GENERAL MEDICAL COUNCIL v JONATHAN EDWARD GAR-WAI MOK

Mrs Justice Lang:

Facts

“1. On or around 26 August 2019, you penetrated the anus of Person A with your penis, and:

a. Person A did not consent to the penetration;

b. you did not reasonably believe that Person A consented to the penetration.

2. Your actions at paragraph 1 were sexually motivated.

And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.”

“PA I remember passing out and falling asleep and then I remember waking up, turned on my front, you inside of me fucking me, and when I felt down you’d lubed me up. (Pause) I thought, did I remember things differently or is that how ---

JM No.

PA -- things happened? So what was going through your mind when I fell asleep that you decided to just fuck me?

JM (Pause) I thought it would have been hot and that you’d have found it quite hot.

…..

JM Well, we’d done stuff in bed before so you had always ---

PA We had done stuff in bed, we’ve had sex when we’re half asleep or whatever, but, John, I was asleep, passed out drunk…’

PA Because if we’re being honest about everything, what’s that?

JM I thought you would have found it a bit hot.

PA You don’t think it’s important that, you know, someone’s sober, someone’s awake, whatever, when you’re having sex with them?

JM (Pause) I’m sorry.

PA Sorry for what John? What did you do – because tell me, I want to hear it, what did you do?

PA Touched you inappropriately and was inside of you when I shouldn’t have been.”

“26. The Tribunal considered the context and circumstances of the video in which the video was recorded. The Tribunal noted that the recording was made the morning after Person A and Dr Mok had been arguing about their relationship. Person A’s evidence was that he had previously raised the incident in conversation with Dr Mok on the day after its occurrence. However, Dr Mok’s evidence was that this recorded conversation on 13 October 2019, was the first time that Person A had made the allegation to him. The Tribunal noted that Dr Mok did not express any surprise or shock when the serious allegation was put to him by Person A. It was also noted that Dr Mok did not question the accusation further, ask for further information about it or display any confusion about the topic as one would expect if hearing it for the first time, as stated by Dr Mok. In addition, the Tribunal were of the view that Dr Mok went further than simply agreeing with Person A, as he attempted to justify the act that had occurred by saying, ‘I thought you would have found it a bit hot’ and said ‘no’ when Person A asked if he had recalled the incident incorrectly.

27. The Tribunal took into account Dr Mok’s evidence that he simply had accepted everything Person A had challenged him about to placate him out of fear for his safety at the time. Dr Mok suggested that he felt under threat of violence at the time from Person A. The Tribunal noted that there was evidence of Person A having anger issues, as noted in his medical records, and had accepted himself breaking things and swearing at Dr Mok’s parents in a telephone call regarding Dr Mok’s birthday party. However, even so, the Tribunal considered that Dr Mok could have responded in a variety of ways, rather than admitting the very serious accusation being raised by Person A. The lack of questioning or denial in Dr Mok's response did not indicate that no sexual activity occurred that evening in Bordeaux nor that this issue was only being discussed between the two for the first time.

28. The Tribunal had regard to Mr Cridland’s submissions that there had been discrepancies between the two accounts given to the GMC and to the French police. It was highlighted that the description given in the email to the GMC of how Person A woke up turned onto his stomach was starkly different to the account in the French police report where he stated ‘I was facing up and Jonathan flipped me over. I was then laying facing down’. The Tribunal carefully considered the various accounts given by Person A and did take the view that in the GMC complaint email dated 2 December 2019, the complaint by Person A was embellished, as the Tribunal did not accept that the reasons given in that email for making the complaint at that time were genuinely held, namely the concerns for those under his care and supervision. Had such concerns been genuinely held, it would have expected the complaint to have been made much earlier, rather than on the day the relationship ended. The Tribunal however took the view that although Person A may have embellished his complaint in some aspects to the GMC, it was mindful that credibility is divisible and that it does not necessarily follow that his evidence ought to be rejected in relation to the facts of the Allegation, which are corroborated by the admissions made by Dr Mok in the video recording.

