General Medical Council v Nour Mohamed Magdy Aly Rezk
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 18 December 2023 |
| Neutral Citation | [2023] EWHC 3228 (Admin) |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1645/2023 |
[2023] EWHC 3228 (Admin)
Mrs Justice Lang DBE
Case No: CO/1645/2023
AC-2023-LON-001397
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Eleanor Grey KC (instructed by GMC Legal) for the Appellant
Selva Ramasamy KC (instructed by Medical Protection) for the Respondent
Hearing date: 14 and 29 November 2023
Approved Judgment
This judgment was handed down remotely at 10 am on 18 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Appellant (“the GMC”) appeals, pursuant to section 40A of the Medical Act 1983 (“MA 1983”), against a determination of a Tribunal of the Medical Practitioners Tribunal Service (“the MPTS”), on 3 April 2023, that no action should be taken against the Respondent (“Dr Rezk”), in respect of his sexual misconduct and impairment of fitness to practise.
In summary, the grounds of appeal are as follows:
i) The Tribunal failed to attach sufficient weight to the second and third limbs of the over-arching objective in section 1 MA 1983, namely, to promote and maintain public confidence in the medical profession and to promote and maintain proper professional standards and conduct for members of that profession.
ii) The Tribunal erred in finding that there were “exceptional circumstances” which justified a decision to take no action.
iii) In the circumstances of this case, the Tribunal ought to have imposed an appropriate sanction, namely, suspension.
Dr Rezk's history
Dr Rezk, whose date of birth is 5 June 1991, qualified with a MB Bch (Bachelor of Medicine and Surgery) at Alexandria University in Egypt in October 2014. He then worked a physician in the Directorate of Health Affairs in Alexandria.
Dr Rezk moved to the UK in November 2017. He was employed as a junior clinical fellow in Anaesthetics at West Middlesex Hospital between November 2017 and April 2018. Between April and August 2018, Dr Rezk was employed as a Trust grade doctor in Emergency Medicine at the Queen's Medical Centre, Nottingham. Between August 2018 and August 2019, he completed his Core Medical Training in Internal Medicine (CT1) at Derriford Hospital, Plymouth (“Plymouth”), where he met Ms A and Ms B who were, at that time, members of the nursing staff.
Dr Rezk began his Speciality Training in Emergency Medicine in August 2019 and was employed at Royal Shrewsbury Hospital as an ST1. Dr Rezk completed the first stage of the Faculty of the Royal College of Emergency Medicine (FRCEM) exams in December 2019. He began as an ST2 in Emergency Medicine in August 2020, at the West Midlands Deanery. He was allocated to the ICU/Anaesthetic department at Walsall Manor Hospital, part of Walsall Healthcare NHS Trust. In March 2021, Dr Rezk completed the next stage of the FRCEM exams and in August 2021, completed his ST2 year.
In August 2021, Dr Rezk began his ST3 training in Emergency Medicine at Walsall Manor Hospital and, in September 2021, he completed the third stage of the FRCEM exams. Dr Rezk began work at Birmingham City Hospital, part of Sandwell and West Birmingham NHS Trust, in February 2022 as part of his next rotation. This was due to conclude in August 2022. However due to the fitness to practise proceedings, he was not permitted to progress to ST4 training, although he was allowed to continue working as an ST3. I was informed at the hearing on 14 November 2023 that he has now commenced his ST4 training.
The allegations
On 8 December 2020, a Consultant at Plymouth referred Dr Rezk to the GMC on behalf of Ms A, a junior sister on the Medical Assessment Unit at Plymouth. She had disclosed to him that she had received from Dr Rezk unwanted sexually explicit messages, and pictures of his genitals, between September and December 2020. At that time, Dr Rezk had left Plymouth, and was contacting Ms A via social media.
On or about 11 December 2020, Ms B, who was also a junior sister on the Medical Assessment Unit at Plymouth, received messages about sexual activity from Dr Rezk on social media.
