Mubarak v General Medical Council [2008] EWHC 2830 (Admin)

[2008] EWHC 2830 (Admin)Case No CO/441/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 November 2008
Before
THE HON MR. JUSTICE BURNETT
Between
Dr. Mohamed Jamaideen-Mohamed MubarakAppellantGeneral Medical CouncilRespondent
Alison Foster QC (instructed by Polpitiya & Co) for AppellantJavan Herberg (instructed by General Medical Council Legal) for General Medical Council.Hearing Hearing dates: 10 th and 13 th October 2008
Judgment

The Hon Mr. Justice Burnett :

[1]This is an appeal brought under section 40 of the Medical Act 1983 from decisions of the Fitness to Practise Panel of the GMC. On 19 December 2007, following a 5 day hearing, the Panel found that the appellant’s fitness to practise was impaired by misconduct and decided to erase him from the medical register.[2]The findings of impairment were based on the appellant’s conduct towards a female patient on 7 and 8 July 2005. The complainant had attended the surgery at which the appellant was one of a number of General Practitioners. He was not her doctor. She was complaining of dizziness and an ear infection. It was suggested that the appellant asked to conduct an internal examination for which there was no clinical justification. She declined. Blood was taken (entirely appropriately) and sent for analysis. The complainant returned on 8 July to get the results. In the course of a consultation, the precise length of which was in issue before the Panel, it was suggested that the appellant inappropriately commented upon the attractiveness of his patient and again suggested an internal examination, which was not clinically justified. On this occasion the complainant agreed. A sexualised internal examination followed. The complainant had a navel piercing. It was alleged that the appellant fiddled with the ring and cupped it in his hands. It was also suggested that the appellant asked to see the complainant’s breasts, cupped one breast in his hand and tweaked the nipple.[3]The Panel found those allegations proved. The appellant gave evidence that he had no independent recollection of either of the complainant’s attendances. He denied any improper conduct. The Panel was faced with a not unfamiliar exercise of considering conflicting accounts of events to which there were no independent witnesses. The complaint was promptly made and the police became involved. There was, however, no criminal prosecution. The only extraneous evidence of the two consultations was contained in the notes made by the appellant on the practice computer system.[4]Miss Foster QC, who appeared for the appellant in the appeal, submitted that it was not open to the Panel to find the allegations proved to the criminal standard because of the inconsistencies in the complainant’s evidence and because the computer notes did not contradict the appellant’s explanation of what must have occurred. She further submitted that the reasons given by the Panel were inadequate. In particular, she submitted that the Panel failed to explain its findings in connection with the notes made by the appellant, about which there was much evidence and argument. Finally, she submitted that the sanction of erasure was wrong in principle: it was disproportionate when other sanctions could have been imposed which would have provided adequate public protection. There was no evidence of propensity to behave in the way complained of. The appellant is a respected doctor of 25 years standing with no previous disciplinary blemishes. Further, the Panel illogically referred to a lack of insight into the misconduct which amounted to penalising the appellant for contesting the allegations.

