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CO/3869/2017

Neutral Citation Number: [2017] EWHC 2923 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Thursday, 26th October 2017

Before:

MRS JUSTICE YIP

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B E T W E E N :

	MOTALA	Appellant

-  and  -

	GENERAL MEDICAL COUNCIL	 Respondent

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This transcript has been approved by the Judge.

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A P P E A R A N C E S

MR G HUGH-JONES QC (instructed by the Radcliffes Le Brasseur) appeared on behalf of Appellant.

MR P MANT (instructed by the General Medical Council) appeared on behalf of Respondent.

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J U D G M E N T
MRS JUSTICE YIP: 

1	This is an appeal under s.40 of the Medical Act 1983 brought by Dr Rashid Motala against a decision of the Medical Practitioners Tribunal (which I will refer to as "the tribunal") made at a review hearing on 25th and 26th July this year, when the tribunal decided that Dr Motala's fitness to practice remained impaired and that conditions should be imposed on his practice for a further period of 6 months. 

2	The scope of the appeal is set out in the appellant's supplementary skeleton argument and the document headed "Addendum to Appellant's Case on Appeal" dated 23rd October 2017. Together these documents provide correction and clarification for the basis of the appeal. The appellant does not challenge the finding that his fitness was impaired or the imposition of conditions in principle.  Rather, his challenge is to a finding that he lacked full insight into his previous misconduct and to certain conditions.

3	I have had regard to all the submissions made to me, both orally and those contained in the written skeleton arguments.  The misconduct which originally brought Dr Motola to the attention of the GMC occurred in 2007 to 2008.  At that time, he was working for a private organisation dealing with the healthcare screening of women and another providing a locum general practice service.  The allegations were wide ranging.  Those found proved can be summarised as follows: 

1.	In the case of one female patient known as Patient B, removed her trousers without her consent, examined her breasts in a way that was not inappropriate but may have been rough, carried out other examinations while she was wearing only her knickers, and rubbed and tapped her bottom without her consent in a way that was found to be not clinically indicated and was sexually motivated.
2.	Gave an inappropriate breast examination to another woman who was complaining of earache and then, having also conducted vaginal and rectal examinations, inappropriately gave her his personal email address at the end of the consultation. 
3.	Examined another woman's breasts without offering a chaperone, and palpated the breasts with pressure and pinched the nipples.  Again that may not have been clinically inappropriate but was perhaps rough, when the patient had said her breasts were tender.
4.	Required a relative who had no medical training to administer an injection of diamorphine to a terminally ill patient and left a quantity of that drug on the window sill in the patient's house, demonstrating unfamiliarity with the Misuse of Drugs Act.
5.	Inappropriately performed a rectal examination on an 11‑year‑old child.
6.	Failed to offer reassurance to a patience who had phoned with concerns.
7.	Made mistakes in a number of medical reports.

4	These matters were dealt with at hearings between 11th October and 11th November 2010 and resulted in the appellant being suspended for a period of 12 months.  In reaching the decision to suspend the appellant, the panel concluded that the single instance of sexual misconduct was not so serious as to be incompatible with his continued registration and that he should be given the opportunity to demonstrate to a future tribunal that he had remedied his conduct and attitude.

5	It was suggested that on review the panel would be assisted by evidence that demonstrated that he had reflected on the panel's findings and the effect that that had on his attitude and insight.

6	Future review hearings focused particularly on the sexual misconduct towards patient B and his lack of insight into that.  The appellant has continued to deny that any touching was sexually motivated.  He asserts that it was inadvertent.  

7	The first review hearing took place in December 2011 and there were further reviews in 2013, 2014, 2015 and 2016.  In March 2014, he was found to have signally failed to have provided evidence to demonstrate that he had reflected on the panel's findings and was thought still to show a demonstrable lack of insight as well as continuing to display an arrogant attitude.  There was still concern about his lack of insight in 2015, although by then he acknowledged that his conduct in relation to Patient B might be perceived to have been sexually motivated.  It was thought that he still required close supervision.

8	In July 2016, the tribunal acknowledged that some steps had been taken towards remediation but had continuing concerns that his insight was not fully developed.  He was also considered to have displayed a casual attitude towards the issues surrounding the conditions imposed on his registration and to have misled potential employers.

9	In evidence he was found to have been inconsistent and confrontational, and overall, unconvincing.  It was noted that while he had completed a reflective log, he did not appear to fully understand the nature of the vulnerability of the patients he treated.  The risk that he had become deskilled after a lengthy period out of work was also noted.  The conditions were continued for a further period of 12 months, and the next review was that now under consideration.

