduct justifies your patients' trust in you and the public's trust in the profession').
e. Violation of a patient's rights/exploiting vulnerable people (see Good medical practice, paragraph 27 on children and young people, paragraph 54 regarding expressing personal beliefs and paragraph 70 regarding information about services).
f. Offences of a sexual nature, including involvement in child sex abuse materials (see further guidance below at paragraphs 151 - 159).
g. Offences involving violence.
h. Dishonesty, especially where persistent and/or covered up (see guidance below at paragraphs 120–128).
i. Putting their own interests before those of their patients (see Good medical practice paragraph 1: – 'Make the care of [your] patients [your] first concern' and paragraphs 77–80 regarding conflicts of interest).
j. Persistent lack of insight into the seriousness of their actions or the consequences".
Grounds of appeal
- The GMC advances the following grounds of appeal against the Tribunal's decision –
(1) In their consideration of impairment, the Tribunal erred in principle in failing properly to address the question of risk of harm to patients in future.
(2) The Tribunal erred in principle in finding the Respondent's limited insight into his misconduct to be a mitigating factor for the purposes of determining the appropriate sanction to impose.
(3) In their determination of sanction, the Tribunal's judgment that the factor mentioned in paragraph 97(g) of the Sanctions Guidance was present and indicated that suspension might be appropriate, was beyond the bounds of what they could properly and reasonably decide.
(4) The Tribunal's determination that suspension was the appropriate and proportionate sanction in this case was contrary to the authoritative steer of the Sanctions Guidance, not properly explained and beyond the bounds of a proper and reasonable decision in the light of the degree of the Respondent's misconduct and impaired fitness to practice.
Ground 1
- Ms Hearnden submitted that in considering the question whether the Respondent's fitness to practice was impaired by reason of his misconduct, the Tribunal had purported to direct themselves by reference to the approach endorsed by the court in Grant. However, the Tribunal had failed to follow that approach. The Tribunal had confined their consideration only to the Respondent's past actions. They had failed to address the question whether the Respondent's proven misconduct showed that he was liable in the future to act so as to put patients at unwarranted risk of harm, to bring the medical profession into disrepute or to breach a fundamental tenet of the medical profession.
- I do not accept that the Tribunal made that error of approach. As Mr Ivill submitted, at [190] of their decision the Tribunal reminded themselves of the approach endorsed by this court at [76] of Grant. Ms Hearnden places emphasis on the Tribunal's finding in [190] that the Respondent had acted so as to put patients at risk, had brought the profession into disrepute and had breached a fundamental tenet of the profession. Those findings were as to past rather than future actions.
- It is, however, necessary to read that paragraph in the context of the Tribunal's overall analysis of the question of impairment and future risk. At [189], the Tribunal expressly found that the risk of repetition of the Respondent's misconduct, albeit in their judgment low, could not be ruled out. Their conclusion in [190] was that the Respondent's fitness to practise was impaired in the sense of each of the three limbs of impairment stated at [76] in Grant. Each of those three limbs of impairment embraces the risk of future misconduct as well as the fact of past misconduct. In my view, on a fair reading of [190] in the context of the Tribunal's detailed conclusions on impairment at [182] to [193] of the decision, they did both address the risk of future harm and conclude that the Respondent's fitness to practise was impaired on that basis; albeit that the risk of his acting in future so as to put a patient or patients at risk was, in the Tribunal's judgment, a low one. That is the effect of the Tribunal's overall conclusion at [192] of the decision.
- For these reasons, I do not accept that the Tribunal erred in principle in their consideration of impairment in failing to address the risk of harm to patients in future. Ground 1 is not made out.
Ground 2
- Ms Hearnden drew attention to [230] of the decision, in which the Tribunal identified their finding that the Respondent had shown some insight, albeit that it was currently limited, as a mitigating factor in his case. It was submitted that the degree of the Respondent's insight was so limited in its extent as to be incapable properly of attracting weight as a mitigating factor. At [186], the Tribunal had referred to the Respondent's reflective statement of 6 February 2024. The Tribunal had characterised the Respondent's insight in that statement as being limited in effect to being sorry that Patient A felt the way she had described. However, as the Tribunal found, the Respondent did not appear to have acknowledged the full impact of his actions upon Patient A, as she had described them in her evidence. Counsel pointed out that Patient A had given her evidence to the Tribunal on 15 and 16 May 2023. The Respondent had been present to hear her evidence. He had then had a period of over eight months in which to reflect on what Patient A had said, before he came to compose his reflective statement. In those circumstances, simply being sorry that Patient A felt as she did, Ms Hearnden submitted, could not properly be considered to be insight capable of mitigating the Respondent's misconduct or impairment of fitness to practise.
