Case No: C0/12075/2010

Neutral Citation Number: [2011] EWHC 790 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ

Date: Friday 11 March 2011

Before:

HIS HONOUR JUDGE PELLING QC
(sitting as a Judge of the High Court)

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Between:

	RAZA	
Appellant	
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GENERAL MEDICAL COUNCIL	

Respondent	

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(DAR Transcript of 
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A Merrill Communications Company
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Mr Mahmood (instructed by Ryan, Solicitors) appeared for the Appellant;
Mr Hare (instructed by the GMC) appeared for the Respondent. 

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Judgment

His Honour Judge Pelling QC:

1.	This is an appeal by the appellant (“Dr Raza”) brought pursuant to section 40 of the Medical Act 1983 by which he appeals against the decision of the GMC’s Fitness to Practise Panel when his fitness to practise was impaired by his misconduct and the decision to impose upon him a sanction of 12 months’ suspension.

Background

2.	The appellant graduated from medical school in 1988. By the time of his consultation with Patient A on 12 January 2009 he was in full-time private practice, providing medical reports for use by claimants in personal injury litigation.  He was, and is, married and has children.  By the time of the consultation with Patient A he had produced between 5,000 and 6,000 medical reports.  

3.	Patient A was seen on 12 January 2009, as I have said, in a 15-minute slot in a list of 30 patients seen by Dr Raza that day. Patient A was 24 years old and female. She had been referred to Dr Raza by her solicitor for preparation of the medical report in connection with a personal injury claim arising out of a road traffic accident.  

4.	It was alleged that Dr Raza conducted himself in the course of the consultation in a way which was (a) inappropriate, (b) sexually motivated and (c) an abuse of Dr Raza’s professional position.  It was further alleged that on 19 January 2009 Dr Raza sent a text message to Patient A which was addressed to her using her first name and which asked for the best time for him to call her because, ostensibly, he wished to ask her some additional questions in relation to her accident.  The respondent’s case was that this was false and that the ostensible reasons for sending the text were a pretext for making contact with Patient A and thus the sending of the text message was itself inappropriate, sexually motivated and an abuse of the doctor’s professional position.

5.	A complaint was initiated by Patient A on 21 January 2009.  Initially the respondent’s case examiners indicated that they were minded to proceed by way of a warning.  However, ultimately the case was referred to a Fitness to Practise Panel which, in August 2010, following a fact-finding hearing, imposed interim suspension on the appellant.  On 24 October 2010 the Fitness to Practise Panel imposed a period of suspension to which I have referred having first decided that Dr Raza’s fitness to practise was impaired,.  

6.	This appeal was commenced on 19 November 2010.  In it Dr Raza challenges (a) a limited number of factual conclusions, (b) the conclusion of the Panel that his fitness to practise had been impaired and (c) the decision to impose upon him a suspension of twelve months.  

The Allegations and the Appellant’s Case On Appeal

7.	The allegations made against Dr Raza that have been found proved by the Fitness to Practise Panel were, and Dr Raza’s case before me in relation to those findings are, that: 
(1)	In relation to a tattoo on Patient A’s lower back that he said to Patient A that he liked her tattoo or words to like effect and that the remark was (a) inappropriate, (b) sexually motivated, and (c) an abuse of Dr Raza’s professional position.  In relation to these findings the finding that the remark was sexually motivated is challenged.  
(2)	At the end of the consultation, when shaking hands with Patient A, Dr Raza gripped her right hand, placed his left hand on her right shoulder and pulled her into an embrace and he then whispered in her ear words to the effect that it had been good to have seen her that day.  The Panel found this conduct to be inappropriate, sexually motivated and an abuse of his professional position.  On this appeal, aside from it being denied that Dr Raza whispered the words alleged, it is denied that any of this conduct was sexually motivated and thus that it was an abuse of Dr Raza’s professional position, but otherwise there is no dispute as to the findings made; 
(3)	(a) Patient A had tried to push Dr Raza away, (b) that Dr Raza pulled her back towards him and embraced her again, and that he then whispered in her ear that he had never looked after anyone like he had looked after her that day and (c) the doctor continued to pull Patient A towards him despite her attempts to push him off.  All this is denied.  An allegation that the doctor continued to firmly grip Patient A’s left hand before either the second embrace or whisper was found not proved, as was an allegation that he tried to pull her towards the examination room.  It was submitted on behalf of Dr Raza that the finding that he had continued to pull Patient A towards him was necessarily inconsistent with the finding that he continued to grip her hand, which had not been proved, and that the remaining allegations should have been found not proved on the evidence available.  In any event it was submitted that the finding that the facts as found by the Fitness to Practise Panel were sexually motivated was wrong, but it was accepted that if the factual findings were otherwise ones that were open to the Panel to make, then what was found to have occurred was inappropriate conduct; 
(4)	Patient A had to pull away from Dr Raza in order to be able to leave is challenged as being contrary to the evidence; 
(5)	In relation to the text message the fact that it was sent was admitted and proved, as was the fact that it was inappropriate, but a finding that its transmission was sexually motivated is challenged.

8.	Aside from the challenges to the findings that I have so far mentioned, Dr Raza, as I have said, challenges the conclusion of the Fitness to Practise Panel that his ability to practise was impaired.  Finally, if all of this is wrong, he challenges the sanction that was imposed upon him as being in any event disproportionate as to the nature of the penalty imposed and further was disproportionately too long.

The legal principles

9.	The statutory framework is set out in Part 5 of the Medical Act 1983 (“MA”).  Insofar as is material MA, section 35C provides as follows: 
“(1)  This section applies where an allegation is made to the General Council against –

(a) a fully registered person; or

(b) a person who is provisionally registered,

that his fitness to practise is impaired.

(2)  A person’s fitness to practise shall be regarded as ‘impaired’ for the purposes of this Act by reason only of –

(a) misconduct …”

10.	The Investigation Committee is empowered to refer such an allegation to a Fitness to Practise Panel. It is common ground that MA, section 35C imposes a two-stage process which requires the Panel to decide first whether there has been misconduct before then going on to decide whether fitness to practise is impaired - see  Cheatle v GMC [2009] EWHC 645 (Admin), paragraph 19.  The powers of such a Panel are those set out in MA, section 35D which, insofar as is material, provides as follows:
“(2) Where the Panel find that the person’s fitness to practise is impaired they may, if they think fit –

(a) except in a health case, direct that the person's name shall be erased from the register;

(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or

(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests.

