The case is relevant in particular to allegations of non-clinically justified sexual touching, where additional allegations of sexual motivation may not be essential to establish how serious the conduct was. Regulators may find Foster J’s comments in the High Court helpful when formulating allegations.

The case

In General Medical Council v Haris [2020] EWHC 2518 (Admin) and Haris v General Medical Council [2021] EWCA Civ 763, the Court of Appeal upheld the High Court decision which quashed the Medical Practitioners Tribunal’s (MPT) determination that the conduct of the doctor in question was not sexually motivated.  In this insight, Hannah Pilkington explores the two judgments in more detail.

Background facts

Patient A complained that Dr Haris had undertaken a non-clinically indicated intimate examination without informed consent whilst he was working as a locum GP in an out-of-hours service. Patient B made a similar complaint about an incident one month later which took place whilst Dr Haris was working as a GP in a minor injuries unit at a hospital.

The MPT’s decision

The General Medical Council (GMC) charged Dr Haris with undertaking intimate examinations without consent and alleged that his conduct had been sexually motivated. At a hearing before the MPT, the GMC called expert evidence to the effect that none of the touching had been clinically indicated. Dr Haris claimed that the incidents did not happen, and did not seek to rely on any clinical necessity as justification. He refuted the allegation of sexual motivation on the basis that he had no interest in sex whatsoever and described himself as asexual. He called psychiatric evidence in support of this issue.

The MPT found most of the factual allegations proved. However, despite finding that the acts complained of “could reasonably be perceived as overtly sexual”, the MPT stated:

“The second question for the Tribunal to consider is “was the act carried out for the doctor’s own sexual gratification”? … Looking at all this evidence in the round and balancing it against the inferences that can be drawn from his actions in relation to Patients A and B, the Tribunal is led to the conclusion that the doctor was not sexually motivated when carrying out these actions.” [emphasis added]

Dr Haris conceded that his actions amounted to serious misconduct and that his fitness to practise was impaired. The MPT concluded that Dr Haris had demonstrated a significant degree of insight, that his remediation was well advanced, and that the public interest would be satisfied by the imposition of conditions.

GMC appeal

In its appeal, the GMC argued that the MPT had been wrong to find no sexual motivation in Dr Haris’ conduct, particularly where there was no reasonable alternative explanation for his behaviour. Mrs Justice Foster in the High Court agreed, stating that the only reasonable inference that could be drawn from the facts was that the behaviour was sexual. This was derived from the fact that the touching was of the sexual organs, there was no clinical justification and no other plausible reason for the touching.

The GMC also argued that the MPT had fallen into error in concluding that the risk of repetition was low, and that the weight attached to Dr Haris’ level of insight and the steps taken in respect of remediation was manifestly excessive and wrong. Foster J agreed. The MPT had, the judge said, been driven by its earlier finding of no sexual motivation into a “gross mischaracterisation” of what took place. The acts were not “formulaic and potentially inappropriate examination procedures”, as described by the MPT, but were the deliberate, unconsented, touching of a woman’s sexual parts within a therapeutic setting in circumstances of significant power imbalance. This was, Foster J said, a sexual assault in all but name.

The High Court quashed the decision of the MPT and concluded that the allegation of sexual motivation had been made out. The matter was remitted to the MPT for a decision on sanction.

Obiter comments

Although it was not part of the decision in the case, Foster J went on to make some non-binding observations about the way in which the case was pleaded. The judge said:

• she did not find the allegation of “sexual motivation” helpful;
• that to look for “sexual gratification” may be misleading.

Foster J felt that the MPT in Dr Haris’ case had been distracted by notions of gratification.  The description of sexual gratification came from the analysis of Mr Justice Mostyn in Basson v General Medical Council (2018), but Foster J did not accept that these comments represented the law. In Basson, Mostyn J gave a definition of sexual motive:  “sexual motive means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship”.

Mrs Justice Foster commented that, in Dr Haris’ case, a different form of allegation might have assisted the MPT and diminished the risk of over complication, given that it was a case in which the essential charge was one of sexual assault. The criminal offence is described in the Sexual Offences Act 2003 and section 78 of the Act provides two ways in which touching is sexual, namely under:

• s 78(a) an act that is, whatever the circumstances, sexual
• s 78(b), an act that because of its nature may be sexual and because of the circumstances is sexual.

Foster J noted that an act that was clinically indicated, although it might appear sexual, would be excluded under section 78(b). Foster J considered that had the touching been pleaded as being “sexual” (instead as sexually motivated), in all the circumstances (including the absence of accident and consent and any clinical or other proper justification) then it would have been impossible for the MPT to have reached any conclusion other than that the touching was sexual.

Dr Haris’ appeal

Dr Haris appealed to the Court of Appeal on the sole ground that Mrs Justice Foster had been wrong to consider that the only rational conclusion to be drawn was that the motivation for the touching was sexual.

The Court of Appeal dismissed Dr Haris’ appeal. In the leading judgment of Lady Justice Andrews the Court of Appeal found:

• The MPT’s approach was fundamentally flawed; the evidence which it accepted (as to asexuality for example) made no difference to the inferences reasonably to be drawn from the behaviour of the doctor and the fact he lied about it;
• The Judge in a High Court appeal was as well placed as the MPT to draw appropriate inferences from the relevant fact findings, and Foster J had not fallen into error when she did;
• The formulation that was used for the charges did not give rise to any basis for the MPT rationally concluding that the GMC had failed to prove, on the balance of probabilities, that Dr Haris’ conduct was sexually motivated. Lady Justice Andrews stated: “As Foster J recognized, what was essentially being alleged in this case was a series of sexual assaults, about which the doctor had lied, and therefore, strictly speaking, proof of sexual motivation was not essential to establish just how serious the conduct was. That was the point she was making when she suggested… that the error into which the MPT fell could have been avoided by using a different formulation of the allegations against the doctor. She may well be right about that, but that does not mean that the formulation that was used gives rise to any basis for a Tribunal rationally concluding that the GMC had failed to prove, on the balance of probabilities, that the conduct in question was sexually motivated.”

Key points

• The observations of Mrs Justice Foster in the High Court that Mostyn J’s analysis in Basson did not represent good law, and set the bar too high, were only obiter, and were made in a court of similar jurisdiction, and so Basson still stands.
• Both the High Court and the Court of Appeal found that Dr Haris’ conduct had been sexually motivated, and therefore that the drafting of that charge was not wrong.
• The Court of Appeal commented that there was nothing wrong in principle with first setting out each separate act complained of, so that the committee can decide which, if any, is or are proved, and then requiring the committee to give separate consideration to whether the acts that had been proved were sexually motivated, if and insofar as it was felt necessary to ask the committee to consider that question.
• Haris may well be a helpful case going forward in sexual touching cases.  It confirms that committees must take care not to take an over engineered approach to the definition of sexual motivation when considering charges of sexual touching; the main concern is the underlying conduct. 

How Capsticks can help

We have represented numerous regulators for more than 20 years. With a large team of specialists, we help regulators to deliver the right outcomes, in the right time frame, on the right budget. Our practitioners have a vast amount of experience in drafting a wide range of allegations for our regulatory clients, including allegations of sexual misconduct.  We also have a large team of advocates who regularly present cases before committees and tribunals, and in the appellate courts.

For more information on any of the issues discussed in this insight, please contact Hannah Pilkington or any of your regular contacts at Capsticks.