Legal principles applicable in an appeal under section 40

[5]An appeal to the High Court under section 40 of the Medical Act 1983 is by way of rehearing but without the advantage of hearing the live evidence of witnesses. It is conducted on the transcripts with the benefit of argument. For that reason, when considering findings of fact this appellate court, in common with others that operate under similar regimes, is slow to interfere with factual findings made by those who did have the advantage of seeing and hearing the witnesses. The general approach formerly applied by the Privy Council when seized of these appeals continues. That approach was explained by Lord Rodger of Earlsferry in Gupta v GMC [2002] 1 WLR 1691 in paragraph [10] of the judgment of the Board:
“The decisions in Ghosh and Preiss are a reminder of the scope of the jurisdiction of this Board in appeals from professional conduct or practices committees. They do indeed emphasise that the Board's role is truly appellate, but they also draw attention to the obvious fact that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well-known passage in Thomas v Thomas [1947] AC 484, 487–488.”
[6]The reference to Lord Thankerton’s speech in Thomas is to examples where an appellate court will be prepared to reach a different conclusion on the facts, based only on written material. He articulated three principles:
“I. Where a question of fact has been tried with a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”
[7]The appellate court’s approach to challenges to a sanction imposed by professional conduct bodies was distilled by Lord Hope in Dad v General Dental Council [2000] 1 WLR 1538 at 1542C:
“It is well established, for very good reasons, that the Board will not interfere with the exercise of the discretion of a ProfessionalConduct Committee in matters relating to penalty. The assessment of the seriousness of the misconduct upon proof of a conviction is essentially a matter for the Committee, in the light of their experience of the range of cases which come before them. They are best qualified to judge what measures are required to maintain the standards and reputation of the profession and to assess the seriousness of any misconduct. As a general rule therefore the Board will be very slow to interfere with the decision of the Committee on matters relating to penalty.”
[8]Whilst that was the approach of the Privy Council, it is also the approach of the High Court in such appeals (see, for example, Auld LJ in Meadow v General Medical Council [2007] QB 462 at paragraph [197]). As part of his review of the approach to be taken to questions of sanction in Raschid v General Medical Council [2007] 1 WLR 1460, Laws LJ affirmed that position and also emphasised that the question of sanction for a professional conduct committee is not the same as that of a court imposing retributive punishment. He said this:16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1 April 2003. First, the Privy Council is of course a source of high authority; but secondly, we are in any event considering an effectively identical statutory regime. As it seems to me there are in particular two strands in the relevant learning before 1 April 2003. One differentiates the function of the Panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the Panel or committee to make the required judgment.17. The first of these strands may be gleaned from the Privy Council decision in Gupta v the GMC [2002] 1 WLR 169, 1702 at paragraph 21 in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:
"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] I WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: 'The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.' Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case. 18. The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This as it seems to me engages the second strand to which I have referred. In Marinovitch v GMC, 24 June 2002, Lord Hope giving the judgment of the board said this (paragraph 28, second sentence): "28. In the appellant's case the effect of the committee's order is that his erasure is for life but it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession. "29. That is not to say that their lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This is a case of such a grave nature that the finding that the appellant was unfit to practice was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case while undoubtedly severe was wrong or unjustified." 19. There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffman giving the judgment of the board in Bijlhttp://www.bailii.org/uk/cases/UKPC/2002/42.html[2002] UKPC 42 para 2 to 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations at paragraph 34 of Ghosh v GMChttp://www.bailii.org/uk/cases/UKPC/2001/29.html[2001] 1 WLR 1915, page 1923G: "
The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner's failing amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances." 20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.”[9]The question of the nature and extent of the reasoning required to be set out by the General Medical Council, and similar bodies, when exercising their disciplinary functions was also considered in Gupta but in that case the Board declined to give general guidance because it was satisfied that, on the facts of the case, there was no duty to give reasons. Nonetheless, Lord Rodger said this at paragraph [14]:
“Their Lordships would add this. They have rejected the submission that there is a general duty to give reasons in cases where the essential issue is one of credibility or reliability of the evidence in the case. None the less, while bearing in mind the potential pitfalls highlighted by Lord Mustill, the committee can always give reasons, if it considers it appropriate to do so in a particular case. Their Lordships would go further: there may indeed be cases where the principle of fairness may require the committee to give reasons for their decision even on matters of fact.”
I observe that the central issue in the case before the Panel which has given rise to this appeal was whether its members were sure that the complainant was telling the truth when she described the inappropriate sexual conduct of the appellant. So it is one of those cases in which a statement of conclusion on that issue would satisfy the approach identified by the Board. Miss Foster submitted, however, that the law has moved on and that the obligations imposed on judges to give reasons, exemplified by the decision of the Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, is now applicable to disciplinary committees and thus what the Board in Gupta considered to be an exceptional course should now be regarded as the norm.[10]In English Lord Philips of Worth Matravers, giving the judgement of the Court, referred to an earlier decision of the Court of Appeal in Flannery v Halifax Estate Agents Ltd [2000] 1 WLR 377 where Henry LJ identified the essence of the duty to give reasons as being to enable the parties to know why they had won or lost. He also observed that:
“Where there is a straightforward factual dispute the resolution of which depends simply on which witness is telling the truth about events which he claims to recall it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say.”
[11]The question was reviewed, albeit obiter, in the Court of Appeal in Phipps v General Medical Council [2006] EWCA Civ 397 following an extensive citation of authority by Wall LJ. He considered that the law had moved on. He concluded that the principles enunciated in English were of universal application (paragraph [81]) and then explained:
“85.Whilst I fully accept that the instant case is not a proper forum for the promulgation of guidelines, my provisional view is that paragraph 14 of the decision of the Privy Council in Gupta v GMC identifies an approach which reflects current norms of judicial behaviour. In every case, as it seems to me, every Tribunal (including the PCC of the GMC) needs to ask itself the elementary questions: is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost? 86. If, in asking itself those questions the PCC comes to the conclusion that in answering them it needs to explain the reasons for a particular finding or findings of fact that, in my judgment, is what it should do. Very grave outcomes are at stake. Respondents to proceedings before the PCC of the GMC are liable to be found guilty of serious professional misconduct and struck off the Register. They are entitled to know in clear terms why such findings have been made.”
Arden LJ was reluctant to seek to define the duty to give reasons in a case where the need to do so did not arise and where there had not been full argument. Sir Mark Potter P endorsed the approach of Wall LJ. He said this:
“106.I agree with the judgment of Lord Justice Wall and, for my part, I would endorse his observations at paragraphs 65 to 87 concerning to the inter-relation of paragraph 14 of the decision of the Privy Council in Gupta and the principles set out in English v Emery Reimbold. The latter case made clear that the so-called "duty to give reasons", is essentially a duty which rests upon judicial and quasi-judicial tribunals to state their decisions in a form which is sufficient to make clear to the losing party why it is that he has lost. This requirement will be satisfied if, having regard to the issues as stated and decided and to the nature and content of the evidence in support, the reasons for the decision are plain, whether because they are set out in terms, or because they are implicit i.e. readily to be inferred from the overall form and content of the decision. I do not think that there is any real difference or substantial inconsistency, other than one of emphasis, between that principle and what was stated in Gupta, namely that there is no general duty on the PCC of the GMC to give reasons for its decisions on matters of fact, in particular where the essential issue is one of credibility or reliability of the evidence in the case, whilst at the same time recognising that there are cases where the principle of fairness requires reasons to be given "even on matters of fact": see paragraph 14 of Gupta. It seems to me that such cases are those where, without such reasons, it will not be clear to the losing party why he has lost. It is not a necessary ingredient of the requisite clarity that the reasons should be expressly stated when they are otherwise plain or obvious.”
[12]For the General Medical Council, Mr Herberg recognised that the obiter dictum of Wall LJ suggested that reasons for a factual conclusion may be required more often than the Board in Gupta had considered that fairness would require. The decision represented a change of emphasis rather than a fundamental difference of approach, as Sir Mark Potter recognised. On the facts of this case such differences as there may be are of no consequence. That is because the appellant can have been in no doubt about why he lost. It was because the Panel were satisfied to the criminal standard of proof that the complainant was telling the truth when she described his sexualised conduct. Miss Foster, on the other hand submits that the GMC should have explained why they accepted the complainant’s evidence and dealt with the inconsistencies in more detail than in fact they did. Additionally, she identifies a discrete point relating to the notes which is not canvassed in the reasons, which she suggests was of such importance that it required explicit consideration.

