Dr Sudheer Shabir v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 13 July 2023 |
| Neutral Citation | [2023] EWHC 1772 (Admin) |
| Year | 2023 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/99/2023 |
[2023] EWHC 1772 (Admin)
Mrs Justice Hill
Case No: CO/99/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS
ON APPEAL FROM A DECISION OF THE
MEDICAL PRACTITIONERS TRIBUNAL
Leeds Combined Court Centre
1 Oxford Row, Leeds, LS1 3BG
Fiona Horlick KC and Mark Ainsworth (instructed by Weightmans) for the Appellant
Alexis Hearnden (instructed by the General Medical Council) for the Respondent
Hearing date: 19 June 2023
Approved Judgment
This judgment was handed down remotely at 10:30 am on 13/07/23 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The Appellant qualified as a doctor in 2018. From 28 November to 9 December 2022, he appeared before a Medical Practitioners Tribunal (“the Tribunal”), facing an allegation of sexual misconduct during his consultation with Patient A on 23 September 2019. The Tribunal found that the Appellant's fitness to practise was impaired by reason of his misconduct and directed that his name be erased from the medical register. The Appellant appeals the Tribunal's findings of fact, as is his right, under the Medical Act 1983, section 40. He does not dispute that, on the facts found as proved, erasure was an appropriate sanction.
The facts
The Appellant qualified from Hull and York medical school in 2018. He completed his foundation year one training, with rotations in emergency medicine, respiratory medicine and general surgery, in the West Yorkshire area. During his foundation year two, he spent a significant period of time as part of the Bradford Teaching Hospitals Covid-19 team. At the time of his consultation with Patient A, he was one month into a four-month rotation in primary care at Highfield Medical Practice (“the practice”). By this point in his rotation, the Appellant was able to see patients alone, but was afforded longer for each appointment (30 minutes) than the experienced GPs. After each group of four appointments he would have a debrief with his supervisor.
On 23 September 2019, Patient A attended the practice for an appointment. She said that she was prone to tonsillitis and was feeling dizzy with a sore throat. She did not know the Appellant, but had seen him previously when he sat in on an appointment she had had with another GP. The Appellant's examination of Patient A took place in two distinct parts but was treated as one consultation by the Tribunal, because the Appellant confirmed that he did not finalise his record of it until part two of the consultation had concluded. The consultation was split in this way because the Appellant wanted to re-test Patient A's blood sugar level before allowing her to leave the practice. For this reason, after the first part of the consultation, she left the consulting room and went to the waiting area of the practice where she was given a sugary drink. Some time thereafter, she returned to the consulting room where she was seen by the Appellant again.
The day after the consultation, Patient A reported to the practice that the Appellant had touched her breasts during both parts of the consultation when the same was not necessary. He denied any such touching. She reported the matter to the police. The Appellant referred himself to the General Medical Council (“GMC”).
The concerns about the Appellant's conduct were framed as one overarching “Allegation” before the Tribunal, described in two paragraphs.
Under paragraph 1, which was split into a series of sub-paragraphs, it was alleged that he had carried out two examinations of Patient A's breasts that were not clinically indicated. Specifically, it was alleged that his first examination of Patient A involved him putting his hand inside her bra, touching the underside of her breasts and feeling around her breasts; and that the second examination involved him lifting her sweatshirt over her breasts and her breasts out of her bra, and pressing both breasts, her nipples and her breast area with his hand. Further, it was alleged that he had failed to (i) explain the nature and purpose of his actions; (ii) obtain Patient A's verbal consent; (iii) offer her a chaperone; (iv) offer her privacy to get undressed and dressed; (v) ask her to remove her bra; or (vi) record his actions in her medical records.
Under paragraph 2, it was alleged that his touching of Patient A's breasts as alleged in the first two parts of paragraph 1 was sexually motivated.
