Mohammed Yasin v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 14 March 2018 |
| Neutral Citation | [2018] EWHC 677 (Admin) |
| Date | 14 March 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5802/2017 |
[2018] EWHC 677 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Yip
CO/5802/2017
Ms F Horlick (instructed by Radcliffe Le Brasseur) appeared on behalf of the Applicant.
Mr R Dunlop (instructed by the General Medical Council) appeared on behalf of the Respondent.
This is an appeal under s.40 of the Medical Act 1983 brought by Dr Mohammed Yasin, against a decision of the Medical Practitioners Tribunal, which I will refer to as “the Tribunal”, made on 15 th November 2017, to erase his name from the Register. The appellant does not appeal against the findings made against him that he had been guilty of misconduct and that his fitness to practise was impaired. His appeal is limited to the sanction. It is his case that erasure was wrong and that he ought only to have been suspended with provision for a review before the suspension expired.
Factual Background and the Tribunal's Findings
Dr Yasin qualified as a doctor in 2009. In April 2016, he was working as a locum senior house officer in an Accident and Emergency department. The unchallenged findings of the Tribunal are to the effect that Dr Yasin sexually assaulted two young female colleagues in the space of two hours on 2 nd April 2016. Ms A was a 21-year-old student nurse. She was working at the hospital as a health care assistant in a bank role. She was keen to secure a permanent job at the hospital.
Whilst she was at the doctors and nursing station of the Accident and Emergency Department, Dr Yasin approached her from behind, rubbed her shoulders and moved his hands down to her waist. Ms A moved away saying she had work to do but when she came back Dr Yasin was still there. He hugged her and, in doing so, pressed his erect penis against her abdomen. Ms A moved away again and moved towards a female colleague, but Dr Yasin again approached her from behind, hugging her tight and pressing his erection into her back. Ms A walked away to the staff kitchen, Dr Yasin followed her. His erection was visible through his clothes and he asked her if she was on shift the next day.
Ms B was also working as a health care assistant. She was waiting for a patient to come out of the toilet when Dr Yasin approached her and asked for a hug. Although Ms B did not raise her arms to him, he grasped her in a tight hug, moving his hands down from her back to her hips. He pushed his erect penis against her leg, moving back and forth. Ms B was trying to move away. When she did get out of embrace, Dr Yasin said: “I want another hug before the end of my shift.”
Later in the shift, Ms B found Ms A looking upset and they shared what had happened to each of them before approaching the nursing sister to report Dr Yasin's conduct. It is clear that both young women were upset by what had happened but worried about any negative consequences of making a complaint against a doctor. Dr Yasin has not been prosecuted. As far as I know, there has been no criminal investigation. I note that no complaints have been made against him before or after the 2 nd April 2016.
Having found the facts set out above, the Tribunal concluded that Dr Yasin's actions were sexually motivated. There is no dispute that this plainly justified the Tribunal's finding that his fitness to practise was impaired by reason of misconduct. The Tribunal determined that by his actions Dr Yasin breached fundamental tenets of the medical profession and brought the profession into disrepute. It found that he had shown limited insight into the less serious allegations and no insight into the more serious aspects of his behaviour which he had denied. There was no evidence of any considered attempts at remediation.
At the sanction stage, the Tribunal considered the sanctions guidance. It noted the mitigation, including previous good character, absence of further complaints since April 2016, positive testimonials, the fact that Dr Yasin was working in a stressful environment, his attendance on a course about professional boundaries, his limited insight and his engagement with the disciplinary process. The course, they said, represented a limited attempt at remediation.
The Tribunal then identified aggravating factors. There were two complainants, both young, junior female colleagues. Ms A was not a permanent member of staff but was seeking a permanent post. She was concerned that she had a good deal to lose by making a complaint about Dr Yasin. The Tribunal concluded that Dr Yasin abused his position as a doctor preying on junior colleagues. His behaviour during the 2-hour period was persistent. It found that his conduct would be regarded as deplorable by fellow practitioners and members of the public.
The Tribunal moved through the possible sanctions in ascending order of gravity. There is no suggestion that taking no action or imposing conditions would have been appropriate in this case. It was accepted on Dr Yasin's behalf that the choice was between suspension and erasure. In rejecting the option of suspension, the Tribunal said at para.42:
“Dr Yasin abused the special position of trust a doctor occupies and demonstrated sexually motivated predatory behaviour towards two junior female colleagues in the workplace who were vulnerable by virtue of Dr Yasin's respective seniority. Having sexually assaulted Ms B, within a period of approximately two hours, Dr Yasin persisted in his sexually motivated predatory behaviour when he then sexually assaulted Ms A.
His behaviour towards Ms A, the more vulnerable of the two complainants, was particularly persistent as he continued in his actions twice after she had moved away from him. Subsequently, Dr Yasin has shown limited insight in to the less serious aspects of his behaviour. He has made only a limited attempt at remediation to address his behaviour.”
Then at para.43:
“The Tribunal has determined that in all the circumstances, Dr Yasin's conduct is fundamentally incompatible with continued registration and therefore a period of suspension would not be an appropriate or proportionate sanction.”
In determining that erasure was the appropriate sanction, the Tribunal referred to para.107 to para.111 of the sanctions guidance and said at para.45 it found the following paragraphs to be of particular relevance:
“108. Erasure may be appropriate even when the doctor does not present a risk to patient safety but where this action is necessary to maintain public confidence in the profession.
109. Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive).”
They set out there three sub paragraphs:
“(a) A particularly serious departure from the principles set out in Good Medical Practice where the behaviour is fundamentally incompatible with being a doctor.
[…]
(d) Abuse of position/trust (see Good Medical Practice para.65: You must make sure that your conduct justifies your patient's trust in you and the public's trust in the profession.”).
[…]
“(F) offences of a sexual nature.”
Then at para.46, they concluded:
“In all of the circumstances of this case only erasure will promote and maintain both public confidence in the medical profession and proper professional standards and conduct for members of that profession.”
Grounds of Appeal
There are five grounds of appeal as follows. It is said in imposing a sanction of erasure, the Medical Practitioner's Tribunal:
“(1) Wrongly characterised the conduct.
(2) Failed to give adequate reasons.
(3) Failed to give appropriate weight to the mitigating factors.
(4) Misconstrued sanctions guidance.
(5) Wrongly imposed a sanction of erasure.”
In summary, Ms Horlick, who appears on behalf of Dr Yasin, contends that the Tribunal erred in its approach to sanction and that the decision to erase Dr Yasin's name from the Register rather than to suspend him was wrong. Ms Horlick contends that analysing the seriousness of the offending and the possibility of remediation ought to have led the Tribunal to give Dr Yasin a second chance and the opportunity to demonstrate remediation. This was not one of those rare cases, she said, that was so grave that erasure was required. It should have been dealt with by way of suspension with a review before the end of the period of suspension. In reaching my decision, I have considered all the matters set out in the grounds of appeal, the skeleton arguments and the well-focused oral submissions of both counsel.
The legal framework
The principles upon which this court will determine an appeal under s.40 of the Medical Act 1983 are now very well-known and there is no significant dispute between the parties as to the approach to be adopted.
The appeal is by way of rehearing but as Foskett J observed in Fish v The General Medical Council [2012] EWHC 1269 (Admin) at para.28, it is a rehearing without hearing again the evidence. This court will allow an appeal where the decision of the...
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