The decision

[13]The decision was given orally at the end of the hearing and reproduced in a letter to the appellant dated 20 December 2007. It was structured in the following way. First, there was a general section supporting the conclusion that misconduct was proved. Secondly, there followed a list of approximately 60 separate factual allegations and the Panel’s conclusion on each expressed either as ‘proved’ or ‘not proved’. To make full sense of that list it is necessary to cross-refer to a letter from the General Medical Council to the appellant dated 8 November 2007 where each of those facts is fully set out. Thirdly, having found the facts, the Panel went on to consider whether the appellant’s fitness to practise was impaired. This section of the decision sets out in more detail some of the underlying facts. Having concluded that the appellant’s fitness to practise was impaired, the decision letter, fourthly, considered sanction. The material parts of the decision which are necessary to consider the submissions made on behalf of the appellant are as follows:
“The Panel has considered all the oral and documentary evidence in this case. It has also considered the submissions of both Counsel. The Panel recognises that the burden of proof is on the General Medical Council and it has applied the criminal standard of proof. It has considered each head of allegation separately. The Panel has also considered your own testimony and in deciding what weight to attach to it has had regard to the evidence of your good character. The Panel has concluded that Ms A was a credible witness and that her evidence of the numerous and detailed allegations against you were truthful. The Panel had particular regard to the fact that she reported the allegations to her friend immediately after the events and over the next 2-3 days in statements made to the Police. Furthermore, the initial complaints and statements were substantially consistent with her subsequent statement to the GMC and her oral evidence before this Panel. Such inconsistencies in her evidence as to certain details were not so significant as to undermine her evidence as a whole, particularly bearing in mind that the events complained of occurred almost 2 ½ years ago.”
[14]It is after these paragraphs that the Panel listed each of their factual findings. Their litany shows that the Panel applied their minds to each aspect of the factual elements of the case against the appellant. The decision went on to consider impairment of fitness to practise. “At the material time you were a General Practitioner and partner at the Dragon Cottage Surgery, Holmer Green, High Wycombe, Buckinghamshire HP15 6RZ (The Surgery). Patient A was a registered patient at that Surgery. On 7 July 2005 you saw Patient A, who attended the surgery to consult you about dizziness and an ear infection. At that consultation, Patient A told you that following the removal of her contraceptive coil she had been experiencing heavy bleeding. You provided her with forms to undergo blood tests at Amersham General Hospital. You asked her if you could undertake an internal examination but she declined the offer as she had her period at the time. The Panel has found that your request to undertake an internal examination on that occasion was inappropriate and not clinically justified. On 8 July 2005, Patient A consulted you again in order to get the results of the blood test. You discussed her ear infection and dizziness and the results of her blood test. You asked her about her periods, if she was sexually active and if she had a partner. The Panel has heard that at that consultation you also commented on Patient A’s attractiveness. This comment was inappropriate, improper, and liable to bring the profession into disrepute. You also asked her if you could carry out an internal examination. The Panel has found this request was not clinically justified. Patient A reluctantly agreed to an internal examination. You did not explain why it was necessary to conduct an internal examination nor what the clinical benefit would be. You neither offered her the presence of a chaperone, friend or relative, nor did you afford her appropriate privacy during the examination which followed. Your actions and omissions were inappropriate, improper and not in the best interests of the patient. Once Patient A was undressed, you asked her about her naval piercing, began to fiddle with the piercing with your fingers and bent down and examined it through your cupped hands. The Panel has found this behaviour to have been inappropriate, an abuse of your position of trust, not in the best interests of the patient and indecent. The Panel has found that you then purported to conduct an internal examination by inserting your fingers into Patient A’s vagina and sliding your fingers in and out on a number of occasions. This was neither a proper internal examination, nor was it clinically justified. Further, it was inappropriate, indecent and not in the best interests of the patient. It was an abuse of your position of trust and liable to bring the profession into disrepute. Following the internal examination, you asked Patient A about her breasts. She informed you that she had had breast surgery about four months previously. At your request, she exposed her breasts and then you cupped your hand around her right breast and tweaked her right nipple. Your actions were not clinically justified, not a proper breast examination, inappropriate, indecent, not in the best interests of the patient, an abuse of your position of trust and liable to bring the profession into disrepute. Following the examination, you told Patient A that you would telephone her on the following Monday to make sure she was alright. You commented on a previous experience which you had had with an elderly patient asking for internal examinations. Your remarks were inappropriate. Further, you did not record in her medical notes that you had purported to conduct internal and breast examinations. Your failure to make a record of your examinations was inappropriate. The GMC publication “Good Medical Practice” (2001) states clearly that “patients must be able to trust doctors with their lives and well-being. To justify that trust, we as a profession have a duty to maintain a good standard of practice and care and to show respect for human life. In particular as a doctor you must: Treat every patient politely and considerately Respect patients’ dignity and privacy Be honest and trustworthy Avoid abusing your position as a doctor.” It further states that “Successful relationships between doctors and patients depend on trust”. Additionally, “In providing care you must keep clear, accurate, legible and contemporaneous patient records which report the relevant clinical findings, the decisions made, the information given to patients and any drugs or other treatment prescribed”. You failed to adhere to these requirements. Your actions and conduct in relation to this patient, constitute fundamental breaches of the principles and standards expected of a registered doctor and represent a gross abuse of the doctor/patient relationship. Accordingly, the Panel has found that your fitness to practise is impaired because of your misconduct.” Treat every patient politely and considerately Respect patients’ dignity and privacy Be honest and trustworthy Avoid abusing your position as a doctor.”