(3) Where the Panel find that the person’s fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance.”

Where a period of suspension is imposed by section 35D(5) the Panel may extend the period of suspension by periods of suspension of up to 12 months at a time or impose conditions in relation to his return to practice or direct erasure.  

11.	The powers of the Court on hearing a MA, section 40 appeal are those set out in MA, section 40(7) which, insofar as is material, is to the following effect, 
“(7) On an appeal under this section from a Fitness to Practise Panel, the court may -
(a) dismiss the appeal;

(b) allow the appeal and quash the direction or variation appealed against;

(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or

(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court...,

and may make such order as to costs (or, in Scotland, expenses) as it...thinks fit.”

The appeal is by way of re-hearing - see CPR 52.11 and paragraph 22.3(i)(e) of the Part 52 Practice Direction.  No procedure or other irregularities are alleged in this case.  Accordingly the sole question is whether any of the challenged findings of fact or the finding of impairment or the imposition of suspension or the period of suspension imposed were wrong - see Meadow v GMC [2006] EWCA Civ 1390, paragraph 125, Cheatle (ante)  and CPR 52.22).  By CPR 52.22, unless the Court otherwise orders, the appeal court does not receive oral evidence or evidence that was not before the Fitness to Practise Panel.  Thus, in relation to challenges as to findings of fact the appeal court proceeds by reference to the evidence set out in the transcripts of evidence given to the Fitness to Practise Panel.  No application to adduce oral evidence or evidence that was not before the Fitness to Practice Panel has been made in these proceedings. That being so, and because the Fitness to Practise Panel’s findings of fact involve judgments about the reliability and truthfulness of witnesses who gave oral evidence, in this case Patient A and Dr Raza, I must accept the findings of fact made by the Panel unless material errors are clearly demonstrated, but where such errors are demonstrated the Court can and will correct them - see Rashid v GMC [2007] EWCA Civ 46, [2007] 1 WLR 1460. A material error of fact which the court will correct includes findings for which there is no or insufficient supporting evidence (see Cheatle, paragraph 28).  It is essentially on this basis that the various factual challenges in this case are advanced.

12.	In considering an appeal of this sort due regard will be accorded to the status of a Fitness to Practise Panel as a specialist tribunal but the degree of deference that will be given depends upon the issue under consideration.  It will be at its most marked where the issue to be decided is technical in nature or is one that depends upon professional judgment or concerns the sanctions imposed once misconduct and impairment to practise have been found established.  There is some suggestion in paragraph 15 of Cranston J’s judgment in Cheatle (ante) that the degree of deference might depend upon the composition of the Fitness to Practise Panel concerned.  Mr Mahmood sought to rely on that point. Whilst I see that a point might arise where a majority of the Panel consisted of lay members and the finding that was challenged was in relation to a technical issue, that possibility does not arise here. In my judgment the outcome of this case does not depend on the degree of deference to be afforded to the decision of the Fitness to Practise Panel.  The issues that arise are not specialist or technical in any real sense nor in the end does its resolution depend on the challenge that is made to the sanction that was imposed. Thus it is not necessary for me to consider further Crantson J’s composition point.  

The Challenges To The Factual Findings

13.	I conclude that, save in one respect, these challenges all fail for the following reasons.

14.	The Tattoo Issue
It was accepted by the claimant that he made an inappropriate remark broadly to the effect alleged.  The conclusion that it was sexually motivated is challenged.  The basis on which the Panel reached that conclusion was described by the Fitness to Practise Panel in these terms: 
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“The Panel has heard your explanation as to why you made such a comment which was to try to establish a rapport with Patient A.  The Panel considered this comment in the light of subsequent events and sees it as part of a pattern of behaviour that was sexually motivated.”

15.	Although the conclusion that Dr Raza’s conduct was an abuse of his professional position was apparently reached on the basis both that the comment was inappropriate and sexually motivated, it is entirely clear to me that it was, in truth, the sexual motivation conclusion that led to the conclusion that the remark constituted an abuse of the doctor’s professional position.  As the Fitness to Practise Panel said:
(checked to audio as bundle not available)
“The Panel is of the view that your conduct was inappropriate and sexually motivated and therefore it follows that it was an abuse of your professional position.  The Panel has taken into account Good Medical Practice (November 2006 edition, applicable at the relevant time) which states at paragraph 32, ‘You must not use your position to establish or pursue a sexual or improper emotional relationship with a patient or someone close to him’.”

Thus I am satisfied that if the finding of sexual motivation is to be rejected then the finding that it was an abuse of professional position must also be rejected.

16.	The complaint from Patient A was first made by her to the Patient Advisory Liaison Service.  The relevant records of what was said by Patient A are in a file note at page 160 and a note of interview contained in an email, a copy of which appears at page 161 in the bundle.  The email is the more detailed document but contains no references at all to the tattoo remark.  The file note records Patient A as mentioning the doctor’s remark but she is not recorded specifically as making any complaint about it.  The note says as follows:
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“Whilst Jane was photocopying the letters [Patient A] stated that Dr Raza had made a comment regarding the tattoo on her lower back.  She stated that he also asked her about her patch and whether it was a smoking patch.  [Patient A] informed him that it was her contraceptive patch.”

17.	The relevant evidence given by Patient A is set out in the transcript at pages 184 to 185 and is to the following effect:
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“Q	The door of that room was not locked?
A	No.

Q	The doctor took a history from you.
A	Yes.

Q	He went through this questionnaire with you.
A	Yes.

Q	The questionnaire was quite detailed, setting out questions on the nature and circumstances of the accident and injuries suffered, et cetera.
A	Yes.

Q	You went through that in detail with the doctor because you had not felt able to complete it.
A	Yes.

Q	Is part of the reason that you had not been able to complete the questionnaire your anxiety at the time?
A	No, it is because I am slow at handwriting.

Q	In any event, it is accepted that the doctor helped you to complete the questionnaire and filled in parts for you, yes?
A	Yes.

Q	He chatted to you.
A	Yes.