29. The Tribunal bore in mind Person A’s evidence that there were some slight differences in the French notes due to issues of translation and interpretation. The Tribunal agreed that there were discrepancies in some of the statements made by Person A however, the essential element of the allegation, namely that Dr Mok penetrated the anus of Person A with his penis without his consent, has been consistent throughout the events. In addition, in the covertly recorded conversation of 13 October 2019, which is the first recorded account of the incident by Person A, the description that Person A puts to Dr Mok is consistent with his GMC complaint.

30. The Tribunal reasoned that, on the balance of probabilities, such an incident was more likely than not to have occurred, as Dr Mok stated in the video recording, ‘I thought you would have found it a bit hot’ and apologised at the end, explaining what he was apologising for. The Tribunal was of the view that if nothing unusual had occurred during their holiday, there would be no reason for Person A to believe that he needed to confront Dr Mok about it and record it.

31. The Tribunal determined that none of the accounts given by Person A included his consent nor does it indicate that Dr Mok reasonably believed that person A consented to the penetration. It therefore found paragraph 1(a) and (b) proved.”

MPT determination on misconduct

“65. You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession.”

MPT’s determination on impairment

“Do our findings of fact in respect of the doctor’s misconduct, show that his fitness to practise is impaired in the sense that he:

(a) Has in the past acted and/or is liable in the future to so act so as to put a patient or patients at unwarranted risk of harm and/or;

(b) Has in the past brought and/or is liable in future to bring the medical profession into disrepute and/or;

(c) Has in the past breached and/or is liable in the future to breach one of the fundamental tenants of the medical profession and/or;

(d) Has in the past acted dishonestly and/or is liable to act dishonestly in future.”

MPT’s determination on sanction

Legal framework

MA 1983

“(1A) The over-arching objective of the General Council in exercising their functions is the protection of the public.

(1B) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives—

(a)  to protect, promote and maintain the health, safety and well-being of the public,

(b)  to promote and maintain public confidence in the medical profession, and

(c)  to promote and maintain proper professional standards and conduct for members of that profession.”

“(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—

(a) to protect the health, safety and well-being of the public;

(b) to maintain public confidence in the medical profession; and

(c) to maintain proper professional standards and conduct for members of that profession.”

“(6) On an appeal under this section, the court may—

(a) dismiss the appeal;

(b) allow the appeal and quash the relevant decision;

(c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or

(d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court,

and may make such order as to costs . . . as it thinks fit.”

Appellate jurisdiction

“60.  The GMC’s appeal from the Tribunal to the Divisional Court pursuant to section 40A of MA 1983 was by way of review and not re-hearing. In that respect, it differs from an appeal pursuant to section 40. Sub-paragraphs 19.1(1)(e) and (2) of Practice Direction 52D expressly state that appeals under section 40 are to be conducted by way of rehearing. Appeals pursuant to section 40A are governed by CPR 52.21(1), which provides that, subject to the exceptions mentioned there, appeals are limited to a review of the decision under appeal. That technical difference may not be significant. Whether the appeal from the MPT is pursuant to section 40 or section 40A, the task of the High Court is to determine whether the decision of the MPT is “wrong”. In either case, the appeal court should, as a matter of practice, accord to the MPT the same respect: Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462 at [126]-[128].

61.  The decision of the Tribunal that suspension rather than erasure was an appropriate sanction for the failings of Dr Bawa-Garba, which led to her conviction for gross negligence manslaughter, was an evaluative decision based on many factors, a type of decision sometimes referred to as “a multi-factorial decision”. This type of decision, a mixture of fact and law, has been described as “a kind of jury question” about which reasonable people may reasonably disagree: Biogen Inc v Medeva Plc [1997] RPC 1 at 45; Pharmacia Corp v Merck & Co Inc [2001] EWCA Civ 1610, [2002] RPC 41 at [153]; Todd v Adams (t/a Trelawney Fishing Co) (The Maragetha Maria) [2002] EWCA Civ 509, [2002] 2 Lloyd’s Rep 293 at [129]; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at [46]. It has been repeatedly stated in cases at the highest level that there is limited scope for an appellate court to overturn such a decision. In Biogen, in which one of the issues raised by the defendant was whether the claimant's patent, which the claimant alleged had been infringed by the defendant, should be revoked as invalid because the patented invention was not original, Lord Hoffmann said (at [45]) as follows:

“The question of whether an invention was obvious had been called “a kind of jury question” (see Jenkins L.J. in Allmanna Svenska Elektriska A/B v. The Burntisland Shipbuilding Co. Ltd. (1952) 69 R.P.C. 63, 70) and should be treated with appropriate respect by an appellate court. It is true that in Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370 this House decided that, while the judge’s findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, were virtually unassailable, an appellate court would be more ready to differ from the judge’s evaluation of those facts by reference to some legal standard such as negligence or obviousness. In drawing this distinction, however, Viscount Simonds went on to observe, at page 374, that it was “subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge”. The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation.”

