[2014] EWHC 873 (Admin) – (Amanda Yip QC sitting as a Judge of the High Court)In a case reminiscent of the issues in the case of Dr Rajeshwar [[2005] EWHC 2973 (Admin)] the High Court quashed a GMC
[2014] EWHC 873 (Admin) – (Amanda Yip QC sitting as a Judge of the High Court)
In a case reminiscent of the issues in the case of Dr Rajeshwar [[2005] EWHC 2973 (Admin)] the High Court quashed a GMC Fitness to Practise Panel's finding of sexual misconduct where the Panel inferred that the Appellant's conduct had been sexually motivated in circumstances where he conducted a clinically indicated breast examination in an inappropriate manner.
The Appellant, a consultant obstetrician and urogynaecologist, was charged by the General Medical Council ("GMC") with conducting a breast examination on Patient A in October 2010: (i) in the absence of a chaperone; (ii) in an inappropriate manner; and (iii) where the conduct was sexually motivated. It was agreed between the parties that the breast examination was clinically indicated but the matters at issue before the Fitness to Practise panel were the manner in which it was carried out and whether or not it was sexually motivated. The panel subsequently found the allegations proved, and concluded that the Appellant's fitness to practise was impaired by reason of his serious misconduct. As a result, the panel suspended the Appellant's registration for a period of 12 months.
The crux of the Appellant's appeal was the finding that his conduct was sexually motivated. The Court considered that whilst this was strictly a finding of fact, it depended "not on direct evidence but on [the Panel's] inference to be drawn from the primary facts…and the surrounding circumstances". Furthermore, it was noted that CPR 52.11(4) permitted the Court to draw any inference which it considered justified on the evidence; the Court considered that it was just as well placed as the panel to decide whether or not it was proper to draw an inference that the Appellant's actions were sexually motivated. The Court was not, in its view, "disadvantaged by not having seen the witnesses give evidence", as the panel had done, but highlighted the general requirement to treat the panel's verdict with appropriate respect in accordance with Meadow, Southall and Bhatt.
The Court considered that the panel did not appear to have taken into account the Appellant's (positive) character evidence in its assessment of whether he had been sexually motivated and considered that this was a material omission. Furthermore, the panel had appeared to consider that, as a result of its finding that the Appellant's method of breast examination had been inappropriate, the Appellant's actions were necessarily sexually motivated. The panel did not appear to consider the possibility that the Appellant had conducted a "clumsy and inappropriate" examination without any sexual motive.
The Court considered that, once the arguments about the inappropriate nature of the examination had been stripped away, there was little evidence to support a finding of sexual motivation. It concluded that it far more likely that the Appellant conducted a rushed examination of Patient A which left her feeling violated, than that his actions were sexually motivated. The Court upheld the panel's primary findings of fact in relation to the appropriateness of the examination, but reversed the panel's finding that the Appellant's actions were sexually motivated. In doing so, the Court quashed the panel's decision that the Appellant's fitness to practise was impaired and quashed his accompanying suspension.
In a case reminiscent of the issues in the case of Dr Rajeshwar [[2005] EWHC 2973 (Admin)] the High Court quashed a GMC Fitness to Practise Panel's finding of sexual misconduct where the Panel inferred that the Appellant's conduct had been sexually motivated in circumstances where he conducted a clinically indicated breast examination in an inappropriate manner.
The Appellant, a consultant obstetrician and urogynaecologist, was charged by the General Medical Council ("GMC") with conducting a breast examination on Patient A in October 2010: (i) in the absence of a chaperone; (ii) in an inappropriate manner; and (iii) where the conduct was sexually motivated. It was agreed between the parties that the breast examination was clinically indicated but the matters at issue before the Fitness to Practise panel were the manner in which it was carried out and whether or not it was sexually motivated. The panel subsequently found the allegations proved, and concluded that the Appellant's fitness to practise was impaired by reason of his serious misconduct. As a result, the panel suspended the Appellant's registration for a period of 12 months.
The crux of the Appellant's appeal was the finding that his conduct was sexually motivated. The Court considered that whilst this was strictly a finding of fact, it depended "not on direct evidence but on [the Panel's] inference to be drawn from the primary facts…and the surrounding circumstances". Furthermore, it was noted that CPR 52.11(4) permitted the Court to draw any inference which it considered justified on the evidence; the Court considered that it was just as well placed as the panel to decide whether or not it was proper to draw an inference that the Appellant's actions were sexually motivated. The Court was not, in its view, "disadvantaged by not having seen the witnesses give evidence", as the panel had done, but highlighted the general requirement to treat the panel's verdict with appropriate respect in accordance with Meadow, Southall and Bhatt.
The Court considered that the panel did not appear to have taken into account the Appellant's (positive) character evidence in its assessment of whether he had been sexually motivated and considered that this was a material omission. Furthermore, the panel had appeared to consider that, as a result of its finding that the Appellant's method of breast examination had been inappropriate, the Appellant's actions were necessarily sexually motivated. The panel did not appear to consider the possibility that the Appellant had conducted a "clumsy and inappropriate" examination without any sexual motive.
The Court considered that, once the arguments about the inappropriate nature of the examination had been stripped away, there was little evidence to support a finding of sexual motivation. It concluded that it far more likely that the Appellant conducted a rushed examination of Patient A which left her feeling violated, than that his actions were sexually motivated. The Court upheld the panel's primary findings of fact in relation to the appropriateness of the examination, but reversed the panel's finding that the Appellant's actions were sexually motivated. In doing so, the Court quashed the panel's decision that the Appellant's fitness to practise was impaired and quashed his accompanying suspension.