Q	It was clear that he was trying to put you at ease to reassure you.
A	Yes.

Q	When it came to the examination he asked if he could examine you.
A	Yes.

Q	He did not ask you to undress at all.
A	No, apart from just lifting up the tunic.

Q	Yes; at one stage when he was examining the lower back, he asked if he could slightly raise your tunic.
A	Yes.

Q	He examined the leg area, the lower back, et cetera, and there is no criticism in relation to the examination.
A	No.

Q	I think that is a ‘no’.
A	It was a ‘no’.

Q	You were asked to raise your legs et cetera and he checked the hips, checked the back and elicited whether you were suffering from pain.  That is right, is it not?
A	Yes, that is correct.

Q	What limitations of movement you had.
A	Yes.

Q	He may well have commented on the fact that he thought your tattoo was nice or words to that effect, but it was said in a reassuring manner in a positive way.
A	Yes.

Q	Before we move on to the end of the examination you indicate that as part of the examination he also examined your shoulder and neck.  He asked if he could just put his hand inside the top of your tunic to carry out that part of the examination.
A	Yes, he did.

Q	You were not asked to remove the tunic at any stage.
A	No.

Q	When he carried out that aspect of the examination, his hand never went below the clavicle area.
A	No.

Q	He did not at any stage touch you, nor do you suggest that he touched any intimate part of your anatomy.
A	No.”

18.	Dr Raza was questioned about the issue.  He sought to explain away his remark by reference to a supposed clinical explanation which he then retracted.  At page 227 he is recorded in the transcript as saying the following in cross-examination:
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“Q	 If you did so, what would you have said in relation to the tattoo?
A	Actually there are a few reflexes you cannot help because tattoos are very important in medicine actually because they are a very important source of hepatitis, especially the tattoos which date back quite a few years.  So as part of our inspection which is part of the medical examination Dr Johnson must be aware of, we have to give --  are directed to take into our history the accounts of the tattoos and the duration of the tattoos because they can lead towards hepatitis and hepatitis is a source of severe joint aches and pains.  That is, I think, a natural reflex of a physician.  When they look at the tattoo they just stop there for a second or so, so if I had passed some remarks about the tattoo I am not a hundred per cent sure.”

19.	Later, however, the doctor is recorded as saying:
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“Q	What did you say about the tattoo?
A	I cannot recall it; I do not remember.  To be honest, I do not remember exactly what I said.

Q	It is nothing to do with hepatitis, is it, the questions you asked?
A	No, I do not think so.

Q	So the explanation you have given about hepatitis being a clinical concern had no relevance to Patient A and what you asked her?
A	With her age no, no.”

20.	On behalf of Dr Raza it was submitted that in the light of the evidence of Patient A the conclusion that his remark concerning the tattoo was sexually motivated was illogical and unsupportable.  On behalf of the GMC it was submitted that it was open to the Panel to view this incident by reference to the evidence as a whole and to conclude, as it did, in the light of the admissions made and conclusions reached in relation to the doctor’s conduct as a whole that this was a pattern of sexually motivated conduct.  Counsel for the GMC also relied on the content of the document at page 160 because it showed that this issue was part of the initial complaint made by Patient A.  Finally, it was submitted that the Panel was entitled to reach the conclusion it reached because the only explanation offered was a spurious one which the doctor later withdrew.

21.	I am persuaded that the Panel ought to have analysed the evidence in relation to this issue rather more critically than apparently they did and that it ought to have concluded that sexual motivation for the remark was not proved and thus the finding that it made in relation to this issue was wrong.  My reasons for reaching that conclusion are as follows.  Firstly, I do not regard the document at page 160 as at all helpful to the issue I am now considering because there is no record of a suggestion being made by Patient A that she regarded the remark as sexually motivated or indeed objectionable at all.  There is no record of this remark being made in the notes at page 161 other than the recollection of Patient A that the doctor was “quite chatty”.  Secondly, Patient A’s evidence is entirely clear.  She agreed unambiguously with the suggestion that the remark was said in a reassuring and positive way.  If Patient A’s evidence is read as a whole (I have read the whole of this transcript) it is clear that where she disagreed with a suggestion that was put to her she was capable of rejecting it and did so - see, by way of example only, page 186H, 187A, 188F-H, 189A-C, 190G and 191F-G.  Whilst I accept that if Patient A had alleged that the remark was sexually motivated the Panel would have been entitled to test that allegation by reference to the whole of the evidence, in my judgment the Panel was wrong to conclude that the remark was sexually motivated in the absence of any allegation to that effect from Patient A.  Whilst I accept that Dr Raza advanced an explanation that in the end he withdrew, it does not necessarily follow from that that it must be concluded that the remark was sexually motivated.  A nervous professional facing the prospect of the loss of his livelihood might be tempted into advancing after the event explanations that are not truthful and because that is so care needs to be taken before finding an allegation proved by reference to such an event, particularly where, as here, the complainant has not made the allegation being considered.  I conclude therefore that the Panel was wrong to find that the remark that was made was sexually motivated and in consequence was also wrong to conclude that the remark was an abuse of the doctor’s professional position.

22.	The First Embrace
It was admitted by Dr Raza that at the conclusion of the consultation, whilst shaking hands with Patient A, he gripped her right hand firmly, that he pulled her towards him and that he pulled her into an embrace.  He also accepted that he may have said to her that it was good to see her that day but (a) he denied that he whispered the remark and (b) he denied that any of the conduct, including the remark, was sexually motivated.  In answer to a question from a Panel member the following exchange took place between the Panel member and Patient A, as recorded at page 200 in the bundle.  
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“Q	The third thing – and you will be pleased to know that this is the last bit – if the hugging had not happened and all that had been said to you was ‘It is good to see you; it has been good to see you today’, would you have been worried by that comment in and of itself?
A	No.”

23.	On behalf of Dr Raza it was submitted that Patient A was anxious about the consultation.  In response to a question to Patient A about this she said as follows at page 183G:
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“Q	You are anxious and apprehensive about seeing a doctor in those circumstances.
A	Possibly, yes.”

