UDODIRI OKPARA v GENERAL MEDICAL COUNCIL (2019)
 EWHC 2624 (Admin)
QBD (Admin) (Julian Knowles J) 09/10/2019
HEALTH – PROFESSIONS
BURDEN OF PROOF : DELAY : DOCTORS : FITNESS TO PRACTISE : MEDICAL PRACTITIONERS TRIBUNALS : REGISTER OF MEDICAL PRACTITIONERS : REMOVAL
The Medical Practitioners Tribunal had not erred in upholding allegations of sexually motivated misconduct by an accident and emergency doctor towards a nurse over a two-year period. It had also been entitled to find that the doctor’s erasure from the register of medical practitioners was the appropriate sanction.
A doctor appealed against decisions of the Medical Practitioners Tribunal by which it upheld allegations of his sexual misconduct towards a nurse, and held that his fitness to practise was impaired as a result. He also appealed against his erasure from the register of medical practitioners.
The appellant had been accused of misconduct between 2014 and 2016 when he was a locum registrar in an accident and emergency department. The complainant in each case was a staff nurse at the hospital. The allegations related to a number of occasions when the appellant was said to have made inappropriate sexual and other remarks to the complainant and/or to have made unwanted sexually motivated physical advances to her. The tribunal determined that the facts found proved amounted to misconduct and that erasing the appellant’s name from the Medical Register would be the only proportionate sanction in order to serve the public interest, maintain public confidence in the medical profession and to send a message to the medical profession that such behaviour was unacceptable.
The appellant submitted that the tribunal:
(i) erred in law on the burden and standard of proof in that it reversed the burden of proof;
(ii) did not scrutinise the evidence with sufficient rigour;
(iii) erred in law by failing to take into account and/or give sufficient weight to the prejudice arising out of delay in making the complaint;
(iv) was wrong to impose the sanction of erasure when the lesser sanction of suspension was reasonable and appropriate.
HELD: Burden of proof – The tribunal had had well in mind that the burden of proof lay upon the General Medical Council (GMC), and not the appellant. Although slightly clumsily expressed, it had not erred in saying that because it doubted the credibility of one part of the appellant’s case, that caused it to doubt the credibility of the other part of his case (see paras 78-84 of judgment).
Scrutiny of evidence – In respect of each allegation, the issue was whether the GMC had proved to the civil standard that the allegation happened in the way the complainant alleged. In each case, the tribunal had competing accounts from the complainant and the appellant together with, in some instances, evidence of complaints to other persons. The tribunal had been expressly directed by the Chair in accordance with the principles in B (Children) (Sexual Abuse: Standard of Proof), Re  UKHL 35, H (Minors) (Sexual Abuse: Standard of Proof), Re  A.C. 563, and D, Re  UKHL 33, and had had the right test in mind, Re B, Re H and Re D applied. Given the nature of the issues involved, it was not necessary for the tribunal to address every single forensic point made on behalf of both sides. That it did not do so did not mean that it did not scrutinise the evidence with sufficient care or rigour. In respect of each allegation, the tribunal set out what the allegation was; the competing evidence in relation to it; and gave reasons for concluding why it found the allegation proved or not proved. The reasons it gave were sufficient and did not indicate any lack of care or adequate scrutiny. Overall, reasons in straightforward cases would generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment was not required, the reasons would need to contain a few sentences dealing with the salient issues,Southall v General Medical Council  EWCA Civ 407 considered (paras 86-93).
Delay – The allegations related to the period 2014-2016. There was nothing remarkable about that timescale, and R. v PS  EWCA Crim 992, which concerned allegations of alleged sexual misconduct decades previously, was not relevant, PS considered. The tribunal was addressed on the absence of CCTV and other matters, and so would have had those forensic points in mind when it considered whether the GMC had proved its case (para.97).
Sanction – The assessment of the seriousness of the misconduct was essentially a matter for the tribunal in the light of its experience. The tribunal was best qualified to judge what measures were required to maintain the standards and reputation of the profession, Bawa-Garba v General Medical Council  EWCA Civ 1879 applied (para.100). In the instant case, the tribunal had correctly characterised the appellant’s conduct as sexually predatory behaviour towards the complainant over a sustained period of two years. It had correctly stated that his conduct fell within paras 148, 149 and 150 of the sanctions guidance and therefore erasure had been an appropriate sanction. It had been entitled to find that the appellant’s conduct was fundamentally incompatible with continued registration, and for that reason suspension was not appropriate. As a specialist tribunal, it was entitled to conclude that sustained sexually predatory behaviour towards a colleague whilst on duty, once in the presence of a patient and once following deception that he wanted to discuss a patient, was fundamentally incompatible with his continued work as a doctor. Furthermore, the tribunal had taken into account the public interest and matters of personal mitigation, such as the fact that the appellant had some personal difficulties and was the sole breadwinner. It had also been entitled to attach little weight to unverified testimonials put forward by the appellant and, in any event, given the very serious nature of the misconduct, the testimonials were not capable of requiring the tribunal to order suspension rather than erasure (paras 108-115).
For the appellant: Arfan Khan
For the respondent: Alexis Hearnden
For the appellant: DCK
For the respondent: In-house solicitor