10	On 24th April 2017, with the review hearing approaching, the appellant's solicitors wrote to the GMC suggesting a review on the papers on the basis that he had only recently begun working again and so at that time was unable to provide meaningful evidence that he had addressed the deficiencies previously identified. At that stage he recognised that his fitness to practise remained impaired, if only because he had been out of work for a long period and so would be deskilled.  However, his position had changed by the date of the hearing in July 2017.  He had by then been working for a few months, and his case was that his fitness to practise was no longer impaired.  He submitted a personal development plan, a document headed "Reflections of Dr Rashid Motola for the GMC hearing of 2017," reports from various supervisors, and his continuing professional development record card, all of which were considered by the tribunal.  In addition, he gave oral evidence and was cross‑examined.  

11	The tribunal found that Dr Motala had made significant progress in the development of his insight, but that he still required some further reflection on the touching of Patient B, which he maintained was inadvertent.  The tribunal considered that the reasons for and the implications of this inadvertent touching to Patient B had not been fully explored and that further consideration of the impact this had on Patient B would be beneficial.  The tribunal also noted that his last attendance at a "Maintaining Professional Boundaries" course was in 2011, and thought that attendance at a refresher course would help him develop full insight.  It also highlighted concern than Dr Motala still did not appear to have recognised that in view of the history of his case his need for supervision was likely to be different to that of other junior doctors.  Some concerns about deskilling were also highlighted and there is no challenge to this.  It was found that Dr Motala's fitness to practise remained impaired.

12	Paragraph 64 of the determination on p.110 of the bundle reads:

"The Tribunal was concerned about the ambiguity of the word 'inadvertent' in your recent reflective statement.  You did not make it clear whether your case was that the touching was 'inadvertent', or whether the word 'inadvertent' referred to the impression you gave the patient."
13	The following then appears at paragraph 65:

"...The Tribunal acknowledges that you have developed some insight into... the reasons for your actions and their potential consequences.  A further period of conditional registration will give you time to reflect more deeply on the circumstances leading to your misconduct and the impact on patients."

14	The Tribunal imposed conditions on the appellant's registration for a further period of 6 months.  It was considered appropriate to vary the conditions so that Dr Motala's supervision was merely supervised, rather than being closely supervised as it had been up until then.

15	The appellant seeks to set aside condition 9 which reads: 

"Except in a life‑threatening emergency, you must not carry out an intimate examination of a female patient without a chaperone present."

16	He also seeks variation of condition 5(a) which requires the design of a personal development plan (PDP).  He does not challenge the need for a PDP but does contend that this should not be subject to the specific aims set out which are to address the deficiencies in the following areas: professional boundaries; intimate examinations; consent and patient involvement.

17	Finally, if paragraph 9 were to be deleted there would need to be an administrative correction to condition 12 which refers to paragraph s 1‑11 which would become 1‑10.

18	I have not yet heard full submissions on whether, if I were minded to allow the appeal, I should remit the case to the tribunal, or direct that the conditions should be amended as the appellant suggests. I will deal with the substance of the appeal first.

19	An appeal under s.40 of the Medical Act 1983 is by way of re-hearing, but as Foskett J observed in Fish v General Medical Council [2012] EWHC 1269 (Admin) at paragraph 28:  "It is a re‑hearing without hearing again the evidence."

20	This court will allow an appeal where the decision of the tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings.  Here the allegation is that the decision was wrong, and I note that that term does not need further clarification.

21	It is well established that the court should give proper deference both to the tribunal's specialist nature and to the fact that the tribunal has the advantage of seeing and hearing witnesses give evidence.  The leading case on the nature of the appellate jurisdiction in this context is Meadow v General Medical Council [2006] EWCA Civ 390.  I have in mind the much‑quoted passage from the judgment of Auld LJ at paragraph 197:

"...it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
i.	The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; 
ii.	The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; 
iii.	The questions of primary and secondary fact and the over‑all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."

22	Further guidance as to the approach to be adopted was given by the Court of Appeal in Southall v General Medical Council [2010] EWCA Civ 407 where Leveson LJ said at paragraph 47, and here I will omit the references to other authorities:

"First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable... more recently, the test has been put that an appellant must establish that the fact‑finder was plainly wrong... Further, the court should only reverse a finding on the facts if it can be shown that the findings... were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread.'"