This answer was inconsistent with an earlier answer from Patient A that she was “Okay at the beginning really”.  She denied that it was anxiety that prevented her from completing a questionnaire during the consultation.  She also accepted a little later that she was upset in the course of the consultation (see transcript at page 186G-H).  A little later still she said that she was not anxious at the start of the consultation (see transcript page 191C).  She said at that stage (at 191C-D):
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“I do not think I was upset; maybe a bit nervous because I had never had one of those before.  Like you said, I did not know what to expect but I did not get upset at any point.”

In my judgment the best that can be said of this evidence taken as a whole was that it would be natural in the circumstances for Patient A to be nervous at the outset in relation to a procedure which she had not previously experienced.  Even if it could be said that this nervousness ought to have been regarded as anxiety, the cause of the anxiety or nervousness was apprehension in relation to the consultation.  The reason for that apprehension had entirely disappeared by the end of the consultation when the embrace occurred.  The only explanation offered for the embrace was to comfort.  

24.	In my judgment the Panel was entitled to conclude in those circumstances that the true reason was sexual.  In my judgment the Panel was entitled to take into account the circumstances surrounding the text message, its transmission and the Panel’s conclusions about that incident in reaching a conclusion concerning the motivation for the embrace.  It was submitted that the Panel ought to have reached a different view because, whatever the position might have been in relation to the cause of anxiety having disappeared, the nature of the embrace was that to be expected between relatives who had been separated for a substantial period of time.  The evidence in relation to this point does not satisfy me that the Panel was wrong to conclude that the embrace was sexually motivated.  There was clear evidence from Patient A that she felt very uncomfortable about what happened (see transcript page 178B-C).  Although at page 191E-F Patient A did describe the embrace as one to be expected of a relative who had not been seen for a long time, she also made the entirely valid point that she was not a relative of Dr Raza (page 191M).  The weight to be attached to the evidence of Patient A was something that in the circumstances could only properly be assessed by the Panel.  It was they who observed how she gave her evidence, her demeanour throughout and on what parts of her evidence she placed particular emphasis.  On this evidence the Panel was entitled to conclude that the embrace was sexually motivated.  It is certainly not possible to conclude by reference to this material that the Panel was wrong to reach that conclusion.  Indeed, in reaching the conclusion about motivation for this incident, the Panel was entitled – indeed, I would go further and say obliged – to look at the evidence as a whole.  The Panel was thus entitled to take account of the circumstances surrounding the transmission of the text message and their conclusions about it in assessing the evidence in relation to this particular allegation.  

25.	Although the allegation that what was admittedly said during the first embrace was whispered is challenged, in my judgment there is no sound basis for saying that the Panel was wrong to reach the conclusion that it reached on this issue.  Patient A gave clear evidence on the issue - see transcript page 178A-B - and the Panel was entitled to accept that evidence.  There is no proper basis on which an appeal court could interfere with that finding given that evidence.  It is true to say that the incident is not something that appeared in the notes of the initial complaint.  However the difference between the issue I am now considering and the issue that arose in relation to the tattoo is that Patient A gave oral evidence which was supportive of the doctor in relation to the tattoo remark but did the opposite in relation to the issue I am now considering.  As I have said, the Panel had the benefit of seeing Patient A’s response to these points and was uniquely well-positioned to form a view as to the merits of that point in the light of the evidence she gave.  

26.	In relation to the answer given by Patient A at page 200 it is possible to conclude that the witness considered either that the remark was not of itself offensive whatever the circumstances were, even if the embrace was, or that what would otherwise be inoffensive became so as a result of the embrace.  I conclude, on balance and looking at her evidence as a whole and having read it as a whole, that it was the second of these two meanings that was intended.

27.	The Second Embrace
The Panel found that Patient A tried to push Dr Raza away but rejected as unproven an allegation that Dr Raza continued to grip her with his right hand.  The Panel found proved an allegation that Dr Raza then pulled Patient A back towards him and embraced her again, whereafter he whispered to her words to the effect of, “I have never looked after anyone like I have looked after you today”.  The Panel also concluded that Dr Raza continued to pull Patient A towards him despite attempts by the patient to push the doctor away.  The Panel concluded that the actions they found proved were sexually motivated.  

28.	It was submitted on behalf of Dr Raza that the Panel’s findings were wrong because (a) in the note of the original complaint it was only ever alleged that the doctor had embraced Patient A once and not twice; (b) the accuracy of the notes was confirmed by Patient A in the course of her oral evidence; (c) therefore Patient A’s evidence concerning the second embrace ought to have been rejected as unreliable by the Panel.  In any event it was submitted that the finding that the doctor continued to pull Patient A towards him, despite her attempts to push him away, was perverse because it was necessarily inconsistent with a finding that the allegation that the doctor continued to grip Patient A’s right hand was not proved.  

29.	It is true to say that the email notes of interview at page 161 refer to only one embrace.  However, as I have said already, the absence from the notes of mention of one particular part of the incident does not necessarily lead to the conclusion that the particular part of the incident in question did not occur.  It is true to say that Patient A was asked about the contents of the notes taken of her initial complaint both in chief and in cross-examination.  Her evidence in chief in relation to this issue is at page 182 of the transcript and was to the following effect:
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“Q	If you look on the desk in front of you, you will see two documents, they probably have not been marked up but we have them as C2 which is the file note from Sue Maynard dated 21 January 2009.  Have you got that in front of you?
A	Yes.

Q	In relation to that, can you just take a brief read through it yourself, please?  (Pause)  Is there anything that is wrong in terms of what you would have mentioned to either Sue Maynard or anybody else at that meeting?
A	No, that is all correct.

Q	You will see another document, an email from Jane Jordan dated 22 January (RC/3).  There is certain information here in this document described from ‘Miss M’ in this instance.  Can you tell us who ‘Miss M’ refers to, please?
A	Me.

Q	Can you briefly take a look through that and say if there is anything that this individual has incorrectly noted as regards what you said at this meeting, please?
A	That is correct.”

As I suggested in the course of the hearing, this is not evidence that the document is comprehensive, merely that what appeared in the document was itself correct.  Indeed, she was not asked if it was comprehensive. That is not at all surprising given that the counsel for the GMC knew that if what Patient A said was correct then the document clearly was not a comprehensive record of what was alleged.  In those circumstances this evidence in my judgment does not assist the doctor on this appeal by reference to the point I am now considering.

