Sait v The General Medical Council (GMC)

In a regulatory case alleging sexually motivated misconduct, the decisive issue is the accused professional’s state of mind. Serious allegations must be fully particularised and, save in rare cases, put squarely to the accused in cross-examination. A tribunal must provide clear reasoning and an evidential foundation for inferring sexual motivation, particularly where the allegation is serious. The ordinary balance of probabilities remains the applicable standard, although serious allegations require evidential clarity. Where procedural unfairness or inadequate reasoning prevents the appellate court from determining what the fair outcome would have been, the appropriate remedy is a retrial.

The appellant, a consultant orthopaedic surgeon, appealed against findings by a Medical Practitioners Tribunal that he had acted with sexual motivation towards Patient B and that his fitness to practise was impaired by misconduct. The Tribunal had found that he repeatedly called Patient B pretty, invited her to a pub outside the clinical setting, discussed her marriage, encouraged secrecy, and invited her to his car. It rejected allegations of hugging and kissing.

The appeal challenged the finding of sexual motivation on grounds including procedural unfairness, inadequate evidential support, failure to address the appellant’s subjective state of mind, and an erroneous finding concerning the pub conversation.

1. Appeal allowed and matter remitted for retrial. The findings concerning Patient B, the consequential finding of impairment by misconduct, and the sanction were set aside. The allegations concerning Patient B were directed to be retried by a differently constituted Tribunal.
2. Sexual motivation concerns the individual’s state of mind. The statutory definition of sexual conduct in Sexual Offences Act 2003, section 78, did not supply the indispensable test of motivation. The Tribunal therefore had to determine whether the appellant intended to progress his relationship with Patient B with a view to sexual relations.
3. Where a professional faces serious misconduct allegations, the allegations must be fully particularised. Save in rare cases, the central accusation should be put squarely in cross-examination. Written pleadings and witness statements may provide notice, but they do not justify omitting fair and effective testing of a serious allegation in the witness box.
4. The Tribunal’s limited cross-examination of the appellant on sexual motivation was procedurally unfair. The failure was material because sexual motivation was the central allegation and the appellate court could not determine what the result would have been had the appellant been properly challenged.
5. The finding that the earlier consultations formed part of a pattern of sexually motivated conduct had virtually no evidential foundation or clear reasoning. The Tribunal did not explain why calling Patient B pretty was sexually motivated, particularly when similar conduct towards Patient A had been treated as a clumsy conversational attempt. Removing that finding fatally undermined the reasoning that the events at the pub formed part of a pattern.
6. The balance of probabilities remained the applicable standard. The seriousness of the allegation required evidential clarity, but did not elevate the standard of proof.
7. The challenges to the Tribunal’s formulation of the allegation and to its description of the pub conversation were rejected. For the future, however, allegations of sexually motivated conduct should identify the type of motivation alleged.

• Medical Practitioners Tribunal: found facts proved, found sexual motivation and impairment of fitness to practise by misconduct, imposed a three-month suspension and directed a review.
• High Court (Administrative Court): allowed the appeal in relation to sexual motivation and directed a retrial of the Patient B allegations.