- As Mr Ivill submitted, the Sanctions Guidance is clear that insight is capable of being treated as a mitigating factor when the Tribunal is considering the question of sanction. Paragraph 25(a) of the Sanctions Guidance gives as an example of a mitigating factor –
"Evidence that the doctor understands the problem and has insight, and of their attempts to address or remediate it".
- It is again important, in my view, to consider the Tribunal's findings in their full context. In particular, [186] of the decision must be read as a whole, and in the context of [182] to [188], in order to determine whether the Tribunal erred in principle in treating the Respondent's insight as a mitigating factor in this case.
- In [186] the Tribunal reached a cautious and qualified conclusion on the basis of the Respondent's reflective statement. They found some, but only limited insight to be demonstrated by the contents of that statement. They explained in [185] and [186] why they found the reflective statement to reveal some limited insight. In [188] the Tribunal found that the various courses and continuing professional development undertaken by the Respondent to be of some value, but went on to find that he had not reflected on the GMC guidelines on professional boundaries and had not attended a professional boundaries course.
- In my view, the Tribunal's findings were sufficient to justify their conclusion that the Respondent had shown some limited insight into his misconduct. It is not an error of approach for the Tribunal to treat that limited insight as a mitigating factor for the purposes of determining the appropriate sanction. The Sanctions Guidance identifies evidence of insight as an example of a mitigating factor. The more limited that insight, the less weight it may reasonably carry in the overall determination of sanction, a point to which I return later. Nevertheless, as Mr Ivill submitted, even limited insight is capable of being regarded as insight. The Tribunal did not err in principle in regarding the Respondent's limited insight as a mitigating factor in this case. For these reasons, ground 2 is not made out.
Ground 3
- Paragraph 97 of the Sanctions Guidance identified a series of factors, the presence of which may be taken by the Tribunal to indicate that suspension may be the appropriate sanction. One such factor is stated at paragraph 97(g) –
"The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour".
- At [236] of the decision, the Tribunal determined that factor to be present in the Respondent's case. The Tribunal's reasons for so finding are stated in [237] of the decision. They were satisfied that the Respondent had insight and did not pose a significant risk of repeating his behaviour.
- For the GMC, Ms Hearnden submitted that paragraph 97(g) of the Sanctions Guidance raised two questions for the Tribunal to decide: firstly, whether they were satisfied that the Respondent had insight; and secondly, whether they were satisfied that the Respondent did not pose a significant risk of repeating his behaviour. On neither question, it was submitted, was the Tribunal able properly and reasonably to make a determination in the Respondent's favour.
- For the Respondent, Mr Ivill submitted that the Tribunal had been entitled to make the evaluative determination that the Respondent both had developed insight and could be expected to develop further insight during a full period of suspension. It was a reasonable approach to sanction for the Tribunal to give weight to the possibility of the Respondent developing further insight and to allow time for that to happen. The Tribunal's determination that the Respondent did not pose a significant risk of repeating his misconduct was also properly and reasonably founded upon the evidence and their findings on impairment.
- I accept Ms Hearnden's submissions on this ground.
- The questions posed by paragraph 97(g) of the Sanctions Guidance for the Tribunal to determine were these –
(1) Are we satisfied on the evidence that the Respondent has insight into his behaviour which we have found to constitute professional misconduct?
(2) Are we satisfied on the evidence the Respondent does not pose a significant risk of repeating that behaviour in future?
- As to the first question, on the Tribunal's own findings in [186] of the decision, the Respondent has shown only limited insight into his misconduct. In particular, the Tribunal found that the Respondent did not appear to have acknowledged the full impact of his actions upon Patient A, as she had described it in her oral evidence. That is a striking omission, given that the Respondent heard Patient A give her oral evidence over eight months before he wrote his reflective statement and gave his own oral evidence to the Tribunal. The question posed by paragraph 97(g) of the Sanctions Guidance demands consideration of the Respondent's insight into his behaviour which was found to amount to misconduct. In his reflective statement, the Respondent stated that he recognised that what had been found proved could have a great impact on his patients; and that having heard how Patient A had described the impact on her, although denying what she had claimed, he was nonetheless sorry that she felt the way she had described.
