Dr Haris faced allegations from two patients that he had conducted non-clinically indicated, intimate examinations without consent. He asserted forcefully that the alleged conduct simply never happened – and also called additional evidence to support his position that he was asexual.
The MPT accepted the evidence of the two patients and found the majority of the factual particulars proved. It then turned to the issue of sexual motivation. It considered the acts could reasonably be considered to be “overtly” sexual. It went on:
“The second question for the Tribunal to consider is “was the act carried out for the doctor’s own sexual gratification”? The Tribunal has found that the GMC has proved that the doctor’s actions were able to be perceived as such but the doctor has put forward a potential explanation that, if he did such actions, they were not for his own sexual gratification, since he had, and has, no interest in sexual matters at all. The Tribunal concludes that the weight of evidence on this point is in the doctor’s favour… Looking at all this evidence in the round and balancing it against the inferences that can be drawn from his actions in relation to Patients A and B, the Tribunal is led to the conclusion that the doctor was not sexually motivated when carrying out these actions.”
In due course the MPT found impairment and imposed conditions of practice.
Perhaps unsurprisingly, on appeal, the GMC’s principle ground of appeal focused on this issue of sexual motivation. Foster J as unequivocal in her assessment:
“In the present case it is in my judgement 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. This is another way of saying the only reasonable inference from the facts is that the behaviour was sexual. This derives from;
a. The fact that the touching was of the sexual organs
b. The absence of a clinical justification
c. The absence of any other plausible reason for the touching.”
Of note, however, she went on to consider the utility to using the formulation “sexual motivation”, or having to consider if there was “sexual gratification”. Both terms she felt were unhelpful. She commented:
“It is irrelevant to the actions which the GMC would wish to proscribe whether or not the perpetrator was sexually “gratified” at all – whether before, after or during the act in question. Gratification, as with “pursuit of a relationship” are, pace the analysis of Mostyn J in Basson, not helpful in my judgement in promoting the public interests at stake here. These criteria set the bar too high and I respectfully disagree that they represent the law.”
Rather, she drew assistance from the criminal law. A sexual assault under s. 3(1) Sexual Offences Act 2003 required that (a) the touching was intentional, (b) it was sexual, (c) the complainant did not consent, and (d) the defendant did not reasonably believe (s)he consented. Whether the touching was “sexual” under s. 78 required that
“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.”
As she commented:
“Section 3 excludes from the offence unintentional and also consensual touching. As to the sexual character, section 78(a) contemplates a category of act that is, whatever the circumstances, sexual. Section 78(b) excludes from the offence that category of act that may appear to be sexual but by reason of the circumstances is in truth, not. An act that was clinically indicated, although it might appear sexual, would be excluded under s78(b) . Of course, there are significant differences in the context and the analogy is not exact, but it does seem to me that pleading “sexual motivation” is unhelpful… Had the touching been pleaded as being “sexual”, and had the Tribunal asked themselves whether in all the circumstances, which includes the absence of accident ( cf. section 3(1)(a) ), absence of consent (cf. section 3(1)(c) ) and any clinical or other proper justification (cf. section 78(b) ), then it seems to me impossible they would have reached any conclusion other than that the touching was sexual.”
No doubt regulators will take note of these observations in considering how best to charge a case. Whilst the analogy with the criminal law may be helpful in cases of sexual assault in all but name – as here – it remains to be seen how helpful tribunals find it when dealing with the less overt sexual act. If we consider the doctor who obtains a patient’s mobile number from the medical records in order to message a patient: that act would not be sexual in any ordinarily meaning of the word unless the practitioner was sexually motivated and wished to pursue a personal relationship. Simply boring the definition of “sexual” does little in many cases to cut the Gordian knot.
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