Findings of sexual motivation - GMC v Haris.

Claire Robinson considers the effect of the recent case of Haris: GMC v Haris (2020) EWHC 2518 (Admin)

The case

The GMC appealed the tribunal’s finding that there was no sexual motivation to Dr Haris’ conduct. Two patients had complained that he had undertaken intimate examinations that were non-clinically indicated and without informed consent. Dr Haris denied the conduct had happened at all. There was no suggestion that the touching had occurred but was accidental. The tribunal accepted the evidence of the two patients and found most of the facts proved but did not find that the actions were sexually motivated.

Foster J allowed the appeal and stated:

“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. This derives from; a. The fact that the touching was of the sexual organs; b. The absence of a clinical justification; c. The absence of any other plausible reason for the touching”.

Foster J made some observations about the way in which the case was initially pleaded and indicated that she felt that pleading ‘sexual motivation’ was unhelpful and that to look for ‘sexual gratification” may be misleading and overcomplicating.

Standard of proof

Whilst noting that the regulatory context and the standard of proof are of course different, she commented that a different form of allegation may assist a tribunal where the charge is essentially one of sexual assault. The Sexual Offences Act 2003 sections 3 and 78 (b) were considered.

Foster J noted that:

• “Section 3 excludes from the offence unintentional and also consensual touching… Section 78 (b) excludes from that offence that category of act that may appear to be sexual but by reason of the circumstances is in truth, not. An act that was clinically indicated, although it might appear sexual, would be excluded under section 78 (b). Of course, there are significant differences in the context and the analogy is not exact, but it does seem to me that pleading ‘sexual motivation’ is unhelpful”.
• 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 (cf. section 3 (1) (a)) absence of consent (cf. section 3 (1) (c) ) and any other clinical or other proper justification (cf. section 78 (b) ) then it seems to me impossible they would have reached any conclusion other than that the touching was sexual.

It will be interesting to see if the regulators start to draft allegations as ‘sexual’ rather than the currently favoured ‘sexually motivated’. Such a wide variety of behaviour is charged before tribunals, from making a crude joke to the touching of genitalia, it is to be hoped that charging as ‘sexual’ does not become a default position, which Tribunals may still struggle with.

What's next?

It is understood that this decision is to be the subject of further appeal. Guidance on this topic from the Court of Appeal would be very welcome.