A doctor facing multiple complaints, including actions that were sexually motivated, lose their erasure appeal.
In the case of Ali v The General Medical Council  EWHC 2984 (Admin) (30 November 2023), the doctor faced a number of allegations, including a number who were described as “sexually motivated”. Certain reporting restrictions apply to the case.
The doctor appealed the MPTS sanction on the following grounds;
“The decision of the [Tribunal] finding the Appellant to have acted towards a patient for reasons of sexual motivation, and consequently to find his fitness to practise impaired and to erase his registration were:
1. wrong, and
2. unjust, in that they relied on partial and inadequate reasoning, and
3. because they erred in the proper application of the burden of proof.”
Michael Ford KC, sitting as a Deputy High Court Judge, noted however that:
“The grounds, accordingly, are only directed to the findings that Dr Ali’s conduct towards Patient C were sexually motivated (there was no such finding in relation to any other of the patient witnesses), though the arguments covered a wider terrain and raised objections to particular findings of fact as well as to the Tribunal’s general approach.”
The doctor sought to argue that, in summary,
“…that the Tribunal committed precisely the errors which arose in Dutta and Khan: it approached the evidence of Patient C on the basis that she was credible overall – illustrated, for example, by its reference at §89 to her being “adamant” Dr Ali’s fingers were not on her wrist when he took her pulse – meaning that it treated her as telling the truth unless there was other evidence to disprove her. The effect of this approach in practical terms, she submitted, was to reverse the burden of proof.”
Mr Ford KC commented that:
“I should be slow to interfere with findings of primary fact because the Tribunal had the advantage of hearing and seeing the witnesses, as well as having greater familiarity with the evidence over a hearing which lasted many days. While I accept that findings of primary fact are not “virtually unassailable” for the reasons given by Warby J in Dutta at §22, the circumstances in which an appeal court can interfere with those findings are restricted, as illustrated by the various formulations summarised in Byrne at §§14-15, such as a finding must be based on no evidence or “plainly wrong or so out of tune with the evidence as to be unreasonable” (see §50 above). That was the formulation also adopted in Dutta at §21(7).”
In a lengthy judgement, Mr Ford KC ultimately concluded:
“For the reasons set out above, my conclusion is that none of the grounds of appeal is upheld. The Determination of the Tribunal was not wrong or unjust and nor did it err in the application of the burden of proof. The consequence is that the appeal is dismissed under s.40(7) of the MA 1983.”
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