Be honest and trustworthy

[15]Having announced this part of the decision, the Panel heard further submissions on sanction. It revoked the interim order that had been put in place pending the resolution of the complaint. That order included a requirement for chaperoning and, as was common ground, there was no suggestion that the appellant had breached the interim order. The decision on sanction was as follows:
“The Panel has already announced its findings that your fitness to practise is impaired by reason of your misconduct. The Panel must now determine what sanction, if any, to impose on your registration. The Panel has had regard to all the evidence presented and the submissions of both Counsel. It has applied the principle of proportionality, weighing the public interest against your own interest. The Panel has a duty to protect the public interest. The public interest includes the protection of patients, the maintenance of public confidence in the medical profession, and declaring and upholding proper standards of conduct and behaviour as set out in the GMC’s document “Good Medical Practice”
. The Panel recognises that the purpose of sanctions is not to be punitive, although they may have a punitive effect. The Panel has considered all the relevant parts of the GMC’s “Indicative Sanctions Guidance” (April 2005). This case centres on your conduct towards Patient A on 7 and 8 July 2005. The Panel has made findings that your conduct towards her on the first of these dates in requesting to undertake an internal examination was inappropriate and not clinically justified. Neither was your request to carry out an internal examination on 8 July 2005 clinically justified. Of particular concern to the Panel is the fact, that in the course of that consultation, you pursued a course of behaviour towards your patient which comprised three quite separate and distinct acts of sexual misconduct. The Panel has considered the submissions made by Mr Kark on behalf of the GMC suggesting erasure as the appropriate sanction. The Panel has also given careful consideration to the mitigation in this case put forward by Mr Hockton on your behalf. He submits that you have an unblemished career and are respected by your patients and colleagues. He submits that there is no risk of recurrence and that there is not a risk to the public. The Panel has also considered your evidence about your medical condition. There is no evidence of any other such misconduct. The Panel has also considered the testimonials submitted and other evidence of your good character. The Panel first considered whether it would be sufficient to conclude your case without taking any further action, but determined in the light of the seriousness of its findings, that this would be wholly inappropriate. The Panel went on to consider whether the imposition of conditions would be appropriate. It noted that Indicative Sanctions Guidance states that conditions may be appropriate where there is no evidence of harmful deep-seated personality or attitudinal problems and where it is possible to formulate appropriate and practical conditions to impose on registration. The Panel is sure this is not appropriate. It considers that you have demonstrated a complete lack of insight into your misconduct during the investigations and at this hearing. Furthermore, it considered that neither could it formulate conditions which would address the seriousness and extent of your misconduct nor would the imposition of conditions be sufficient to ensure patient safety and satisfy the public interest. The Panel next considered whether a period of suspension would be both proportionate and sufficient to protect the public interest. Indicative Sanctions Guidance states that a period of suspension may be appropriate when the instance of misconduct is serious, where the actions are not fundamentally incompatible with continuing to be a registered doctor, where there is no evidence of harmful deep-seated personality or attitudinal problems, where there is no evidence of repetition of behaviour since the incident and where the Panel is satisfied that the doctor has insight and does not pose a significant risk of repeating the behaviour. The Panel considers that your actions displayed no concern for Patient A’s privacy and dignity and that your actions towards her were reprehensible. The Panel rejects your contention that you have no independent recollection of the events in question. The consultation on 8 July 2005 was lengthy and unusual. Your conduct constituted a fundamental breach of the principles and standards expected of a registered doctor. You abused the special position of trust between a doctor and patient. The Panel is concerned about your lack of insight into the matters that have brought you before this Panel and the absence of remorse. Accordingly, the Panel has determined that suspension is insufficient. The Panel is satisfied that your behaviour is fundamentally incompatible with your continuing to be a registered medical practitioner. Your misconduct constituted serious departures from the relevant professional standards as set out in Good Medical Practice. You have abused your position of trust towards Patient A and violated her rights, you committed several acts of sexual misconduct on her and your have shown a persistent lack of insight into the seriousness of your actions and their consequences. The Panel has had regard to paragraphs 39 to 42 of the GMC’s Indicative Sanctions Guidance. Paragraph 39 states that:
“There are some examples of misconduct where the Privy Council has upheld decisions to erase a doctor despite strong mitigation. This has been because it would not have been in the public interest to do otherwise given the circumstances concerned. The three areas of concern are: Sexual Misconduct Dishonesty Failing to provide an acceptable level of treatment/care”
. The relevant area of concern in your case is Sexual Misconduct. Paragraph 40 states:
“Whether erasure is appropriate in cases of this kind will depend on the particular facts of each case and other relevant factors”
The Panel has also borne in mind the judgment of Gupta v the GMC (Privy Council Appeal No 44 of 2001) in which Lord Rodgers of Earlsferry quoted with approval the statement of Sir Thomas Bingham, the Master of the Rolls, in Bolton v The Law Society (1994) 1 WLR 512:
“The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.”
Although the Panel has considered your case on its own facts it has also had regard to the High Court decision in the case of Dr Wentzell v GMC (2004), an appeal against erasure by a doctor who had formed and pursued a sexual relationship with a vulnerable patient. In his judgment, Mr Justice Lightman said, “The real thrust of the appeal on sanction lay in the draconian consequences of erasure on Dr Wentzell and the public …. erasure will effectively end Dr Wentzell’s career. It is submitted that three interests fall to be weighed in deciding what sanction to impose: (a) public confidence in the medical profession; (b) commitments; and (c) the interests of the doctor in not having his career cut short …. Of the three interests to be weighed the maintenance of the public confidence in the medical profession is the paramount interest. In view of the extreme character of his misconduct ………..the GMC was fully entitled (if not bound) notwithstanding the consequences for Dr Wentzell and the health service, to order erasure and there is no basis on which the court can or should interfere with the determination of that expert and informed body”. The Panel recognises that there are distinctions in the facts in that case and the present case. However, the Panel is satisfied that your sexual misconduct was very serious and has therefore applied to this case the principles quoted above from the judgement of Mr Justice Lightman. Accordingly, the Panel has determined to erase your name from the Medical Register.” “There are some examples of misconduct where the Privy Council has upheld decisions to erase a doctor despite strong mitigation. This has been because it would not have been in the public interest to do otherwise given the circumstances concerned. The three areas of concern are: Sexual Misconduct Dishonesty Failing to provide an acceptable level of treatment/care”. The relevant area of concern in your case is Sexual Misconduct. Paragraph 40 states:
“Whether erasure is appropriate in cases of this kind will depend on the particular facts of each case and other relevant factors”
The Panel has also borne in mind the judgment of Gupta v the GMC (Privy Council Appeal No 44 of 2001) in which Lord Rodgers of Earlsferry quoted with approval the statement of Sir Thomas Bingham, the Master of the Rolls, in Bolton v The Law Society (1994) 1 WLR 512:
“The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.”
Although the Panel has considered your case on its own facts it has also had regard to the High Court decision in the case of Dr Wentzell v GMC (2004), an appeal against erasure by a doctor who had formed and pursued a sexual relationship with a vulnerable patient. In his judgment, Mr Justice Lightman said, “The real thrust of the appeal on sanction lay in the draconian consequences of erasure on Dr Wentzell and the public …. erasure will effectively end Dr Wentzell’s career. It is submitted that three interests fall to be weighed in deciding what sanction to impose: (a) public confidence in the medical profession; (b) commitments; and (c) the interests of the doctor in not having his career cut short …. Of the three interests to be weighed the maintenance of the public confidence in the medical profession is the paramount interest. In view of the extreme character of his misconduct ………..the GMC was fully entitled (if not bound) notwithstanding the consequences for Dr Wentzell and the health service, to order erasure and there is no basis on which the court can or should interfere with the determination of that expert and informed body”. Accordingly, the Panel has determined to erase your name from the Medical Register.”[16]Having concluded that erasure was the appropriate sanction, the Panel determined that the public interest required immediate suspension. The decision on erasure was to take effect after 28 days unless an appeal was entered, in which case it was deferred to the end of the appeal process.

