Acting to stop harm: the FCA and Appointed Representatives
High Court quashes finding by panel of GMC that doctor’s inappropriate breast examination was sexually motivated.
The appellant doctor (D) appealed against the decision of the Fitness to Practise Panel (the Panel) of the General Medical Council (GMC). The charges related to a consultation with a female patient (Patient A) on 28 October 2010. The Panel heard evidence that D had conducted a breast examination in the absence of a chaperone and in an inappropriate manner and that his conduct was sexually motivated. The Panel found that he was guilty of serious misconduct and that his fitness to practise was impaired.
D appealed the facts of those findings. It was conceded on his behalf that if the Court were to uphold the findings of sexual motivation that there could be no complaint about the subsequent findings of misconduct, impairment and suspension. Similarly, it was accepted on behalf of the GMC that if the Court quashed the findings of sexual motivation it would not seek to uphold the decisions on impairment and sanction. The core issue on this appeal therefore, was the challenge to the finding of sexual motivation.
At the relevant time, D was a consultant obstetrician and urogynaecologist at the Sandwell and West Birmingham Hospitals and had been in that post for over 8 years. He had an impeccable previous record and an impressive C.V. Patient A, who was in her early 50s, was referred to D in December 2009, and in February 2010 she underwent an operation to repair a prolapsed bladder under his care. She was seen again for follow up on April 2010. These previous appointments had involved intimate vaginal examinations at which chaperones had been present. There was no dispute that these previous sessions were all medically appropriate and that Patient A had no complaint with them.
Patient A made an appointment with D on 28 October 2010. The appointment was a relatively rushed one as D had to pick his child up later that afternoon. D carried out an internal examination, which required A to remove her clothes from the waist down, to investigate symptoms she was experiencing. There was no complaint about this aspect of the examination. At the end of the appointment A complained that she was getting intermittent pain in her right breast. It was accepted by both parties and experts that the provision of a breast examination in these circumstances was clinically indicated. She was asked to lift her top and bra, which she did. The next stage was subject to significant factual dispute. D’s case was that he proceeded to carry out a proper breast examination whereas Patient A maintains that D indecently assaulted her by groping her breasts. Patient A got dressed and left the hospital.
Patient A began to feel uncomfortable about what had happened, and over time started to believe in relation to the examination that ‘it didn’t feel right’. Having cautiously called a local breast care clinic and spoken to a nurse about what an appropriate breast exam should consist of, she made a complaint via the Patient Advocacy Liaison Service (PALS). It was clear that A had thought long and hard about making the complaint and showed concern for D’s career.
D was notified of the complaint on 2 December 2010 and a hospital investigation ensued. Patient A grew dissatisfied with the complaints process and reported the matter to the Police. The matter made its way to the General Medical Council.
The GMC Hearing
The particulars before the Panel alleged that D had asked A to pull her top and bra up, had examined her breasts from behind and had cupped and squeezed them with both hands, that he had failed to make a note of the examination and that his actions were sexually motivated. D denied that he had handled her breasts in such a way, but had carried out an appropriate examination. The hearing was vigorously defended and both Patient A and D were subjected to lengthy cross-examination.
It was agreed by both parties at the hearing that if D had handled A’s breasts in the way she described, it would have been inappropriate. Conversely, it was agreed that if it had been carried out in the way that he described, then that would have been appropriate and consistent with best practice. Accordingly the issue in relation to the appropriateness of D’s examination was a straightforward factual one. The Panel favoured Patient A’s account and found the factual allegations relating to the breast exam proved.
The next question for the Panel was sexual motivation. The Legal Advisor advised the Panel that ‘the fact that the experts agree that if conducted in the way alleged by Patient A the breast examination was inappropriate does not necessarily mean that it was sexually motivated. That also is an issue for the Panel to decide’. The Panel decided that the conduct was sexually motivated.
D challenged those findings on appeal on the basis that it was made on ‘an insubstantial and unsatisfactory evidential basis’.
The first aspect of the appeal was that Patient A’s evidence was inconsistent in a number of regards and that the Panel was wrong to rely on her account. The Court dismissed this aspect rather swiftly; ‘this was a classic case for the tribunal to hear oral evidence and, having done so, to decide which version of events it preferred'. It was held that the primary findings in this case were ‘unassailable’ in this case.
