Dr Graham Wheatley v General Medical Council

On an appeal under section 40 of the Medical Act 1983, an appellate court should be very slow to interfere with primary findings of fact made by a Medical Practitioners Tribunal. The tribunal has the advantage of seeing and hearing witnesses and of assessing the evidence as a whole. Differences in witnesses’ recollection do not require rejection of the evidence where they are immaterial and explicable by the circumstances. Corroboration of a complainant’s evidence is not required. A tribunal’s reasons are adequate if they enable the losing party and the appellate court to understand why the allegation was found proved; it need not provide a separate explanation for every rejected detail or defence. An appeal court may scrutinise deductions more closely, but must not substitute its own assessment where the findings were open on the evidence.

Dr Wheatley appealed under section 40 of the Medical Act 1983 against a determination of a Medical Practitioners Tribunal. The Tribunal found that, at a professional social event, he had put his arm around a colleague’s waist and placed his hand on her bottom. It found the conduct intentional, sexually motivated and amounting to sexual harassment under section 26 of the Equality Act, and imposed a six-week suspension.

The appeal challenged the factual findings and the adequacy of the Tribunal’s reasoning. The central issues were whether the evidence was too inconsistent to support the findings on the balance of probabilities, whether intoxication made accidental touching the only reasonable conclusion, and whether the Tribunal had given sufficient reasons.

1. The appeal was dismissed. The Tribunal’s determination and six-week suspension stood.
2. An appeal under section 40 of the Medical Act 1983 is by way of rehearing, but the appellate court remains very slow to interfere with primary findings of fact. The Tribunal had seen and heard the witnesses and was better placed to assess their credibility and reliability. The court could scrutinise secondary findings and deductions more closely, but the Tribunal’s conclusions were not plainly wrong or out of tune with the evidence.
3. The Tribunal was entitled to accept the complainant’s account and the evidence of independent witnesses. The differences concerning the precise position of people, the movement of the hand, and whether the conduct was touching or fondling were not material. They were explicable by the informal and moving nature of the event. There is no general requirement for corroboration of a complainant’s evidence.
4. The Tribunal gave adequate reasons. It identified the material evidence, explained why the complainant and supporting witnesses were accepted, and why Dr Wheatley’s account of accidental touching was rejected. Reasons need not address every detail separately where the basis of the decision is clear. The court could understand beyond doubt why the allegations were found proved.
5. The Tribunal was entitled to distinguish between the unproved allegation concerning accidental touching of the breast while adjusting medals and the deliberate touching of the waist and bottom. The earlier finding did not taint the findings that were challenged.
6. The Tribunal’s findings that the conduct was sexually motivated and amounted to sexual harassment, while at the lower end of the gravity spectrum and unlikely to be repeated, were not independently challenged. The suspension therefore took effect.

• Medical Practitioners Tribunal: Determination dated 13 November 2023. Dr Wheatley was found to have engaged in inappropriate, sexually motivated conduct and was suspended for six weeks.
• High Court (Administrative Court): The appeal under section 40 of the Medical Act 1983 was dismissed.