General Medical Council v Abdulkhaled Ahmed  EWHC 403 (Admin): Degree of deference in cases of sexual misconduct and the effect of interim orders on sanction
In a judgment handed down on 25 February 2022, Mr Justice Murray dismissed the General Medical Council’s appeal under section 40A of the Medical Act 1983 against a sanction of two months’ suspension imposed by the Medical Practitioners Tribunal (“MPT”). In doing so, the High Court restated the general principle that there was limited scope for the court to overturn a decision on sanction, even in cases of sexual misconduct. The decision also considered the effect of time spent subject to interim suspension.
Dr Ahmed faced allegations relating to two female patients, Patient A and Patient B. Patient A was 14 years old and Patient B was an adult student nurse, albeit one who had never worked with Dr Ahmed.
In relation to Patient A, Dr Ahmed was found to have located her Facebook account and sent her a friend request on Facebook following a consultation in February 2015. The allegation of sexual motivation was not proved. Nonetheless, the MPT considered that Dr Ahmed’s behaviour constituted an inappropriate breach of privacy, confidentiality and trust. On that basis it did cross the threshold of misconduct.
In relation to Patient B, Dr Ahmed was found to have used her medical records to obtain her full name, sent her a friend request on Facebook, contacted her using WhatsApp and, on more than one occasion, sent messages to her on WhatsApp which were (1) sexual in nature; (2) encouraged her to meet up with him; and (3) sought to engage in a personal relationship with her. Dr Ahmed continued to send messages to Patient B on WhatsApp despite her no longer responding to his messages. The MPT considered this was sexually motivated and amounted to misconduct.
The MPT found Dr Ahmed’s fitness to practise to be impaired and suspended him for two months.
The GMC appealed on the basis the MPT (i) failed to address adequately the Sanctions Guidance on erasure, and (ii) imposed a sanction that was simply insufficient to reflect the seriousness of Dr Ahmed’s misconduct. The GMC submitted that this was not a case where the MPT enjoyed a significant advantage over the appellate court. It relied on the principle in GMC v Jagjivan  EWHC 1247 (Admin) that, in cases concerning sexual misconduct, the court will attach less weight to the expertise of the professional tribunal.
Although that submission was accepted, the court considered a “significance degree of deference” should nevertheless be afforded to the MPT which had considered all the evidence in the case, including oral evidence. The MPT had regard to the mitigating and aggravating features of Dr Ahmed’s misconduct before it considered the Sanctions Guidance. The mitigating factors included Dr Ahmed’s previous good character and practice history, and the fact that there had been no repetition of any misconduct in the six years or so since Dr Ahmed’s interaction with Patients A and B.
Mr Justice Murray considered the observation made in Bawa Garba v GMC  EWCA Civ 1879 that the decision to suspend a doctor rather than to erase him or her from the register was an evaluative decision based on many factors – it was “a kind of jury question”, about which reasonable people may reasonably disagree. As such, there was limited scope for an court to overturn it.
The GMC also submitted that the MPT gave undue weight to the fact that Dr Ahmed had been subject to an interim suspension order of four months. It appeared that the MPT regarded suspension of Dr Ahmed’s registration for a period of six months an appropriate sanction and then made an allowance for Dr Ahmed’s interim suspension which led it to arrive at a suspension of two months. The GDC relied on the cases of Ujam v GMC  EWHC 683 (Admin) and Abdul-Razzak v GPC  EWHC 1204 (Admin) to submit that it was inappropriate to treat an interim suspension order analogously to a period of imprisonment on remand, which would be deducted from a custodial sentence. Although it was accepted that undue weight must not be placed on interim orders when imposing sanction, it was nonetheless a relevant factor that should be considered. It was a matter of judgment for the MPT as part of its multi-factorial decision on sanction.
The court held that the MPT was entitled to conclude, in all the circumstances, including Dr Ahmed’s having already served an interim suspension of four months, and bearing in mind that this was not a case involving any threat to patient health or safety, that a suspension of two months was sufficient to mark the misconduct.
The GMC finally criticised the MPT’s decision not to order a review of the order and its failure to give any reasoning for that decision beyond the assertion that a review would serve no useful purpose. Although it was observed that the MPT’s reasoning might have been better and more fully expressed, it was open to the MPT to conclude that a review in this case would serve no useful purpose, the reasons for which were sufficiently clear from a reading of the whole determination.
Ahmed somewhat limits the principle in Jagjivan as to the degree of deference that should be afforded to professional tribunals in cases of sexual misconduct. It helpfully reinforces the principle in Bawa Garba v GMC that the court will be slow to interfere with a tribunal’s multifactorial decision regarding sanction.