Muhammad Zakariya Goolam Mahomed Khan v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 02 March 2021 |
| Neutral Citation | [2021] EWHC 374 (Admin) |
| Date | 02 March 2021 |
| Docket Number | Case No: CO/2845/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 374 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West, Manchester, M60 9DJ
THE HONOURABLE Mr Justice Julian Knowles
Case No: CO/2845/2020
Kevin McCartney (instructed by Hempsons) for the Appellant
Alexis Hearnden (instructed by GMC Legal) for the Respondent
Hearing date: 25 November 2020
Judgment Approved by the court for handing down
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Introduction
This is an appeal by Mr Muhammad Khan, the Appellant, under s 40 of the Medical Act 1983 (MA 1983) against a decision of the Medical Practitioners' Tribunal (the MPT/the Tribunal) made on 11 December 2019 following disciplinary proceedings. The Tribunal found that the Appellant had behaved in an inappropriate and sexually motivated way towards three female members of staff (Miss A, Miss C and Miss D) at Barnsley Hospital NHS Foundation Trust (the Trust), where he worked as a consultant orthopaedic surgeon. On 22 June 2020 the Tribunal found that Mr Khan's fitness to practise was impaired as a consequence. On 20 July 2020 the Tribunal determined that Mr Khan's name should be erased from the Medical Register.
The Respondent to the appeal is the GMC, which brought the disciplinary proceedings against Mr Khan.
Each of the complainants made a number of complaints about sexually motivated physical and verbal conduct by Mr Khan. I will set out some of the details later, but the Tribunal found all but one of the factual allegations proved and that most of Mr Khan's conduct had indeed been sexually motivated.
Technically, under the legislation this appeal is against the order for erasure (s 40(1)(a)) but its real focus is the Tribunal's Determination of the Facts (the Determination). I am invited to quash that Determination on the grounds set out below, and it is common ground that if I do then the finding of impairment and the sanction of erasure must also be quashed.
I held a remote hearing on 25 November 2020. The Appellant was represented by Mr McCartney and the GMC by Ms Hearnden. I am grateful to both of them for their helpful written and oral submissions.
On the joint application of the parties, I made an order at the outset of the hearing under CPR r 39.2(4) granting anonymity to the three complainants. That order has been sealed and served.
Mr Khan qualified as a doctor in South Africa in 1984 and became a specialist orthopaedic surgeon in 1992, accredited and registered by the College of Medicine in South Africa. He was entered onto the General Medical Council's (GMC) Specialist Register in 1996. He worked in various roles at the Trust from 1995 until February 2014. He began working as a surgeon there in 1995. He was the Clinical Director for Orthopaedics and Rheumatology from December 2000 to May 2005 and was Clinical Director for Orthopaedics from April 2010 to February 2014.
The complaints against Mr Khan led to a number of internal and external legal processes. As well as the MPT proceedings and this appeal, they included disciplinary proceedings by the Trust in 2013–2014 which led to Mr Khan's dismissal for gross misconduct in February 2014; successful Employment Tribunal (ET) proceedings brought by him in 2015 for unfair and wrongful dismissal; an unsuccessful application by him to the ET for reinstatement; and a criminal trial in the Crown Court in 2016 for the sexual assault of Miss D, of which Mr Khan was acquitted.
The hearing before the Tribunal was protracted and occupied many days over a number of months. The papers before me on this appeal are extensive and run to some eight lever arch files.
The allegations and Mr Khan's response to them
The allegations against Mr Khan are set out in the MPT's Determination at [28]. There are a large number of them. I do not propose setting them all out, but I think the following summary gives an accurate flavour of what Mr Khan was accused of.
Miss D
Miss D was an Assistant Technical Officer and was based in the Trust's operating theatres. As the Tribunal noted at [39] of its Determination, Miss D's allegations were the first to be reported to the Trust.
She described a number of inappropriate incidents culminating in an incident in the preparation room of Theatre 2 on 23 May 2013 when she alleged that Mr Khan had put his face close to hers; wrapped his arms around her from behind; put his hands on her ribs; said he ‘liked her small ribs’ or words to that effect; made a kissing gesture; tried to turn her around; grabbed her from behind for a second time; ran his arm across her chest; put his hand on her left breast and ‘squeezed’ it; and ran his hand down her back and across her buttocks saying, ‘no-one needs to know about this’.
