Dr Bhupinder Sacha v General Medical Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LLOYD JONES |
| Judgment Date | 02 February 2009 |
| Neutral Citation | [2009] EWHC 302 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 February 2009 |
| Docket Number | CO/10392/2007 |
[2009] EWHC 302 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR JUSTICE LLOYD JONES
CO/10392/2007
Gemma White (instructed by RadcliffesLeBrasseur) appeared on behalf of the Appellant
Andrew Hockton (instructed by General Medical Council) appeared on behalf of the Respondent
(Approved by the court)
: This is an appeal by Dr Bhupinder Sacha pursuant to section 40 of the Medical Act 1983 against the determination of the Fitness to Practise Panel of the General Medical Council, made on 24th October 2007, that his fitness to practise was impaired by reason of misconduct and that his name should be erased from the medical register.
The background to this matter is that Dr Sacha was a practitioner in a practice in Hinckley. He practised there for many years. The proceedings concerned two patients of that practice. Patient A and her family had first registered with Dr Sacha in the early 1990s. Throughout 1999, 2000 and 2001 Patient A consulted Dr Sacha in relation to depression. He was supportive. In 2001 she was appointed a receptionist at the practice. Her mental health remained unstable. The events which gave rise to her allegation against Dr Sacha occurred one evening in 2001. On that occasion Patient A alleged that Dr Sacha approached her in the surgery staff room, put his hands on her arms, pulled her body towards him, attempted to kiss her and told her that he found her very attractive and very beautiful, or words to that effect. Patient A resigned from her job but continued to be a patient of the practice. She had resolved not to take any formal steps in relation to what had happened. However, in 2005, following publicity about an allegation being made by Patient C, Patient A contacted the police.
The other patient was Patient C. At the time of the incident giving rise to her allegations against Dr Sacha, she was 17 years of age and had been registered with Dr Sacha since she was a young child. In the twelve months leading up to the events which formed the subject of the allegations, she had visited the practice frequently. On 28th February 2005, she attended a drop-in clinic at which she saw Dr Sacha and consulted him about tummy problems and a fast heart rate. In the course of the consultation, Dr Sacha conducted a breast examination and a vaginal examination, which led to her allegations against him. That evening Patient C spoke to her sister and, subsequently, her parents and the police, about what had happened. Dr Sacha was charged with an offence under section 2(1) of the Sexual Offences Act 2003 in relation to the vaginal examination of Patient C. He was tried by a judge and jury at Leicester Crown Court and was acquitted.
The charges before the Fitness to Practise Panel of the General Medical Council were as follows. I set them out in their form following an amendment made during the disciplinary hearing:
“That being registered under the Medical Act 1983
1. At all material times you were a UK registered practitioner working as a general practitioner at the Hollycroft Medical Centre, Clifton Way, Hinckley;
2. In or about 1992 Patient A registered as a patient at the Hollycroft Medical Centre;
3. Throughout 1999 and 2000 you treated Patient A for a depressive illness;
4. On an unspecified date towards the end of 2000 a vacancy arose for a receptionist at Hollycroft Medical Centre;
5. Patient A commenced employment as a receptionist in around early 2001;
6. A. On an unspecified Wednesday evening…
[in] 2001…
b. In the surgery staff room you
i. Approached Patient A, put your hands on her arms and pulled her body towards you,
ii. Attempted to kiss Patient A,
iii. Told Patient A that you found her 'very attractive' and 'very beautiful' or words to that effect;
7. In 2005 Patient C was a patient registered at the Hollycroft Medical Centre;
8. On 7th February 2005, Patient C consulted you complaining of hyperacidity and you prescribed medication for her condition;
9. On 14th February 2005, Patient C consulted you complaining of headaches and palpitations. She was prescribed medication and told to return in one week;
10. On 28th February 2005, Patient C returned for her follow-up appointment, in the course of this appointment you
a. Examined Patient C's breasts
i. You did not explain the purpose of the examination to Patient C,
ii. You did not offer Patient C a chaperon for the examination,
iii. You carried out the examination when it was not clinically indicated,
iv. You carried out the examination in an inappropriate manner,
v. You did not record the examination in Patient C's medical records,
b. Conducted an internal vaginal examination
i. You did not explain the purpose of the examination to Patient C,
ii. You did not obtain her express consent,
iii. You did not offer Patient C a chaperon for the examination,
iv. You did not record the examination in Patient C's medical records;
11. Your actions as set out in paragraphs 6(b)(i)-(iii) and 10(a)(i)-(v) and 10(b)(i)-(iv) were
a. Inappropriate,
b. Unprofessional,
c. An abuse of professional position,
d. And, in respect of 6(b)(i)-(iii) and 10(a)(iii)-(iv), sexually motivated.”
