Dr GA was referred by the General Medical Council to a Medical Practitioners Tribunal because of his alleged sexually motivated conduct towards two junior female colleagues, whilst working as a Registrar at Guys and St Thomas’s Hospital in London. He was alleged to have sent inappropriate personal communications towards both colleagues, in addition to uninvited and unwelcoming touching towards one of them. He contested the allegations, but in May 2017 he was found unfit to practise. The Tribunal imposed the ultimate sanction of erasure from the medical register.
Following his erasure, Dr GA contacted Stephensons Solicitors who instructed Simon Gurney to advise Dr GA on a potential appeal against the findings of the Tribunal. Although Simon advised that there were no prospects of appealing against the factual findings made by the Tribunal, he advised that there were grounds to appeal against the sanction. Simon drafted grounds of appeal, focusing on the inadequacy of reasoning in the Tribunal’s determination, drawing on the principles established by the High Court in O v Nursing & Midwifery Council [2015] EWHC 2949; and Wisniewska v Nursing & Midwifery Council [2016] EWHC 2672.
Simon argued that the Tribunal, when rejecting the option of suspension, had failed properly to take into account and evaluate the mitigation available to Dr GA and had failed properly to apply the principle of proportionality, which requires the Tribunal to balance the public interest against the interests of the Doctor. Simon argued that the sanction of erasure was disproportionate and unnecessary and that instead the Tribunal should have imposed a period of suspension.
Mr Justice Kerr heard Dr GA’s appeal at the High Court in January 2018. Whilst he recognised that this was a case of sexual misconduct, which was inherently serious and would often require erasure, he agreed with Simon’s argument that the Tribunal had failed properly to evaluate the factors weighing in the Doctor’s favour in mitigation. He accepted that there was a lack of coherent reasoning in evaluating those factors. Although they had been identified by the Tribunal, it was impossible to say what weight they had been given. Further, he agreed that the Tribunal’s reference to proportionality read “like an afterthought.”
Given the errors made by the Tribunal, the Judge reconsidered the decision on sanction and concluded that public confidence in the profession would not be undermined if Dr GA was suspended for a period of 12 months. He therefore quashed the direction for erasure and substituted it for a direction for suspension, without any review, ensuring that Dr GA would be free to return to practise within 12 months. Simon was instructed by Alison Marriott of Stephensons Solicitors.
Simon has a successful practice representing professionals facing disciplinary proceedings, whether they be doctors, nurses, pharmacists or police officers. Simon is happy to advise and represent individuals across the professions in disciplinary or criminal proceedings. View his full profile here. For further information please contact Senior Clerk, David Wright on 0161 832 5701 or by e-mail dwright@lincolnhousechambers.com.