Dr Itrat Khan v GMC

Hearing dates: 02 November 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 14 June 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This is an appeal under s 40 of the Medical Act 1983 by the Appellant, Dr Itrat Khan, against the findings of the Medical Practitioners' Tribunal (MPT) on misconduct and impairment. On 2 March 2023 he was suspended for a period of six months and an immediate order imposed. There is no separate challenge to the decision on sanction, which stands or falls on the misconduct and impairment appeal.

The misconduct for which the suspension was imposed involved prescribing medication to, and accessing the records of a patient (Patient B) with whom the Appellant initially was in a sexual relationship and later in a non-sexual emotional relationship. Patient B had a history of depression and drug addiction of which the Appellant was aware.

The Appellant is represented by Ms Tanchel. The GMC is represented by Mr Mant. As well as my notes, I have the audio recordings of the hearing which I have consulted whilst writing this judgment.

The number of grounds of appeal and the nature of the issues on this appeal have required careful consideration which has taken some time.

MPT process in outline

Before turning to the facts, and the issues on this appeal, I think it is helpful briefly to explain the MPT process.

Disciplinary proceedings for alleged misconduct against doctors before the MPT potentially have three stages (see rule 17, General Medical Council (Fitness to Practise) Rules Order of Council 2004 (SI 2004/2608), as amended) (the Fitness to Practise Rules):

a. Stage 1: the Fact Stage, where the MPT determines whether the facts alleged against the doctor by the GMC, or any of them, have been proved:

b. Stage 2: if it so finds, it moves to the Impairment Stage, where the MPT determines whether the doctor's fitness to practice is impaired;

c. Stage 3: if it finds his/her fitness to practice is impaired, it moves to the Sanction Stage, where it decides on the appropriate sanction.

Before a finding of ‘impairment’ at Stage 2 can be made, the MPT must first conclude that the facts it has found at Stage 1 amount to ‘misconduct’. That is by virtue of s 35C(2)(a), which provides:

“A person's fitness to practise shall be regarded as ‘impaired’ for the purposes of this Act by reason only of –

(a) Misconduct …”

Stage 2 therefore has two sub-stages: (a) misconduct; and (b) impairment. In other words, a finding of misconduct is a necessary but not sufficient condition for a finding of impairment. I will return later to how ‘misconduct’ and ‘impairment’ have been defined in the authorities.

In Webberley v General Medical Council[2023] EWHC 734 (Admin), Jay J said at [62]:

“It is standard practice for the MPT to announce its decision on the issue of misconduct, including the seriousness of that misconduct, at the same time as its decision on impairment.”

Factual background

The Appellant faced a three-week fitness to practice hearing which was heard in three parts. The hearing commenced on 11 April 2022. The second part began on 8 December 2022, and the final part restarted on 20 February 2023 concluding on 2 March 2023.

The hearing concerned two sets of allegations.

The first set alleged that the Appellant assaulted his wife on three separate occasions in 2018 and 2019 respectively. Of these, one was dismissed following a submission of no case to answer and the remaining two were found not proven at the end of the Fact Stage of the proceedings, and so I need not say any more about them.

The second set (with which this appeal is concerned) alleged that the Appellant had inappropriately accessed Patient B's clinical records and prescribed him medication whilst in a relationship with him and knowing he was vulnerable.

At the start of the hearing, the Appellant admitted all but one of the allegations relating to Patient B. The one which was not was admitted at the outset (allegation 5) was subsequently amended during the course of the hearing, and the Appellant admitted it as amended.

As so amended, the allegations were as follows:

“3. On one or more occasions as detailed in Schedule 1, you prescribed medication to Patient B.

(Admitted and found proved)

4. On one or more occasions as listed in Schedule 2, you accessed Patient B's medical records without good reason.

(Admitted and found proved)

5. Between 18 July 2018 and 30 January 2019:

a. you were in a sexual and/or emotional relationship with Patient B;

(Admitted and found proved)

b. you knew that Patient B was vulnerable by reason of his history of:

i. depression;

((Admitted and found proved))

ii. drug addiction.

