Haris v General Medical Council (Rev 1)

On a review appeal concerning an evaluative decision of a professional tribunal, the court may intervene for an error of principle or where the decision falls outside the bounds of what the tribunal could properly and reasonably decide. Although an appellate court must exercise particular caution before disturbing primary facts based on oral evidence, it may draw justified inferences from established facts.

Motivation is ordinarily inferred from conduct and its surrounding circumstances. Where a doctor deliberately engages in overtly sexual touching without clinical justification or any plausible innocent explanation, evidence of a general lack of interest in sexual relationships does not prevent sexual motivation from being the only rational inference. The burden remains on the regulator to prove that motivation on the balance of probabilities.

Two female patients complained that Dr Haris had carried out non-clinically indicated intimate touching without warning, consent or gloves. The Medical Practitioners Tribunal accepted their accounts but found that the General Medical Council had not proved sexual motivation. It relied on evidence that Dr Haris described himself as asexual and had Asperger’s syndrome.

On the Council’s appeal under section 40A of the Medical Act 1983, Foster J held that sexual motivation was the only rational inference and substituted that finding: [2020] EWHC 2518 (Admin). She also quashed the findings concerning remediation, risk and sanction and remitted sanction to the Tribunal.

Dr Haris appealed solely against the substituted finding of sexual motivation. The issue was whether any rational inference other than sexual motivation remained available on the facts found by the Tribunal.

1. Appeal dismissed unanimously. Foster J was entitled to hold that sexual motivation was the only rational inference and to substitute a finding that the allegation had been proved.

2. An evaluative decision may be disturbed on a review appeal where it contains an error of principle or falls outside the bounds of what the adjudicative body could properly and reasonably decide. An appellate court must be extremely cautious about disturbing primary findings dependent on seeing and hearing witnesses. It is less disadvantaged when drawing inferences from established facts and may draw any inference justified by the evidence.

3. A person’s state of mind must generally be inferred from the surrounding evidence. The best evidence of the doctor’s motivation was his behaviour: deliberate, overtly sexual touching of two patients’ sexual organs, without clinical justification, warning, consent, gloves or an accurate record. His denial of any touching, coupled with the Tribunal’s acceptance of the patients’ evidence, also required consideration. The natural inference from the false denial was that he knew there was no innocent explanation.

4. The Tribunal’s reasoning was fundamentally flawed. Evidence that the doctor lacked interest in sexual relationships, and that this was consistent with Asperger’s syndrome, did not explain the conduct. The psychiatric evidence did not establish that the diagnosis was inconsistent with sexual urges or feelings. The Tribunal also failed to consider the implications of the doctor’s untruthful account and inaccurate records.

5. The nature of conduct and its motivation do not depend on the language used by lawyers to formulate the allegations. The relevant question was what had occurred on the Tribunal’s findings. The clinical setting supplied an opportunity for the touching; it did not support a clinical motive where there was no evidence of one.

6. The burden of proving sexual motivation remained on the General Medical Council throughout, and the standard was the balance of probabilities. The established conduct raised an overwhelming case of sexual motivation. There was no plausible innocent explanation capable of displacing it.

1. Court of Appeal (Civil Division): Dismissed Dr Haris’s appeal and upheld Foster J’s substituted finding that his conduct was sexually motivated: [2021] EWCA Civ 763.
2. High Court, Administrative Court: Allowed the General Medical Council’s appeal under section 40A of the Medical Act 1983, substituted a finding of sexual motivation, quashed the findings on remediation, risk and sanction, and remitted sanction to the Medical Practitioners Tribunal: [2020] EWHC 2518 (Admin).
3. Medical Practitioners Tribunal: Found the intimate touching proved but sexual motivation unproved. It found impaired fitness to practise and imposed conditions on registration for 12 months.