23	Further, I also bear in mind that in the recent case of Professional Standards Authority v (1) Health and Care Professions Council and (2) Doree [2017] EWCA Civ 39, Lindblom LJ said at paragraph 38:

"Whether a registrant has shown insight into his misconduct and how much insight he has shown are classically matters of fact and judgment for the Professional Disciplinary Committee in the light of the evidence before it.  Some of the evidence may be matters of fact, some of it merely subjective.  In assessing a registrant's insight, a Professional Disciplinary Committee will need to weigh all the relevant evidence, both oral and written, which provides a picture of it."

24	I turn then to look at the grounds of appeal in that context.  It is contended that the conclusion that he lacked insight into his sexual misconduct was not justified and was based on inadequate and flawed reasoning.  This is not a challenge to a decision as such, the decision being that Dr Motala's fitness to practise remained impaired, but rather to one of the findings underpinning that decision.  Strictly, an appeal will only lie against a tribunal's decision rather than its reasoning.  However, as the finding underpins the conditions which were imposed, I need to consider whether such a finding was open to the tribunal, so that I can go to consider whether the conditions are open to challenge.  In his supplementary skeleton argument, the appellant suggests that all the evidence pointed to insight and none in the opposite direction.  The appellant relies upon what he contends was a strong body of evidence that he had obtained insight, including that (1) there had been no repetition of the behaviour in nearly 10 years, (2) that he had complied with chaperoning conditions for 6 years, (3) that his attendance on boundary courses had not been criticised prior to the hearing, (4) his CPD work and commitment to medicine remained enthusiastic, (5) he appreciated the gravity of his offence.

25	In relation to the last point, the appellant points particularly to two parts of his oral evidence in examination‑in‑chief, as follows:

i.	First, at p.62 of the bundle, and here I will need to quote a little more than the immediate question and answer relied on to place it in context:

"Question: Have you thereafter had to operate the chaperone condition in every single examination involving intimacy with a woman?
Answer: Yes.
Question: Has that brought home to you the importance of how the GMC view your particular case?
Answer: Absolutely.  That definitely brought it through to me because of such a long time being under this regulatory situation.  It reminds me daily, in my interaction with patients, about the situation."

ii.	Then, at p.64 of the bundle:

"Question: You told us, in essence, how that type of review affects your behaviour as you currently act as a doctor, but one of the key things the tribunal want to know is whether you have appreciated the gravity of the offence as seen by the GMC and the complainant?
Answer: Absolutely I have seen it and that is why I am taking full responsibility for what happened."

26	The appellant makes specific criticisms of the tribunal's reasoning.  It is said that the suggestion that he needed some further time for reflection was wholly divorced from reality given that the incident occurred nearly 10 years before and sanctions had been in place for many years.  In fact, in the paragraph referred to, paragraph 36, the tribunal found Dr Motala had made significant progress in the development of his insight but still required some further reflection.  I read this not necessarily as that he needed time in itself, but that he needed to do more by way of reflection.  It was also said that the appellant could not give reasons for the inadvertent touching, as inadvertence was the reason.  Reference is made to his reflective log as demonstrating a good understanding of the impact on patient B.  It is then said that the tribunal ignored the appellant's evidence that he had kept up to date with work around maintaining boundaries through the GMC website.

27	Having read the reflective log and the transcript of the appellant's oral evidence, I do not believe there is any merit in the criticisms made.  I am bound to say, having considered the evidence presented to the tribunal, that the overall impression I have is that Dr Motala appears to regard the demonstration of insight as a box‑ticking exercise.  I have no sense that he has a real recognition of the seriousness of the misconduct other than insofar as it has resulted in significant conditions for a long period.

28	His log and his choice of CPD courses suggests very little awareness that in light of the findings made by the original tribunal, he needs to positively demonstrate an understanding of sexual misconduct and its impact on women.  His assertion that his need for supervision is similar to that of other junior doctors further supports this.  Further, I consider an answer at page 64C of the bundle to be illuminating.  Asked the question:

"Do you think you could let it happen again in clinical practice?" 

He replied:

"Absolutely not... because I have been under regulatory review for a long time and I am constantly reminded every time that I work that I am under regulatory review, it goes through my mind all the time."

29	This does not seem to me to evidence insight independent of the ongoing regulatory controls which, of course, ultimately he is seeking to be free of.

30	There was, in my judgment, nothing wrong with the tribunal's finding that Dr Motala lacked full insight.  They accepted that there had been an improvement in this area but thought that insight remained incomplete and needed some further reflection.  As was made clear in Doree, the assessment of the extent of his insight was firmly a matter for the tribunal weighing all the evidence placed before it.