30.	Counsel then appearing for Dr Raza returned to this issue at page 188 of the transcript where the following exchange took place:
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“Q	You have been asked to look at a note of what could be described as the complaint you made to the Family Health Services, the PAL Service, in a meeting on 21 January 2009.
A	Yes.

Q	And you confirmed that that note which we have at C2(sic) is accurate.
A	Yes.

Q	I wonder if you could just look at the paragraph which starts ‘Miss M was ready to leave the appointment and stood up and so did Dr R.  Miss M put her hand out to shake Dr R’s hand …’  Do you see that paragraph?
A	Yes.

Q	There is only one hug described there, is there not?
A	That was just one person’s notes.

Q	This is one person’s notes which you had the opportunity to review and confirm as being accurate.  Let us take it in stages.  Do you accept that only one hug is referred to in this note?
A	I do.

Q	Is it not right that is all you described to the people at the PAL Service when you made your complaint?
A	It is not, no.  I made clear … 

Q	Unfortunately you …

A	I am very nervous today.  I made clear and I have always made clear that there were two hugs.  I wrote my own statement stating that there were two.

Q	But this is the note you confirmed as being accurate and which you accept only mentions one hug, yes?

A	Well I faux pas-ed before then.  There is an inaccuracy on this but I am very nervous.

Q	Were you?

A	I know there is two hugs.”

The Panel was plainly entitled to accept that evidence and the contrary in my judgment is not seriously arguable.  Thus it was entitled to find that a second embrace took place essentially as described by Patient A as found by the Panel.  There is no basis on which I can conclude that the Panel was wrong to reach that conclusion having regard to that evidence which, as I say, the Panel was entitled to accept.

31.	I now turn to the suggestion that finding that Patient A was pulled by Dr Raza towards him was necessarily inconsistent with a finding that he did not continue to grip her right hand.  Firstly, I am not able to accept that the findings are necessarily inconsistent.  The Panel found that the allegation that the doctor pulled Patient A back towards him, had been proved.  That finding is not attacked on inconsistency grounds.  If the doctor was able to pull the patient back towards him, notwithstanding that he released her right hand, I do not see why he could not also continue to pull the patient towards him.  Aside from that point the clear implication of the finding is that the Panel accepted the evidence of the patient over that of the doctor wherever there was a conflict in relation to the description of what happened at the end of the consultation, other than in the particular respect where the Panel concluded that the evidence did not establish the particular allegations made.  They had the benefit of seeing both the doctor and the patient give evidence and they were entitled in my judgment to come to the view that they did.  Thus the Panel is entitled to accept Patient A’s evidence at 191C-D to this effect:
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“Q  I think we have gone over the ground.  You have explained that you were anxious so I do not think I need to.

A	  Not that anxious though.  I was not that anxious so I was fine at the beginning.

Q Forgive me, you were anxious during the consultation.

A	  I do not think I was upset, maybe a bit nervous because I had never had one of those before.  Like you said, I did not know what to expect but I did not get upset at any point …

Q	 When you described the hug you described the hug as though it was hugging a relative who had not been seen for a long time.  That is the description you used.

A	 Yes.

Q 	Is that an accurate description?

A	 Well, not completely because I was not exactly hugging back but it felt like he was hugging me as if you would hug a relative, yes.

Q	  So in a reassuring fashion.  Do you accept that?
A	Maybe, but I am not a relative.

Q 	Do you accept that essentially this doctor, confronted with an anxious patient, was simply trying to provide reassurance which you may have misinterpreted?

A 	No, it was not reassurance.”

32.	Her evidence in chief is at page 178B-G, the critical questions and answers of which are as follows:
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“Q  How did you feel about that?

A	 Very uncomfortable but I think I just went into shock and did not really know what to do.

Q  So did you do anything at that point when he whispered it to you?

A  I think, I do not know, just out of reflex I think I said, ‘You too’.

Q  Did you remain there?

A  Then I tried to push him away.

Q	  Can you remember how you did that, please?
A	I cannot really remember exactly how.  No I cannot remember exactly.

Q	  Your evidence so far has been that you have shaken hands and the gentleman has come towards you and tried to whisper something in your ear.  Had he let of your hand at that stage?

A	I honestly could not tell you.

Q	When you said you tried to push him away, how did you try to push him away, please?

A	I think I kind of --  Certainly my left hand was free so I put that sort of higher up and sort of round his chest to wherever and tried to push him back that way.

Q	What happened once you tried that, please?

A 	He hugged me again and this time said, ‘I’ve never looked after anyone the way I have looked after you today’.

Q	  How did that make you feel?

A 	A bit scared.”

There is no basis on which I can conclude that the Panel was wrong to reach the conclusions that it did in relation to this factual issue.  

33.	The conclusion that this conduct was sexually motivated is also challenged.  In my judgment the Panel was entitled to reach the conclusion that it did having regard to the totality of the evidence before it.  It was entitled to take into account the conclusion that had been reached concerning the first embrace.  It was entitled to take account of the circumstances that surrounded the sending of the text message and the conclusions reached about it.  It was also entitled to reach that conclusion by reference to the evidence of Patient A that she was resisting the doctor’s continued attempts to embrace her.  It is true to say that these are not all points that feature in the reasons given by the Panel for reaching their conclusion.  However, this is an appeal and I am entitled – indeed obliged – to look at the whole of the material before the Panel in deciding whether the Panel was wrong to reach any particular factual findings that it made. 

34.	At this stage I should mention some general points made on behalf of the doctor which are said to be relevant to all the findings of sexual motivation in relation to the consultation.  These points include the common ground that (a) there were a lot of people waiting to see the doctor; (b) the door of the consultation room was never locked; (c) the doctor, when examining Patient A, did not ask her to undress or touch her inappropriately; (d) no complaint was made concerning the way in which the examination itself was conducted; (e) that the doctor did not expressly suggest he was attracted to her; (f) the doctor did not use any lewd or indecent language.  In my judgment these points do not assist on the essential point of whether the actual conduct of the doctor was sexually motivated or not.  The relevant conduct took place in a consulting room when no one else was present.  Whilst locking the door might have provided further evidence to support a finding of sexual motivation, its absence does not necessarily negate such a finding.  Likewise inappropriate physical examination might have supported a finding of sexual motivation but its absence does not negate it.  Precisely similar considerations apply to the absence of any express assertion of physical attraction or the use of indecent language.  Thus the Panel were entitled to leave these matters out of account when reaching the conclusions that they did, or to conclude alternatively that these points were outweighed by the other matters on which they relied.  It is certainly not possible for me to conclude that the findings the Panel made were wrong by reference to these points having regard to the oral evidence that was given, in particular by Patient A.  

