21 June 2022

Significant weight accorded to doctor’s insight and lack of repetition in case of sexual misconduct

In General Medical Council v Abdulkhaled Ahmed [2022] EWHC 403 (Admin), the General Medical Council [GMC] appealed to the High Court against the Medical Practitioner Tribunal’s [MPT] decision in a case concerning a doctor’s clinical failings and sexual misconduct.

The GMC sought to overturn a sanction of two months’ suspension imposed by the MPT in respect of proved allegations of clinical failings and sexual misconduct which deemed Dr Ahmed’s fitness to practise impaired. Following a clinical consultation with a 14-year old patient, Dr Ahmed was found to have obtained her contact details and engaged with her on social media. 

In respect of a separate patient, it was proved that Dr Ahmed had used the patient’s medical records to obtain contact details to locate her on Facebook and WhatsApp and had sent messages which were sexually motivated.

Notably, the Tribunal attached significant weight to mitigating factors when deciding sanction. It was considered that Dr Ahmed had good practice history, previous good character and had no previous complaints made against him. It was also observed that he had undertaken various courses to attempt to remediate. The Tribunal found it to be significant that six years had elapsed since the incidents occurred and there had been no repetition of misconduct.

In respect of these considerations, the Tribunal concluded that the sanction of erasure would be disproportionate when balancing the doctor’s and public’s interests. Dr Ahmed had already been suspended for a period of four months under an interim order and it was therefore considered that a sanction of a further two months suspension would be proportionate.

GMC Appeal

The GMC appealed the sanction under section 40A(1)(a) of the Medical Act 1983 on the basis that the MPT had not properly addressed the Sanctions Guidance on erasure as they felt that the sanction was insufficient to reflect the seriousness of the misconduct. It was contended that less deference to a decision of a professional tribunal body should be given in instances of sexually motivated misconduct.

The High Court disputed this and respected deference to a decision of a professional body on the basis that they had the advantage of applying an evaluative consideration of evidence, including oral evidence. Mr Justice Murray cited Arunachalam v GMC [2018] EWHC 758 (Admin) to find that when determining sanction, a Tribunal should analyse aggravating and mitigating factors. He dismissed the GMC’s appeal and upheld the sanction of two months’ suspension.

Remarks

The High Court’s decision respects Bawa-Garba v GMC 2018 EWCA Civ 1879 which asserts that a professional tribunal should make an evaluative decision based on fact and law. As the Tribunal has the benefit of considering all the factual evidence, there is limited scope for an appellate court to overturn a decision, even where the case concerns sexual misconduct.

The decision highlights the importance of producing factual evidence to exhibit remediation and remorse as it is evident this will be considered when determining sanction. BTO’s Professional Discipline team specialises in all aspects of defence preparation and representation at professional tribunals.

If you have any queries about this matter, please contact our Professional Discipline and Clinical Defence Team.

Phoebe Crane, Trainee Solicitor (Author of article): pcr@bto.co.uk / 0131 222 2939

Cara Docherty, Associate: cdo@bto.co.uk / 0141 221 8012