Basson v General Medical Council

A regulatory tribunal’s inferential finding of a person’s state of mind may be overturned where it is wholly contrary to the weight of the evidence or a defect in the decision-making process renders it unsafe. State of mind is a fact proved on the balance of probabilities by inference or deduction from the surrounding evidence.

A tribunal need not rehearse every argument or expressly recite familiar evidential principles. It must address the matters essential to its decision. A genuine inability to recall an incident does not logically preclude a finding that the person acted with a fleeting sexual motive at the time.

A general practitioner appealed against a disciplinary tribunal’s finding that he had acted with a sexual motive when he inappropriately touched a patient’s knee and commented on her short skirt. The underlying conduct was admitted. The sole disputed issue was the doctor’s state of mind.

The tribunal regarded the doctor as honest and accepted that he could not remember the consultation. It nevertheless inferred a sexual motive and imposed a 28-day suspension, reflecting its assessment that the misconduct was at the lowest end of the relevant spectrum.

The central question was whether the inferential finding of sexual motive was legitimately available on the evidence.

1. The appeal was dismissed. The tribunal’s finding of sexual motive was available on the evidence. It was not wholly contrary to the weight of the evidence, nor was it rendered unsafe by any defect in the decision-making process.

2. A person’s state of mind is a fact and must be proved in civil proceedings on the balance of probabilities. Unlike a concrete event, it can ordinarily be established only by inference or deduction from the surrounding evidence. The court accepted that a regulatory appeal against an inferential finding may attract somewhat less stringent appellate restraint than a challenge to a primary concrete finding. Nevertheless, either kind of finding can generally be disturbed only where it is wholly contrary to the weight of the evidence or the decision-making process was materially defective. Edgington v Fitzmaurice (1885) 29 Ch D 459 applied.

3. The tribunal was entitled to infer sexual motivation from the admitted non-clinical touching, the comment about the patient’s short skirt and the surrounding circumstances. Sexual motive in this context meant pursuit of sexual gratification or a future sexual relationship. The tribunal inferentially found the former.

4. The tribunal did not err by failing expressly to rehearse the principles concerning inherent probabilities associated with Re H [1996] AC 563. Those principles had been fully argued and were plainly within its contemplation. A tribunal need not recite and analyse every argument presented to it; it must deal with those arguments essential to its decision. The criticism based on an absence of recognised indications of sexual misconduct also failed because an inappropriate comment was itself such an indication.

5. Accepting the doctor as honest and accepting his genuine inability to remember the consultation did not logically exclude a finding of sexual motive. A fleeting, low-grade sexual aberration could plausibly have occurred and subsequently disappeared from memory.

6. The conduct remained at a very low level of culpability within the spectrum of sexually motivated misconduct, as reflected by the tribunal’s lenient sanction. The 28-day suspension therefore remained undisturbed.

• High Court (Administrative Court): Dismissed the doctor’s appeal against the disciplinary tribunal’s finding of sexually motivated misconduct and left the 28-day suspension undisturbed.

• Disciplinary tribunal: Found that the admitted inappropriate touching and comment were sexually motivated. It imposed a 28-day suspension after assessing the conduct as being at the lowest end of the relevant spectrum.