Inherent Improbability and Sexual Motivation

13 July 2023

In order for a submission to succeed that a Medical Practitioners Tribunal had failed to give proper weight to the fact that a serious allegation of sexual assault made by a patient was inherently improbable, the court would need to be satisfied that the Tribunal had left the concept of inherent improbability wholly out of account (see Khan v GMC [2021] EWHC 374 (Admin) at [89]): Shabir v General Medical Council [2023] EWHC 1772 (Admin) Hill J

Correctly identifying that the central dispute was whether the doctor had acted as the patient had alleged, the Tribunal took into account his good character, having directed itself that this could be relevant to his propensity to act as alleged.

The Tribunal was also aware of the nature of the supervision of the doctor who was one month into a four-month rotation in primary care at a medical practice. Although the door was unlocked, there was no evidence to suggest that anyone was likely to enter without knocking; the so-called open-door policy concerned only access to support from the doctor’s supervisor; neither the nurse nor healthcare assistant referred to came into the room unannounced or unprompted.

The case of Arunkalaivanan v GMC [2014] EWHC 873 (Admin) emphasised that because a doctor placed his career at risk by behaving in a particular way did not mean he did not in fact do so: “… the very nature of abuse of trust cases is that the perpetrator takes advantage of that unlikelihood.”

The Tribunal had to weigh the inherent improbability of the doctor acting as alleged against the relative improbability of the patient fabricating the allegations and putting herself through the ordeal involved in doing so. The Tribunal specifically found that there was no reason why the patient would fabricate her account.

Although the tribunal did not use the term “cogent” or “cogency”, its determination included a detailed assessment of the credibility and reliability of the evidence upon which the GMC relied, which was principally that of the patient. The Tribunal was required, and did, consider the evidence critically, did so with the burden and standard of proof in mind and considered the strengths and weaknesses of the evidence. Part and parcel of that process was the consideration of the concept of inherent improbability and the credibility of evidence.

It was submitted that the Tribunal failed to deal with inconsistencies in the patient’s evidence, but their reasoning did not show that it inappropriately simply accepted a “series of excuses” as was alleged. The Tribunal’s reasoning demonstrated that it had weighed the credibility of the patient’s evidence by reference to other evidence and ultimately accepted her rejection of the suggestion.

Neither had the Tribunal erred in the way identified by Warby J in R (Dutta) v General Medical Council [2020] EWHC 1974. This was not a case in which the “objective facts” were likely to be “shown by authentic contemporaneous documents”, as a doctor would not be expected to record sexually motivated touching of a patient’s breasts in his medical notes.

The Tribunal was also plainly live to the issue of the inconsistencies in the patient’s accounts. It had been a key theme of the hearing having been raised by counsel for the GMC in his opening note and having featured at length in closing submissions. Further, the case of Casey v General Medical Council [2011] NIQB 95 was clearly distinguishable on its facts. The inconsistencies here were of a different kind. Here the Tribunal was entitled to conclude that the patient had been largely consistent on the key elements of the allegations, and it explained its reasoning on this issue.

At the heart of this case was a relatively straightforward factual dispute and it was not necessary for the Tribunal to address specifically or in isolation why it had rejected the doctor’s account. Nor was the Tribunal in error on the matter of weight to be attached to good character evidence which was pre-eminently a matter for the fact finder and ought not to be disturbed on appeal unless the decision was one that no reasonable tribunal could have reached: Sawati v General Medical Council [2022] EWHC 283 (Admin)

On the question of sexual motivation, the patient had given a clear description of the doctor deliberately touching her breasts, including putting his hand inside her bra and feeling around her breasts, and then lifting her breasts out of her bra and pressing both breasts, her nipples and her breast area. The doctor denied touching her breasts at all. There was no scope for accident or misinterpretation about this part of the evidence.

Once the Tribunal had accepted the patient’s evidence as to the doctor’s touching of her breasts, it was entitled to conclude that there was an absence of clinical justification and other plausible explanation for it: see Basson v General Medical Council [2018] EWHC 505 (Admin), Arunkalaivanan v General Medical Council [2014] EWHC 873 (Admin) and Haris v General Medical Council [2021] EWCA Civ 763. In Haris, it was held that sexual motivation could be inferred from (i) the fact that the touching was of the sexual organs; (ii) the absence of a clinical justification; and (iii) the absence of any other plausible reasoning for the touching.

The appeal was dismissed.