62.  In Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642, [2003] 1 WLR 577, Clarke LJ cited that passage (at [19]) and also said as follows:

“15.  In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a “rehearing” under the Rules of the Supreme Court and should be its approach on a “review” under the Civil Procedure Rules 1998.

16.  Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.”

63.  These paragraphs were approved by the House of Lords in Datec at [46]. In the recent case of R (Bowen and Stanton) v Secretary of State for Justice [2017] EWCA Civ 2181, McCombe LJ explained (at [65]) that, when the appeal is from a trial judge's multi-factorial decision, “the appeal court’s approach will be conditioned by the extent to which the first instance judge had an advantage over the appeal court in reaching his/her decision. If such an advantage exists, then the appeal court will be more reticent in differing from the trial judge's evaluations and conclusions”.

64. In Bowen and Stanton, McCombe LJ went on (at [67]) to quote from Lord Clarke's judgment in Re B (A Child) (Care Proceedings) [2013] UKSC 33; [2013] 1 WLR 1911 at [137] as follows:

“In England and Wales the jurisdiction of the Court of Appeal is set out in CPR rule 52.11(3), which provides that ‘the appeal court will allow an appeal where the decision of the lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court’. The rule does not require that the decision be “plainly wrong”. However, the courts have traditionally required that the appeal court must hold that the judge was plainly wrong before it can interfere with his or her decision in a number of different classes of case. I referred to some of them in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 ... at my paras 9-23. It seemed to me then and it seems to me now that the correct approach of an appellate court in a particular case may depend upon all the circumstances of that case. So, for example, it has traditionally been held that, absent an error of principle, the Court of Appeal will not interfere with the exercise of a discretion unless the judge was plainly wrong. On the other hand, where the process involves a consideration of a number of different factors, all will depend on the circumstances. As Hoffmann LJ put it in In Re Grayan Building Services Ltd (In Liquidation) [1995] Ch 241, 254, ‘generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge’s decision’.”

65. McCombe LJ also quoted (at [71]) the case of Smech Properties Ltd v Runnymede Borough Council [2016] EWCA Civ 42, in which Sales LJ said as follows:

“29. ... Where an appeal is to proceed, like this one, by way of a review of the judgment below rather than a re-hearing, it will often be appropriate for this court to give weight to the assessment of the facts made by the judge below, even where that assessment has been made on the basis of written evidence which is also available to this court. The weight to be given to the judge's own assessment will vary depending on the circumstances of each particular case, the nature of the finding or factual assessment which has been made and the nature and range of evidential materials bearing upon it. Often a judge will make a factual assessment by taking into account expressly or implicitly a range of written evidence and making an overall evaluation of what it shows. Even if this court might disagree if it approached the matter afresh for itself on a re-hearing, it does not follow that the judge lacked legitimate and proper grounds for making her own assessment and hence it does not follow that it can be said that her decision was “wrong”.”

66. McCombe LJ commented on that passage as follows:

“72. It seems to me that Sales LJ was addressing the exigencies of reviewing a first instance judge's assessment of primary facts, even where (as in our case) the evidence before the court below was entirely in writing. All will depend on the circumstances of the case and what opportunity the court has, in reality, to improve and correct the overall assessment of the evidence before the first instance judge as a whole.”

67. That general caution applies with particular force in the case of a specialist adjudicative body, such as the tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts: see Smech at [30]; Khan v General Pharmaceutical Council [2016] UKSC 64, [2017] 1 WLR 169 at [36]; Meadow at [197]; and Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460 at [18]-[20]. An appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation or (2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide: Biogen at [45]; Todd at [129]; Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC) [2001] FSR 11 (HL) at [29]; Buchanan v Alba Diagnostics Ltd [2004] UKHL 5, [2004] RPC 34 at [31]. As the authorities show, the addition of ‘plainly’ or ‘clearly’ to the word ‘wrong’ adds nothing in this context.”

