GMC v Dr Raied Haris: Sexually “motivated” conduct & Fitness to Practise

GMC v Dr Raied Haris [2020] EWHC 2518 (Admin)

The High Court said the GMC should rethink the way it accuses doctors of sexual motivation during intimate examinations.

Brief overview of the case

The allegations against Dr Haris arose from his work as a GP. Two patients accused the doctor of undertaking non-clinically indicated, ungloved and intimate genital and breast examinations without informed consent.

Dr Haris conceded the GMC’s submission that professional misconduct had been made out and that it was serious and that his fitness to practice was impaired.

Notwithstanding the MPTS found that Dr Hari’s actions were not sexually motivated.  Expert evidence before the MTPS convinced the tribunal that:

“practising in isolation was likely to increase the stress upon Dr Haris which led him to adopt formulaic and potentially inappropriate examination procedures. The Tribunal finds that it is at least plausible that this could be an explanation for him conducting inappropriate intimate examinations on both patients.

“The point the Tribunal would make is that Dr Haris’ positive reaction to that potential diagnosis and the information that it might have provided an explanation for his actions is entirely relevant to the question of remediation and current impairment.”

GMC appeal

The General Medical Council (GMC) appealed the MTPS determination on the grounds that the tribunal was wrong to find that there was no sexual motivation, the sanction imposed by the Tribunal was in any event insufficient to protect the public and the Tribunal fell into error in being satisfied so readily that the risk of repetition by Dr Haris was low.

High Court judgement

Mrs Justice Foster stated in her judgement:

“In the present case it is in my judgement clear beyond argument that the intimate touching of Patients A and B was sexual and that answering a question as to the motivation of the toucher, the only available answer, is yes, the motivation must have been sexual. This is another way of saying the only reasonable inference from the facts is that the behaviour was sexual.”

Addressing the correct approach more generally, Foster J commented that:

“pleading “sexual motivation” is unhelpful” and the “criteria set the bar too high…”

Referencing section 78 of the Sexual Offences Act 2003, Foster J commented that the crux of the matter is not whether an examination was “sexually motivated” but whether the touching was “sexual”.  To illustrate the point, and taking into consideration the circumstances in this case, Foster J said: “Had the touching been pleaded as being “sexual”, and had the Tribunal asked themselves whether in all the circumstances, which includes the absence of accident, absence of consent and any clinical or other proper justification, then it seems to me impossible they would have reached any conclusion other than that the touching was sexual.”

Commentary

Whilst much of this case turned on the individual circumstances of the case against Dr Haris, Foster J nonetheless provided some helpful guidance for fitness to practise tribunals on the correct approach to dealing with matters involving sexual touching in clinical settings.

Foster J’s view that tribunals should not overcomplicate matters by getting tied up whether the issue is “sexually motivated”. Instead the correct approach is to consider, based on the evidence, whether the touching was “sexual”.