19 June 2020 by clodaghbradleyqc

Yesterday’s judgment of Mr Justice Mostyn in GMC v Awan [2020] EWHC 1553 (Admin) illustrates the fact that the Court’s deference to the specialist Tribunal’s judgment on sanction continues to be extended to cases relating to sexually motivated online misconduct, as also occurred in GMC v X [2019] EWHC 493 (Admin) last year, when Soole J upheld a 12-month suspension. 

GMC v Awan concerns a GP’s sexually motivated online chat with someone posing as 13 year old child.  The GMC’s appeal under section 40A of the Medical Act 1983 was dismissed by Mostyn J and the 9-month suspension imposed by the Tribunal was upheld.

The Facts

In November 2019 Dr Hafeez-Ur Rehman Awan came before the Medical Practitioners’ Tribunal facing allegations that on 5 January 2016, when he was working as a GP, he had logged into a chat room with the username “medic333” which “obviously signified that he was a member of the medical profession” [#15]. Once in the chat room, the Respondent started exchanging messages with a person with the username “Sophiasheff”, who was in fact a police officer conducting an undercover sting operation. 

Transcripts of their exchanges showed that Sophiasheff told the Respondent at the outset that she was 13 years old and that she should be at school but was not [#16].  The Respondent told her that he was a doctor, was in bed and sent her an emoji of a couple hugging and wrote “mwah huggs for you … I want huggs too… mmmwah”.

On 21 January 2016 a police officer posing as Sophiasheff initiated a WhatsApp exchange with the Respondent and extensive messages were exchanged.  Sophiasheff’s age was revisited and she said she was 13 [#19]. The Respondent said that he thought that she was 15 soon to be 16 and that they could only be friends, would not be able to meet until she was 16 as it “will be illegal”.  After an audio call, the Respondent said, “U sound nice but not 13.  U sound a lot older tbh” and asked her what her real age was.   The Respondent was told “13 and 4 months”.

The Respondent was charged by the GMC with misconduct arising from his conversations via the online chatroom, text message and WhatsApp as follows [#21]:

1. On 5 January 2016 and 21 January 2016, you engaged in conversations via an online chatroom, text message and WhatsApp (the ‘Conversations’) with an individual (‘Person A’) who you: 

a. believed was a 13-year-old girl; 

b. purported to accept was a 13-year-old girl. 

2. During the course of the Conversations you: 

a. told Person A that you were a doctor; 

b. used the username [medic333] which identified you as a member of the medical profession;  

c. made numerous inappropriate remarks to Person A as set out in Schedule 2 (as amended).  

3. Your conduct at paragraphs 1 and 2c was sexually motivated. 

4. You failed to report Person A as a potentially vulnerable child to the: 

a. relevant child protection agency;

b. police.

And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.

The Respondent admitted only paragraphs 1(b), 2(a) and 2(b).  The remaining facts were tried before the Tribunal. 

The Court’s decision

Mr Justice Mostyn expressed his views of the transcript of evidence in forthright terms thus [#23]:

The respondent gave evidence on day one. He was the only live witness. I have read the transcript of his evidence and I have to say that his defence was absurd. His evidence was that he realised immediately that “Sophiasheff” was an impostor. He believed that she was an older female who was “messing” with him and that he realised after the audio call that she was probably a police agent. He said that he wrote the things he wrote to her … in order to expose her and to reveal her true age. The things that he wrote were meaningless and were just normal Internet chitchat carrying no significance. He repeated this theme time and again throughout his evidence.

Mostyn J remarked as follows in respect of the Tribunal’s finding on the facts [#24]:

Unsurprisingly, this defence was robustly rejected. Unsurprisingly, the respondent was not believed. Paragraphs 1(a), 2(c), 3 and 4(a) of the allegation were found proved against him.  Paragraph 4(b) of the allegation was found not proved.  It is important to note that the respondent was found to have acted with sexual motivation under paragraph 3 of the allegation.

Somewhat inevitably, in light of the findings of fact, the Tribunal found that the Registrant’s fitness to practise was impaired [#25 and 27].  However, in bringing its appeal, the GMC sought to criticise the route via which the Tribunal had arrived at this result, by suggesting that the Tribunal had inappropriately reached a conclusion about the low risk of repetition before it turned to consider the question of the Respondent’s limited insight, lack of expression of any remorse or any comment on the impact of his actions on the public trust in and reputation of the medical profession [#25].  Mostyn J roundly rejected this criticism of the Tribunal’s construction of its determination, commenting [#26]:

This is exactly the kind of narrow textual analysis which an appellate court should avoid when considering the reasoning of any tribunal, especially one not composed of professional judges.