“In summary:

(i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR part 52. A court will allow an appeal under CPR part 52.21(3) if it is ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’.

(ii) It is not appropriate to add any qualification to the test in CPR part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.

(iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must, however, be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses who the tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).

(iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR part 52.11(4).

(v) In regulatory proceedings, the appellate court will not have the professional expertise of the tribunal of fact. As a consequence, the appellate court will approach tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise and what is necessary to maintain public confidence and proper standards in the profession and sanctions with diffidence: see Fatnani at paragraph 16 and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.

(vi) However, there may be matters, such as dishonesty or sexual misconduct, where the court ‘is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the tribunal ...’: see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court ‘will afford an appropriate measure of respect of the judgment in the committee ... but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances’.

(vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice because the overarching concern of the professional regulator is the protection of the public.

(viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the tribunal's decision unjust (see Southall at paragraphs 55 to 56).”

“108.  We endorse the approach of the court in Bawa-Garba, as appropriate to the review jurisdiction applicable in section 40A appeals. We regard the approach of the court in section 40 appeals, as identified in Ghosh and approved in Khan, as appropriate in section 40 appeals which are by way of a rehearing.”

“24.  The MPT in this case referred to two authorities on how to direct itself to the Sanctions Guidance. CRHP v GMC & Leeper [2004] EWHC 319 was cited for the proposition that the aim of the Guidance is to promote the consistency and transparency of Tribunal decisions - a matter to which it must have regard although each case will depend on its own facts. The Court of Appeal in PSA v HCPC & Doree [2017] EWCA Civ 319 was cited for the principle that departure from the Guidance must be explained. A Tribunal should have proper regard to the Guidance, and apply it as its own terms suggest, unless it has sound reasons for departing from it - in which case it has to state those reasons clearly in its decision. Again, however, a degree of flexibility and fact-sensitivity is acknowledged.

25.  The High Court in GMC v Khetyar [2018] EWHC 813 had before it the particular issue of applying the Guidance in determining suspension rather than erasure. It characterised the Guidance as an ‘authoritative steer’ as to the application of the principle of proportionality in balancing the public interest against the interest of the individual professional. Accordingly, ‘a proper conclusion that suspension is sufficient cannot be reached without reference to and careful consideration of advice in the Guidance that erasure may be or is likely to be appropriate where that advice is pertinent to the facts of a particular case’. The Court said this (paragraph 22):

Again, of course, it remains advice and not prescription: tribunals must ultimately judge each case on its own merits, and are entitled in principle to depart from that steer. Doing so, however, requires careful and substantial case-specific justification. A “generalised assertion that erasure would be a disproportionate sanction and that the doctor's conduct was not incompatible with his continued registration”, where the Guidance gives a clear steer towards erasure, properly considering what is says about important features of the case in question, will be inadequate and will justify the conclusion that a tribunal has not properly understood the gravity of the case before it: see GMC v Stone [2017] EWHC 2534 (Admin) at [53].

26.  The error identified in Stone was failure properly to consider the objective features of the case, to demonstrate that their gravity had been fully understood, and then to address and explain how the available mitigation operated to justify the imposition of the sanction of suspension. The court emphasised that this is not elevating form over substance; proper regard to the Guidance is important in its own right, and giving clear reasons for divergence is part of the MPT’s functions in articulating in the public domain how its determinations properly serve the overarching objective.”

“29. I see no basis in the relevant jurisprudence for the contention that it was incumbent on the Panel to “adhere” to the guidance in the Indicative Sanctions Policy if that concept is intended to mean anything more than having proper regard to the guidance and applying it as its own terms suggest, unless the Panel had sound reasons for departing from it – in which case they had to state those reasons clearly in their decision.”

Sanctions Guidance

“20 In deciding what sanction, if any, to impose the tribunal should consider the sanctions available, starting with the least restrictive. It should also have regard to the principle of proportionality, weighing the interests of the public against those of the doctor (this will usually be an impact on the doctor’s career, e.g. a short suspension for a doctor in training may significantly disrupt the progression of their career due to the nature of training contracts).

