Court refuses appeal against "no sanction" decision on sex advances doctor
A medical practitioners tribunal was entitled to impose no disciplinary sanction on a doctor despite finding that his fitness to practise was impaired by reason of inappropriate and sexually motivated conduct towards a junior doctor, the Court of Session has held.
Three judges refused an appeal by the General Medical Council in the case of Dr Milind Mehta, who was found to have invited the complainer into his office, made suggestive comments to her, made physical contact, hugged her on more than one occasion, and kissed her shoulder on more than one occasion.
Having found impaired fitness to practise, the tribunal considered there were aggravating factors in the breach of professional boundaries, breach of position of trust towards a junior colleague and a lack of candour in Dr Mehta's evidence, but significant mitigating factors including previous good character, acceptance of the findings, significant remorse and a high level of insight evidenced by efforts to remediate. The incidents had taken place three years previously and there was a very low risk of repetition. There were exceptional circumstances such that no action was required.
Before the Inner House the GMC argued that the tribunal failed to give proper effect to the GMC's sanctions guidance; that proper consideration of the guidance would have led it to appreciate that sexual misconduct involving a breach of trust was conduct of a severity that required a significant sanction; and that it failed to recognise that its reasons for not imposing a sanction, which related mainly to insight and remediation, would already have been taken into account in deciding the question of impairment, and were unlikely on their own to justify taking no action.
Lady Dorrian, the Lord Justice Clerk, who sat with Lords Brodie and Malcolm, applied the principle that the determination of a professional tribunal was entitled to respect. She noted in delivering the opinion of the court that the tribunal had recognised the overarching objective of public protection; specifically identified the particular components of promoting and maintaining public confidence in the profession and proper professional standards and conduct; addressed whether these would be met without a sanction; and given its reasons for concluding that they would.
The fact that the tribunal did not refer to specific paragraphs of the guidance, she continued, did not mean it had not taken them into account, as was clear from its decision. "We are not convinced by the appellant’s argument that there was an express requirement upon the Tribunal to make reference to them, even if merely to confirm that a certain paragraph or paragraphs had been discounted. To do so could result in the process becoming more of a 'box ticking' exercise rather than an evaluation of the complaint within its own factual matrix."
On the second argument, the Tribunal did not state that the misconduct was not worthy of sanction, but decided that the respondent’s case was exceptional, though that in similar cases suspension might well be required. The seriousness and impact on a professional person of its finding of impairment "cannot be ignored", and the tribunal had clearly recognised both the serious nature of the conduct, and that not to impose such a sanction for conduct of this kind was an exceptional step.
Finally, the correct view of the guidance was that while remediation and insight were unlikely on their own to justify a tribunal taking no action, there was nothing in principle preventing them from being the determining factors. They were by no means the only factors the tribunal considered in respect of exceptional circumstances: these "went far beyond the sort of remediation which might be relevant to determining whether past conduct justified a finding of current impairment". The respondent had participated in public presentations on the subject, educating the profession in which he worked to prevent others from crossing boundaries, and educating junior staff to speak up. These included discussions based on his own conduct, and sought to identify constructive learning for himself and others.
Lady Dorrian concluded: "It is an error to state that the tribunal, in considering exceptional circumstances, did no more than take account of the personal remediation which might be relevant to impairment... What the tribunal did was take account of factors which it considered important steps towards the maintenance of public confidence and of proper standards within the profession, and that in the whole circumstances to impose a sanction would not serve either of these ends or the wider public interest. We can find no legitimate basis for concluding that the Tribunal was not entitled to reach the decision which it did, and the appeal will be refused."