The Tribunal determined the allegations against Dr Rezk as follows:
“That being registered under the Medical Act 1983 (as amended):
1. You were employed as a CT1 trainee by the University Hospitals Plymouth NHS Trust (‘the Trust’) until 4 August 2019. Admitted and found proved
Ms A
2. Between around September 2020 to December 2020 (‘the relevant period’), you communicated with Ms A, your former colleague at the Trust, via Facebook Messenger. The detail of some of these messages is set out in Schedule 1. Admitted and found proved
3. During the relevant period, without solicitation from Ms A, you:
a. sent Ms A a message stating or implying that you had masturbated whilst looking her Facebook profile picture, or words to that effect;
Admitted and found proved
b. stated that you would spank Ms A, or words to that effect; Admitted and found proved
c. sent photographs of your genitalia to Ms A on one or more occasion;
Admitted and found proved
d. asked Ms A if she liked certain sexual things, and if her partner liked certain sexual things, or words to that effect;
Admitted and found proved
e. made sexual comments about Ms A's body and appearance; Admitted and found proved
f. continued to send messages of a sexual nature to Ms A, despite Ms A requesting on one or more occasion that you stop doing so.
Admitted and found proved
4. When confronted by Ms A regarding your actions at paragraph 3a, you responded stating that you had only done it once, or words to that effect.
Admitted and found proved
5. Your conduct as described at paragraphs 2 to 4 was:
a. inappropriate; Admitted and found proved
b. sexually motivated; Admitted and found proved
c. sexual harassment of Ms A. Admitted and found proved
Ms B
6. On or around 11 December 2020, you communicated with your former colleague at the Trust, Ms B, via Facebook Messenger, details of which are set out in Schedule 2. Admitted and found proved
7. Within the messages at Schedule 2, without solicitation from Ms B, you:
a. asked Ms B questions about her past sexual experiences and / or sexuality, or words to that effect; Admitted and found proved
b. disclosed to Ms B information about your own past sexual experiences and / or relationships; Admitted and found proved
c. asked Ms B about her sexual preferences, or words to that effect; Admitted and found proved
d. continued to ask Ms B about her sexual preferences, despite Ms B stating that it would be inappropriate for her to respond, or words to that effect. Admitted and found proved
8. Your conduct as described at paragraphs 6 and 7 was:
a. inappropriate; Admitted and found proved
b. sexually motivated; Admitted and found proved
c. sexual harassment of Ms B. Admitted and found proved
And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.”
Misconduct
The Tribunal found that the matters proved, which they characterised as sexual harassment, amounted to serious misconduct, for the following reasons:
“59. Subject to its determination on the matters which Dr Rezk advanced to explain his behaviour, the Tribunal considered that the facts which were found proved on Dr Rezk's admission in relation to Ms A and Ms B and which were inappropriate, sexually motivated and amounted to sexual harassment were sufficiently serious to amount to misconduct. Dr Rezk's Facebook Messenger messages to Ms A included but were not limited to:
• sending her a message stating or implying that he had masturbated whilst looking at her Facebook profile picture, or words to that effect;
• sending photographs of his genitalia on three immediately successive occasions;
• persisting in his sending messages of a sexual nature despite Ms A requesting that he cease to do so.
60. In Dr Rezk's Facebook Messenger messages to Ms B:
• he asked her questions about her own past sexual experiences and preferences and / or her sexuality,
• disclosed information concerning his own past sexual experiences and relationships, and
• continued to ask her about her sexual preferences notwithstanding that she stated that it would be inappropriate for her to respond.
61. Dr Rezk had only known Ms A and Ms B whilst he was doing his core training between August 2018 and August 2019. They were both nurses in the University Hospitals Plymouth NHS Trust at the time of his core training. The messages were sent to them in late 2020.
62. The Tribunal found that, by his behaviour, Dr Rezk breached the following paragraphs of GMP, 2013 edition:
Paragraph 36: “You must treat colleagues fairly and with respect”
Paragraph 65: “You must make sure that your conduct justifies … the public's trust in the profession.”
63. The explanation that Dr Rezk advances for his behaviour was that, although he was 29 years old, he was immature, and that working in the ICU / Anaesthetic department at Walsall Manor Hospital when the covid epidemic was rife was extremely pressurised and stressful for him, both at work and where he lived. At the time he was living alone; he felt isolated; he did not see people socially; his parents were in a different country; he spent a significant period of his days “on-line”.
64. The Facebook Messenger texts which the Tribunal has seen, but which do not amount to the complete sequence of communications between Dr Rezk and Ms A and Ms B demonstrate that he was persistently pushing the boundaries of what would be appropriate between erstwhile colleagues and that he was interested in discussing sexual matters, notwithstanding that these matters were not encouraged or initiated by Ms A or Ms B. The extremity of the approach of Dr Rezk is demonstrated by the particular...
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