The General Medical Council v Haris

On a regulatory appeal, the appellate court may interfere where a tribunal’s evaluative conclusion is wrong, irrational or outside the range of reasonable decisions. Where a practitioner intentionally makes unconsented intimate contact without clinical justification, and no plausible alternative explanation exists, the only reasonable inference may be that the conduct was sexual. The tribunal must assess all the facts and circumstances without imposing an unnecessary requirement to identify a separate motive or sexual gratification. Insight, remediation and risk must be evaluated consistently with the factual findings. A sanction based on a serious mischaracterisation of deliberate intimate touching cannot stand.

The General Medical Council appealed under section 40A of the Medical Act 1983 against a Medical Practitioners Tribunal decision concerning Dr Raied Haris. The Tribunal found that he had carried out non-clinically indicated intimate examinations of two patients without informed consent, but concluded that the conduct was not sexually motivated. It imposed conditions on his registration for 12 months.

The GMC challenged the findings on sexual motivation, the Tribunal’s assessment of risk and remediation, and the adequacy of the sanction. The central issues were whether the Tribunal’s factual inference was sustainable and whether its later conclusions were compatible with the established facts.

1. Appeal allowed. The Tribunal’s findings on sexual motivation, risk, remediation and sanction were quashed. A finding that Allegation 4 was proved was substituted, and the question of sanction was remitted to the Medical Practitioners Tribunal.
2. Section 40A appeals are governed by the ordinary appellate principles in CPR Part 52. The court must be cautious before disturbing primary findings, particularly findings based on witness credibility. It is less constrained when reviewing inferences from established facts and evaluative conclusions. It may intervene where there is an error of principle or where the decision falls outside the range of conclusions reasonably open to the tribunal.
3. The intimate touching of the two patients’ sexual organs was sexual. The relevant factors were the nature of the touching, the absence of clinical justification, and the absence of any other plausible explanation. The absence of accident and consent reinforced that conclusion. The only reasonable inference from the facts found at the first stage was that the conduct was sexually motivated.
4. The Tribunal overcomplicated the issue by focusing on whether it had to identify an alternative motive and by treating sexual gratification as decisive. The burden remained on the GMC, but the evidence overwhelmingly satisfied it. The later characterisation of the conduct as formulaic or potentially inappropriate examination procedures materially understated its gravity.
5. The evidence relied upon for insight and remediation did not demonstrate an adequate understanding of the factual findings or their seriousness. The conditions sanction was plainly wrong and could not stand. The matter was remitted for reconsideration of sanction in light of the substituted finding.
6. In obiter observations, the judge indicated that pleading the issue as one of sexual motivation, and requiring proof of sexual gratification, may unnecessarily complicate regulatory proceedings. The statutory concept of sexual touching in sections 3 and 78 of the Sexual Offences Act 2003 provided a potentially clearer analogy, although the criminal and regulatory contexts were materially different.

• Medical Practitioners Tribunal: Found misconduct and impairment, imposed conditions for 12 months, and found Allegation 4 concerning sexual motivation not proved.
• High Court (Administrative Court): Allowed the GMC’s appeal under Medical Act 1983 section 40A, substituted a finding that Allegation 4 was proved, quashed the findings on risk, remediation and sanction, and remitted sanction to the Tribunal.