Dr Raied Haris lose further appeal in sexually “motivated” conduct case and where the GMC was advised to rethink the way it accuses doctors.

Background

The allegations against Dr Haris arose from his work as a GP. Two patients accused the doctor of undertaking non-clinically indicated, ungloved and intimate genital and breast examinations without informed consent.

Dr Haris conceded to the General Medical Council’s (GMC) submission his fitness to practice was impaired.  Despite finding that the acts complained of “could reasonably be perceived as overtly sexual”, the Medical Practitioners Tribunal Service (MPTS) found that the GMC had not proved on the balance of probabilities that Dr Haris’s conduct was sexually motivated.  Having determined that, even though the actions were not sexually motivated, Dr Haris’s fitness to practice was impaired, the MPTS decided to impose conditions upon his registration for a period of 12 months.

The GMC appealed the MTPS determination on the grounds that the tribunal was wrong to find that there was no sexual motivation, the sanction imposed by the it was in any event insufficient to protect the public and the MPTS fell into error in being satisfied so readily that the risk of repetition by Dr Haris was low.

The High Court ruled the MPTS “fell plainly into error” and “remitted to a tribunal to decide again the question of sanction” in the case.

Court of Appeal

Dr Haris’ further appeal to the Court of Appeal was limited to the sole ground that Foster J, in the High Court, was wrong to consider that the only rational conclusion to be drawn was that the motivation for the touching was sexual.

Lady Justice Andrews in the Court of Appeal commented in her ruling that:

“In reaching its conclusions at [112] the Tribunal ignored the fact that the best evidence as to Dr Haris’s motivation was his behaviour. As a matter of common sense, when a patient presents with pain in the upper back in consequence of a fall, there is no reason whatsoever for a doctor to examine her vagina, or to fondle her buttocks or breast. The behaviour was not just capable of being reasonably perceived to be overtly sexual, it was overtly sexual, and there is no other way in which it could have been perceived. A doctor, of all people, would have known that.

Clinical motivation and clinical indication

Dr Haris maintained that the language of the allegations made by the GMC “left open possible findings of fact consistent with encounters taking place in the context of clinical activity which was clinically motivated if not clinically indicated.”

Lady Andrews J however said that in her view the High Court’s description of “this differentiation between clinical motivation and clinical … was fully justified.”

She continued:

“What matters is what the Tribunal were satisfied actually happened. How it was described in the formal statement setting out the allegations made by the GMC against the doctor some years after the event makes no difference to the nature of the act or acts complained of. The nature of conduct and the motivation for it are not matters which depend on how a lawyer chooses to describe it. The GMC did not need to plead that an inference was obvious, or that if the patients’ version of events was believed this pointed to only one conclusion as to the likely motive for the conduct complained of, if it was and it did.

“There is no room whatsoever for a finding of clinical motivation for overtly sexual touching in a case in which the defence was that the patients had made up their stories and there was no touching at all … In those circumstances there was no rational explanation for overtly sexual behaviour which was or could be given, other than that it was done for sexual gratification.”

In summary then, Lady Andrews J found that:

“Dr Haris’s apparent lack of interest in a sexual relationship, and the consistency of his claimed asexuality with his recent diagnosis of Asperger’s syndrome, do not begin to explain why he groped a patient’s buttocks and breasts and performed physical examinations of her vagina and (on a different occasion) that of another patient, in each case without any clinical justification, without warning or obtaining prior consent, without giving or recording any reason for it at the time, and without using gloves. In the absence of a plausible innocent explanation for what he did, the facts spoke for themselves. A sexual motive was plainly more likely than not; I would go so far as to say that that inference was overwhelming.”