35.	Finally, and against this background, I turn to the text message incident.  The challenge is only to the finding that the sending of the text message was sexually motivated.  The terms of the text are not in dispute and were to the following effect: 

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“Dear Melissa, I hope you are well.  I am in Blackburn today … again. Sorry for the inconvenience but I just wanted to ask a couple more things actually in relation to your accident.  What is the best time to call you?  T care and kind regards, Dr Raza.”

36.	The conclusions of the Panel as to the sending of this message were as follows:
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“The Panel has considered the three reasons you claim to have for sending the text to Patient A, namely to request her photo ID, to gain details of the locus of the accident and to take further details as to her travel anxiety.  The Panel notes that in your evidence in chief you said it was important to obtain photographic identification from claimants but you later resiled from that position, claiming that such a requirement only recently came into effect.  The Panel also notes that it was you who completed the section of the pro forma giving details of the accident and that had you required further details of the accident locus you would not have sent off the report by the following day without a reply from Patient A.  In relation to the issue of travel anxiety the Panel accepts the evidence of Patient A that she was not suffering from such anxiety and considers that if such details were sufficiently important you would have dealt with them at the consultation or would have specifically mentioned them in the text.  The Panel is of the view that your sending the text message to Patient A was an attempt to make further contact with her and on the basis of the earlier findings the only explanation is that it was sexually motivated.”

37.	Dr Raza’s submissions were that 
(1)	there was an established procedure by which the doctor encouraged patients to contact him directly; 
(2)	the text message does not express or imply a sexual motivation and the Panel’s conclusions confuse over-familiarity, which is admitted, with sexual motivation; 
(3)	Dr Raza was engaged in completing the report at the time the text was sent which lends support, so it is submitted, to the view that the ostensible purpose for sending the text message was in fact its true purpose; and
(4)	there was an outstanding issue concerning “travel anxiety” that had been left over from the consultation which the doctor wished to finalise before submitting his report.  

38.	The GMC’s submission in relation to this issue was that the Panel was entitled to come to the view it had arrived at and there was no proper basis on which the Court could conclude that the Panel was wrong to reach the view that it had reached.  In support of that conclusion the GMC relied on the following points: 
(1)	that the text message was sent to the personal phone of a young and vulnerable patient who could and should have been contacted only through the solicitors who had instructed the doctor in the first place; 
(2)	it was informal in tone;
(3)	it proffered unnecessary information about the doctor’s personal whereabouts; 
(4)	various explanations were given as to why contact was made, none of which stood up to examination; 
(5)	the text message was sent during the late afternoon of the day it was sent, no response was received but the report was sent off without a covering note from the doctor drawing the attention of the solicitor instructing the doctor as to the absence of the material which was supposedly the reason for making contact with the patient in the first place and in circumstances where no further attempt to follow up the issues was made.  In those circumstances the inference of sexual motivation was irresistible.

39.	In my judgment there is no proper basis for concluding that the Panel was wrong to reach the finding that it reached, essentially for the reasons identified by the GMC in its submissions.  The points made by the GMC are not merely lawyers’ points; they are matters that the complainant herself, at least in part, identified in the course of her evidence as matters which concerned her.  At page 192 of the transcript she is recorded as saying: 
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“Q  But the doctor was simply trying to get some further information from you, was he not, about the report?

A	  Then why not just ring?

Q	  Forgive me, could you just explain what you mean by that?

A	  Because I found it unusual that he texted.  If he had rung from, say, the surgery, that would have been fine, but the text is unacceptable, especially when I did not give him permission to use my number in that way.

Q	  But your details had been provided obviously for the purposes of the preparation of the report.

A   Of course, yes.

Q	   Are you saying that the fact that you were contacted via a text as opposed to simply being called on the telephone you object to?

A  If felt like there is an implication in the message as well.  He is not someone I knew.  There is no need for him to tell me he’s in Blackburn again today.  He is not some friend of mine, he’s a doctor.

Q	  But the message simply said he wanted to ask a couple more things in relation to the accident, yes?

A	  Well, it could have been a bit more formal if that was all it was.

Q  Perhaps it could have been more formal but he was not contacting you out for a drink, was he?

A	  No, but it’s an opening door, is it not?

Q	  You did not reply to the text.

A  I did not, no.”

No sensible explanation was offered as to why the doctor would have wished to contact Patient A at all.  The outstanding issues that were supposedly of concern to the doctor were those set out by him in chief as follows at page 233 of the transcript: 
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“Q  Are you able to remember why you gave her the details and what was said in relation to her contacting you?

A  It was that she failed to produce any photo ID at the time of the accident.  Secondly, she did not write any detail of how this accident happened, where it happened and what was the name of the road, and it lacked a lot of information in the questionnaire with regard to the description of the accident.  Number three, I tried to discuss with her about travel anxiety.  She seemed very anxious.  At the moment I started to discuss with her about the travel anxiety, the psychological aspects of the accident which were of very vital importance in the compensation process, she was extremely anxious and the moment she started to recall the accident I found her very distressed because I had examined her and she was in a lot of pain, so much so that I helped her put the cardigan back on as a gesture of -- I avoided discussing that further.”

As to these points, in relation to the photo identification point, in answer to a question from one of the Panel members the doctor said this at page 283 of the transcript:
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“DR JOHNSON:  Dr Raza, you gave three reasons for contacting Patient A again, the first of which is that she failed to produce photo ID.

A  Yes.

Q	  Can you tell me what happened about that?

A	  About the photo ID, it is not a very strict rule as a matter of fact, but quite recently this has become a very, very strict rule nowadays, only after 30 April, but that was not a prime motive for asking her to contact me or me contacting her.  The main thing, if we design priorities, the top most priority was travel anxiety and psychological aspects; the second priority would have been a proper description of the accident; and the third would have been perhaps ID.”