- What had been found proven by the Tribunal was a sexually motivated, purported examination of a young female patient which lacked any clinical justification, was gratuitous, carried out opportunistically, without the patient's consent and fell seriously below the standard of care expected of an experienced general practitioner. As the Tribunal said in making those findings, sexual misconduct was to be regarded as a particularly serious matter. The Tribunal's findings were supported by their acceptance of the expert evidence which had been agreed between the parties. That evidence stated that were Patient A's evidence as to the consultation on 28 June 2019 to be accepted, as it was, the actions of the Respondent brought general practice into disrepute.
- In [186] the Tribunal stated their view that the Respondent had failed to demonstrate that he fully understood the impact of his actions upon Patient A, of what went wrong at the consultation on 28 June 2019, and why he did what he was found to have done. That failure emphasised how limited was the degree of insight that the Respondent could reasonably be said to have shown into his misconduct. Insofar as it was capable (as I have accepted) of being considered a mitigating factor, it was of only limited significance. Paragraph 97(g) of the Sanctions Guidance, however, is concerned with whether the doctor can reasonably and properly be said to have gained insight into the behaviour which constitutes their misconduct.
- In my judgment, on the Tribunal's own findings in the present case, it was not properly open to them to be satisfied that the Respondent had gained such insight. Nor did the fact that (in the Tribunal's own words) they could not at that stage discount the possibility of the development of further and full insight provide a reasonable and proper basis for concluding that paragraph 97(g) of the Sanctions Guidance was present in this case.
- As to the second question posed by paragraph 97(g), the Tribunal's conclusion in [237] and [238] of the decision was that there was a risk that the Respondent would repeat his behaviour, but that the risk of him doing so was low, largely because of the impact on him over the past four to five years of the disciplinary proceedings. However, as Ms Hearnden submitted, the question for the Tribunal was whether they were satisfied that the Respondent did not pose a significant risk of repeating the behaviour found to constitute misconduct.
- Counsel drew attention to General Medical Council v Khetyar [2018] EWHC 813 (Admin) at [52], where Andrew Baker J said –
"As regards risk of repetition, the Tribunal found the risk not to be high, but para. 97(g) calls for consideration of whether the risk was significant. Depending on the seriousness of the conduct in question, a quantitatively small but nonetheless real (not fanciful) chance of recurrence might be significant".
- I respectfully agree with that analysis. In the present case, any real risk of repetition of the behaviour found proven by the Tribunal must, on any proper and reasonable assessment, be regarded as significant. In that context, any distinction between whether the Respondent's sexually motivated actions in lifting Patient A's top, pushing her breasts out of her bra and squeezing her breasts were predatory or opportunistic in nature is, in my view, immaterial. The material finding by the Tribunal was that there remained a risk that such behaviour, opportunistic though it may have been, would be repeated. The only determination reasonably open to the Tribunal was that they were unable to be satisfied that the Respondent did not pose a significant risk of repeating behaviour which they had rightly found to be very serious misconduct, and which impaired his fitness to practise.
- For these reasons, ground 3 is made out.
Ground 4
- For the GMC, Ms Hearnden submitted that in the circumstances of this case, the authoritative steer of the Sanctions Guidance was towards erasure from the register as the only means of protecting the public in fulfilment of the over-arching objective. On the Tribunal's findings, several of the factors identified in paragraph 109 of the Sanctions Guidance were present in the Respondent's case. There had been a particularly serious departure from the principles set out in GMP and the Respondent's behaviour was fundamentally incompatible with being a doctor. There had been a deliberate disregard of those principles. The Respondent had abused his position of trust. His proven behaviour during the consultation on 28 June 2019 constituted serious sexual misconduct. He had put his own interests in his sexual gratification before those of his patient. The Respondent had shown only limited insight into the seriousness of his actions and their consequences.
- It was submitted that the Tribunal had failed to give any proper or adequate explanation for deciding, in the face of the presence of these factors, that erasure would nonetheless be an inappropriate and disproportionate sanction in this case. The Tribunal's determination of sanction in this case was wrong, in the sense that it lay beyond the bounds of what they could properly and reasonably decide. The sanction of suspension failed to reflect the gravity of the Respondent's misconduct and was insufficient sanction for the protection of the public.