Prior to that, she alleged that on more than one occasion between March 2013 and May 2013 Mr Khan asked her to go on a date with him, or words to that effect; and that in about April 2013 he had touched her inappropriately and made inappropriate comments (‘let me rub it better’) after she had banged her knee.
It was alleged that this behaviour was sexually motivated.
Miss A
Miss A was a staff nurse working in the main surgical theatres at the Trust and would sometimes work alongside Mr Khan.
The misconduct alleged by Miss A was said to have occurred between 2006 and 2012. Miss A alleges that Mr Khan would ask her to work as a scrub nurse in his theatres and would ignore her if she did not. She said that he prohibited her from working with a Miss B because he claimed they talked too much, and that in an attempt to stop her from talking he struck her on one or more occasions with a bone lever.
Miss A also alleged (inter alia) that Mr Khan told her to ‘hurry up and have an affair before she dried up due to her age’, or words to that effect; said that he was attracted to her; that he slapped her bottom, and said that it was ‘big, firm and [he] liked it’; and that he had pushed his groin into her lower back whilst making suggestive groans.
This behaviour was also alleged to have been sexually motivated.
Miss C
Miss C was a Senior Theatre Practitioner and would sometimes work with Mr Khan.
The misconduct she alleged was said to have taken place between about 2006 and 2013. She said the first incident occurred in Theatre 2. She said that in December 2006 he had pressed his genitals against her bottom and said words to the effect of ‘this is what you are missing out on’. She also alleged that on two occasions between 2006 and 2013 he had touched her vagina, and that in late 2012 or early 2013 there had been an incident when she was kneeling down in the men's locker room completing some paperwork. She said Mr Khan had put his genitals close to her face, and that she had said ‘If you don't get that thing out of my face I will bite the fucker off’, to which he replied, ‘Don't bite it, blow it.’
She also alleged that on one or more occasions between December 2006 and November 2015 he made comments to her of a sexual nature in Afrikaans, in that he described what he would like to do to her, ‘if he got the chance’.
This behaviour was also alleged to have been sexually motivated.
Mr Khan's case
Mr Khan submitted a 60-page witness statement in which he denied each of the allegations against him. He adopted this as his evidence-in-chief and was then cross-examined.
He maintained that none of the alleged incidents had ever happened, at least as described by the three complainants. In respect of Miss D, he admitted innocent physical contact on one occasion when she had become distressed and he had sought to comfort her by putting his arm around her. However, he categorically denied deliberately touching her breast or bottom or speaking to her as she alleged. His case, in summary, was that apart from that one episode of innocent physical contract, which had not been sexually motivated and which Miss D had exaggerated and embellished, the allegations against him were completely untrue and had never taken place.
He said that Miss A, Miss C and Miss D had been encouraged to give false evidence against him by senior Trust managers in order to get rid of him because they viewed him as a troublesome employee. At [16] of his witness statement he said:
“16. I should make it clear from the outset that I deny these allegations which I regard either as embellishments of the truth or simply untrue. I consider that my dismissal and the manner in which I have been treated by the Trust was unfair[ly] discriminatory and influenced by political expediency. My belief is that I have been subject to a sustained and false campaign to justify terminating my employment. Despite my seniority and acknowledged clinical skills the Trust came to regard me as a problem employee and I believe the referral to the GMC represents the culmination of their efforts to get rid of me, to terminate my employment.”
Mr McCartney for the Appellant put the matter this way in his Skeleton Argument at [9]:
“A central part of his case was that the Trust encouraged, facilitated or connived in the creation of false allegations of sexual misconduct. He believed that initially this was because the Trust wished to terminate his employment as he had been a ‘whistle blower’ with regard to poor practice at the Trust. Further, as clinical lead of the orthopaedics team he had been critical of Trust management in respect of the death of a patient, which resulted in an inquest reported in the media.”
Internal Trust proceedings
The initial complaint was made by Miss D on the 23 May...
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