In relation to the details of the accident and when pressed with the fact that the records kept by the doctor did not suggest there was an outstanding issue in relation to this point, the doctor said at page 252 of the transcript:
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“Q You did not ask Patient A to provide those details on that day.
A	I must have asked.

Q	 Why must you have asked because, for example, if it was accepted you wrote the further annotations on the final page you did not mention there asking the individual to provide the details of the circumstances of the accident, do you?

A	  That is right.  That was not as important as the travel anxiety or psychological aspects, although that was important.  But because the solicitors already do have detail of the roads and the third party in the first instance when people make a claim so that the necessity of texting her and asking her the details of the blah, blah, blah, but the travel anxiety and the psychological aspect were far more important than this one.

Q	  You are not suggesting that you texted her to ask details about the accident circumstances, are you?

A  I texted that I want a couple of informations in my text, if you please refer back to my text message.

Q	  Yes, and you say that was because you require details of where it occurred.

A	  Well of course I thought if I made contact with her I can in the meantime ask this one as well but, as I say, this was not the prime reason for texting her.  The prime reason for texting her was basically to see the psychological because that is the part where people’s compensation is assessed.

Q 	Can I suggest to you that there is no reason why you would have needed the details and it did not form part of the texting to Patient A at that time?

A 	Say that again.

Q	  Can I suggest to you that it was not a reason why you texted Patient A that you required any details of where the accident occurred?

A	  Well if I was to make contact with her I would have one hundred per cent asked her about the roads and these things as well, but as I requested and as I told you earlier, my main concern was basically to make sure that she does not suffer travel anxiety or any psychological aspect as a result of this accident.”

This left the travel anxiety point.  As to this point Patient A was asked about it in re-examination by counsel then appearing for the GMC.  The relevant exchange is recorded at pages 194 to 195 in the transcript and is in the following terms: 
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“Q	My learned friend asked you a question on the basis that this was a fairly detailed questionnaire that you were going through.  Is that correct?
A	 Yes.

Q 	There were clinical issues in it which were discussed.  If it was a detailed questionnaire was there anything left out that you would then have to come back and discuss with Dr Raza about anxiety at a later time?

A 	No.

Q	  Did he indicate to you that he needed further information from you about the anxiety once you had left the consultation?
A	 No.

Q	   Indeed, can you think of what information you might have been able to provide to him concerning the question of anxiety?
A	No.

Q 	The context in which the text was sent suggested that this was sent to somehow gain further information from you about anxiety.  Had you failed to mention anything to the doctor in the consultation itself about this issue?
A	 No.

Q  	Or were there any further questions by way of letter or email or otherwise about further information?
A	 No.

Q	   When you were describing how you felt during the course of this consultation, you talked about the initial session when you were talking to Dr Raza and he was talking to you and you were running through the questionnaire.  During that period how did you feel in yourself?

A	  Just comfortable.”

40.	In the light of this evidence the Panel was plainly entitled to reach the conclusion that it did and the suggestion that it was wrong to reach that conclusion is unsustainable. No other reason for sending the text message was offered by Dr Raza. In those circumstances the only conclusion available to the Panel was that which they reached in the final unnumbered paragraph of their reasons at page 13 in the bundle, namely that the sending of the text message was sexually motivated.  Further, in my judgment, the Panel’s conclusion to this effect is supported by the findings made in relation to what happened at the end of the consultation.

Impairment

41.	Having concluded that misconduct has been established the Panel then had to  consider whether fitness to practise was currently impaired as a result of the conclusions reached concerning past misconduct.  That involves considering whether a serious breach of duty on the part of the doctor had been demonstrated that indicated that the doctor’s present fitness to practise was impaired.  It was accepted that the conclusion that the doctor was guilty of serious misconduct was unassailable if I concluded that his conduct was sexually motivated.  Save in relation to the doctor’s remarks concerning the patient’s tattoo, where I have concluded that the Panel was wrong in the conclusions that it reached, this is what I have done

42.	In those circumstances the next question is whether the Panel was correct to conclude that the doctor’s fitness to practise was currently impaired. There is no doubt that this part of the inquiry focuses not on the past but the present fitness of the practitioner.  However, it is open to a panel to infer present unfitness from past misconduct provided it is first concluded that such misconduct is serious.  This must necessarily follow from the fact that any misconduct must almost of necessity be historical in nature and is in any event apparent from Mitting J’s summary of potential causes of impairment set out by him at paragraph 29 of his judgment in Zygmunt v GMC [2008] EWHC 2643 (Admin).  It follows, as noted in paragraph 27 of Mitting J’s judgment that it is open to the panel, if it finds the practitioner guilty of misconduct, to find that his fitness to practise is not impaired.  As Mitting J said at paragraph 31 of his judgment: 

“In a misconduct … case the task of the Panel is to determine whether fitness to practise is impaired by reason of misconduct ...  It may well be, especially in circumstances in which the practitioner does acknowledge his deficiencies and take prompt and sufficient steps to remedy them, that there will be cases in which a practitioner is no longer less fit to practise than colleagues with an unblemished record.”

As Silber J said in Cohen v GMC [2008] EWHC 581 at paragraph 62:
 
“… The task of the panel is to take account of the misconduct of the practitioner and then to consider in the light of all other relevant factors known to them … whether, by reason of his conduct, his fitness is impaired … There must always be situations in which a panel can properly consider that an act of misconduct was an isolated error on the part of the practitioner and the chances of it being repeated in the future is so remote that his or her fitness to practise …” is not impaired.”

43.	The conclusions of the Panel in relation to this issue in this case were to the following effect:
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“In considering whether your fitness to practise is currently impaired the Panel has taken account of the submissions made as to whether your conduct is remediable, has been remediated and is likely to be repeated.  The Panel notes that this is a case involving your inappropriate and sexually motivated behaviour and an abuse of your professional position.  These are all matters which stem from your underlying attitude.  Such an attitude is not easily remediable.  As to whether your failings have been remedied you have told the Panel that you have taken steps to make changes to your practice.  Whilst these practical changes may serve to protect your patients and yourself in the future they do not address your underlying attitudinal problems.  It notes that you have shortly to attend a course on medical ethics and questions the appropriateness of the course you have chosen in addressing issues in a professional and sexual boundaries.  The Panel considers that this demonstrates your lack of understanding of the nature and seriousness of your behaviour.  Further, the Panel is of the view that the steps you have taken so far to avoid repetition have been made to protect yourself rather than the protection of patients.

