DR SUDHEER SHABIR v THE GENERAL MEDICAL COUNCIL

On an appeal under section 40 of the Medical Act 1983, the High Court conducts an appellate rehearing and may substitute its own decision, while giving the degree of deference warranted by the issue. It should be slow to interfere with primary factual findings, particularly those based on witness credibility, unless the findings are plainly wrong or cannot reasonably be explained by the evidence. A tribunal need not make a separate finding on inherent improbability where its overall assessment of the evidence has addressed that issue. In a credibility dispute involving a complainant’s account and a simple denial, the tribunal may focus on whether the core allegation is proved. Sexual motivation may be inferred from intimate touching without clinical justification or another plausible explanation.

The appellant, a doctor, appealed under section 40 of the Medical Act 1983 against a Medical Practitioners Tribunal’s findings that he had touched a patient’s breasts during a consultation and that the touching was sexually motivated. The Tribunal found the allegations proved, determined that his fitness to practise was impaired by misconduct, directed erasure from the medical register and ordered immediate suspension pending appeal.

The appeal challenged the factual findings on inherent improbability, inconsistencies in the patient’s accounts, the consistency of the appellant’s denial, good character and sexual motivation. The appellant accepted that erasure would be appropriate if the factual findings stood.

1. Appeal dismissed. The Tribunal’s findings that the appellant touched the patient’s breasts without clinical justification and with sexual motivation were not wrong and were not unjust because of procedural irregularity.
2. The statutory appeal is appellate rather than supervisory and takes the form of a rehearing. The High Court may substitute its own decision, but the degree of deference depends on whether the issue concerns primary fact, secondary fact or evaluative judgment. It should be very slow to interfere with primary findings, especially credibility findings, unless the evidence could not justify them or the findings were plainly wrong.
3. The Tribunal was not required to make a separate standalone finding on inherent improbability. Its critical assessment of the evidence, including the appellant’s good character, the patient’s reasons for reporting, the consistency of her core account and the absence of a reason to fabricate, necessarily addressed the relative probabilities.
4. The Tribunal was entitled to treat inconsistencies concerning peripheral detail as commonplace effects of the passage of time and trauma, while finding the core allegation consistent and clear. It was not required to address every alleged inconsistency individually, and corroboration of the patient’s evidence was not required.
5. Where the defence is a simple denial, the credibility of that denial is assessed by reference to the credibility of the evidence supporting the allegation. The Tribunal therefore did not need to give separate reasons for rejecting the appellant’s account when its reasons for accepting the patient’s account were apparent from the determination as a whole.
6. The weight given to good character evidence was for the fact-finder. The Tribunal was entitled to give it limited weight because of the nature and limits of the evidence and the appellant’s early career.
7. Once the Tribunal accepted the patient’s evidence of deliberate intimate touching, and there was no clinical justification or other plausible explanation, it was entitled to infer sexual motivation. An accidental-touching explanation could not be relied on where it had not been advanced before the Tribunal.

No cumulative assessment of grounds 1 to 4 was necessary.

• Medical Practitioners Tribunal: found all parts of the allegation proved on 7 December 2022, determined impairment by misconduct on 8 December 2022, directed erasure on 9 December 2022 and ordered immediate suspension pending appeal.
• High Court (Administrative Court): dismissed the appeal: [2023] EWHC 1772 (Admin) .