Court of Appeal dismiss doctor’s appeal against High Court finding that “the only rational conclusion to be drawn” was that his motivation for the touching was sexual.
The appellant, Dr Raied Haris, qualified as a doctor in 2008 and as a GP in August 2014. In 2017, two female patients made complaints against him that he had undertaken non-clinically indicated intimate examinations of them without their informed consent (and without wearing gloves).
Despite finding that the acts complained of “could reasonably be perceived as overtly sexual”, the MPTS found that the respondent (“the GMC”) had not proved on the balance of probabilities that Dr Haris’s conduct was sexually motivated.
Having subsequently determined that, even though the actions were not sexually motivated, Dr Haris’s fitness to practice was impaired, the MPTS decided to impose conditions upon his registration for a period of 12 months. The GMC appealed under section 40A of the Medical Act 1983. Foster J allowed the appeal,  EWHC 2518 (Admin), finding that the only rational conclusion to be drawn from the facts found by the MPT was that the motivation for the touching was sexual. She substituted her own finding to that effect.
Foster J concluded the MPTS sanction imposed on Dr Haris was plainly wrong because, even absent a finding of sexual motivation behind his actions, they constituted serious and distressing, uninvited intimate intrusion upon the two patients. The Judge therefore quashed the MPT’s findings as to remediation, risk and sanction, and remitted the matter of sanction to the MPT. Those aspects of her order are not appealed.
Dr Haris was granted permission to appeal to this Court on the sole ground that Foster J was wrong to consider that the only rational conclusion to be drawn was that the motivation for the touching was sexual.
In her ruling, Lady Justice Andrews noted that Dr Vandenabeele, a psychiatrist who supported Dr Haris defence before the MPTS, accepted in cross-examination that although it was possible for someone with that diagnosis [Dr Haris has described himself as asexual] to have no interest in sexual relationships, the medical condition was not inconsistent with having sexual urges or sexual feelings. In other words, the diagnosis of the medical condition did not mean that Dr Haris was incapable of having a sexual motivation for acting as he did.
“As a matter of common sense, when a patient presents with pain in the upper back in consequence of a fall, there is no reason whatsoever for a doctor to examine her vagina, or to fondle her buttocks or breast. The behaviour was not just capable of being reasonably perceived to be overtly sexual, it was overtly sexual, and there is no other way in which it could have been perceived. A doctor, of all people, would have known that.
“The obvious inference to be drawn from Dr Haris’s false denial, looked at by itself, is that he knew there was no innocent explanation for what he had done. The handwritten records in respect of Patient B are at least consistent with a bungled attempt to cover his tracks – why would notes of the examination of a patient presenting with upper back pain record that the doctor had not carried out examinations of her that were not clinically indicated? Of course, the MPT may well have decided to give the doctor the benefit of the doubt on the question of the records had they ever considered it– the point is that they did not consider it.”
Concluding her ruling, Lady Justice Andrews said:
“In summary, Dr Haris’s apparent lack of interest in a sexual relationship, and the consistency of his claimed asexuality with his recent diagnosis by Dr Vandenabeele, do not begin to explain why he groped a patient’s buttocks and breasts and performed physical examinations of her vagina and (on a different occasion) that of another patient, in each case without any clinical justification, without warning or obtaining prior consent, without giving or recording any reason for it at the time, and without using gloves. In the absence of a plausible innocent explanation for what he did, the facts spoke for themselves. A sexual motive was plainly more likely than not; I would go so far as to say that that inference was overwhelming.
“Foster J was unquestionably right to find that the only rational conclusion available was that the allegation that the conduct was sexually motivated had been proved. In those circumstances she was justified in substituting a finding to that effect.”