The charges set out in subparagraphs 6(a) and 6(b) in relation to Patient A were found proved by the Fitness to Practise Panel. The Panel also concluded that this conduct was inappropriate, unprofessional, an abuse of professional position and sexually motivated. The charges in paragraph 10(a)(i)-(v) in relation to the alleged examination of Patient C's breasts were found proved. The Panel also found that the conduct in 10(a)(i) was inappropriate and unprofessional, but was not an abuse of professional position. It concluded that the conduct in 10(a)(ii) was inappropriate, but it found the case not proved in relation to whether it was unprofessional and an abuse of professional position. It considered that the conduct in 10(a)(iii) was inappropriate, unprofessional, an abuse of professional position and sexually motivated. It considered that the conduct in 10(a)(iv) was inappropriate, unprofessional, an abuse of professional position and sexually motivated. It considered that the conduct in 10(a)(v) was inappropriate and unprofessional, but it found this conduct not to be an abuse of professional position. It considered the conduct in 10(b)(i) to be inappropriate and unprofessional, but found that it was not an abuse of professional position. It considered that the conduct in 10(b)(ii) was inappropriate and unprofessional, but found that it was not an abuse of professional position. It found that the conduct in 10(b)(iii) was unprofessional, but it found that it was not an abuse of professional position. In addition, Dr Sacha had admitted that that conduct in 10(b)(iii) was inappropriate. Dr Sacha had admitted that the conduct in 10(b)(iv), which was admitted, was inappropriate and unprofessional. The Panel found it was not proved to be an abuse of professional position. I should also make clear that the allegations in 10(b)(iii) and (iv) were admitted by Dr Sacha. It should be noted that there was no allegation that the internal investigation was sexually motivated. The Panel went on to conclude that Dr Sacha's fitness to practise was impaired by reason of misconduct and that his name should be erased from the medical register.
On this appeal, Mr Hockton, who appears on behalf of Dr Sacha, advances various grounds of appeal which fall into three categories: first, challenges to the Panel's determination, at the outset of proceedings, refusing to stay the charges on grounds of double jeopardy or abuse of process; secondly, challenges to the Panel's rejection of the submission at the conclusion of the General Medical Council's case that there was no case for Dr Sacha to answer; and, thirdly, challenges which can be broadly described as challenges to the Panel's findings of fact.
Before turning to the grounds of appeal, I should say something about the powers of this court on this appeal. The appeal is brought under section 40 of the Medical Act 1983. This appeal is required by Part 52PD.22.3 to be by way of re-hearing. This court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the lower tribunal ( CPR Part 52.11).
In considering these matters, I bear in mind, and I give appropriate weight to, the fact that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect, and that it has had the advantage in this case of hearing the evidence from live witnesses. (See the observations of Auld LJ in Meadow v General Medical Council [2007] QB 462, [2006] EWCA 1390 at paragraphs 125 and 197). I also have in mind the observation of Laws LJ in Fatnani and Raschid v General Medical Council [2007] 1 WLR 1460, [2007] EWCA Civ 46 at paragraph 20, that on an appeal under section 40:
“… the High Court will correct material errors of fact and of course of law and it will exercise a judgement, though distinctly and firmly a secondary judgement, as to the application of the principles to the facts of the case.”
Given the nature of some of the criticisms made by Mr Hockton of the proceedings before the Fitness to Practise Panel, it is appropriate that I refer at this stage to the authorities concerning the role of the legal assessor in such proceedings. In Gopakumar v General...
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