Wording allegations as “sexual” or “sexually motivated”: An analysis of Haris v General Medical Council [2021] EWCA Civ 763

28 May 2021

We previously wrote on the decision in Haris, in which the High Court considered and gave clarity on how professional regulators should consider wording allegations of a sexual nature.

In upholding the substantive decision of the High Court, the Court of Appeal (the Court) judgment in Haris v General Medical Council [2021] EWCA Civ 763 delivered this month (May 2021), adds further commentary on the wording of such allegations in disciplinary proceedings.

The Court referenced Mrs Justice Fosters’ comments relating to the wording of sexual allegations, as per Lady Justice Andrews at paragraphs 49 – 50:

As Foster J recognized, what was essentially being alleged in this case was a series of sexual assaults, about which the doctor had lied, and therefore, strictly speaking, proof of sexual motivation was not essential to establish just how serious the conduct was. That was the point she was making when she suggested at [60] that the error into which the MPT fell could have been avoided by using a different formulation of the allegations against the doctor. She may well be right about that, but that does not mean that the formulation that was used gives rise to any basis for a Tribunal rationally concluding that the GMC had failed to prove, on the balance of probabilities, that the conduct in question was sexually motivated.

In any event, the GMC’s case on the irrationality of the MPT’s conclusion, and Foster J’s finding that it was irrational, were not based on the way in which the allegations were pleaded. They were based upon the facts which the Tribunal found and the absence of any plausible innocent reason for Dr Haris doing what he did.” [Paragraphs 49-50]

While suggesting that Mrs Justice Foster may have been right that simplifying the wording of allegations as “sexual” rather than “sexually motivated” may avoid the difficulties the Tribunal fell into in this case, Lady Justice Andrews’ view was that in any event, the particular facts supported a conclusion that H’s actions were sexually motivated, as she referred to in paragraphs 55 – 56:

There was no question of the Judge’s approach reversing the burden or standard of proof. The burden remained on the GMC throughout, but there was more than enough evidence to raise (at its lowest) a strong prima facie case of sexual motivation which would discharge that burden in the absence of an innocent explanation for what happened. There was no innocent explanation. The evidence that the touching was sexually motivated was overwhelming.

There is rarely any direct evidence of sexual motivation (though in some cases adverse inferences might be drawn from what was said by the doctor) and in a case like this, the facts speak for themselves.”

Commentary
While the Court of Appeal refrained from either way approving or disapproving the guidance provided by Mrs Justice Foster of the High Court in relation to how professional regulators should word allegations of a sexual nature, Lady Justice Andrews did not rule out the position taken, suggesting Mrs Justice Foster may well be right in the stance she provided. That being so, what is clear from the Court of Appeal judgment is that where particular facts are such that there is an overwhelming inference of sexual motivation, as was so in this case, regardless of how allegations are worded, a Tribunal would be incorrect in finding against an allegation on the basis that there is no direct evidence of sexual motivation.

FURTHER INFORMATION

If you have any questions or concerns about the content covered in this blog, please contact  Shannett Thompson or a member of the Regulatory team.

 

ABOUT THE AUTHORS

Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising  regulated individuals,  businesses such as clinics and care homes and students in respect of disciplinary investigations. She is a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act. In addition Shannett has built up a significant niche in advising investors and businesses in the cannabis sector.

Lucinda Soon is a professional support lawyer in the Regulatory team, and is responsible for knowledge management and practice development. Her work focuses on leveraging the team’s collective knowledge and expertise, ensuring that know-how and current and emerging regulatory developments are identified, evaluated, synthesised, and shared. She is particularly experienced in the adoption of technology to aid the delivery of these outcomes.

 

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