The second and more fruitful ground of appeal related to the finding of sexual misconduct. The Court found that, unlike the factual findings, it was not disadvantaged by having not seen the witnesses live, however it did accord the decision ‘appropriate respect’. It was said that ‘insofar as the issue of sexual motivation was akin to jury question to which there may reasonably be different answers, I must be particular careful’. 
The Legal Assessor’s advice to the Panel was held to be appropriate. He had identified that there was no direct evidence of motive but that it may be possible to prove sexual motivation by way of inference. He advised that the Panel would have to be satisfied on the balance of probabilities that sexual motivation should be inferred from all the circumstances and made specific reference to the character evidence being relevant in that exercise. He also stressed that the finding that the breast examination was inappropriate did not necessarily mean it was sexually motivated. Having considered the formulation contained with the case of In re D  UKHL 33 about the standard of proof, the Court held that the direction in relation to the standard of proof was appropriate. Good character was simply one factor that must be put into the balance and weighed against the other evidence, and it was correct for the Legal Assessor to have drawn the Panel to it.
The Panel had, however, not made any reference to this aspect in their reasoning on this issue; this was ‘a material omission’. It was held that ‘despite the Legal Assessor’s advice, it is not clear from their reasons that they approached this decision on the basis that the fact that the breast examination was inappropriate would not necessarily mean that it was sexually motivated’ . The Panel had wrongly equated ‘inappropriate’ with ‘sexually motivated’. They had not dealt with the important question as to whether there could be any other explanation for an inappropriate examination, such as that proffered by D that it was a clumsily and inappropriate examination without sexual motive.
The Panel had seemingly regarded the failure to have a chaperone as supporting the case that there was sexual motivation. However, they did not seem to give sufficient weight to the fact that a chaperone was also not present during the vaginal examination, which had been conducted appropriately.
The following matters that might have pointed to sexual motivation were considered to be appropriate to put into the balance;
However, against that the following factors needed to be borne in mind;
The fact of the failure to record the breast examination in the patient’s records was considered ‘neutral’; there had been reference to breast pain in the notes and there was no deliberate attempt to conceal what had happened.
It was held that;
‘In the end, it is not a case of numeric assessment of factors on each side. Rather a broad view must be taken putting all the circumstances into the balance and coming to a conclusion on the balance of probabilities. When that analysis is done, I conclude that the determination of the Panel on this issue was plainly wrong. It is unlikely that D’s actions were sexually motivated and far more likely that he carried out an inappropriate examination because he was rushing, probably distracted and so clumsy and insensitive to Patient A. As a result he left her feeling violated even though he did not intend to touch her sexually’.
The Court accordingly reversed the findings that the conduct was sexually motivated and that part of the decision quashed. The findings in relation to misconduct, impairment and sanction were also quashed. Counsel for the GMC indicated that in the circumstances the GMC would not contend that D’s fitness to practise was impaired on the basis of the remaining findings. However they did invite the Court to remit the matter to a Panel for consideration of a warning (pursuant to Rule 17(2)(l)). On behalf of D it was said that this was improper; the Notice of Hearing had alleged ‘sexual misconduct’ and not ‘inappropriate conduct’. The Court disagreed with D’s Counsel on this issue; it was held that the allegation which described the breast examination clearly contained within it an allegation of inappropriate breast examination.
The matter was remitted to the Panel, for them to consider all relevant matters in accordance with the guidance.
The Respondent was to pay D’s costs, however these were reduced by 25% given that D had appealed against the factual findings also, which was fruitless.
A number of useful points arise from this case. Panels must be reminded that, in certain cases, finding that an action was not clinically indicated does not necessarily mean that they were sexually motivated. This must be a separate and careful consideration, which includes a number of factors being brought into the balance, including good character.
Those drafting particulars in such nuanced cases, where there is an alternative explanation for such conduct, should perhaps include an alternative of ‘inappropriate’ in the eventuality that sexual motivation is not proved but the conduct is nonetheless ill judged or inappropriate.
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