Allegations which put a defendant’s state of mind in issue can be difficult to defend, especially where the prosecution is only required to prove their case on the balance of probabilities. The challenges are compounded when the defendant cannot remember the incident in question.

Background

In a recent High Court case an experienced GP appealed against the decision of the Medical Practitioner’s Tribunal Service (MPTS) to suspend him for an instance of misconduct that was alleged to be sexually motivated. He had no prior, similar complaints.

A female patient stated that, at the conclusion of an otherwise uneventful appointment, the GP had inquired about the rest of the day and, on finding out she was going to work, touched the back of her knee briefly and made a comment about the shortness of her skirt being related to this.

The matter was investigated by the police as a possible instance of sexual assault. In interview two weeks later, the GP stated that he could not remember the consultation, but did not seek to dispute the patient’s account of his actions. In rationalising his actions he stated that, whilst he could not remember them, his actions must have been intended as a joke and he admitted his actions were inappropriate and ‘laddish’. However, he vehemently denied that his actions had in any way been sexually motivated. The police soon determined to take no further action.

The Medical Practitioners Tribunal Hearing

Before a subsequent Medical Practitioners Tribunal, the Tribunal found the doctor’s evidence to be open and truthful, as they accepted his account to the police had been, but they did not accept his explanation for his actions. They concluded that the contact with a patient’s knee and accompanying comment must have been sexually motivated and determined that a one month suspension was appropriate.

The GP appealed the factual findings and subsequent impairment and sanction findings to the High Court. A suspension of any length results in automatic removal from NHS England’s Performers List, inclusion on which is a requirement to provide NHS GP services.

The appeal

On appeal it was submitted that it was illogical for a Tribunal to find that the GP was honest in giving his evidence, but nonetheless reject his account, and go on to conclude that he might feasibly not be able to recollect sexual misconduct towards a patient, especially when he had first been asked about it by the police only two weeks after the incident. It was argued that such action would represent a gross departure from his usual conduct and would therefore be memorable. In addition it was argued that his actions included none of the common distinguishing features of sexually motivated conduct.

The judgment

Mr Justice Mostyn rejected both arguments and concluded that ‘a fleeting aberration by this otherwise impeccable doctor’ was a perfectly logical explanation and one consistent with the occurrence being forgettable. His view was that it could not be right that forgetting one’s actions was proof in itself that they could not have been inappropriately motivated and he was concerned about the implications if he were to find otherwise.

This case is one which begs the question: can a very low level sexualised behaviour of this nature, so fleeting that it could be forgotten in a short period of time by someone for whom it was wholly out of character, still be worthy of suspension by a professional’s registration?

It also reminds us that the Tribunal’s factual determinations are often unpredictable and factual findings in cases such as these can often appear arbitrary or import a degree of personal experience that it is difficult for the respondent practitioner to address. The application of the civil standard of proof makes allegations which raise questions of the registrant’s state of mind difficult to defend.

In the current climate of workplace impropriety being closely scrutinised, this case reminds professional people that there are severe consequences for inappropriate behaviour, no matter how low down on the spectrum of perceived misconduct such actions could be said to be.