High Court uphold MPTS Suspension Order for doctor in sexual misconduct case – GMC v Awan [2020] EWHC 1553 (Admin).

Legal comment by Stephen McCaffrey:

The outcome of both these cases with such similar circumstances will give the MPTS confidence in its approach to cases involving sexual misconduct.  Time will tell, but the GMC will need to take a cautious approach to future appeals because the outcome of these cases might set a legal precedence in the future that might be incompatible with the GMC’s view on the seriousness of sexual misconduct cases and associated sanctions.

The facts

On 5 January 2016, nearly four years before the Tribunal proceedings, the respondent was working as a GP in Leeds and Wakefield. On that day he logged into a chat room hosted by Lycos. His username was “medic333” which obviously signified that he was a member of the medical profession. He explained in his evidence that he logged in in order to “de-stress” following an argument with his brother about the aftermath of an extremely unpleasant incident that occurred 14 months earlier in Pakistan when he was violently robbed, assaulted and seriously injured by a gang of armed men. He explained that his visit to the chat room was not an isolated incident; he did so regularly.

Once in the chat room he started exchanging messages with a person with the username “Sophiasheff”. This person was in fact a police officer conducting an undercover sting operation. Sophiasheff told the respondent at the outset that she was 13, and should be at school.

The Respondent told her that he was a doctor, was in bed and sent her an emoji of a couple hugging and wrote “mwah huggs for you … I want huggs too… mmmwah”.  The conversation was lengthy with the transcript covering six pages of exchanges.

GMC

The respondent was charged by the GMC as follows:

“1. On 5 January 2016 and 21 January 2016, you engaged in conversations via an online chatroom, text message and WhatsApp (the ‘Conversations’) with an individual (‘Person A’) who you:

a. believed was a 13-year-old girl;

b. purported to accept was a 13-year-old girl.

2. During the course of the Conversations you:

a. told Person A that you were a doctor;

b. used the username [medic333] which identified you as a member of the medical profession;

c. made numerous inappropriate remarks to Person A as set out in Schedule 2 (as amended).

3. Your conduct at paragraphs 1 and 2c was sexually motivated.

4. You failed to report Person A as a potentially vulnerable child to the:

a. relevant child protection agency;

b. police.

And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.”

The respondent admitted 1(b) and 2(a) and (b). The remaining charges were tried before the Tribunal.

MPTS

The tribunal determined that the respondent’s fitness to practice was impaired by reason of his misconduct.

The tribunal rejected no action and the imposition of conditions. When it came to suspension it stated:

“The Tribunal accepted that suspension has a deterrent effect and can be used to send a signal to the doctor, the profession and the public about what is regarded as behaviour unbefitting of a registered doctor.”

The respondent was suspended for 9 months by the MPTS.

Grounds for appeal

The GMC sought to appeal the MPTS decision on the following grounds:

1. Tribunal failed to have regard to the manner in which the respondent gave his evidence to the tribunal
2. the Tribunal had regard to an irrelevant factor namely the public interest in not depriving the public of the services of an otherwise competent doctor
3. the Tribunal made two significant failings in its application of the Sanctions Guidance

Judgement

Mr Justice Mostyn rejected all three grounds of appeal by the GMC, the reasons for which are extensively outlined in the judgement transcript.

Mostyn J concluded by saying: “Standing back I ask myself whether the disposal can be characterised as wrong. The conduct of the respondent was serious and deplorable. However, the sanction imposed by this specialist Tribunal was very carefully considered and was judged to be sufficient to meet the objective of protecting the public and promoting and preserving the reputation of the medical profession. I cannot say that it was wrong.”

Legal comment

As noted in the judgement, this case “was a comparable disposal to that ordered in the case of General Medical Council v X where the facts were strikingly similar.”  As with this case, the GMC appeal in the case of X was turned down.

The outcome of both these cases with such similar circumstances will give the MPTS confidence in its approach to cases involving sexual misconduct.  Time will tell, but the GMC will need to take a cautious approach to future appeals because the outcome of these cases might set a legal precedence in the future that might be incompatible with the GMC’s view on the seriousness of sexual misconduct cases and associated sanctions.