Will proposed changes when alleging sexual conduct achieve clarity?

The recent appeal by the General Medical Council in the case of Dr Raied Haris [2020] EWHC 2518 has given rise to discussion as to whether those preparing professional regulation allegations should change the way they allege conduct of a sexual nature. In this article we consider whether, if a change is adopted, it will in fact achieve the clarity of approve that the judgment suggests.

Ever since the case of Dr Rajeshwar [2005] EWHC 2973 (Admin), when the Council for the Regulation of Healthcare Professionals (a predecessor to the Professional Standards Authority) successfully argued that the GMC should have considered an explicit charge alleging that R's unnecessary examination of the patients' breasts had been "sexually motivated or indecent", those drafting charges have been advised to carefully consider inclusion of the allegation "and x was sexually motivated" in cases where there could be any doubt.

Indeed many preparing allegations use the phrase out of an abundance of caution, even when the conduct could not be explained in any other way.  If found proved, this part of the allegation can be expected to aggravate the conduct and is likely to justify a more severe sanction given the heightened concerns for the public interest.

In the Haris case, Dr Haris was found to have undertaken non-clinically indicated, intimate, ungloved examinations on two patients without informed consent. Foster J indicated that, "the manner in which the matter was pleaded [alleging sexually motivated conduct] may well not have assisted clarity for the Tribunal".   The Medical Practitioners Tribunal Panel did not find proved that this conduct was sexually motivated; Dr Haris had disclaimed any interest in sex whatsoever and described himself as asexual (statements supported by his sister, a friend and a psychiatrist).

The Panel was reminded that the burden of proof rested on the GMC and noted the observations of the High Court in Basson v GMC [2018] EWHC 505 (Admin): ""the state of a person's mind is not something that can be proved by direct observation. It can only be proved from inference or deduction from the surrounding evidence" might be of assistance to it. The Tribunal has only considered the question of whether Dr Haris' actions were sexually motivated. It considers that it is not required to make any alternative finding as to what his motivation was and has not speculated what Dr Haris' motivation could have been."

The Panel found that the GMC had proved that the doctor's actions were able to be perceived as for his own sexual gratification, but found the weight of evidence was in the doctor's favour that, if he did such actions, they were not for his own sexual gratification since he had, and remained to have, no interest in sexual matters at all.

Foster J upheld the GMC's appeal and concluded it was "clear beyond argument that the intimate touching of Patients A and B was sexual and that answering a question as to the motivation of the toucher, the only available answer, is yes, the motivation must have been sexual"; she described this as the only reasonable inference from the facts, noting that the touching was of the sexual organs, there was an absence of a clinical justification or any other plausible reason for the touching, no suggestion of it being accidental, and the absence of any consent.

She suggested a new approach to this type of allegation, referencing the Sexual Offences Act 2003 and its definition of sexual that "the touching or any other activity is sexual if a reasonable person would consider that—

(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual."

Her suggestion, that it may be more straightforward to allege that the conduct is "sexual", aims to reduce the challenge of inferring or deducing the state of mind of the accused professional, however, she has not in my opinion, eliminated the need to explore it in certain cases.  

In a scenario such as Dr Haris' the characterisation of the touching as sexual does seem the only reasonable inference. Of course as a doctor, his role led patients to believe that it might have been appropriate to allow him to examine them intimately.

The reverse happened in the case of Dr Arunkalaivanan [2014] EWHC 873 who successfully appealed the finding that his breast examination of the patient had been sexually motivated.  The Court there identified a number of factors that needed to be considered.  In favour of sexually motivated behaviour were: the nature of the touching, the fact that the patient felt that it was a sexual act (although this should be tempered by the fact that she was uncertain about this initially) and the doctor's failure to admit the facts.   Against it were factors including the doctor’s high professional standing and reputation as demonstrated by references, the history of previous appropriate contact with Patient A, the absence of any sexual remarks or overstepping boundaries on previous occasions, otherwise appropriate clinical management of A before, during and after the consultation, the clinical indication for a breast examination to occur when it did, the fact that the appointment was rushed, evidence from an Indian textbook (the doctor trained in India) which demonstrated that in some cases the examination could be performed from behind and involve palpation between the pulps of the fingers, the lack of any evidence of sexual gratification and the inherent improbability of a man with an unblemished history and long record of working in gynaecology suddenly committing an indecent assault on a day when he was in a hurry to pick up his child.

Although Foster J seeks to make a suggestion that will make matters more simple in many scenarios where we currently use the allegation "sexually motivated" alleging that it was "sexual" will still require Panellists to consider its nature and the circumstances and/or the purpose of any person in relation to it.   

The potential for clinical justification falls away when the touching is of a colleague, or arises in a non-physical/clinical setting such the work of a social worker or teacher.  In such circumstances such as those in Dr Arunchalam's case [2018] EWHC 785 whether the regulator alleges "sexual" or "sexually motivated" the Panel will still need to wrestle with whether for example the sending of unwanted messages outside the workplace to a junior colleague (with an inappropriate, intimate, over-familiar, but not sexually explicit dimension), incidents of tickling and hugging another colleague, kissing her on the top of her head and inappropriately seeking her company at work, thereby making her feel uncomfortable, can be found to be "sexual".  

I speculate that a Panel might find it just as much of a challenge to label such conduct "sexual" as they would have wrestled with "sexually motivated".  It will still have to consider whether the circumstances and the "purpose of perpetrator" make the conduct sexual.  What is this if not still a motivation question?