Mohammed Suhaib Sait v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 27 November 2018 |
| Neutral Citation | [2018] EWHC 3160 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1928/2018 |
| Date | 27 November 2018 |
[2018] EWHC 3160 (Admin)
Mr Justice Mostyn
Case No: CO/1928/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Swansea Civil Justice Centre
Caravella House
Quay West
Quay Parade
Swansea SA1 1SP
Mark Sutton QC (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Appellant
Ivan Hare QC (instructed by GMC Legal) for the Respondent
Hearing date: 14 November 2018
Judgment Approved
The appellant qualified as a doctor over 30 years ago. He is a consultant orthopaedic surgeon. He was admitted to the specialist register in 2000 and holds the position of substantive NHS consultant at Darent Valley Hospital in Kent. He also has a private practice. Over more than three decades his career has been unblemished. Mr Sutton QC rightly emphasises the character evidence before the Medical Practitioners Tribunal from patients, consultant colleagues and clinic nurses attesting to his professionalism, probity and dedication to his patients' care.
On 20 April 2018, following a seven-day hearing in November 2017, the Tribunal found certain facts proved against the appellant; found that his fitness to practise was impaired by virtue of misconduct; suspended him from practice for a period of three months; and directed that his case be reviewed shortly before the conclusion of the period of suspension. It was not explained to me what might happen following such a review.
The appellant appeals against one finding of fact, namely that he did what he did with sexual motivation. Consequentially, he appeals against the finding that his fitness to practise was impaired by virtue of misconduct. Inferentially, he seeks that the sanction be reversed, although neither the notice of appeal, nor the grounds, spell this out. Alternatively, he asked that the matter be remitted to a differently constituted Tribunal for a rehearing.
This is the second such appeal I have heard this year. In Basson v GMC [2018] EWHC 505 (Admin) I attempted to set out some of the relevant principles applicable where an appeal is mounted against a finding of sexually motivated misconduct.
In the instant case, the proceedings before the Tribunal concerned the appellant's behaviour towards two patients, who were denoted Patient A and Patient B. The allegations in respect of Patient A were serious but were mainly found unproved. One allegation was admitted and three were found proved. However, in relation to those admitted, or proved, allegations the Tribunal was not satisfied that the appellant's actions were done with sexual motivation or that his fitness to practise was impaired by virtue of misconduct. Two of those proved allegations have some tangential relevance to the matters which I have to decide.
The appeal to this court concerns the findings made by the Tribunal in respect of the appellant's conduct towards Patient B. The findings were as follows:
i) Between September 2014 and May 2016 on one or more occasion(s) during consultations with Patient B the appellant told her that she was “pretty”, or words to that effect (see para 8 of notice of allegations).
ii) On 9 May 2016 the appellant telephoned Patient B and asked her to meet him at the Eynsford Plough pub (para 10(a)).
iii) On that day the appellant met Patient B at that pub and told her that she was “very pretty” (or words to that effect); that she should consider divorcing her husband (or words to that effect); that she should not tell her husband that they had met; that his wife did not know that he was meeting Patient B at the pub; and that he had met other patients outside work and had not told his wife about it (para 10(b)).
iv) At the end of the meeting the appellant asked Patient B to go with him to his car (para 10(c)).
v) And that all of the appellant's actions as set out above were sexually motivated.
Three allegations concerning Patient B were found not proved namely:
i) that the appellant on 18 April 2016 said to her that he could telephone her to discuss her marital problems further;
ii) that, at the pub, the appellant hugged her; and
iii) on that occasion he kissed her on the cheek.
The reason that the matter was before the Tribunal was because Patient B had made a complaint. In a statement made on 7 October 2016 she explained that she had seen the appellant at Darent Valley Hospital on several occasions and had developed a good doctor-patient relationship with him. On one occasion, 20 February 2016, her husband had attended with her. She went on to state:
“During other appointments, when my husband was not present, [the appellant] would review scans with me and I asked for reassurance that he had found no serious health concerns he replied by saying that there was nothing to worry about as I have good bones and skin and was very pretty. I found the reference to my looks strange, in view of my health concerns, but I put it to the back of my mind, assuming he was just being friendly to put me at ease.