21 However, once the tribunal has determined that a certain sanction is necessary to protect the public (and is therefore the minimum action required to do so), that sanction must be imposed, even where this may lead to difficulties for a doctor. This is necessary to fulfil the statutory overarching objective to protect the public.”

“Sexual misconduct

149 This encompasses a wide range of conduct from criminal convictions for sexual assault and sexual abuse of children (including child sex abuse materials) to sexual misconduct with patients, colleagues, patients’ relatives or others. See further guidance on sex offenders and child sex abuse materials at paragraphs 151–159.

150 Sexual misconduct seriously undermines public trust in the profession. The misconduct is particularly serious where there is an abuse of the special position of trust a doctor occupies, or where a doctor has been required to register as a sex offender. More serious action, such as erasure, is likely to be appropriate in such cases.”

“Sex offenders and child sex abuse materials

151 Any doctor who has been convicted of, or has received a caution for, a sexual offence listed in Schedule 3 to the Sexual Offences Act 2003 must notify the police (register) under section 80 of the Sexual Offences Act 2003 and may need to undertake a programme of rehabilitation or treatment. Sexual offences include accessing and viewing, or other involvement in, child sex abuse materials, which involves the exploitation or abuse of a child. These offences seriously undermine patients’ and the public’s trust and confidence in the medical profession and breach a number of principles set out in Good medical practice (paragraph 65 regarding honesty and integrity, particularly paragraph 47 regarding respecting patients’ dignity, and paragraph 27 regarding children and young people).

152 Taking, making, sharing and possessing an indecent image or pseudo-photograph of a child is illegal and regarded in UK society as morally unacceptable. For these reasons, where there is any involvement in child sex abuse materials by a registered doctor the tribunal should consider whether the public interest demands that their registration be affected.

153 While the courts distinguish between degrees of seriousness, any conviction for child sex abuse materials against a registered doctor is a matter of grave concern because it involves such a fundamental breach of the public’s trust in doctors and inevitably brings the profession into disrepute. It is therefore highly likely that, in these cases, the only proportionate sanction will be erasure. However, the tribunal should bear in mind paragraphs 20–23 and 61–111 of this guidance, which deal with the options available to it, and the issue of proportionality. If the tribunal decides to impose a sanction other than erasure, it is important that it fully explains the reasons and the thinking that has led it to impose this lesser sanction so that it is clear to those who have not heard the evidence in the case.

…….”

“67 The tribunal’s written decision is known as the determination. It must give clear and cogent reasons (including mitigating and aggravating factors that influenced its decision) for imposing a particular sanction. It must show that it started by considering the least restrictive option, working upwards to the most appropriate and proportionate sanction. This is particularly important where the sanction is lower, or higher, than that suggested by this guidance and/or where it differs from those submitted by the parties…..”

“Suspend the doctor’s registration (for up to 12 months)….

91 Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention.

92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (i.e. for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession).

93 Suspension may be appropriate, for example, where there may have been acknowledgement of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated. The tribunal may wish to see evidence that the doctor has taken steps to mitigate their actions (see paragraphs 24–49).

…….

97. Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate.

a A serious breach of Good medical practice, but where the doctor’s misconduct is not fundamentally incompatible with their continued registration, therefore complete removal from the medical register would not be in the public interest. However, the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors.

b In cases involving deficient performance where there is a risk to patient safety if the doctor’s registration is not suspended and where the doctor demonstrates potential for remediation or retraining.

c In cases that relate to the doctor’s health, where the doctor’s judgement may be impaired and where there is a risk to patient safety if the doctor were allowed to continue to practise even under conditions, or the doctor has failed to comply with restrictions or requirements.

d …..

e No evidence that demonstrates remediation is unlikely to be successful, e.g. because of previous unsuccessful attempts or a doctor’s unwillingness to engage.

f No evidence of repetition of similar behaviour since incident.

g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour.”

……

Determining the length of suspension

99 The length of the suspension may be up to 12 months and is a matter for the tribunal’s discretion, depending on the seriousness of the particular case.

