When does a regulator pay costs? The Court of Appeal has spoken
The GMC investigated a doctor after two patients came forward with separate, but very similar allegations of intimate examinations which were performed without any clinical need or consent from the patients. These allegations were put forward to the Medical Practitioners Tribunal ("the Tribunal") who found that the facts of the allegations were true. However, the Tribunal reached the decision that the doctor’s actions were not sexually motivated and it is here that Mrs Justice Foster has highlighted their misstep.
Dr RH is a General Practitioner ("GP"). Patient A came forward with an allegation concerning an appointment she had with him in February 2017. The allegations made by Patient A included that Dr RH had, without gloves, pulled down her underwear and touched the lips of her vagina. She also stated that Dr RH had not obtained consent for these actions.
A further allegation was made by Patient B when she was seen by Dr RH at a Minor Injuries Unit in March 2017. The allegations made by Patient B included that Dr RH had caressed the cheeks of her buttocks, touched the lips of her vagina and fondled her left breast without gloves. Again, it was stated that Dr RH had performed these actions without the patient’s consent.
Dr RH specifically recorded that no intimate examination had been performed for Patient B and there was no mention of any intimate examination for Patient A.
The allegations were denied by Dr RH throughout the investigation and hearing. His evidence was characterised by the Tribunal as at various times, defensive, evasive and contradictory.
The Tribunal accepted the accounts of the two complainants over that of Dr RH, accepting that the touching they had described had taken place without any clinical need or consent.
However, the Tribunal did not find that Dr RH’s conduct towards Patient A and Patient B was sexually motivated. The Tribunal appeared to accept Dr RH’s evidence that he had little interest in sexual matters.
In November 2019, The Tribunal placed conditions on Dr RH’s practice.
The GMC appealed the Tribunal’s decision using its section 40 powers. The judgment was handed down on 22 September 2020 by Mrs Justice Foster.
The High Court indicated that the Tribunal was incorrect to find that Dr RH’s actions were not sexually motivated:
This was deliberate, unconsented, touching of a woman's sexual parts: in other words what was, absent clinical indication, a sexual assault in all but name. Moreover, it took place within a therapeutic relationship and therefore in circumstances of significant power imbalance between the perpetrator and the victim."
Mrs Justice Foster emphasised that the Tribunal appeared to have overlooked the overtly sexual nature of Dr RH’s acts. She found that as the intimate touching of Patient A and Patient B was sexual, then the motivation of Dr RH was sexual. This was based on:
a. The fact that the touching was of the sexual organs
b. The absence of a clinical justification
c. The absence of any other plausible reason for the touching."
Mrs Justice Foster went on to suggest that, in her view, the wording of such an allegation could be revised in the future to better assist the Tribunal. She suggested that the pleading of "sexual motivation" which is often used in such proceedings, is unhelpful. "Sexual motivation" is considered to be an act which is in pursuit of a sexual relationship or performed for sexual gratification. In her view, this criterion sets the bar too high for such proceedings. Mrs Justice Foster instead suggested that had the acts been pleaded as just "sexual" and had the Tribunal asked themselves whether in all the circumstances which includes the absence of accident, absence of consent and any clinical or other proper justification, in line with the Sexual Offences Act 2003, it would be impossible they would have reached any conclusion other than that the touching was sexual.
Mrs Justice Foster’s proposal that an action could be alleged "sexual" rather than "sexually motivated" would clarify potential confusion in relation to actions where a professional has touched someone inappropriately. It would remove the need to prove sexual gratification and better promote the public interests at stake.
Shannett Thompson is a Partner in the Regulatory team. She is a highly experienced lawyer taking the lead in defending health professionals before their regulatory bodies including the GMC. She has substantial experience in advising individuals in relation to their regulatory obligations in the wider context.
Sian Marie Jones joined Kingsley Napley in October 2018 as a Legal Assistant in the Regulatory Team. Sian investigates and prepares fitness to practise cases relating to professional misconduct, ill-health, and lack of competence on behalf of the Health and Care Professions Council (HCPC). This includes speaking to witnesses and drafting their statements, instructing experts and liaising with other parties. She also investigates fitness to practise cases on behalf of the Education Workforce Council (EWC) and General Optical Council (GOC).
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