Alecsandra Manning-Rees writes an update of the recent case law of sexual misconduct and the attitudinal changes for employers, employees and patients.
The cases discussed below provide an important context for how the High Court now treats so called ‘low level’ sexual misconduct in clinical practice. There is a clear line being drawn between in what makes a difference between suspension and erasure at sanction stage.
Arunachalam v GMC [2018] EWHC 758 (Admin)
Dr Arunchalam was struck off by a Panel of the Medical Practitioners Tribunal Service (MPTS) in May 2017 following a finding of misconduct in relation to sexually motivated misconduct towards two female trainee doctors. In relation to one of the doctor’s Dr Arunachalam sent inappropriate messages and in the case of the other, Dr Arunchalam tickled, hugged and kissed the doctor on the head. At paragraph 34 of the judgement, Mr Justice Kerr stated that “…sexual misconduct is self-evidently always serious and often likely to lead to erasure, even for a first time offender.”
Importantly, the learned Judge went on to state as follows at paragraph 61:
“The days are gone when mainstream discourse was in any way split on the issue of sexual misconduct, particularly in the workplace. The mainstream in our society, reflected in our law, is now that there is virtual zero tolerance of such behaviour.”
Despite those findings Mr Justice Kerr then went on to find that the Panel of the MPTS had not correctly reasoned their decision in relation to the mitigating factors. This meant that it appeared that the Panel had not properly considered the matter of suspension versus erasure, and therefore they had not correctly demonstrated whether or not they had balanced the mitigating and aggravating factors against each other in determining the appropriate sanction. The Court of Appeal therefore substituted the decision of erasure for a 12-month suspension order from the date of the judgement, something which the GMC had originally supported at the hearing before the MPTS.
Yasin v GMC [2018] – [2018] EWHC 677 (Admin)
In very similar circumstances the case of Dr Yasin also dealt with whether erasure was an appropriate sanction for ‘low level’ sexual misconduct.
In this case Dr Yasin, within the space of two hours, had separately approached two junior members of staff. In the first instance relating to Ms A he approached the member of staff from behind, pushing his erect penis into her. In the second, Ms B described the registrant doctor hugging her without invitation and moving back and forth such that she could feel his erect penis pushing into her.
Ms B then spoke to Ms A and they decided to report the matter to the senior staff nurse.
The Panel of the MPTS found that the conduct would be regarded as deplorable by fellow practitioners and members of the public, erasing him from the medical register.
Dr Yasin brought the appeal on the basis that the correct sanction to impose would have been one of suspension with a review before the conclusion of the suspension.
On this occasion, rejecting the doctor’s appeal, Mrs Justice Yip stated at paragraph 37 in response to the appellant’s submission that erasure was wrong:
“I can see that this is a case in which more than one outcome was possible…It may well be that there has been a recent shift in attitudes to sexual misconduct of this nature. It is possible that this sort of low level sexual assault is now regarded more seriously than it once was particularly when committed in a work environment. It would be hard to argue that that is a bad thing.
Certainly, it is right that Dr Yasin's actions did not amount to very serious sexual offending but that is not to minimise what he did. He took advantage of two young women who were at an early stage of their health care careers while they were going about their normal work and rubbed his erect penis up against their bodies”.
The General Medical Council v Maher Khetyar [2018] EWHC 813 (Admin)
Finally, the case of GMC and Khetyar demonstrates that again properly reasoned panel decisions can lead to a substantial difference in how sanction is applied upon review.
In this case it was the GMC who brought an appeal against the finding of the MPTS that Dr Khetyar should be suspended from the register. The GMC argued that the correct sanction could only be one of erasure.
Dr Khetyar was found to have committed three separate incidents of sexually motivated misconduct between 2004 and 2013. In the latter two incidents in 2012 and 2013 the Doctor cupped the breasts of two people (one a patient and one a paramedic) without clinical justification. In 2004 he was also found to have pestered and harassed a nurse and this conduct was sexually motivated.
The Panel of the MPTS found that although impaired, the doctor had gained sufficient insight regarding his failure to offer patients chaperones in consultation and had undertaken further training to assist in his explanations of practices during examination.
Unsurprisingly, the High Court found that the Panel had not properly considered the aspect of the sexual assaults in their determination, that Dr Khetyar had demonstrated little remorse or insight into the very serious professional boundaries he had crossed in these incidents. Very much in line with the reasoning in the case of Yasin, the court substituted the sanction of suspension for one of erasure.
Analysis
It is clear that the cases discussed above, although similar, led to different outcomes even though the doctors were of previous good character and, seemingly no criminal proceedings arose out of the allegations. The wrongdoing is referred to as low level; although in all the circumstances it was found to be deplorable and having caused harm.
What is clear is that had the Panel of the MPTS made clear their reasons for erasure, Dr Arunchalam may not have been so fortunate in having his erasure re-examined and substituted for a suspension order.
Furthermore, in the case of Dr Khetyr had the Panel demonstrated that they had taken due consideration of the element of sexual assault and clearly outlined their reasoning for finding suspension in the present circumstances, the GMC’s appeal against sanction may well have not been successful.
As Mrs Justice Yip states, it cannot be argued that taking matters of sexual misconduct more seriously is a bad thing. It reflects a welcome societal change for those who experience harassment, bullying and sexual misconduct in the workplace and reinforces the regulators duty to uphold proper professional standards through the regulatory framework. However in addressing the Panel representatives on behalf of the doctors should take care to ensure that their submissions are tailored to encapsulate all points of the impairment and sanctions guidance, assisting panels as far as possible, to make sufficiently detailed determinations that would not make such easy targets for the High Court.
Alecsandra is an experienced advocate in regulatory and professional discipline cases, crime and general litigation. She also has experience of advising in international policy matters.
Alecsandra is an experienced advocate in regulatory and professional discipline cases, crime and general litigation. She also has experience of advising in international policy matters.