The Tribunal heard evidence from Patient A, the Appellant, Dr Nigel Williams (an expert instructed on behalf of the GMC) and Dr Russell Roberts and Dr Nadeem Akhtar (two character witnesses relied on by the Appellant). The Tribunal also considered documentary evidence, including Patient A's medical record, her written account dated 24 September 2019, the Appellant's written account, the transcripts of the interviews conducted by the police with both Patient A on 6 November 2019 and the appellant on 2 December 2019, both parties statements to the GMC and further written character references on the Appellant's behalf.
On 7 December 2022 the Tribunal issued its Determination of the facts, finding all parts of the Allegation against the Appellant proved. On 8 and 9 December 2022, respectively, the Tribunal concluded that his fitness to practice was impaired by reason of misconduct; and that the appropriate sanction was erasure of his name from the medical register. The Tribunal also ordered that he should be immediately suspended pending any appeal.
The legal framework
The overarching legal principles relevant to an appeal of this kind were recently summarised by Collins Rice J in Sawati v General Medical Council [2022] EWHC 283 (Admin) at [46]–[50]. I gratefully adopt the parts of her summary that are relevant to this case (which does not involve an appeal against sanction), as follows:
“46. This is an appeal to which CPR Part 52 applies: the High Court will allow an appeal if satisfied that the Tribunal decision was (a) wrong or (b) unjust because of serious procedural or other irregularity in its proceedings.
47. There is no dispute about the proper approach of the High Court to appeals brought under section 40 of the Medical Act 1983…
102. Derived from Ghosh are the following points as to the nature and extent of the section 40 appeal and the approach of the appellate court:
(i) an unqualified statutory right of appeal by medical practitioners pursuant to section 40 of the 1983 Act;
(ii) the jurisdiction of the court is appellate, not supervisory;
(iii) the appeal is by way of a rehearing in which the court is fully entitled to substitute its own decision for that of the tribunal;
(iv) the appellate court will not defer to the judgment of the tribunal more than is warranted by the circumstances…
48. Since the degree of warranted deference depends on case-specific circumstances, ‘material errors of fact and law will be corrected and the court will exercise judgment, but it is a secondary judgment as to the application of the principles to the facts of the case’. I am reminded of guidance in Gupta v GMC [2002] 1 WLR 1691 at paragraph 10 that the Tribunal has an advantage because it has had a better opportunity to judge the credibility and reliability of oral evidence given by witnesses.
The fact that the appeal is a rehearing rather than a review makes little, if any, difference to the approach that should be adopted when considering the degree of deference to be shown to findings of primary fact by an appellate court: Arowojolu v General Medical Council [2021] EWHC 2725 (Admin) at [90]–[98] and Byrne v General Medical Council [2021] EWHC 2237 (Admin) at [16].
The degree of deference shown to the court below will differ depending on the nature of the issue below, namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors. The governing principle remains that set out in Gupta at [10], such that the starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below: Byrne at [12] and [13].
Findings of fact, particularly if founded on an assessment of the credibility of witnesses, were described by Leveson LJ in Southall v General Medical Council [2010] 2 FLR 1550 at [47] as “virtually unassailable”, but this is not to be read as meaning that it is “practically impossible” to challenge them: Byrne at [14], citing R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin) at [22].
As Morris J explained in Byrne at [15], the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways:
(i) Where “any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusions”: per Lord Thankerton in Thomas v Thomas [1947] AC 484 approved in Gupta;
(ii) Findings “sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread” per Lord Hailsham in Libman v General Medical Council [1972] AC 217;
(iii) Findings “plainly wrong or so out of tune with the evidence properly read as to be unreasonable”: per Girvan LJ in Casey v General Medical Council [2011] NIQB 95 at [6] and Warby J (as he then was) in Dutta at [21](7); and
(iv) Where there is “no evidence to support a…finding of fact or the trial judge's finding was one which no reasonable judge could have reached”: per Lord Briggs in Perry v Raleys Solicitors [2019] UKSC 5.
Morris J considered that the distinction between the last two of these formulations was a “fine” one. To the extent that there was a...
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