31	It would be wholly improper for me to interfere with the tribunal's assessment by substituting my own view of the evidence.  In doing so, I could look only at the transcript and would not have the advantage of seeing how the evidence was given.  As it happens, my reading of the transcript would lead me to the same conclusion. There is nothing within any of the criticism of the tribunal's reasoning that could properly lead me to overturn their finding.  Indeed, some of the criticisms further support the sense that Dr Motala just has not appreciated the issues that need to be tackled.  He was found to have been guilty of sexually motivated misconduct.  He relies upon the fact that he has been required to have a chaperone for intimate examinations to demonstrate his insight but that does not provide much reassurance that he has tackled the underlying issues that resulted in such a finding being made originally.  The finding that Dr Motala lacked full insight was a wholly unassailable finding of fact necessarily calling for the application of judgment to the impression given by the doctor at the review hearing.  

32	The appellant also raises points touching on procedural fairness.  The suggestion that the tribunal had hidden concerns which he was not given an opportunity to answer is unfounded, in my judgment.  This was a review hearing against a long background of regulatory proceedings.  The appellant can have had no doubt about the focus of the GMC's concerns.  He knew it was for him to demonstrate that he had acquired insight.  As Blake J said in Abrahaem v General Medical Council [2008] EWHC 183 (Admin):

"...The review has to consider whether all the concerns raised in the original finding of impairment through misconduct have been sufficiently addressed to the [Panel's] satisfaction. In practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments."

33	The case of R v Scott [1989] 11 Cr App R (S) 249 cited by the appellant has no bearing on this at all, and I note that Mr Hugh‑Jones QC appeared to resile somewhat from his reliance on it in the course of the hearing.  Likewise, reliance on Browne v Dunn [1893] 6 R 67 is misplaced in this case.  Mr Hugh‑Jones took me to a more relevant citation, namely paragraph 40 in the case of Abrahaem.  In that case, the registrant was provided with no opportunity to comment on a possible underlying concern about deskilling.  In the context of that case, simple fairness required that this should have been flagged up.  Here, though, there was no question of the tribunal taking the appellant by surprise or acting unfairly.  The appellant had every opportunity to place evidence before the tribunal, both in writing and orally, to demonstrate his insight.

34	The appellant's fourth ground of appeal is that “the tribunal intruded into areas of previous findings of fact in relation to which it knew that Dr Motala had previously denied”.  They could hardly do otherwise.  The central concern about Dr Motala is that he has previously been found to have committed sexual misconduct towards a female patient.  The fact that he continues to deny impropriety makes it more difficult for him to demonstrate his insight.  But the tribunal should not equate maintenance of innocence with lack of insight.  The tribunal were referred to Karwell v General Medical Council [2011] EWHC 826 and Amao v Nursing and Midwifery Council [2014] EWHC 147.  In my judgment, they acted properly and in accordance with those authorities.  As Holroyde J found in Irvine v General Medical Council [2017] EWHC 2038 (Admin), it would have been quite illogical for the tribunal to ignore the fact that the appellant continued to deny the sexual misconduct when weighing up his insight.  The fact that they did not regard that as a total bar to demonstrating insight is clear from their reasoning generally.

35	It follows from all that I have said that I see no possible basis for overturning the factual finding of the tribunal that the appellant still did not have full insight, not the reasoning underpinning that finding.  All conclusions reached were perfectly open to the tribunal on the evidence.  Having made those findings, the conditions imposed were entirely appropriate and addressed the central ongoing concern about this appellant.  It follows that this appeal fails and is dismissed.

