Dr Stephen Higgins v General Medical Council

On a statutory appeal from a professional disciplinary tribunal, the appellate court should be slow to interfere with primary factual findings based on witness evidence. The tribunal’s decision must be read as a whole; it need not address every evidential point expressly where its reasoning sufficiently explains the result.

Sexual motivation includes conduct pursued for sexual gratification or to pursue a future sexual relationship. Conduct may be unwanted sexual harassment despite a complainant’s limited engagement with the perpetrator, particularly where there is a substantial imbalance of power.

A doctor’s special position of trust may extend to junior colleagues, not only patients. Sustained sexually motivated misconduct, sexual harassment, abuse of workplace power and limited insight may make erasure necessary and proportionate.

The appellant, a general practitioner and practice partner, appealed under section 40 of the Medical Act 1983 against findings by the Medical Practitioners Tribunal that he had engaged in sexually motivated misconduct and unlawful sexual harassment towards four junior female colleagues.

The Tribunal found most factual allegations proved, concluded that the appellant’s fitness to practise was impaired, and ordered erasure from the medical register. The appeal challenged the Tribunal’s treatment of allegedly exculpatory messages, its factual reasoning and reasons, and the proportionality of erasure. The central issues were whether the Tribunal had made an appealable error in evaluating the evidence and whether the sanction was appropriate and necessary in the public interest.

1. Appeal dismissed. The appeal under section 40 of the Medical Act 1983 was by way of rehearing rather than review, but the appellant bore the burden of showing that the Tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity. The Court had to give appropriate weight to the Tribunal’s advantage in seeing and hearing the witnesses and should interfere with primary factual findings only in exceptional circumstances: R (Dutta) v GMC [2020] EWHC 1974 (Admin) and Byrne v GMC [2021] EWHC 2237 (Admin).
2. The Tribunal had considered the messages sent by Ms A, her subsequent contact with the appellant, the evidence concerning the alleged assault, and Ms B’s use of Snapchat to obtain evidence. The fact that some evidence was not expressly mentioned did not establish that it had been overlooked. The Tribunal’s conclusions were rationally open to it and the grounds amounted to disagreement with its assessment of the evidence.
3. The Tribunal gave adequate reasons. Its determination had to be read as a whole, and it identified multiple reasons for preferring the complainants’ evidence and rejecting the appellant’s denials. It was not required to deal expressly with every point advanced in cross-examination or closing submissions. The approach accorded with Southall v GMC [2010] EWCA Civ 407.
4. Sexual motivation meant conduct undertaken in pursuit of sexual gratification or a future sexual relationship: Basson v GMC [2018] EWHC 505 (Admin). The Tribunal was entitled to find that the proven conduct towards Ms C and Ms D was sexually motivated notwithstanding their descriptions of some conduct as uncomfortable or supposedly humorous.
5. The Tribunal was entitled to find that the conduct was unwanted sexual conduct under section 26(2) of the Equality Act 2010. A complainant’s engagement with communications to collect evidence did not convert otherwise unwanted conduct into wanted conduct. The imbalance of power and the complainants’ evidence of fear, discomfort and altered workplace behaviour supported the findings.
6. The Tribunal properly assessed insight and remediation. Continued denial of most of the serious misconduct was relevant, although not an absolute bar to insight. The Tribunal was entitled to find that insight remained limited and that there was a significant risk of repetition.
7. The special position of trust referred to in the Sanctions Guidance was not confined to doctor-patient relationships. It included the appellant’s abuse of power over junior colleagues. Considering the sustained pattern of sexually motivated misconduct, sexual harassment, abuse of trust, concealment and limited insight, erasure was appropriate, necessary and proportionate.

Medical Practitioners Tribunal: found most allegations proved, found the appellant’s fitness to practise impaired by reason of misconduct, and ordered erasure from the medical register.

High Court (Administrative Court): dismissed the appeal under section 40 of the Medical Act 1983.