The Panel’s conclusion that the complainant was telling the truth

[17]Miss Foster submitted that the inconsistencies and demonstrated errors in the complainant’s evidence were such that no Panel properly directing itself on the standard of proof could have concluded that the allegations were established. This submission is to the effect that the conclusion was perverse.[18]In seeking to make good this submission, Miss Foster took me to extensive passages in the transcripts of evidence and reminded me of the submissions made on behalf of the appellant before the Panel. The areas of the complainant’s evidence which were said to demonstrate her unreliability were:(a) The contradictions about the length of time that the consultation on 8 July lasted;(b) Her confusion about whether the appellant touched her right or left thigh;(c) The differences between her statements which variously suggested that she had exposed one and both of her breasts;(d) Inconsistencies between various accounts of how long the inappropriate touching lasted. Miss Foster additionally submitted that at various points during cross-examination the complainant was evasive and aggressive, that she reacted poorly to the pressure of having her account probed and was demonstrably inadequate.[19]The so-called contradictions about the length of the consultation on 8 July became less significant in the course of the hearing. Initially, the complainant had suggested that the consultation had lasted about 10 minutes. After she saw evidence which suggested that the computer record (to which I shall return) indicated an overall length of perhaps half an hour, she is said to have tailored her evidence to fit with that. However, a note from the police file of August 2005 recorded her as suggesting the overall time was about 30 minutes. So the point, put firmly in cross examination, lost some of its potency. Be that as it may, it was common ground that the consultation had an unusual feature, namely the appellant telephoning the hospital for the results of the blood tests and holding on the line for anything up to 15 minutes. Miss Foster is right that the complainant identified the wrong thigh on which the appellant placed his hand at one point. The lay out of the consulting room and position of the examination couch dictated the correct answer to that question. Similarly, the complainant had varied the time during which the sexual assaults occurred from 2 to 5 minutes and given descriptions of exposing one and both breasts. Whether the complainant was defensive and argumentative is not easy to discern from the transcripts but neither would be surprising given the firm way in which she was cross- examined. There was no getting away from the fact that the appellant’s case necessarily involved the suggestion that she was a bare faced liar.[20]All these points were matters for the Panel as the tribunal of fact. The reasons given show that the Panel correctly directed itself on the burden and standard of proof. It was alive to the inconsistencies within the complainant’s account and the good character of the appellant. There are other circumstances in which fact finders have to determine whether they are sure that an account of a sexual assault is true in the face of a flat denial from the other person concerned and with little or no independent evidence. In such circumstances the task is to consider whether the core allegations are true. It is a commonplace for there to be inconsistency and confusion about details of varying importance. In this case the Panel rejected the account of the appellant that he had no recollection of the consultation on 8 July and was satisfied to the criminal standard of proof that the complainant was telling the truth. They saw and heard the witnesses. Miss Foster’s eloquent submission was an echo of that made by counsel in an attempt to persuade the Panel to reject the complainant’s account. Yet it is not for this court to make findings of fact. This conclusion of the Panel was fully open to it on the evidence it heard and it cannot, in my judgment, be said that the conclusion reached was perverse or otherwise not open to the Panel. Their conclusion cannot be said to be wrong.

The consultation notes

[21]The Surgery operated a computerised system for recording patient notes. The appellant entered notes into the system in respect of the consultations on both 7 and 8 July. In addition to his personal entries, the system records the time at which a patient’s arrival at the surgery has been entered by the reception staff. Then it records the time at which the patient goes into the doctor’s room. Finally there is a record of when the patient leaves the room. Each depends upon a keystroke being made by the receptionist or doctor. The final entry, in particular, may not reflect the moment that the patient leaves the doctor’s room because the doctor might well enter his final notes after the patient has physically left his presence, and only then note his departure. The three times recorded in the system for the visit on the 8 July were: arrived 15.13; sent in 15.37; left 16.06. The way in which the computer worked was spoken to in evidence before the Panel by Stephen Howard, the Practice Manager.[22]The notes for the two consultations are as follows: G.P. Surgery Onset Dr M J M Mubarak 24. E: [D] Dizziness S: not real vertigo rather lightheaded feeling; tired all the time; menorrhagia for the last few months 25. O: nil of note; no postural bp drops P: check bloods inc.FBC; review 26. D BP 100 mm Hg / 70 mm Hg 8.7.2005. Review G.P Surgery Dr M J M Mubarak28. E: [D] Dizziness29. S: rather worse with nausea; nil else30. Rx: Cinnarizine Tablets 15mg31. P: blood tests were ok (Hb%=14.3) Probably mild labyrinthitis 8.7.2005. Onset G.P. Surgery Dr M J M Mubarak 33. E: [X]0th spcf irreg menstruation 34. S: mirena coil removed 2 m ago 35. O: nil of note 36. P: reassured; review of persists[23]The reference in the notes to “E” is code for the complaint recounted by the patient and “S” refers to a description given by the patient. “Rx” is a prescription, “O” means observation (which may include observation on examination) and “P” records a doctor’s comment. The records showed that the appellant was entering notes at 16.04.