100 The following factors will be relevant when determining the length of suspension:

a the risk to patient safety/public protection

b the seriousness of the findings and any mitigating or aggravating factors (as set out in paragraphs 24–60)

c ensuring the doctor has adequate time to remediate.

101 The tribunal’s primary consideration should be public protection and the seriousness of the findings. Following any remediation, the time all parties may need to prepare for a review hearing if one is needed will also be a factor.

102 The table on the next page gives examples of aggravating factors that will also be relevant to the length of suspension, under broad categories, depending on the nature of the case.”

“Erase the doctor’s name from the medical register

107 The tribunal may erase a doctor from the medical register in any case – except one that relates solely to the doctor’s health and/or knowledge of English – where this is the only means of protecting the public.

108 Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor.

109 Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive).

a A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor.

b A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety.

c Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients (see further guidance below at paragraphs 129–132 regarding failure to provide an acceptable level of treatment or care).

d Abuse of position/trust (see Good medical practice, paragraph 65: ‘You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession’).

e Violation of a patient’s rights/exploiting vulnerable people ….

f Offences of a sexual nature, including involvement in child sex abuse materials (see further guidance below at paragraphs 151 - 159).

g Offences involving violence.

h Dishonesty, especially where persistent and/or covered up ….

i Putting their own interests before those of their patients ….

j Persistent lack of insight into the seriousness of their actions or the consequences.”

“163 It is important that no doctor is allowed to resume unrestricted practice following a period of conditional registration or suspension unless the tribunal considers that they are safe to do so.

164 In some misconduct cases it may be self-evident that, following a short suspension, there will be no value in a review hearing. However, in most cases where a period of suspension is imposed, and in all cases where conditions have been imposed, the tribunal will need to be reassured that the doctor is fit to resume practice – either unrestricted or with conditions or further conditions. A review hearing is therefore likely to be necessary, so that the tribunal can consider whether the doctor has shown all of the following (by producing objective evidence):

a they fully appreciate the gravity of the offence

b they have not reoffended

c they have maintained their skills and knowledge

d patients will not be placed at risk by resumption of practice or by the imposition of conditional registration.

…..

168. Where a doctor’s registration is suspended, the tribunal may direct that:

a the current period of suspension is extended (up to 12 months)

b the doctor’s name is erased from the medical register ….

c impose a period of conditions (up to three years).

……”

Grounds of appeal

Ground 1

“Suspension

……

24. The Tribunal noted that there was no indication of malicious intention or the intention to cause distress and harm to person A as evident in the video recording where Dr Mok stated ‘I thought it would have been hot and that you’d have found it quite hot’.

25. The Tribunal heard some evidence during these proceedings that on occasions there had been sexual activity initiated between person A and Dr Mok whilst asleep.

26. The Tribunal also took into account that the sexual activity and misconduct had occurred not in a doctor patient relationship where there is a position of trust in a professional context.

27. The Tribunal was satisfied that this was an isolated incident, and it was clear from the video recording when questioned by person A about the incident, Dr Mok had acknowledged what he had done and apologised at that time.”

Absence of malicious intention

“Mr Cridland submitted that based on the video, Dr Mok’s statement that he thought Person A would find it hot, suggested that Dr Mok did not think at the time what he was doing would cause any distress or harm to Person A. It was not a deliberate act of abuse or harm.”

The MPT appears to have accepted this submission.

Evidence of some sexual activity between Dr Mok and Person A while asleep

“PA -- things happened? So what was going through your mind when I fell asleep that you decided to just fuck me?

JM (Pause) I thought it would have been hot and that you’d have found it quite hot.

…..

JM Well, we’d done stuff in bed before so you had always ---

PA We had done stuff in bed, we’ve had sex when we’re half asleep or whatever, but, John, I was asleep, passed out drunk…”

“When I said “We’ve had sex when we’re half asleep”, I think that there has been occasions when we’ve gone to bed or when we’ve woken up where we might start having foreplay and I think touching would include that, but there’s never ever been penetration without someone being conscious fully at that time.”

Absence of a doctor/patient relationship

Isolated incident and Dr Mok acknowledged what he had done and apologised on the video evidence

Ground 2

“No evidence that demonstrates remediation is unlikely to be successful, for example because of previous unsuccessful attempts or a doctor’s unwillingness to engage.”

