The E-Regulator: Ujam v GMC (No.2) [2012] EWHC 683 (Admin)

20 March 2012

The important distinction between cases of clinical incompetence and misconduct when considering weight to be attached to remedial action is reaffirmed.

This case is the second part of an appeal by Dr Ujam, the first of which is discussed separately under Ujam v GMC [2012] EWHC 580.

Dr Ujam faced a number of allegations of misconduct, the essence of which were that he had sexually harassed a number of his work colleagues during the course of his practise during 2008.  The Panel imposed a 6 month suspension order, having concluded that he had failed to maintain proper professional boundaries and had accordingly brought the profession into disrepute.   They found that he had displayed limited insight into the effect of his behaviour on the complainants, and had found that his fitness to practise was impaired. 

Dr Ujam submitted that the Fitness to Practise Panel (the Panel) of the General Medical Council (GMC) erred in finding that his fitness to practice was still impaired as at December 2010 and that the sanction of suspension was wrong.

It was argued on behalf of Dr Ujam that there had been a considerable time lag between the events complained of and the hearing itself; much had taken place in that period and the Panel had not accorded it appropriate weight.  It was suggested that the allegations of sexual harassment in 2008 could properly be regarded as a series of events ‘never to be repeated’.  A number of positive references had been before the Panel, essentially indicating that Dr Ujam had fully appreciated the consequences of his actions and had ‘turned over a new leaf’.  It was therefore surprising, it was suggested, that the Panel found ‘limited insight’ and they were wrong to conclude that the passage of time had not significantly reduced the relevance of his misconduct to the issue of impairment.

The learned Judge held that the case of Yeong v GMC [2009] EWHC 1923 (Admin) applied; in relation to cases of clinical errors or incompetence the question of remedial action taken by a doctor to address an area of weakness may be highly relevant to whether his fitness to practice is currently impaired at the date of the hearing; where a case concerns conduct of a sexual nature such as to undermine confidence in the profession, the efforts made a practitioner to address that behaviour may carry very much less weight.

It was made clear that although the conduct of the kind discussed in Yeong was far more serious than the present case, ‘the distinction remains important, as between clinical incompetence and misconduct by way of ‘crossing boundaries’, in relation to the relative significance of remedial action’. 

It was further contended on Dr Ujam’s behalf that the six month suspension was wrong.    It was held that whilst that sanction may appear harsh to the lay observer, nevertheless ‘it is necessary to remember that it is primarily for the professional on the Panel to assess and measure the gravity of the misconduct before them and the steps necessary to reflect its disapproval and the need to restore public confidence’.  There was nothing wrong with the panel’s carefully reasoned conclusions. 

This case reaffirms the significant distinction outlined in Yeong and highlights the importance of considerations of public perception in cases of misconduct.

Sarah Harris

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