Alleging sexual motivation in regulatory/disciplinary proceedings – new High Court guidance
In the judgement handed down on 22 September 2020 in the case of the General Medical Council v Dr RH  EWHC 2518 (Admin), Mrs Justice Foster gives guidance to professional regulators as to how sexual misconduct should be charged, so as to avoid what she perceived to be the Medical Practitioners Tribunal’s overcomplication and misapplication of the appropriate test.
The case and the findings were unusual. The doctor had allegedly inappropriately touched the intimate areas of two female patients in unrelated incidents. The doctor denied the intimate touching took place, but the allegations were found proved by the Tribunal. The Tribunal then received evidence to the effect that the doctor’s conduct could not be demonstrated to be sexually motivated because he was, essentially, asexual. The Tribunal determined that his actions were not “sexually motivated”, an essential component of the charges as drafted. However, they did not provide or seek to provide any other explanation for why the touching had taken place.
The GMC appealed on the basis that the Tribunal had erred in their findings and how they had characterised the misconduct, in the light of the earlier finding that the touching had taken place, particularly in the absence of any other explanation for such touching. They also criticised the way the Tribunal considered reflections from the doctor, submitted at later stages of the proceedings, arguing that the Tribunal placed too much weight on these given the reflections implicitly maintained the doctor’s denial of the touching which had been found proved.
Mrs Justice Foster determined that the Tribunal had missed the point by considering whether or not they were required to provide a reason as to why the doctor had touched the patients as alleged. She stated that the absence of any other explanation was something that they should have taken into account when considering whether the conduct was sexual. She also agreed with the GMC that the Tribunal placed too much weight on the doctor’s reflections which didn’t address the examinations themselves.
However, the key issue was how the Tribunal had determined the allegation that the touching was “sexually motivated”. The judge’s view was that there was no other reasonable explanation as to why this touching had taken place, and that, having found that this touching did take place, in the face of the doctor’s denials, then the Tribunal should have found the touching to have been sexually motivated. The case was remitted back to the Tribunal for the sanction stage of the proceedings, in the light of this factual finding having been imposed.
Guidance to regulators on charging sexual touching
Of interest to regulators and defence practitioners alike are the observations set out in the judgement at paragraph 56 onwards. These seek to analyse where the Tribunal went wrong and what approach should be adopted in the future in relation to the charging of cases of sexual misconduct by professional regulators such as the GMC.
The judge believed that the Tribunal had gone astray because of their attempts to apply a test of what was required to demonstrate that the touching had been “sexually motivated“. She referred to the constituent elements of sexual assault under the Sexual Offences Act 2003 and noted that this was of greater assistance in breaking down the constituent elements of what could be considered “sexual” and preferred this to the allegation that have been charged of “sexually motivated“ touching. She drew particularly on section 78(b) of the Act:
[Touching is sexual if a reasonable person would consider that:]
(b) Because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
In short, she thought that adding “motivation” overcomplicated the allegation put before the Tribunal and the exercise the Tribunal had undertaken in trying to assess what motivated the doctor’s touching was unnecessary. Her view was that it would have been better for the act to have been charged as “sexual”, as per the Sexual Offences Act, as this would include a category of offence that, whatever its circumstances, would be considered sexual by a reasonable person. The way the allegation had been charged as “sexual motivation” had also led the Tribunal into considering whether the doctor gained any “sexual gratification” and this too was misleading and overcomplicating the matter.
Professional regulators and defence practitioners must consider this judgement and the guidance given by Mrs Justice Foster in determining how sexual misconduct involving touching should now be charged. There will be cases where, in the absence of accidental touching, there does not seem to be any obvious clinical or other justification for the touching to have taken place. In the judge’s view, decision-makers should essentially stop there and not seek to undertake a prolonged analysis of what might have been in the mind of the registrant, in the absence of any obvious evidence, such as inappropriate comments or other behaviour.
In this case the judge’s clear view was that seeking to expand beyond such touching being “sexual“ was unnecessary, overcomplicated the exercise and, in this case, had ultimately led the Tribunal astray.
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