In all the circumstances of this case and bearing in mind the public interest and lack of evidence of any attitudinal change, the Panel has determined that your fitness to practise is impaired by reason of your misconduct pursuant to section 35C(2)(a) of the Medical Act (as amended).”

44.	These conclusions have been attacked on behalf of the doctor both substantively and procedurally, the latter by reference to a submission that the reasons given are, in the circumstances, plainly inadequate.  In relation to this last point, it is not to be expected that a panel will set out its reasoning in the manner to be expected of a High Court judgment.  Nevertheless, and particularly given the very serious consequences for the doctor of a unfitness finding against him or her, the reasons given must be sufficient to enable the reader to understand why the issues were decided as they were, which necessarily involves identifying the principal issues concerned and what conclusions were reached in respect of them.  

45.	The submissions that were relevant to the issue of impairment in this case were (a) the doctor’s submission that this was an entirely isolated incident, (b) that his record was an entirely unblemished one; and (c) there was no pattern of predatory behaviour that had been identified or established by the evidence adduced before the Panel.  The Panel may have considered these points and rejected them, or considered them to have been out-weighed by other factors.  If that is so, such is not apparent from the reasons that were given.  

46.	The Panel gave as a reason for finding current impairment was made out that the matters complained of stem from “your underlying attitude”.  However, the reasons given do not define what that attitude is alleged to have been and, more fundamentally, fails to explain the basis for the conclusion and how it was consistent with the points made on behalf of the doctor, that is that the incident in question was isolated and was made by a doctor with an otherwise unblemished record.  

47.	There is one other aspect of the reasoning that to me appears wrong and that concerns the steps taken by the doctor to alter his practice.  The steps taken were said to be that he now always had a chaperone present when examining women patients.  That was dismissed by the Panel as being a step taken “to protect yourself rather than for the protection of patients”.  For my part I do not follow that analysis.  The Panel might have had reasons for rejecting his practice change as not sufficient but they do not set such reasons out in a way that would enable anyone reading the reasons to understand why that was so.  The implication is that the steps taken do not address whatever underlying attitudinal problems troubled the Panel.  However, implication is not good enough in this context where people’s livelihoods and professional standing are at stake.  

48.	Finally, whilst the allegations that were advanced against Dr Raza were set out in a series of numbered paragraphs there were in my judgment, in reality, only two incidents. The conclusions that I have reached concerning the tattoo incident makes this point all the clearer.  The true incidents were (a) what happened at the end of the consultation and (b) the sending of the text message.  Whilst consideration of what happened at the consultation was broken down into a series of numbered propositions and sub-allegations, no doubt in order to assist the Panel in arriving at a coherent finding as to what actually happened, that does not support a conclusion that what happened at the consultation over what at most would be a few moments demonstrates a pattern of behaviour in the way that the Panel apparently concluded.

49.	Finally, although the Panel criticises the doctor for claiming attendance at a course which was not relevant to the issue of professional and sexual boundaries as demonstrating that he has failed to address what were said to be Dr Raza’s underlying but unidentified attitudinal problems, no account appears to have been taken of the doctor’s attempts to find courses that might be more appropriate or of the fact that it was no part of the GMC’s positive case before the Panel that there were courses to which the GMC pointed that the doctor could have but failed to apply to attend or, at any rate, there was no evidence concerning this issue.

50.	All this leads me to conclude that the Panel’s obligation to decide whether, and then to explain why, the doctor’s current fitness was impaired by reason of his past misconduct was not discharged correctly.  In my judgment the Panel did not explain, even to the modest standard imposed on tribunals in these circumstances, why they reached the conclusion that they did.  That of itself would justify quashing this decision.  

Conclusions

51.	For the reasons I have identified, the finding that the doctor’s remarks concerning Patient A’s tattoo were sexually motivated was wrong.  Likewise the approach of the Panel to the impairment issue was wrong.  It follows that the decision of the Panel must be quashed.  Given the impact of my conclusion concerning the tattoo remark the decision would have to have been quashed in any event since, in my judgment, its removal from the relevant findings has a significant impact on the Panel’s conclusion that what had happened was to be regarded as in some way establishing a pattern of misconduct.

52.	In those circumstances, and given the powers of the Court, the next question that arises is what ought to be done.  Given the nature of the conclusions that I have so far reached, the most appropriate course in my judgment is to remit this case to the GMC for the impairment issue to be determined afresh in the light of the conclusions that I have reached, and the sanction issue as well, if that stage is ever reached. It is not for me to express any view on the issues that will have to be determined beyond noting that if the Panel determining these issues concludes that impairment has not been demonstrated on the evidence before it, it is open to the Panel to warn the doctor as to his future conduct.  Any such warning will, of course, form part of the doctor’s record with the GMC. I have not commented on sanction in the course of this judgment because in the circumstances it is not necessary, and thus it is probably inappropriate, that I do so.  If the Panel, having determined the impairment issue, comes to the view the doctor’s fitness to practise is impaired they will no doubt have regard to all options that are available to them, including the imposition of conditions as a manner of dealing with the issue.

53.	I have considered whether what remains to be determined ought to be determined by the Panel that previously determined this case.  On balance I have concluded that that would not be the appropriate course for the following three reasons: 
(1)	the evidence of Patient A is not material for the purpose of determining impairment; what matters is what present impairment is to be inferred from past misconduct as to which there are comprehensive findings of fact as modified by this judgment; 
(2)	given the nature of the criticisms made of the approach of the Panel the appearance of fairness is best achieved by these issues being resolved by a freshly constituted Panel; and
(3)	it is in the interests of all concerned that the matter be brought to a conclusion as soon as possible and a direction that this case be heard by a freshly constituted Panel is most likely to achieve that aim.  

54.	Accordingly, and subject to any further submissions from either party, I propose that the decision be quashed and the case be remitted for the impairment issue and the sanction issue, if applicable, to be determined on an expedited basis by a freshly constituted Fitness to Practise Panel.