- For the Respondent, Mr Ivill emphasised the evaluative nature of the Tribunal's determination of appropriate and proportionate sanction. He submitted that the Tribunal had followed the approach endorsed by the Sanctions Guidance. The Tribunal had reminded themselves of the over-arching objective and the need to impose the sanction needed for the protection of the public. The Tribunal had rightly moved through the sanctions options in ascending order of severity, keeping properly in mind that the sanction imposed must be both appropriate and proportionate to the interests of the public and of the Respondent. In their assessment, the Tribunal had applied the detailed guidance in paragraphs 97 and 109 respectively of the Sanctions Guidance. Paragraphs [242] and [243] of the decision provided a proper and reasonable explanation and justification for the Tribunal's determination that erasure was an inappropriate and disproportionate sanction in this case. Applying the principle stated in Bawa-Garba, the court should respect the evaluative determination of the Tribunal as the specialist adjudicative body. The GMC has not shown the Tribunal's determination to be wrong, in the limited sense of being outside the boundaries of what they could properly and reasonably decide in this case.
- I essentially accept Ms Hearnden's submissions. In my judgment, this was clearly a case in which erasure was the appropriate sanction. The only proper and reasonable conclusion to be drawn by the Tribunal was that the Respondent's behaviour during the consultation on 28 June 2019 was fundamentally incompatible with his continued registration as a doctor.
- It is necessary to repeat the essential factual findings of the Tribunal, having heard the oral testimony of both Patient A and the Respondent. During the consultation, the Respondent lifted Patient A's top, pushing her breasts out of her bra and squeezing her breasts. There was found to have been no clinical indication or innocent explanation for those actions. The patient had neither asked for nor given her consent. They were actions which, on the Tribunal's finding, could only have been done for the Respondent's sexual gratification. They had been sexually motivated.
- In [242] of the decision, the Tribunal concluded that the Respondent's actions were a serious departure from the principles set out in GMP, that the Respondent acted with deliberate disregard for those principles, that he abused the trust placed in him by a young female patient and carried out an inappropriate physical examination of a sexual nature for his own sexual gratification in a clinical setting, thus putting his own interests before those of his patient. Patient A remained distressed by his behaviour four and a half years later. In all these respects, the Tribunal were correct in their conclusions. Whether or not the Respondent had shown a persistent lack of insight, he had only limited insight on the Tribunal's own findings.
- Taken together, those findings provided a clear and cogent steer under paragraph 109 of the Sanctions Guidance towards erasure as the appropriate sanction. The Tribunal's reason for declining to follow that clear and cogent steer is stated in [243] of the decision, where they identify the "key point" as being that they did not consider that erasure was the only means of protecting the public in this case.
- As I have already explained, that judgment is vitiated by the Tribunal's failure properly to evaluate the significance of the risk of a repeat of the Respondent's behaviour. Moreover, on the basis of their own factual findings, and given the absence of any innocent explanation for the Respondent's behaviour during the consultation on 28 June 2019 and the lack of any real insight into what happened, the Tribunal was wrong to attach weight to the fact that, in their judgment, the Respondent's behaviour had been opportunistic in nature.
- However, in my view, the principal error in [243] of the decision is that it founds on too narrow a judgment of what is required for the protection of the public. Sufficiency of a sanction for the protection of the public involves consideration not only of the health, safety and well-being of patients and the public. It also involves consideration of the need to maintain public confidence in the medical profession, and to maintain proper professional standards and conduct for the medical profession. When judged properly and reasonably against each of these factors and overall, I am in no doubt that, on the Tribunal's findings as to his misconduct and impairment of fitness to practise, the Respondent's behaviour was fundamentally incompatible with remaining in practice as a doctor. As the GMC submitted, the tribunal's approach to sanction did not adequately reflect the gravity of the misconduct. This was a deliberate and opportunistic sexual assault on a patient, an abuse of the doctor's position of trust and power which was undertaken for his own sexual gratification. It is behaviour that cannot properly and reasonably be regarded as compatible with the Respondent's continued registration as a doctor.
Conclusion
- For the reasons I have given, this appeal is allowed. I shall make an order quashing the Tribunal's decision.
- Given my conclusions under ground 4, my provisional view is that this is a case in which I should exercise the power conferred by section 40A(6)(c) of the Act and direct that the Respondent's name be erased from the register. However, I have decided that I should allow the parties a short period of time to make any submissions in writing that they wish to advance on the exercise of the powers under section 40A(6)(c) and (d) of the Act, in the light of my judgment. I shall adjourn the decision hearing for 14 days to allow the parties to do so.