Dr M J M Mubarak

[24]Mr Howard explained to the Panel that the leaving time shown on the 8 July may, in fact, be after the complainant left the room. Miss Foster submitted that in concluding that the consultation was ‘lengthy and unusual’ the Panel demonstrated that it misunderstood the entries and their import. Many consultations might last half an hour. She suggested that the notes are supportive of the appellant’s case or at the least add nothing to the complainant’s case. She suggested that questioning from the Panel further demonstrated their misunderstanding of the notes; and also that counsel prosecuting for the General Medical Council misunderstood those notes. That, she submitted, is demonstrated by a submission he made in his closing speech which was plainly wrong. So, it is submitted, these factors provide a basis additional to the complainant’s lack of reliability on which this court should conclude that the Panel was wrong to decide that the complaint was established to the requisite standard of proof.[25]I have already noted that there was evidence, essentially not in issue, that a substantial part of the time during which the complainant was in the doctor’s room was occupied by his waiting on the telephone to be told the results of the blood test. The results of the blood test were indeed noted by the appellant during the consultation. The meaning of the notes was explored in the appellant’s evidence. He dealt fully with how he interpreted his records of both 7 and 8 July 2005. It can be seen that the note for the 8 July includes an ‘O’ which according to the appellant meant ‘observation’. He said that it does not necessarily suggest that such observation followed an examination, internal or otherwise. ‘O’ can refer to an observation made by eye, for example how a patient walks into the room and so on, or may refer to something observed on examination. In this interpretation, he was supported by Dr Rowlands, an expert called on behalf of the General Medical Council.[26]The computer record of the consultation on 8 July, which I have set out, is divided into two parts. The significance of this, if any, was explored in evidence with the appellant. It should be borne in mind that he said he had no independent recollection of the consultation and his evidence was presented as a reconstruction based on his own notes. On Day 3 page 10-11 the following exchange occurred. The questioner is the appellant’s own counsel:
“Q This is for 8 July – there are two entries there. A There are two entries because probably this was a computer error, but it was all the same consultation. So dizziness, I explained to the patient, is very unlikely anything related to her period. And then about the menstruation – I thought she had mirena. She said mirena coil, but that was not correct, actually. It was a copper coil. Then I have recorded “nil of note” from the observation. The patient walked into the room well and she was talking well, and she was not pale. There was nothing to suggest anything for her complaint, that it was worse, so I recorded “nil of note”
. Q. What is that underneath – “P”? A. That is the comment. So I reassured. “Review”, that says. Q. What does the note refer to? A. I reassured her. I told the patient it is very unlikely anything significant, it is probably related to her coil, so if it persists – say, for instance, after six months or so – to review the situation.” Q. What is that underneath – “P”?

Q. What does the note refer to?

[27]The appellant explained in his evidence that the note for 7 July confirmed that he had performed an examination of both ears together with an abdominal examination. Conversely, he said that he performed no examination at all on 8 July. The lack of clarity in the notes was explored by members of the Panel in their questioning, and in particular why similar entries (namely next to “O”) on 7 and 8 July represented different things. The following exchange took place between the Chairman and the appellant on Day 3, recorded at page 38 D and following: “Q. What is the difference between the 7th and the 8th? Your note is identical on them. A. Sorry? Yes, I put “nil of note” because on the whole the patient’s condition would have been very well, so I put that nothing significant was observed or found. Q. Let me be quite fair to you. You have told us that you have got no independent recollection, you are basing your evidence on your clinical notes and your usual practice. A. Correct. Q. What I am seeking to ascertain from you is why, on the basis of your clinical notes, are you telling us that “nil of note” recorded on 7 July involved an abdominal examination and the same note on 8 July in your view did not involve any physical examination at all, even to the extent of even touching the patient? A. No, nothing. Q. How are you sure of that? A. That is what I would have done. From the patient’s condition and the symptoms there was no necessity for an examination, so I would have based it on that. Q. Just before we leave that point, did I understand you correctly, you said that your note on 8 July “O: nil of note” was based on the note you made on 7 July? A. Correct, yes. Q. Is that usual practice, to record --- A. Yes. Q. Just a minute, let me finish the question. Is it your usual practice that when you see a patient a day later you make the same finding relating to a consultation a day earlier? A. Depending on the patient’s condition, yes. You do not need to examine the whole system again on the following day. Q. Would you agree with me that if the 7 July note “O: nil of note” on the basis of your usual practice suggests that you carried out a physical examination, by making the same record a day later the suggestion to someone seeing those notes would be that again a physical examination of some sort was carried out on that second occasion? A. I meant mainly based it on the observation and the previous day’s examination. Q. Maybe, but would you agree with me that the impression given by the identical note a day later would suggest that if on the previous day a physical examination was carried out, the same interpretation would be put on the note the following day? A. Maybe, yes. Q. Can I just ask you one final question – well, two matters still I want to ask you about. Again, in cross-examination you said that there was no argument when she left, you did not notice any difference when she left, nothing seemed to be wrong A. Correct. Q. On what are you basing that evidence? A. From my notes, yes, just from my notes really. If there was anything, I might have mentioned –-- Q. How do the notes enable you to say that there was no argument when she left and that you did not notice any difference when she left? A. If I have noticed anything, on the comment we usually write down if the patient was unhappy or said anything. You know the comment, it is “P”, on the comment if we notice any unhappiness or if the patient has said anything, that is where usually we note it, but because I have not noted anything, so obviously there was not any. Q. Just one final question: you agree, I think with Mr Kark, that 29 minutes would be a very long consultation and you said that you found it difficult to see how so much time was taken up. Can you help me as a lay member, looking at your clinical notes of 8 July, with no independent recollection, how long would you estimate that sort of consultation would take, based on the clinical notes? A. If I had not phoned for the hospital, probably two or three minutes. Q. So it is two or three minutes--- A. If I had not phoned the hospital Q. I understand, plus whatever time--- A. The hospital took. Q. How are you sure of that? Q. Is that usual practice, to record --- Q. On what are you basing that evidence? Q. So it is two or three minutes--- A. If I had not phoned the hospital Q. I understand, plus whatever time---

