General Medical Council v X
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 28 January 2019 |
| Neutral Citation | [2019] EWHC 493 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2751/2018 |
| Date | 28 January 2019 |
[2019] EWHC 493 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Soole
CO/2751/2018
APPEARANCES
Mr I. Hare QC (instructed by the General Medical Council) appeared on behalf of the Claimant.
Mr M. Sutton QC and Mr D. Morris (instructed by BLM Law) appeared on behalf of the Defendant.
Dr X is a medical practitioner in the paediatric (and in particular neonatal) field. By determination dated 18 December 2017 the Medical Practitioners Tribunal (MPT) upheld allegations of Dr X's sexual misconduct and dishonesty arising from an online sexual conversation with an adult who in the course of the conversation and as a member of an online paedophile vigilante group falsely self-identified as aged 15. Following a further hearing on impairment and sanction, the MPT by determination dated 15 June 2018 imposed a 12-month suspension on Dr X's registration, and subject to further review.
The MPT had agreed to conduct these hearings in private on the basis of evidence of a real and immediate risk that Dr X would commit suicide if the hearings were held in public and, in particular, if Dr X's sexuality and sexual misconduct were thereby exposed.
Following the determination on sanction, Dr X requested the General Medical Council (GMC) not to publish any part of its determination beyond the fact of the suspension for 12 months on grounds of misconduct, on the same basis of a real and immediate risk of suicide if that occurred. By a decision dated 17 July 2018 (clarified 20 July 2018) the GMC refused the request in its full width but indicated its willingness to redact the determination in terms that made it neutral as to gender and sexuality.
By the application for judicial review, Dr X seeks an order quashing the decision of 17 July 2018. By appeal, pursuant to s.40A Medical Act 1983, the GMC contends that the sanction of suspension was too lenient and that the MPT should have ordered erasure of Dr X from the Register.
By order of Walker J, dated 18 September 2018, permission was granted to proceed with the judicial review. It was further ordered that this should be heard together with the s.40A appeal and that the identity of Dr X should be anonymous until further order. In the light of further observations of Walker J, the parties agreed the terms of a consent order which provided for the publication of the MPT determination on the MPTS website in a form which was anonymised and with redaction as to gender and sexuality. This judgment is prepared in similar form.
Mr Mark Sutton QC, leading Mr David Morris, appeared for Dr X. Mr Ivan Hare QC appeared for the GMC. I am grateful for the clarity and quality of their submissions.
The misconduct
The essential facts can be taken from the MPT's findings of fact. On a date in June 2015, in the early hours, Dr X went on to an adult website and began a sexual conversation with someone identified as A. Dr X believed that the site was restricted to people over 18. After about 53 minutes, A said that they were aged 15. In the course of the continuing conversation, A told Dr X that they had been sexually abused by their father and had liked it. The conversation continued in sexual terms, although Dr X's language was more restrained than it had been previously. Dr X suggested that they needed to meet up and sent their picture and phone number to A. A then stated that they had a friend (B) aged 14, who also wanted to play, and sent Dr X a picture. Dr X said they both looked very attractive and arranged to meet both the following day.
The MPT did not accept Dr X's evidence that, from the time of the reference to abuse, their motive for continuing the conversation was to counsel and help A; or that by the end of the conversation Dr X had come to a firm conclusion not to keep the arrangement of meeting the following day. Whilst accepting that Dr X had become increasingly cautious about meeting up, it was satisfied that there was sexual motivation throughout the conversation.
Dr X's evidence was that they still believed A to be over 18, and that saying they were 15 was just part of A's sexual fantasy which Dr X played along with. On this, the MPT concluded:
“The tribunal does not find that you believed A was 15 but is satisfied that the information did not inhibit your language and you were prepared to have a sexually explicit conversation with someone who might have been 15.”: para.26.
Furthermore, there was “… clear and compelling evidence that when you were confronted with someone online who you thought at least might be 15 and/or 14, you continued a sexual conversation for over half an hour, during some of which you were tempted to meet A and B for a sexual purpose.”: para.38.
In the conversation, Dr X asked, “How do I know that this is not one of those paedophile tricks??” The MPT rejected Dr X's explanation that this was asked because it would be easier to counsel A and B face-to-face, and that the concern was how it might look if a meeting with a 15-year-old were observed, e.g. on CCTV, and someone “got the wrong end of the stick”. The MPT concluded that Dr X “… believed there was the potential of a sexual encounter but that you were being cautious. You recognised the danger of having had a highly sexualised online chat with someone you believed might be 15 years old, and that meeting them could be a trap”. The tribunal rejected the contention that Dr X's intention was to counsel A and B, concluding that, “… your reason for asking if it was a paedophile trick was because your motives remained sexual and you were looking to your own safety.”: para.46.
Dr X subsequently decided not to attend the meeting which had been arranged for the following day. There was no further contact.
As the MPT accepted, A was not a child of 15 but an adult member of the public, often known as an online vigilante, who reported the conversation to the police.
Following a police investigation, officers visited Dr X at home on 24 June 2016, i.e. over one year later. The police had likewise decided that the conversation was with an adult member of a “paedophile vigilante group”; that no criminal offence had been committed; but that the matter would be referred to Dr X's employers an NHS Trust.
During a meeting with the police on 27 June 2016 Dr X said that the reason for arranging to meet A was to provide support and counsel.
The matter was investigated by the NHS Trust. During an investigation meeting on 20 July 2016 Dr X stated that the reason for arranging to meet A was to counsel them because of the abuse they had suffered.
In the course of Dr X's evidence at a disciplinary hearing on 1 September 2016, Dr X again stated that they had continued with the online conversation in an attempt to counsel A.
The MPT found all these statements to be untrue, misleading and dishonest. These findings of fact were announced on 22 December 2017. At a later stage, the MPT summarised these findings as follows:
“In summary, the tribunal found that in June 2015 you engaged in an online conversation of a sexual nature on the … website with an individual who told you that they were 15 years of age. The tribunal found that during the course of a sexual conversation, you arranged to meet the individual concerned the following day for a sexually-motivated purpose. The tribunal also found that between June 2016 and September 2016, you acted dishonestly in that you made statements and gave evidence which you knew to be untrue to both the police and the Trust in respect of the reason for you wanting to arrange to meet the individual concerned.
You told both the police and the Trust … that you had wanted to support and counsel the individual concerned about abuse they had suffered previously. The tribunal found to the contrary that your actions were sexually motivated.”
Impairment
On 14 June 2018, the MPT turned to the question of whether, on the basis of the facts admitted and found to be proved, Dr X's fitness to practise was impaired by reason of misconduct. Counsel for Dr X, Mr Morris, acknowledged that a finding of misconduct was inevitable. As to impairment, he reminded the tribunal that the question of impairment was a matter for it alone to determine, and stated that no submissions would be made on that issue.
The tribunal concluded that the facts proved amounted to serious misconduct. As to impairment, it took particular account of the factors identified by Dame Janet Smith in the fifth report to the Shipman Inquiry: see para.17. In concluding that Dr X's fitness to practise was impaired by reason of such misconduct, the MPT made the following particular observations as to risk to patients, integrity, insight and remediation.
As to risk to patients, “there has been no suggestion that you have posed a clinical risk to patients in the past. The question of whether or not you are liable to act in such a way as to put a patient...
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