Mohammed Suhaib Sait v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 04 December 2019 |
| Neutral Citation | [2019] EWHC 3279 (Admin) |
| Date | 04 December 2019 |
| Docket Number | Case No: CO/2427/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3279 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: CO/2427/2019
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: 26 November 2019
Approved Judgment
This is my judgment on the appellant's appeal against the decision of the Medical Practitioners Tribunal given on 21 May 2019 that the appellant's conduct on 9 May 2016 was sexually motivated. This is in fact the second time that the appellant has appealed.
The background to this case is set out in my judgment of 27 November 2018 ( Sait v The General Medical Council [2018] EWHC 3160 (Admin)). I allowed the appellant's first appeal to a limited extent. I set aside the finding by the first Tribunal that the conduct listed in para 6 of that judgment was done with a sexual motivation and I directed that that issue should be retried.
The listed conduct in para 6 of my earlier judgment was:
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.
ii) On 9 May 2016 the appellant telephoned Patient B and asked her to meet him at the Eynsford Plough pub.
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.
iv) At the end of the meeting the appellant asked Patient B to go with him to his car.
v) And that all of the appellant's actions as set out above were sexually motivated.
There was a clear finding by the first Tribunal, which was not appealed, that the appellant had instigated the meeting at the pub. However, at the remitted hearing it was apparently agreed that the first Tribunal's reasons would not be placed before the second Tribunal (although my judgment would be) and that in relation to that particular issue the appellant would not be fixed with the earlier finding which was not appealed to me last year. Therefore, there was some oral evidence about this issue, but the second Tribunal did not make an explicit finding about it. This is all very difficult to understand. I think I am being asked to determine this appeal on the basis that no adverse finding in relation to that matter has been made against the appellant notwithstanding that I clearly recorded in my first judgment that there was one. This is unfortunate not least because in para 15 I ventured the view that this particular finding was important. I said:
“Nonetheless, the Tribunal found that the appellant had made the initial approach, rather than the other way around. This was obviously an important finding and I dare say that the absence of corroboration from the appellant's secretary must have been influential. At all events, the appellant does not appeal that factual finding.”
However, it was not disputed that the appellant had telephoned Patient B and suggested meeting at the pub. As explained, the second Tribunal was silent as to whether that call was made by the appellant out of the blue or whether it was in response to a call from Patient B to the appellant's secretary. I am clear, however, notwithstanding the absence of an explicit finding by the second Tribunal, that this issue has been decided by the first Tribunal; it was not appealed; and that therefore the appellant was and is estopped from seeking to challenge it.
Therefore, these were the undisputed facts before the second Tribunal:
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.
ii) On 9 May 2016 the appellant telephoned Patient B and asked her to meet him at the pub.
iii) The appellant told Patient B 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 her at the pub; and that he had met other patients outside work and had not told his wife about it.
iv) After lunch the appellant asked Patient B to go with him to his car.
The second Tribunal had to decide whether the appellant did these things with sexual motivation. It did not have to decide whether that was his only motivation; it had to decide whether there was present within his overall motivation a sexual content. The main theme of my earlier judgment was that this serious charge had to be put fairly and squarely to the appellant in cross-examination. In paragraph 53 I said:
“If the allegation is serious (and an allegation of sexually motivated misconduct against a doctor is about as serious as it gets) then in my judgment the allegation must be fully and squarely put in cross-examination to the accused doctor. The content of the doctor's replies, as well as his demeanour, will equip the Tribunal to decide whether the allegation is, or is not, true.”
The appellant was comprehensively and effectively cross-examined by Ms Chloe Fairley. It was a model of that art. The Tribunal duly weighed the content of the appellant's replies and, no doubt, took into account his demeanour. It acquitted him of a sexual motivation in relation to his conduct specified in paragraph 5(i) and (iv) above. However, it was satisfied that his conduct specified in paragraph 5(ii) and (iii) was done with a sexual motivation. It went on to find that this constituted misconduct; that by virtue of such misconduct the appellant's fitness to practise was impaired; and it imposed a sanction of suspension for two months. Mr Sutton QC does not seek to argue that the sanction was inappropriate if the finding of sexual motivation is allowed to stand.
The appellant appeals the finding of sexual motivation. There are four grounds of appeal:
i) the Tribunal failed to give any consideration to matters of evidence which was central to the appellant's defence;
ii) the Tribunal introduced factors into its reasoning which were not foreshadowed in the allegations or which derived from the evidence;
iii) the Tribunal took into account evidentially irrelevant considerations; and
iv) the Tribunal engaged in wholly speculative fact-finding for which there was no supporting evidence.
Before I turn to the grounds, I propose to set out a number of legal propositions applicable to an appeal of this nature.
Although acting with a “sexual motivation” is not referenced word-for-word in the GMC Sanctions Guidance it is squarely covered by paras 142–144 (abuse of professional position), paras 147–148 (predatory behaviour) and paras 149–150 (sexual misconduct), all of which are aggravating features warranting an enhanced sanction.
In Basson v GMC [2018] EWHC 505 (Admin) at [14] I defined acting with sexual motivation 1 as conduct done either in pursuit of sexual gratification or in pursuit of a future sexual relationship. It is alleged that the appellant's conduct in this case fell within the second limb.
In Arunkalaivanan v General Medical Council [2014] EWHC 873 (Admin) Miss Amanda Yip QC (as she then was) explained at [55] that Tribunals should be careful not to equate inappropriate conduct with sexually motivated conduct and should address the important question as to whether there could be any other explanation for inappropriate conduct. In my previous decision in this case at [26] I explained, however, that the key indispensable ingredient of motivation relates to the individual's state of mind.
In Basson v GMC I sought to explain that where the court is seeking to determine the state of a person's mind it is undertaking or performing an evaluative function. In that case the question was whether the doctor had touched a patient with a sexual motivation. I said:
“17. The question for me is whether the Tribunal's finding was legitimately made. In Edgington v Fitzmaurice (1885) 29 Ch D 459, Bowen LJ famously said that the state of a man's mind is as much a fact as the state of his digestion. Therefore, in civil proceedings that fact, the state of the man's mind, is to be
proved in the usual way by the necessary body of evidence on the balance of probabilities. An appellate challenge to a finding of fact is always highly demanding. However, the state of a person's mind is not something that can be proved by direct observation. It can only be proved by inference or deduction from the surrounding evidence. It has been said that the appellate challenge, where the disputed fact has been proved by inference or deduction, is less stringent than where the challenge is to a concrete finding of fact. In other cases, however, it has been said that the standard is the same.18. I am prepared to accept that in a regulatory appeal the appellate challenge to a finding of fact derived from inference or deduction is less stringent than a challenge to a concrete finding of fact. Generally speaking, a finding of fact, whether one of a primary concrete nature or one made on the basis of inference or deduction, can only be challenged on appeal where it can be said that the finding is wholly contrary to the weight of the evidence or that there was some fault in the decision-making process that renders the finding unsafe.”
In Arunkalaivanan v General Medical Council Miss Yip QC stated at 48:
“Mr Hockton submitted that this court is...
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