The General Medical Council v Khetyar

When sanctions guidance clearly indicates erasure, a medical practitioners tribunal may depart from that course only for careful, substantial and case-specific reasons. A general assertion that erasure would be disproportionate is insufficient.

Sexual assault of patients under the guise of medical examination is fundamentally incompatible with being a doctor. Denial of the conduct will ordinarily prevent a finding of relevant insight, because insight requires the doctor to identify and understand the motivations and triggers. Even a quantitatively small but real risk of repetition may be significant where the misconduct is serious.

The General Medical Council appealed under section 40A of the Medical Act 1983 against a Medical Practitioners Tribunal’s decision to suspend Dr Khetyar’s registration for 12 months rather than erase his name from the register.

The Tribunal had found that he sexually assaulted two patients by fondling their breasts under the guise of medical examinations. He continued to deny the sexual misconduct. The appeal concerned whether the Tribunal had properly applied the sanctions guidance when assessing insight, repetition, future risk and the choice between suspension and erasure. A preliminary issue concerned whether the appeal had been brought within the statutory 28-day period.

1. Appeal allowed. The sanction determination was quashed and a direction for erasure substituted. The appeal had been brought in time because the statutory period began with service of the written notification on the doctor, which occurred on 27 October 2017, rather than with the Tribunal’s announcement on the preceding day.

2. An appeal under section 40A of the Medical Act 1983 is governed by CPR Part 52. The court may intervene where the decision is wrong or unjust because of a serious procedural or other irregularity. It must respect the Tribunal’s professional expertise and exercise particular caution over primary factual findings, although less deference may be appropriate on matters such as dishonesty and sexual misconduct.

3. Suspension and erasure embody materially different conclusions. Suspension means that the misconduct, although serious, is not fundamentally incompatible with continued registration. Erasure reflects the conclusion that the doctor should not practise again for public-safety reasons or to protect the profession’s reputation. Although sanctions must be considered from the least restrictive upwards, a finding that suspension is sufficient requires careful attention to guidance indicating when erasure is likely to be appropriate.

4. The Tribunal had no reasonable basis for finding developing insight or an absence of significant risk. The doctor’s courses, apologies and remediation addressed chaperoning, communication and other admitted clinical failings, not the sexual assaults that he denied. Relevant insight ordinarily requires the motivations and triggers for the proved misconduct to be identified and understood. A small but real risk may be significant when the underlying conduct is serious.

5. The finding that there had been no repetition was also untenable. There were two disturbingly similar assaults only one year apart, and the doctor had practised for only about nine months after the second. The Tribunal was bound to find evidence of repetition and could not be satisfied that no significant future risk existed.

6. The sanctions guidance gave a strong, multi-factor indication towards erasure. The conduct was fundamentally incompatible with being a doctor and involved deliberate disregard of professional principles, serious harm, abuse of trust, exploitation of patients, conduct of a sexual nature, preference of personal interests and persistent lack of insight. The guidance concerning conduct of a sexual nature was not confined to criminal convictions.

7. No powerful case-specific reason justified departure from that indication. The possible loss of an otherwise good clinician could not outweigh the reputation of the profession as a whole. Erasure was so clearly required that remission would serve no purpose.

1. High Court (Administrative Court): The appeal was allowed. The suspension was quashed and a direction that the doctor’s name be erased from the register was substituted: [2018] EWHC 813 (Admin).
2. Medical Practitioners Tribunal: On 26 October 2017, the Tribunal found impaired fitness to practise and imposed a 12-month suspension with a review before expiry. It declined to order erasure.