Ihsan v General Medical Council

On an appeal under section 40 of the Medical Act 1983, the court may allow the appeal only if the tribunal’s decision was wrong or unjust because of a serious procedural irregularity. A professional tribunal is entitled to take account of undisputed facts forming part of the context of proved misconduct, even where a more specific allegation concerning those facts was not proved. A reviewing tribunal may revisit an earlier tribunal’s findings where later-acquired knowledge casts them in a different light. Erasure for two closely related incidents of sexually motivated misconduct was not disproportionate where the doctor lacked sufficient insight and remediation and a risk of repetition remained.

Dr Ihsan appealed against decisions of a Medical Practitioners’ Tribunal. A first tribunal found sexually motivated misconduct towards a patient, found impairment, and imposed a nine-month suspension. It was unaware that Dr Ihsan was under investigation for a later incident involving unwanted sexual attention towards a housekeeper.

A second tribunal found the later misconduct proved, conducted the review required by the first tribunal, found continuing impairment, and erased Dr Ihsan from the register. The appeal challenged alleged factual and reasoning errors, the tribunal’s treatment of insight and remediation, and the proportionality of erasure.

1. Appeal jurisdiction. The appeal was a rehearing without oral evidence. Under section 40 of the Medical Act 1983, the court could allow the appeal only if the tribunal’s decision was wrong or unjust because of a serious procedural irregularity. The tribunal was an expert professional body entitled to appropriate deference.
2. Alleged errors. The reference to risk of harm to “patients” was unfortunate but was not read literally as a finding that more than one patient had suffered actual harm. The tribunal materially erred in listing as a mitigating feature that Dr Ihsan had not admitted sexual motivation, because he had admitted it in relation to patient B. That error was not material to the outcome, since the tribunal understood the facts and his admissions and denials as a whole.
3. The second tribunal was entitled, and in its reviewing capacity required, to reconsider the first tribunal’s findings about insight in the light of the later misconduct of which the first tribunal had been unaware. The tribunal correctly found that there had been some attempts at remediation, but that they were insufficient to remove the risk of repetition.
4. Sanction. The tribunal was entitled to consider the undisputed fact that Dr Ihsan’s penis had been exposed to Ms A, although the allegation that he had exposed an erect penis was not proved. That fact formed part of the context and was relevant to the seriousness of the misconduct. The tribunal was not required to disregard it on a technical basis.
5. Two incidents of sexual misconduct occurred within eight months. They involved vulnerable women, occurred while the first matter was under investigation, and demonstrated inadequate appreciation of sexual boundaries. The weighing of aggravating and mitigating features under the Sanctions Guidance disclosed no material error. Erasure was severe but justified, and the appeal was dismissed.

The judgment records no earlier appellate decision. It was an appeal to the High Court under section 40 of the Medical Act 1983 from decisions of Medical Practitioners’ Tribunals.