“Sexual assault in all but name”: GMC v Haris shapes a new approach to allegations of sexual misconduct

GMC v Dr Raied Haris [2020] EWHC 2518 (Admin) promotes a more robust approach by disciplinary tribunals towards findings of sexual misconduct.

Dr Raied Haris (“RH”) came before the General Medical Council (“GMC”) in 2019. Two patients alleged that he had conducted “non-clinically indicated, intimate examination[s] without informed consent” (§5 of the judgment). The invasiveness of the examinations (§7-9) supported the allegation that they were “sexually motivated” (§13(4)).

RH denied the acts (§6) and claimed to be asexual (§15). The tribunal found that most of the acts had happened and were “overtly” sexual. RH had, however, explained that they “were not for his own sexual gratification, since he had…no interest in sexual matters at all” (§19). The tribunal found the GMC had failed to prove “sexual motivation”.

The GMC appealed that “the tribunal was wrong to find that there was no sexual motivation…where there was no reasonable alternative explanation for [RH’s] behaviour” (§25). RH objected that this imposed a reverse burden of proof (§41).

The Court of Appeal considered Jagjivan [2017] EWHC 1247 (Admin) and Bawa-Garba [2018] EWCA Civ 1879. The latter established that the Court “may interfere both where there is an error of principle when carrying out the evaluation [of misconduct], or where the decision is beyond the bounds of what could properly and reasonably be decided by a tribunal” (§30, §33).

The Court considered the facts. RH had touched the sexual organs of both patients without consent. There was no clinical justification or other reason for doing so (§47). The Court cut through the unreasonable finding of the tribunal. This “was deliberate, unconsented, touching of a woman’s sexual parts…a sexual assault in all but name” (§52).

Terms like “sexual motivation” or “sexual gratification” had distracted the tribunal. It did not matter if RH enjoyed what he did. The point was that he did it, and it was sexual. The Sexual Offences Act 2003 was cited as an aide to understanding the issue (§57-60).

The appeal succeeded. The Court made a finding of sexual motivation (§62). The case was remitted to the tribunal for sanction to be reconsidered.

Haris does not create a reverse burden of proof. Regulators must still prove that misconduct is “sexual”. Nevertheless, Haris does reduce the room for manoeuvre available to registrants. The likely defences to sexual misconduct will always be accident, consent, or clinical justification. Absent these, it may well be “impossible [for a tribunal to reach] any conclusion other than that the touching was sexual” (§60).