Dr Edouard Yaacoub v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 18 October 2012 |
| Neutral Citation | [2012] EWHC 2779 (Admin) |
| Docket Number | Case No: CO/10939/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 October 2012 |
[2012] EWHC 2779 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kenneth Parker
Case No: CO/10939/2011
Mary O'Rourke QC (instructed by Nabarro LLP) for the Appellant
Kate Gallafent (instructed by General Medical Council) for the Respondent
Hearing date: 5 October 2012
Introduction
This is an appeal of Dr Edouard Yaacoub ("Dr Y") under section 40 of the Medical Act 1983 (as amended) ("the Act") against a decision of a Fitness to Practise Panel ("the Panel") of the General Medical Council dated 13 October 2011 that Dr Y's fitness to practise was impaired by reason of sexual misconduct in relation to a female patient, "Patient A", such that his name should be erased from the Medical Register and that he be suspended with immediate effect.
Factual Background
The Appellant is an Egyptian doctor who moved to the United Kingdom in 1998. From October 2007 he worked as a salaried GP in Southall and for an out-of-hours service called "Westcall", based in Reading.
Dr Y faced charges in relation to two incidents before the Panel.
First, it was alleged that in January 2009 whilst on call at Westcall he knowingly misled Mrs F, the mother of patient DF, by stating
"Unfortunately we don't send a doctor with ambulance to see kids at home. This is a rule."
and that such action was dishonest.
The second set of allegations concerned a patient known as "Patient A". At the relevant time Patient A was a 56 year-old woman suffering from a hereditary disability (spastic paraplegia), causing her to have weakness and spasticity of her lower limbs. She used a wheelchair or crutches to mobilise. She had been widowed approximately ten years earlier. Although disabled, she did voluntary work which involved visits to elderly disabled people who lived alone. She had also been involved with another voluntary organisation for young people for over 30 years. Patient A lived alone, but had a partner "Mr B" and, according to her evidence to the Panel, was supported by a network of friends.
Dr Y made two visits to Patient A on Sunday 17 January 2010. The first was the result of a call by her to her local out-of-hours service, Westcall, to request a home visit as she was in pain following a fall. The call was taken by Dr Y, who confirmed that he would visit her home to carry out an examination. During the call Patient A told Dr Y that " the whole of [her] back ached from [her] neck, right, right the way down" and she wanted a physician to check that there was nothing seriously wrong with her back. Dr Y was driven to Patient A's home by a driver provided by Westcall and arrived about 11 minutes after the call at about 10 past 10 in the morning. He subsequently returned at approximately 7pm for a social visit, having called Patient A from his personal telephone to arrange the visit and driven his personal car to her address.
Dr Y was charged with misconduct in relation to both visits.
It was alleged that during the first visit Dr Y:
i) Touched Patient A's bottom,
ii) Put his hand between Patient A's thighs,
iii) Inserted his finger into Patient A's anus,
iv) Asked Patient A about her sex life,
v) Said to Patient A
a) "you have a beautiful back for a lady with a disability",
b) "sometimes doctors have to do things patients think aren't necessary",
c) people with disabilities didn't gain much from penetration and asked whether this was true for her,
or words to that effect.
In relation to the second visit that evening it was alleged that Dr Y:
i) offered to bless Patient A with holy oil,
ii) made sexual comments and suggestions to Patient A,
iii) undressed,
iv) asked Patient A to touch his penis,
v) pulled Patient A to the floor,
vi) removed her trousers,
vii) attempted to vaginally penetrate Patient A,
viii) masturbated in front of Patient A,
ix) ejaculated on Patient A.
It was alleged that these actions (save for that in relation to the blessing) were sexually motivated and indecent.
The hearing of the case lasted for nine days (3–12 October 2011). The case was heard by a Panel consisting of two medical members and a lay member.