Dr M J M Mubarak

[28]It seems to me that the comment made by the Panel in its reasons that the consultation was ‘unusual and lengthy’ was entirely justified on the evidence that they heard. On the account of events that the appellant gave, the nature of the consultation he reconstructed would suggest only a very few minutes spent on the usual business of a General Practitioner’s consultation and much time spent waiting on the telephone for the results of blood tests. Other printouts from the surgery showed that the next patient’s appointment was due to start at 15.50 and that he went in at 16.06. The appellant had himself given evidence that ordinarily he saw 35 patients a day (Day 3 Page 4). It was important for the appellant to explain the meaning of the notes and the exploration of that issue (through his own counsel, cross-examination and by the Panel) does not suggest that the Panel misunderstood what he was saying. They were plainly unconvinced by it. It should not be overlooked that having heard the appellant, the Panel came to the conclusion that he was simply lying. There was no middle ground available either to the complainant or the appellant which allowed for misunderstanding of the events or failure in recollection. Either she was lying or he was.[29]The significance of the fact that the notes for 8 July are in two distinct parts was also raised by Dr Davies in his questioning of Dr Rowlands on Day 3 at page 48 of the transcript. Dr Rowlands explained that he had no experience of the computer system used in the appellant’s practice but was nonetheless asked by Dr Davies whether ‘the two entries which to the lay person (even to a medical practitioner) would indicate two different systems being looked at by the doctor at the same consultation.?’ He answered:
“Yes it is what you might call two headings, two problems”
. The exchange continued as follows:
“Q. One is the review of the 7th, the problem the patient presented with, the dizziness. A. I do not know how review and onset get onto the computer. I have no knowledge of that. I do not know what the difference is between them. Q. I do not know if you have had time to look at the rest of the patient’s records, there is review and onset over the years in a certain pattern and if the reviews are referring to the dizziness which is similar, and then the patient got a prescription on the 8th for a problem she presented with on the 7th, would that make sense? A. Yes, I can see how that can be termed a review. The other one actually is also a review, is it not, a review of something that was first presented on the 7th, but that is called an onset. I have no knowledge of how these headings get in there. Q. My question was – but maybe you cannot help us but I will ask it anyway if I may, Chairman – the “nil of note” seems to refer to the menstrual problems and not to the dizziness. A. I agree with that. It is under that heading.”
[30]The point that was worrying Dr Davies was that the notes appear to read as though two different conditions were being considered and entered separately, the dizziness on the one hand and problems with menstruation on the other, with the appellant reviewing the first but the reference to ‘observation’ relating to the second. If that were a correct interpretation, then it might be thought to undermine the appellant’s interpretation of his notes to the effect that the “O” entry he made on the 8 July was no more than a visual observation of the general look of the complainant. The appellant had earlier been pressed hard in cross–examination to explain why he thought this entry referred to a general observation rather than an examination of some sort and it was in this context that he explained that the entry on the 8 July was an observation based on what he seen on the 7 July. The full exchange is recorded at Day 3 between pages 17 and 19.[31]In his closing submissions to the Panel, counsel for the General Medical Council said this:
“Can we then go to the doctor’s own note of the examination, exhibit page 10. As often happens in these cases, it is sometimes that the Panel questions, frankly, that give rise to the most interesting questions. Can I confess that I think it has happened in this case because if you look at the note of 8 July 2005, it is actually quite clearly split into two separate parts. This is not a function simply of the computer; that is a deliberate function of the person making the note. The first part of the note seems to be dealing with the dizziness and the prescription for that and what happened as a result, and blood tests. Then, quite separately, in fact, there is the record of complaint of other specific irregular menstruation, the history being inaccurately that a merina coil had been removed and then the examination being “nil of note”
. Well, if that examination, as it appears to, related to that particular complaint, you will have to ask yourselves, “Well, what on earth is the nature of that examination?” Certainly, a doctor who comes after Dr Mubarak would look at that and certainly they would be none the wiser as to what sort of examination had taken place, but they would certainly think that an examination had taken place.” (emphasis added). That part of the submission I have underlined was not supported by the evidence, and neither could it be regarded as a proper inference from the evidence that was called. The appellant had suggested that the bifurcated nature of the entry was a function of the way the computer operated. It was, from his point of view, a single entry. Mr Howard was not asked about this aspect of how the computer worked although he has since confirmed that the splitting of entries is something the computer can do automatically. Dr Rowlands disavowed any expert knowledge of how the system operated.[32]Miss Foster submitted that when the questions from Dr Davies of Dr Rowlands are read in the light of the submission made by counsel for the prosecution they suggest that the Panel misunderstood the notes and undermines any conclusion they reached about the credibility of the complainant. I am unable to accept that submission. Both counsel asked detailed questions about the meaning of the entries, both of the appellant and expert witnesses. The Panel members themselves followed up that questioning. It was the appellant’s case that he could reconstruct what transpired at both consultations from his notes and thus it was clearly important that their meaning was fully explored. Dr Davies’ questions cannot be read as suggesting that he misunderstood the notes, rather he was pursuing lines of questioning designed to elucidate their meaning. It is true that counsel in his closing address made a submission unsupported by the evidence, but that cannot in my judgment lead to a conclusion that the decision of the Panel was wrong. In the course of argument in the appeal the issue of the split note (as opposed to its meaning) moved towards the centre of Miss Foster’s submissions. But one should not lose sight of the fact that, on any fair reading of the transcripts, that was not the position before the Panel. There was no suggestion put to the appellant that he manipulated the records. His comment that the split was an artefact of the computer was not challenged. His counsel did not think it necessary to seek to question Dr Rowlands further after his exchanges with Dr Davies and did not deal with the point of the split notes in his closing submission which, of course, followed that of prosecuting counsel. In drawing attention to these facts I make no criticism of the appellant’s counsel. Mr Herberg, who appeared in the appeal on behalf of the General Medical Council, submitted that the split note issue was no more than a side show before the Panel. In my judgment that is a fair description. Neither the exchanges between Dr Davies and Dr Rowlands nor counsel’s error in his submission supports the contention that the conclusion of the Panel on the factual issues was wrong. Reasons

