The High Court considered the jurisdiction of the GMC to bring appeals, and proved willing to overturn perverse findings of fact
The GMC chose Dr J’s case as the first appeal it brought with its new powers of appeal.
Dr J was employed as a cardiology Registrar. At a consultation with a 27-year old patient who had been referred with a history of chest pain, palpitations and dizziness, the patient alleged that Dr J:
(a) Said there were three different places to get excited (pointing at her nipples and vagina),
(b) Said she could put pressure “down there” pointing at her vagina,
(c) Said “it’s a bit 80s and some people aren’t comfortable doing this”,
(d) Said she could stimulate “down there” to excite herself and raise her heart rate, while the patient’s hand was on her lap,
(e) Told the patient there was another way to make her heart beat faster,
(f) Indicated towards the patient’s vagina,
(g) Placed his hand on top of her hand.
The Tribunal accepted the patient’s account of what had taken place at the consultation but controversially did not find that the conduct was sexually motivated. The Tribunal found that the conduct amounted to misconduct but that Dr J’s fitness to practise was not impaired by reason of that misconduct.
The GMC appealed the decision of the Tribunal pursuant to section 40A of the Medical Act Act 1983. The PSA joined and supported the GMC’s appeal. The High Court adopted the same approach to appeals brought by registrants under section 40 of the 1983 Act.
The Tribunal had seemingly identified that its finding that the conduct complained of was not sexually motivated might arouse some surprise and gave three reasons for not finding the conduct was sexually motivated:
(a) Testimonial evidence revealed no one had heard Dr J engage in the slightest sexual banter or inappropriate communication of a sexual nature,
(b) Dr J’s evidence about his sexuality – namely, he had no sexual interest in either gender,
(c) There was no evidence to suggest Dr J was seeking to pursue a sexual relationship with the patient.
The GMC contended that the finding that Dr J’s actions were not sexually motivated was wrong and ought to be reversed. As a preliminary line of defence, Dr J challenged whether the GMC had jurisdiction at all for such an appeal.
The right to appeal arose where the Tribunal made “a decision not to give a direction under section 35D”. s. 35D reads:
“(2) Where the Medical Practitioners Tribunal find that the person’s fitness to practise is impaired they may, if they think fit—
(a) except in a health case [ or language case] , direct that the person’s name shall be erased from the register;
(b) direct that his registration in the register shall be suspended …; or
(c) direct that his registration shall be conditional …”
Dr J argued since he was not found impaired, there had been no decision not to give such a direction under s. 35D. Perhaps unsurprisingly, the High Court dismissed this interpretation. Upholding it would have emasculated the GMC’s right to appeal. The impact of the factual finding in this case was that at the conclusion of the case no direction had been made under s. 35D. The right to appeal had, therefore, been triggered. In any event, the same argument had been made in the binding decision of Ruscillo when the powers of the Professional Standards Authority (under a previous guise) were first analysed and had similarly been rejected by the Court of Appeal.
Turning to the substance of the appeal, the High Court considered the failure to find sexual motivation was “wrong and unsustainable”. Such an inference was, in the Court’s view, “irresistible” given what Dr J had said to the patient. The High Court summed up its conclusion in this fashion “there could be no motivation other than a sexual one for making statement to a partially dressed patient about intimate body parts and the stimulation of her vagina.” The Court felt sufficiently confident to substitute a finding of sexual motivation.
It is however important to note that in relation to a separate piece of conduct during the same consultation, namely asking the patient to squat, the Court stated that it would have found that to be sexually motivated but that it could not go so far as to describe the Tribunal’s decision on that aspect of his conduct as wrong. This is a useful reminder that there is still a high threshold which must be reached in challenging factual findings. Nonetheless, in the appropriate cases, as here, the High Court has shown increasing willingness to do so.