So far as the allegations in relation to Mrs F were concerned, Dr Y did not dispute using the words alleged, and the Panel was satisfied that he had knowingly misled Mrs F by referring to a rule which he knew to be non-existent. It went on to find that that action was dishonest, applying the Ghosh test for dishonesty.
In relation to the second set of allegations, the Panel heard from Dr Y and Patient A, the police officer who had interviewed Patient A following a call that she made to NHS direct on 26 January 2010 concerning Dr Y's visits to her, which had reported the matter to the police, and the police officer who subsequently met with Patient A and interviewed Dr Y in connection with the allegations. Patient A's evidence was heard in person, the Panel having refused the GMC's application for her to give evidence via video link on the grounds of her vulnerability on the basis that " the credibility of witnesses is likely to be central to its decision making process" and her physical presence would " enhance its ability to assess her demeanour and spontaneity and thus come to a just decision as to her credibility".
Against the background of that analysis, the Panel found that during the first visit Dr Y had touched Patient A's bottom and put his hand between Patient A's thighs but not that he had inserted his finger into her anus. It found that he had said to her words to the effect that sometimes doctors have to do things patients think aren't necessary, and that he knew people with disabilities didn't gain much from penetration, was this true for her, but not that he had said that she had a beautiful back for a lady with a disability.
So far as the second visit was concerned, the Panel found that, based on his own evidence, Dr Y had returned to Patient A's house and offered a blessing to her, that is, a picture of a Coptic Christian Saint with what he described as a smudge of oil on its reverse, rather than offering to bless her himself. It found that he had stayed in the house for a considerable period of time, during which he asked Patient A to switch off the television and remove a cat from her sitting room. He then undressed sufficiently to expose his penis, asked Patient A to touch it, removed her trousers and attempted to penetrate her vaginally. When he failed to do that successfully he masturbated in front of her, ejaculated on her, got dressed and left. The allegation that Dr Y pulled Patient A to the floor had been withdrawn by the GMC following Patient A's evidence.
The Panel concluded that Dr Y's actions were sexually motivated and indecent, save in relation to the touching of her bottom during the first visit which could have been part of a proper medical examination of her spine.
The Panel proceeded to consider whether Dr Y's fitness to practise was impaired by reason of his misconduct. It found that his dishonesty in relation to Mrs F was not so serious that it constituted misconduct capable of underpinning a finding of impairment, but that his misconduct towards Patient A amounted to gross violations of the fundamental rules relating to the professional relationship between doctor and patient, and concluded that his fitness to practise was impaired by reason of such misconduct.
As a result, it felt that
"the only sufficient and proportionate way in which patients, the public and the reputation of the profession can be protected, is by directing the Registrar to erase [Dr Y's] name from the Medical Register."
and ordered that he be suspended with immediate effect
"as it would be inappropriate to allow [him] to practise medicine in any capacity pending the outcome of any appeal."
The High Court's powers on an appeal by a doctor against a decision of a FTP Panel are set out in section 40(7) of the Act, which provides that:
"On an appeal under this section from a Fitness to Practise Panel, the court may —
(a) dismiss the appeal;
(b) allow the appeal and quash the direction or variation appealed against;
(c) substitute for the direction or variation appealed against any other direction … which could have been given or made by a Fitness to Practise Panel; or
(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court."
By virtue of paragraph 22.3(2) of the Practice Direction to Part 52, the appeal is by way of re-hearing, but " it is a re-hearing without hearing again the evidence" ( Fish v GMC [2012] EWHC 1269 (Admin) at [28] per Foskett J).
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 r.52.11(3)). In considering whether the decision of a Panel was wrong particular deference is given to its decisions for two reasons: the expertise of the Panel members, and the Panel's role as the primary fact-finder in the proceedings.
In relation to the first of these features, the principles were summarised by McCombe J, as he then was, in Azzam v General Medical Council [2008] 105 BMLR 142 at [25]:
"(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;
(2) The judgment...
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