Sait v The General Medical Council (GMC)

Factual and Procedural Background

The Appellant is a consultant orthopaedic surgeon who qualified over 30 years ago and has held a substantive NHS consultant position at Darent Valley Hospital in Kent, alongside a private practice. His career had been unblemished until allegations arose concerning his conduct towards two patients, referred to as Patient A and Patient B.

Following a seven-day hearing in November 2017, a Medical Practitioners Tribunal found certain facts proved against the Appellant, concluding that his fitness to practise was impaired due to misconduct. The Tribunal suspended him for three months and directed a review before the suspension ended. The Appellant appeals the finding that his actions were sexually motivated and consequentially the finding of impaired fitness to practise, seeking either reversal of the sanction or a rehearing by a differently constituted Tribunal.

The appeal focuses on the Tribunal’s findings concerning the Appellant’s behaviour towards Patient B, including comments on her appearance, arranging a meeting outside the clinical setting, and related conduct alleged to be sexually motivated. Some allegations were found proved, others not proved, and the Tribunal accepted Patient B’s account on disputed issues.

Legal Issues Presented

1. Whether the Tribunal’s finding that the Appellant’s conduct was sexually motivated was supported by sufficient evidence.
2. Whether the Tribunal failed to observe essential standards of procedural fairness, particularly regarding cross-examination on the issue of sexual motivation.
3. Whether the Tribunal erred by finding a pattern of sexually motivated behaviour without adequate evidential foundation.
4. Whether the Tribunal improperly extended the allegation of sexual motivation to include grooming without proper notice to the Appellant.

Arguments of the Parties

Appellant's Arguments

• The Tribunal did not sufficiently put the allegation of sexual motivation to the Appellant in cross-examination, breaching procedural fairness.
• The finding of a pattern of sexually motivated behaviour lacked evidential support, particularly regarding comments made during consultations.
• The Tribunal failed to properly assess the Appellant’s subjective state of mind.
• The Tribunal improperly found grooming conduct without clear notice or specific allegation.
• The finding at paragraph 109 of the Tribunal’s reasons was contrary to the evidence.

Respondent's Arguments

• The Tribunal’s finding of sexual motivation was supported by a reasonable inference from the proved facts.
• The generalised allegation of sexual motivation included both immediate sexual gratification and grooming, which was apparent from the pleaded facts.
• The absence of cross-examination on sexual motivation was not unfair given the nature of the Appellant’s denials.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully examined the Tribunal's findings regarding the Appellant's conduct towards Patient B, focusing on the critical issue of sexual motivation. The Tribunal found a pattern of sexually motivated behaviour based largely on the events of 9 May 2016, including the Appellant's comments on Patient B's appearance, the meeting at a pub outside the clinical setting, and suggestions regarding her marital situation.

However, the Court identified a significant procedural flaw: the Tribunal failed to adequately test the allegation of sexual motivation through cross-examination of the Appellant. The Appellant was only asked perfunctory questions on this central issue, denying sexual motivation without further probing. The Court emphasized the longstanding rule from Browne v Dunn and subsequent authorities that serious allegations must be squarely put to the accused in cross-examination to allow a fair opportunity to respond.

Furthermore, the Tribunal's reasoning for finding sexual motivation in earlier consultations, particularly the use of the word "pretty," was inadequately explained and lacked evidential foundation. The Court found no sufficient basis to uphold a finding of a pattern of sexually motivated conduct, which undermined the Tribunal's overall conclusion regarding the Appellant's state of mind on 9 May 2016.

The Court also addressed the generalized nature of the sexual motivation allegation, noting that the Appellant was not clearly informed that grooming conduct was alleged, though it accepted that the pleaded facts could imply both immediate sexual gratification and grooming motives.

In light of the procedural unfairness and evidential deficiencies, the Court concluded that the findings relating to Patient B and the consequential finding of impaired fitness to practise must be set aside. The Court directed that the allegations concerning Patient B be retried before a differently constituted Tribunal to ensure procedural fairness and proper assessment of the evidence.

Holding and Implications

The Court ALLOWED the appeal on grounds of procedural unfairness and inadequate evidential basis for the finding of sexual motivation in respect of Patient B.

The findings against the Appellant concerning Patient B and the resulting finding of impaired fitness to practise by virtue of misconduct were set aside. The Court ordered that the allegations relating to Patient B be retried before a differently constituted Tribunal.

This decision directly affects the parties by nullifying the previous adverse findings and sanction related to Patient B, but it does not establish new legal precedent beyond reaffirming procedural fairness and evidential standards in regulatory appeals involving serious allegations.