MR MANT:  My Lady, I am grateful. I have an application for costs on behalf of the GMC.  Have you seen our schedule?
MRS JUSTICE YIP:  No.
MR MANT:  I will pass that up. (Handed to Judge).
MRS JUSTICE YIP:  Thank you. Right. Yes, Mr Hugh‑Jones, is there anything you want to say? 
MR HUGH-JONES:  May it please you, my Lady.  May I just move across court and also turn my back.  I do apologise.  My Lady, we have no objection to that in any shape or form.  There is just one matter, my Lady, and I hope it is not impertinent of me.  I thought I had raised it.  It is merely whether your Ladyship wanted or not wanted, depending on your Ladyship's view, in respect of the judgment, you did mention Libman v GMC and I thought I had alerted the court to the fact that that case has been doubted now for many years, and that there is a case called Price, which I can. 
MRS JUSTICE YIP:  Sorry, which one was this?
MR HUGH-JONES:  It is a case that you cited from my learned friend's skeleton.
MRS JUSTICE YIP:  The decision of Lindblom LJ, was it?
MR HUGH-JONES:  It's the one which states along the lines of "...(Reading to the words)... the findings of a professional disciplinary committee should not be disturbed unless sufficiently out of tune with the evidence to indicate with a degree of certainty that the evidence was misread."  That is the dicta.  Since 2001, my Lady, that has been significantly doubted and has passed into disuse.  The Privy Council in 2001 said of that very passage: "...(Reading to the words)... that observation my Lord has read out has been applied from time to time in the past but in their Lordships' view it can no longer be taken as definitive..." 
MRS JUSTICE YIP:  I am not sure which judgment you are referring to, I am afraid.
MR HUGH-JONES:  I am only just raising it in case your Ladyship felt that‑‑ 
MRS JUSTICE YIP:  Absolutely, if there is something that I have fallen into error with then I would much rather deal with it now, but I am not sure which part you are referring to.
MR HUGH-JONES:  In your judgment, my Lady, as you have just read it out, my understanding is that you read the case of Libman and read out the passage that I have just read, probably from my learned friend's skeleton.
MRS JUSTICE YIP:  Can you help me with this, Mr Mant.
MR MANT:  Yes, my Lady, paragraph 35 of my skeleton cites Southall.
MRS JUSTICE YIP:  Southall. 
MR MANT:  Southall v GMC [2011] Court of Appeal authority.
MRS JUSTICE YIP:  Right.
MR MANT:  One of the cases referred to in that rather dense paragraph that Lord Justice Leveson‑‑
MRS JUSTICE YIP:  Right.  That is helpful, because I left the case citations out.
MR MANT:  I would only add that Southall does postdate Prees (As heard) 
MRS JUSTICE YIP:  And is the President of the Queen's Bench Division.
MR HUGH-JONES:  It may be that your Ladyship would prefer to leave it.  Alternatively, I can pass up Price.  Price and Ghosh were the seminal cases after the bringing in of the Human Rights Act and therefore they look back at all the old cases and they, to some extent, relaxed the approach.  But I am in your Ladyship's hands. Of course I am being pedantic, but on the other hand, your Ladyship may wish to see that point through.
MRS JUSTICE YIP:  Right. So which authorities were you referring to?  Price, which was when? 
MR HUGH-JONES:  This is paragraph 35 of my learned friend's skeleton.  About two thirds of the way down there is the word "Libman v GMC"
MRS JUSTICE YIP:  Yes, I have that.  And now you are saying that that is inconsistent with which cases?
MR HUGH-JONES:  Preiss (P‑R‑E‑I‑S‑S) says that that case of Libman is‑‑
MRS JUSTICE YIP:  Where will I find Preiss? 
MR HUGH-JONES:  I would have to hand it up to you, my Lady.  It wasn't in the bundle.
MRS JUSTICE YIP:  What is the date?
MR HUGH-JONES:  2001, my Lady.  
MRS JUSTICE YIP:  Right.  Well, I was quoting from the decision of Leveson LJ, the current President of the Queen's Bench Division, in 2010.  So if there is an error in there, it appears that it is he rather than I who has fallen into error!  You can take it up elsewhere.  But, in any event, even if I were to take that out, it would make no difference to my judgment.
MR HUGH-JONES:  Please forgive me, my Lady.  I do apologise.
MRS JUSTICE YIP:  No, not at all. You were absolutely right to do that.  I am not critical because I would much rather have the opportunity to correct it.
MR HUGH-JONES:  Thank you for correcting me.  Thank you.
MRS JUSTICE YIP:  And if I have fallen into error, and if there were cases that I have cited and subsequent cases, I would want to look at it again.  But I think, as a summary that is applicable to this case, I am happy that that does represent the current law.
MR HUGH-JONES:  Thank you very much, my Lady.
MRS JUSTICE YIP:  Even if I were to take out that part of the test referred to in Southall, I think it is apparent from the findings that I have made the decision would be exactly the same.
MR HUGH-JONES:  Most certainly, my Lady.
MRS JUSTICE YIP:  To put it bluntly, I think their decision was right and not wrong on any basis.
MR HUGH-JONES:  Thank you, my Lady.
MRS JUSTICE YIP:  So now I just have to deal with costs.  So there is no objection in principle, and no objection to the amount so, is that the grand total £7,113.40?
MR MANT:  Yes, my Lady.
MRS JUSTICE YIP:  Right. Well, in those circumstances, the appeal shall be dismissed and the appellant shall pay the respondent's costs assessed in the sum of £7,113.40.  Thank you both for your help.