During this time I was experiencing problems within my marriage, and I did discuss these with [the appellant]. During my appointments with [the appellant], he would ask about my family situation and I discussed with him some of the issues I was experiencing, in the hope that he will be able to offer, or direct me to some form of assistance or advice.
At my last later appointment on 18 April 2016, [the appellant] suggested that he telephoned me to discuss my problems further. I agreed in the hope that he would be able to help or offer advice.
Then on 9 May 2016, [the appellant] telephoned me on my mobile number at 12:15 PM from an unidentified telephone number. He would have known from our conversations during previous consultations, that I would be working at home that day. He said he had just finished working at Darent Valley Hospital and he was travelling through the area to Fawkham Manor Hospital, where he had to start work at approximately 2:30 PM. He suggested that we meet at the Eynsford Plough public house.
I met [the appellant] at the Eynsford Plough public house. At 12:30 PM, where we had lunch. [The appellant] paid for this. We sat in a garden area outside with many other people present. I showed [the appellant] some of my husband's emails with female and male colleagues/friends that I have been concerned about and that I had printed after finding them on my husband's phone. He seemed very concerned regarding my current family situation and suggested that I should consider divorcing my husband if I was finding our problems too much to bear. [The appellant] also said I was very pretty and I would have no problem finding someone else if I wanted to. I suggested during our conversation that I should mention our lunch meeting to my husband. However, [the appellant] encouraged me not to do this. He said that his wife did not know he was with me and he often met other patients outside of work and he had also never told her about this.
At this point I said I should get back to work at my home office. He then suggested we go back to his car. I then started to feel more uncomfortable but I thought that this may be to get a leaflet or maybe some contact details of someone that she (sic) could go to for help or advice. This turned out not to be the case and by that time I was getting increasingly concerned and I insisted that I should go and reminded him that he said he needed to be at Fawkham Manor Hospital by about 2:30 PM. [The appellant] then leaned towards me and gave me a hug and I think he tried to peck me on the cheek. This was the only time he had approached me in this way and I was very much taken aback by this behaviour.
He then drove away and we have not been in contact since.”
As can be seen, certain parts of this account were accepted by the Tribunal; and certain parts were not.
Under the General Medical Council (Fitness to Practise) Rules 2004 when a complaint is made the allegation is first sifted by the Registrar under rule 4. If it is allowed to go forward to a case examiner, then under rule 7 the complaint is supplied to the doctor and he is invited to give written representations within 28 days. The complaint and the response are then considered by case examiners who may refer the allegation for determination by a Tribunal. Under rule 16 the Tribunal, unsurprisingly, has power to issue case management directions to include advance disclosure of documentary evidence, witness statements and skeleton arguments.
I have not seen the written response of the appellant, but I assume that it was not materially different from his witness statement dated 11 September 2017.
The written response did not persuade the case examiners that the matter should not be referred to a Tribunal and at some point a notice of allegations was formulated, and the matter was set down for a lengthy hearing.
The appellant's witness statement was largely devoted to meeting the allegations made against him in respect of Patient A. So far as Patient B was concerned, the appellant did not deal at all with the allegation that he had called her “pretty” during at least one consultation.
The appellant's evidence was that on 9 May 2016, following the conclusion of his meeting at Darent Valley hospital, he found out that he had a message from his secretary to say that Patient B had called her (the secretary) earlier and had requested that he speak to Patient B urgently. It is noteworthy that the appellant did not produce a witness statement from his secretary confirming that this call had been received from Patient B.
As noted above, the Tribunal rejected the allegation that the appellant on 18 April 2016 said to Patient B that he could telephone her to discuss her marital problems further. Furthermore, the Tribunal must have...
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