The High Court has ruled that the Medical Practitioners Tribunal’s (MPT) decision to suspend a doctor for six months for sexual misconduct was “fundamentally flawed” due to a failure to consider the evidence of the vulnerability of the patient complainant. (Professional Standards Authority for Health and Social Care v General Medical Council and Onyekpe [2023] EWHC 2391 (Admin).)

The facts

On 5 June 2020, Dr Onyekpe treated Patient A in his capacity as a locum registrar in an Accident and Emergency department. Following this, he engaged in a sexual relationship with Patient A during June and July 2020.

Dr Onyekpe admitted engaging in a sexual relationship with Patient A and was charged by the General Medical Council (GMC) with sexually motivated misconduct arising out of the relationship. The MPT found that Dr Onyekpe’s actions amounted to serious misconduct, and that his fitness practise was impaired, and imposed a six month suspension order.

The appeal

The Professional Standards Authority (PSA) appealed the outcome to the High Court on three grounds, however as the first succeeded the latter two were not considered by the Court.

The first ground of appeal was that the decision of the MPT was wrong and/or unjust because of a serious procedural irregularity in that the charges against Dr Onyekpe did not adequately reflect the seriousness of his misconduct. In particular, there should have been an allegation that Dr Onyekpe knew or ought to have known that Patient A was vulnerable or likely to be vulnerable. Without that allegation, the MPT had not considered the full seriousness of Dr Onyekpe’s misconduct. Evidence of vulnerability was contained within Patient A’s statements, medical notes and WhatsApp message exchanges with Dr Onyekpe.

The GMC resisted this ground of the appeal. The GMC maintained that careful consideration had been given to the issue of whether vulnerability should be alleged. The GMC argued that the original evidence of vulnerability was based on Patient A’s statement that she suffered from mental health problems and that as Patient A would not be called to give evidence, a decision had been made not to allege vulnerability. The GMC further argued that vulnerability had been considered at the hearing, as the medical notes and WhatsApp messages were before the MPT and reference to vulnerability had been made in closing submissions. The GMC pointed out that the Chair of the MPT panel had raised the issue of vulnerability in questions to Dr Onyekpe, and that the failure of the MPT to raise the issue further indicated that it was satisfied with the answers Dr Onyekpe gave. Finally, the GMC argued that, in any event, the vulnerability would not have made a material difference to sanction.

Counsel for Dr Onyekpe argued that the bar of vulnerability was “quite high”, given the inherent vulnerability in the relationship of a doctor and patient. The factors of Dr Onyekpe’s case were commonplace amongst patients and the evidence did not warrant or support allegations of vulnerability. Dr Onyekpe supported the GMC’s submission that, had vulnerability been charged, it would not have made a material difference to the outcome.

The judgment

Mr Justice Linden determined that from the medical notes and WhatsApp message exchanges, there was at least a realistic prospect of establishing that Patient A had given Dr Onyekpe information which strongly suggested that

• she had significant disability
• there were or may be some mental health issues
• she may have a history of abuse and neglect
• she was feeling particularly isolated and lonely
• as a result, she was more susceptible to sexual advances than is inherent in the doctor/patient relationship.

He went on to say that the decision making of the GMC and MPT was “fundamentally flawed” because adequate consideration had not been given to the evidence of what Patient A told Dr Onyekpe about her circumstances. In particular there was a failure to adequately consider whether Patient A was vulnerable, the degree of her vulnerability and what Dr Onyekpe knew or ought to have known about these matters and what influence this had on his actions. Mr Justice Linden determined that these questions should have been raised by the allegations and then fully litigated in the context of the whole evidential picture, which they were not. He was not persuaded that, had this been done, it would have made no material difference to the sanction imposed by the MPT.

What to take away

Whilst this case focusses on the actions of a doctor its relevance permeates to other regulated professionals with similar practitioner/patient relationships. 

• A degree of vulnerability is inherent in all practitioner/patient relationships because of the power imbalance and the fact that the practitioner is in a position of trust. However, there is a threshold which may be passed where the patient’s characteristics or circumstances mean that they are significantly more vulnerable than is inherent in a practitioner/patient relationship.
• Vulnerability in these circumstance is likely to be an aggravating feature of misconduct and relevant to a panel’s consideration of the seriousness of a practitioner’s misconduct.
• What the registrant knew or ought to have known, or believed about the degree of vulnerability at the relevant time will be directly relevant to the degree of culpability.
• In the circumstances of a sexual misconduct case, vulnerability may impact on other considerations such as whether there was predatory behaviour by the practitioner, the likelihood of repetition, and consent.
• In circumstances, such as in Onyekpe, where vulnerability is present and acts as an aggravating factor upon the culpability of the practitioner, the allegations should identify that vulnerability in order for it to be fully ventilated.

How Capsticks can help

Our Regulatory team has a vast amount of experience in drafting a wide range of allegations for our regulatory clients, including sexual misconduct cases. We also have a large team of advocates who regularly present cases before panels, and in the appellate courts.

For further information on how we can assist, please contact Alex East or any of your regular contacts at Capsticks.