Dr M J M Mubarak

[33]Miss Foster submitted that even if the ‘split note’ point does not, without more, lead to the conclusion that the Panel was in error in finding against the appellant, then it emerges again as a factor in the reasons challenge because the decision does not explain one way or the other whether the Panel accepted counsel’s erroneous submission. Additionally, she submits that the Panel should have said much more when dealing with the question of why they were sure that the complainant was telling the truth and the appellant lying. Whilst referring to the character references provided by the appellant, the Panel did not explain how that evidence impacted on their reasoning. Miss Foster suggested that the reasoning was patently flawed in two respects. First, in containing a reference to ‘three distinct acts of sexual misconduct’ and secondly in referring to ‘lack of insight’ in the context of sanction. Neither did they discuss, but merely referred in passing, to a medical condition suffered by the appellant which affects his manual dexterity and makes it difficult for him to perform internal examinations.[34]The last point was explored in evidence but there was no suggestion that the appellant was physically incapable of performing an internal examination, still less of committing the serious sexual assault that the Panel was considering. The mention of three distinct acts of sexual misconduct was an entirely justified reference to the fact that the misconduct involved three sexualised phases:(a) the digital penetration;(b) the incident with the naval piercing; and(c) the incident with the breast. It amounted to a sustained sexual assault. The Panel having also found that the appellant initiated what amounted to a sexual discussion. Neither of these points, in my judgment, forms any basis for attacking the reasoning of the Panel. The question of ‘insight’ more naturally falls to be considered with the issue of whether the sanction of erasure was, in the circumstances, wrong.[35]I have earlier set out the reasoning of the Panel and the authorities which between them establish the standard of reasoning required of disciplinary tribunals. I am prepared to accept, without deciding, that the approach supported by Wall LJ and Sir Mark Potter P in Phipps suggests that standards may have become more exacting during recent years, as the common law relating to reasons has been advancing. Yet it seems to me that there is no justification for concluding that the reasons given by the Panel were inadequate, by reference to the question posed by Wall LJ in paragraph [85] of his judgment. This case involved a stark conflict of evidence between the complainant and the appellant, of the sort frequently encountered in the criminal courts when questions of sexual misconduct arise. The Panel were sure that the complainant was telling the truth. They recognised that her evidence contained inconsistencies but they were nonetheless satisfied concerning the core allegations. Their short initial explanation was, in those circumstances, more than adequate to enable the appellant to know why they had found against him. I do not consider that it was legally necessary for the Panel to explore and discuss in their reasons every aspect of the evidence. Nonetheless, the extensive recital of the facts found, both in the litany and later discussion, explains for the benefit of this appellant exactly what the Panel found in the context of their being sure that he was lying.[36]The issue which arose over the split notes was, in truth, peripheral not central. There is no obligation when giving reasons in this or any context to deal explicitly with the detail of every submission made on behalf of a party, still less to identify a submission, or part of a submission, which has no evidential foundation. The duty to give reasons is a facet of the obligation to deal fairly with the parties. There is no discernable unfairness in the way in which this issue was dealt with. In so far as the reasons contained criticism of the appellant regarding the notes, it was that he failed to record that he had performed an internal examination or examination of the complainant’s breasts. It cannot reasonably be suggested that the Panel had concluded that the notes, sub silentio, confirmed that either occurred. Even on the basis of the transcripts, which deprive the reader of the advantage of hearing and seeing the witness, the appellant’s reconstruction of what occurred from the notes is unconvincing.[37]In my judgment the reasons given by the Panel were adequate.

Sanction

[38]The repeated reference to ‘insight’ in the context of sanction arose from the need to consider the guidance on sanction promoted by the General Medical Council. Professional misconduct not infrequently involves behaviour which is judged inappropriate, but which the professional himself may not appreciate is inappropriate. In the medical context dealings with patients and colleagues may give rise to such complaints. Insight into such conduct is potentially an important factor in considering sanction. A lack of insight would suggest the doctor concerned continued to fail to appreciate that his conduct was wrong. If someone has insight into a failing it is more likely to be controlled. In the case before the Panel there was some behaviour complained of, in the nature of inappropriate comment, to which ordinary concepts of ‘insight’ might readily apply. However, it would be a strange doctor indeed who failed to appreciate that any of the three aspects of sexualised conduct were profoundly wrong. In this case the appellant readily recognised that if the unnecessary digital penetration, cupping of the naval piercing or breast examination took place they were wrong.[39]It seems to me that the Panel was using lack of insight, in this context, as a synonym for lack of remorse. There was, of course, no remorse because the appellant denied the allegations and continues to do so. Miss Foster submits that the Panel’s treatment of this question shows that they penalised the appellant for having contested the proceedings. It would be wrong to impose an additional sanction on that account just as it is wrong in principle to increase what would otherwise be an appropriate sentence because someone has denied a criminal charge. That is so even though the exercise of imposing sanction and punishment are not identical, as Laws LJ explained in Raschid. Acceptance of responsibility may properly lead to a less severe sanction, in an appropriate case, just as it may result in a less harsh sentence. However, I can detect nothing in the careful approach to sanction of this Panel which suggests that they fell into that suggested error.[40]The Panel considered each of the steps in the escalating sanctions available. It may be thought that the earliest steps were so obviously inappropriate that it was unnecessary to do so. Realistically, Miss Foster accepted that suspension followed by return to practice with conditions was the only alternative to erasure that could be urged on behalf of this appellant given the seriousness of the findings. Miss Foster submitted that the Panel’s reference to Wentzell shows that they were in error. Further that erasure was a disproportionate response to the conduct found proved in the light of the appellant’s unblemished history of practice and the fact that the conditions imposed pending the resolution of the disciplinary proceedings were complied with and provided the necessary protection.[41]Wentzell was a case in which a doctor was erased from the register following inappropriate sexual relations with a patient. The relationship was consensual, there being no suggestion that the sexual activity amounted to assaults. The point emphasised by Lightman J in Wentzell, echoing Sir Thomas Bingham MR in Bolton,was that the reputation and good standing of the profession as a whole was a very important factor when considering sanction. That was the principle that the Panel drew from the case.[42]The Panel concluded that erasure was the only appropriate response when dealing with the findings they had made. There is a danger when minutely analysing the reasoning of the Panel leading to that conclusion to overlook the essence of what was found. The Panel was sure that the appellant digitally penetrate the vagina of the complainant when there was no medical reason to do so. True it is that the criminal prosecuting authorities decided to take no action, but the conduct complained of amounted to an offence under section 2 of the Sexual Offences Act 2003 for which Parliament has provided a maximum penalty on conviction of life imprisonment. The Panel was confronted with an allegation, which was proved to the criminal standard, that involved a shocking breach of trust with serious sexual assault. Not only was erasure an appropriate and proportionate sanction given the circumstances, but in my judgment an inevitable one.

Conclusion

[43]None of the criticisms advance against the decisions of the Panel has been established. For all these reasons, the appeal is dismissed.

Cited in 15 later judgments

and 6 more of the most senior