Junior doctor’s appeal against factual findings of sexual misconduct dismissed and limited weight afforded to good character: Shabir v General Medical Council  EWHC 17
In a judgment handed down on 13 July 2023, Mrs Justice Hill dismissed Dr Shabir’s appeal under s40 of the Medical Act 1983 against the finding of facts of the Medical Practitioners Tribunal (“the Tribunal”) which resulted in his erasure from the medical register.
The allegations arose from Dr Shabir’s consultation with a female patient (“Patient A”) during his foundation year two. He was one month into a four-month rotation in primary care at a GP practice (“the Practice”) and able to see patients independently.
Dr Shabir examined Patient A when she attended the Practice with dizziness and a sore throat.
The following day, Patient A reported to the Practice that Dr Shabir unnecessarily touched her breasts during the consultation.
Before the Tribunal, it was alleged that Dr Shabir touched Patient A’s breasts under her clothing and had failed to (i) explain the nature and purpose of his actions; (ii) obtain Patient A’s verbal consent; (iii) offer her a chaperone; (iv) offer her privacy to get undressed and dressed; (v) ask her to remove her bra; or (vi) record his actions in her medical records. His conduct was alleged to have been sexually motivated.
The Tribunal found all facts proved, concluded that Dr Shabir’s fitness to practise was impaired by reason of his misconduct, and determined that the appropriate sanction was erasure.
Dr Shabir appealed on five grounds which overlapped considerably and made several complaints against the Tribunal including that it failed to:
- Give any or any proper weight to the fact that the allegation was inherently improbable, having regard to the factual circumstances and the recognition in Casey v GMC  NIQB 95 that “sexual impropriety by a doctor is something which has an intrinsic unlikelihood”;
- Identify inconsistencies in Patient A’s account, decide whether and to what extent they impacted on Patient A’s credibility and, having preferred Patient A’s account, give reasons for rejecting the Appellant’s account;
- Consider and afford sufficient weight to the consistency of the Appellant’s account;
- Properly approach evidence of the Appellant’s good character by dismissing or minimising its strengths; and
- Consider that there was a potential explanation for the Appellant’s actions other than sexual motivation, namely that they were accidental, and arose from a clumsy attempt at a proper examination by a young and inexperienced doctor.
In rejecting each submission made on Dr Shabir’s behalf, the appellate court referred to the governing principle set out in Gupta v GMC  1 WLR 1691 that the starting point is that the appellate court will be very slow to interfere with findings of primary fact of the court below. Findings of fact, particularly if founded on an assessment of the credibility of witnesses, were “virtually unassailable”, albeit not “practically impossible” to challenge (Southall v GMC  2 FLR 1550; Byrne v GMC  EWCH 2237 (Admin), citing Dutta v GMC  EWHC 1974 (Admin)).
As to the Appellant’s good character, the appellate court noted that the authorities are clear that the matter of weight to be attached to good character evidence is “pre-eminently a matter for the fact finder and ought not to be disturbed on appeal unless the decision is one that no reasonable tribunal could have reached” (Sawati v GMC  EWHC 283 (Admin) citing Martin v SRA  EWHC 3525 (Admin)). Further, as Collins Rice J made clear in Sawati, the weight given to an unblemished record may properly be less in the case of a doctor at an early stage in their career than a doctor with an established track record.
The appellate court found that the Tribunal was entitled to give limited weight to evidence of the Appellant’s good character when considering his propensity to act as alleged given its two limitations:
1) Two of the doctors who gave character evidence were referring to the Appellant during an early stage of his career when he was operating in a more supervised environment; while this might mean that any concerning behaviour was likely to be detected, it could also mean that it was less likely that the Appellant would engage in such behaviour.
2) The other two doctors who gave character evidence had known the Appellant after the incident had been reported and when he was operating under conditions, with his interactions with female patients being monitored. By contrast, the Tribunal was well aware that, at the time of the Appellant’s consultation with Patient A, he was acting unsupervised in that he was permitted to see patients alone.
Shabir is consistent with the general approach of the appellate court to defer to the lower court on findings of fact, and the position of Sawati as to the limited weight that may properly be afforded to the good character of junior doctors compared to those with an established track record.