(Admitted and found proved)

6. Your actions as described at paragraphs 3 and 4 were inappropriate by reason of paragraph 5.

(Admitted and found proved)”

The facts which gave rise to these allegations are as follows.

The Appellant was a GP who qualified in 1982. From 1987 until 2019, when he retired, he practiced as a partner at the Lattimore and Village Surgery. The surgery had a patient list of some 10,000 patients.

The Appellant was married with children.

In his witness statement for the MPT, which he adopted (and to which the following paragraph numbers refer), the Appellant said that, in the course of his marriage, he began to notice that he had emotional feelings towards men [5].

In October 2017 he met Patient B via a dating app. They were soon in a relationship which the Appellant hid from people he knew [6].

In May 2018 Patient B was in danger of homelessness; the Appellant invited him to move into an annex in the garden of his house [8].

The Appellant was aware of Patient B's drug addiction. He asked Patient B to promise not to bring drugs to the annex [8]. However, by late June/July 2018, the Registrant noticed changes in Patient B's behaviour which caused him to suspect that Patient B was abusing drugs [9].

Around this time, on 17 July 2018, Patient B registered as a patient at the Surgery. In his witness statement, the Appellant said that he sought to encourage Patient B to register with a different practice and told Patient B that he could not see him as a patient [10].

The Appellant said that [11]:

“Once Patient B had joined my Surgery, I did end up making appointments for him, I feared he would book appointments with me and once he was on my list, I would be forced to see him or reveal my secret relationship. I also checked on the appointments he made just to make sure this did not happen.”

The Appellant said that he thought he was ‘caught between a rock and a hard place, being in love with someone, not being able to show my sexuality and trying to hold together a family …’ [12].

In or around August 2018, the Appellant told Patient B that, if Patient B did not stop using drugs in the annex, he would end their relationship and require Patient B to leave. Patient B continued using drugs and the Appellant ended the relationship [13]. In response to this, Patient B took an overdose [14]. This is when the relationship stopped being sexual but continued as a close emotional relationship [30].

Around this time the Appellant's wife found out about his relationship with Patient B and their marriage ended acrimoniously.

As I have said, before the MPT, the Appellant admitted all of the allegations concerning his relationship with Patient B, specifically that he (a) accessed Patient B's records without good reason (allegation 3); (b) prescribed medication to Patient B (allegation 4), (c) was in a sexual and/or emotional relationship with Patient B (allegation 5(a)); (d) knew Patient B was vulnerable by reason of his depression and drug addiction (allegation 5(b)); and (e) that his actions were inappropriate (allegation 6).

The prescribing (allegation 4) occurred on three occasions. In his witness statement, the Appellant offered the following explanations [476–478]:

a. 4 August 2018: prescriptions for (i) Benzoyl peroxide 5%/Clindamycin 1% gel (acne treatment), (ii) Lymecycline 408mg capsules (antibiotic treatment for acne), (iii) Naproxen 500mg tablets (non-steroidal anti-inflammatory):

‘“I recall my colleague Dr Richards asking me to assist her a prescription as her electronic log in was not working. I remember this distinctly as once I found out who the patient was I knew I should act differently.”

b. 6 August 2018: prescription for Benzoyl peroxide 5%/Clindamycin 1% gel (acne treatment):

“From the records it appears I was printing off a prescription. These were over the counter acne treatment; Du-ac. It is one product so perhaps my guard was not up sufficiently. I am not sure why I would have done this but it would have only been at his request.”

c. 26 November 2018: Prescriptions for (i) Citalopram 20mg tablets (antidepressant), (ii) Lymecycline 408mg capsules (antibiotic treatment for acne), (iii) Naproxen 500mg tablets (non-steroidal anti-inflammatory), (iv) Ranitidine 150mg tablets (medication to reduce stomach acid):

“I issued Patient B a repeat prescription. The usual process for this would have been that Patient B would have made a written request via the admin team and this would have been actioned by a duty doctor within 48 hours. At the time I recall thinking that none of the medications were controlled...