General Medical Council v Rajesh Shah

Sexual harassment does not automatically amount to serious misconduct, and serious sexual misconduct does not automatically require erasure from the medical register. Disciplinary tribunals must assess the seriousness of the particular conduct across the relevant spectrum and apply their evaluative judgment within the statutory and regulatory framework.

Risk of repetition, insight and remediation are distinct but overlapping matters. The tribunal may assess them in the order appropriate to the case, provided it makes findings of fact before determining impairment and considers impairment before sanction. An appellate court should not interfere with an evaluative decision falling within the range of reasonable decisions merely because it might have assessed the evidence differently.

The General Medical Council appealed under section 40A of the Medical Act 1983 against a Medical Practice Tribunal Service decision concerning Mr Rajesh Shah, a thoracic surgeon. The tribunal found serious, sexually motivated and unwanted touching of a junior colleague, together with less serious sexual harassment involving another colleague and misconduct concerning mandatory training.

The tribunal found current impairment in relation to the serious sexual misconduct and imposed 12 months’ suspension, followed by review. The GMC contended that the tribunal had erred in assessing seriousness, risk of repetition, insight and remediation, and had misapplied paragraph 109 of the Sanctions Guidance. The central questions were whether the tribunal’s decision was wrong or procedurally unjust and whether erasure was required.

1. Appeal dismissed. The tribunal’s decision was neither wrong nor affected by a serious procedural or other irregularity.
2. The tribunal was entitled to find that the conduct towards Colleague A, although sexual harassment under section 26 of the Equality Act 2010, was not serious misconduct. Sexual harassment exists on a spectrum. Context, intention and the particular conduct may mean that harassment is misconduct without being serious misconduct. Section 26 was relevant to the expected standards of workplace behaviour, but it was not a mechanism producing automatic findings of serious misconduct or erasure.
3. The tribunal’s findings concerning the unwanted sexual touching of Colleague B were serious and justified current impairment. The tribunal was nevertheless entitled to conclude that the conduct fell short of being fundamentally incompatible with continued registration and that suspension, rather than erasure, was proportionate.
4. Risk of repetition, insight and remediation are separate concepts which may overlap on the facts. No particular sequence of reasoning was mandated by the Sanctions Guidance. The tribunal was entitled to consider the absence of later misconduct, positive evidence from colleagues, the consequences of repeating the conduct, the professional-boundaries course, reflective statements and the developing nature of insight. It was also entitled to make a finding of no sufficient risk of repetition despite incomplete insight.
5. The tribunal’s omission of the words “deliberate or reckless” in paragraph 109(b) of the Sanctions Guidance did not undermine its decision. The tribunal had addressed the seriousness of the misconduct and the relevant erasure indicators. The quotation of the earlier wording in paragraph 109(a) was immaterial because the tribunal separately considered whether the conduct was remediable. Its reasons enabled the GMC to understand why suspension had been imposed.

• Medical Practice Tribunal Service: On 29 August 2024, found misconduct and current impairment in relation to serious sexual misconduct and imposed 12 months’ suspension with a review.
• High Court (Administrative Court): The GMC’s appeal under section 40A of the Medical Act 1983 was dismissed.