The GMC’s attempt to dissect the determination on sanction by reference to which paragraphs of the Sanctions Guidance were considered at each step of the decision was equally dismissed by the Court as “an example of the vice of narrow textual analysis”, given that the very paragraph of the Sanctions Guidance which the GMC maintained had been overlooked (paragraph 150 of the Sanctions Guidance), had been referred to in the immediately preceding paragraph of the Tribunal’s determination [#31-32]. 

First ground of appeal

The first ground of appeal was that the Tribunal had failed to have regard to the manner in which the Respondent gave his evidence to the Tribunal.  Mostyn J pointed out that “the Tribunal robustly rejected the Respondent’s defence, which was, frankly, ludicrous.” [#35], and in rejecting the ground of appeal, he found that “It is inconceivable that the Tribunal did not have in mind the Respondent’s dogged, yet ridiculous, defence when making its findings about insight … Indeed, it is obvious that this must have been the principal factor that influenced its conclusion”. 

Mostyn J’s comments about the Registrant’s right to a fair trial without facing the jeopardy of further charges or enhanced sanctions as follows [#37-38]:

“37. I think that it is too much to expect of an accused member of a profession who has doughtily defended an allegation on the ground that he did not do it suddenly to undergo a Damascene conversion in the impairment phase following a factual finding that he did do it. Indeed, it seems to me that to expect this of a registrant would be seriously to compromise his right of appeal against the factual finding, and add very little, if anything, to the principal allegations of culpability to be determined. In Misra v. General Medical Council (GMC) [2003] UKPC 7 Lord Hoffmann deprecated additional charges being brought based on a disbelieved defence….

38. It seems to me that an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions.

In firmly rejecting the first ground of appeal, these remarks of the Court will be music to the ears of Registrants who find themselves facing adverse factual conclusions where the allegations had not been admitted and the impairment and sanctions stages immediately follow [#40]:

In my judgment, in the absence of any significant hiatus between the factual finding and the impairment/sanctions phase in which full reflection can be undergone, that is as much as can reasonably be expected of an accused professional who has defended the case on the ground that he did not do what was alleged.

Second ground of appeal

The Court rejected the second ground of appeal that the Tribunal had regard to an irrelevant factor, namely the public interest in not depriving the public of the services of an otherwise competent doctor because the Respondent had emigrated to Canada and the ‘public’ in section 1(1A) and 1(1B) of the Medical Act 1983 was confined to the UK public. Mostyn J was not persuaded, in part because the doctor might return to the UK and also because he did not consider it to be a key element of their decision [#42].  

Third ground of appeal

The third ground of appeal was that the Tribunal made two significant failings in its application of the Sanctions Guidance.  This was given short shrift in its rejection, with the Court concluding that it was clear to it that the Tribunal fully had the relevant factors in the Sanctions Guidance at the forefront of its mind.  Mostyn J reminded us [#44]:

… it is not the duty of the tribunal slavishly to restate the terms of the Guidance. This is especially so when … it is no more than non-binding advice.

Dismissal of appeal

Before remarking that the present case was strikingly similar to the disposal in the case of GMC v X [#47] and dismissing the appeal [#48], the Court stood back and considered whether the Tribunal’s disposal can be characterised as wrong and found that it cannot. The Respondent’s conduct was noted to be serious and deplorable but the Court deferred to the expertise of the specialist Tribunal [#46]:

… the sanction imposed by this specialist Tribunal was very carefully considered and was judged to be sufficient to meet the objective of protecting the public and promoting and preserving the reputation of the medical profession. I cannot say that it was wrong.

Comment

The case of GMC v Awan is the GMC’s second defeat in less than 18 months in bringing section 40A appeals in respect of sanctions imposed for online sexual misconduct by doctors, the most recent defeat in Awan being in respect of a shorter period of suspension than in X. In both, cases the Administrative Court ruled that the sanction of suspension decided by the particular Tribunals was not wrong.

Therefore, those practising in the field may speculate whether the GMC will start to exercise this right of appeal more cautiously in order to avoid creating precedents which Registrants may deploy at future hearings to avoid erasure where some Tribunals might have chosen to opt for this sanction on similar facts.  Appeals can be double-edged swords and one cannot help but wonder whether the GMC regrets this one. 

Clodagh Bradley QC is a barrister at 1 Crown Office Row. She tweets @ClodaghBradley