“Remediation of the concerns

31 Remediation is where a doctor addresses concerns about their knowledge, skills, conduct or behaviour. Remediation can take a number forms, including coaching, mentoring, training and rehabilitation (this list is not exhaustive) and, where fully successful, will make impairment unlikely.

32 However, there are some cases where a doctor’s failings are irremediable. This is because they are so serious or persistent that, despite steps subsequently taken, action is needed to maintain public confidence. This might include where a doctor knew, or ought to have known, they were causing harm to patients and should have taken steps earlier to prevent this.”

“no evidence of repetition of similar behaviour since incident.”

“The Tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating the behaviour.”

“23. In determining impairment, the Tribunal looked for evidence of insight, remediation and the likelihood of repetition and balanced those against the three limbs of the statutory overarching objective. The Tribunal noted that in cases of sexual misconduct, such misconduct is not easily remediable.

24. In considering the issue of insight, while the Tribunal considered that Dr Mok has provided evidence of reflective work, it was mainly focused on his professional practice than addressing the Allegation in question. It therefore concluded that Dr Mok had not demonstrated adequate insight into his behaviour and misconduct, and thus had not sufficiently remediated.

25. The Tribunal acknowledged that the events in question occurred two years ago. There is nothing to suggest that Dr Mok had engaged in such conduct before the incident and no concerns have been raised about his conduct since.”

“28. The Tribunal carefully considered the GMC’s submission that erasure was the only appropriate sanction in this case. It reminded itself of the aggravating and mitigating factors it had identified in this case and noted the following paragraphs of the SG were relevant to its deliberations:

108 Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor.

150 Sexual misconduct seriously undermines public trust in the profession. The misconduct is particularly serious where there is an abuse of the special position of trust a doctor occupies, or where a doctor has been required to register as a sex offender. More serious action, such as erasure, is likely to be appropriate in such cases.

29. Having balanced all the factors in this case, it determined that neither of these categories expressly referred to in paragraph 150 of the SG applies in this specific case and that erasure would be disproportionate in the circumstances. The Tribunal concluded that this case fell just short of being fundamentally incompatible with continued registration.

30. The Tribunal bore in mind the need to act proportionately and impose the least restrictive sanction to meet the public interest. Having regard to all of the circumstances, the Tribunal concluded that the sanction of suspension would sufficiently mark the seriousness of the misconduct and protect public confidence in the profession. The Tribunal also considered that a sanction of suspension would send a message to members of the profession that Dr Mok’s misconduct was wholly unacceptable. The Tribunal further considered that a period of suspension would demonstrate to Dr Mok how far below the standards of behaviour expected of a doctor his conduct fell.”

“A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor”.

“A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety.”

“Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients (see further guidance below at paragraphs 129–132 regarding failure to provide an acceptable level of treatment or care).”

“Abuse of position/trust (see Good medical practice, paragraph 65: ‘You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession’).”

“Offences of a sexual nature, including involvement in child sex abuse materials (see further guidance below at paragraphs 151 - 159).”

“Persistent lack of insight into the seriousness of their actions or the consequences.”

Ground 3

“67.  I accept the submissions of Mr Hare on behalf of the GMC that in a case concerning sexual misconduct the Court will attach less weight to the expertise of the MPT, as is made clear in Jagjivan at [40(vi)]. I also bear in mind, however, that the decision to suspend a doctor rather than to erase him or her from the register is an evaluative decision based on many factors, about which reasonable people may reasonably disagree. As such, there is limited scope for an appellate court to overturn it: Bawa-Garba v GMC at [61].

68.  Although, for the reasons given by Mr Hare, it may be appropriate to give less deference to the decision of the MPT given the finding of sexually motivated misconduct by Dr Ahmed in relation to Patient B, nonetheless a significant degree of deference should be shown. The MPT will have had the advantage of all of the evidence considered during the course of the MPT Hearing, including oral evidence during the Factual Determination stage. In this regard, I note the comment of Sales LJ in R (Smech Properties Ltd) v Runnymede Borough Council at [29], which was set out in Bawa-Garba v GMC at [65] and quoted by me at [46] above. I also bear in mind the observation of Hoffmann LJ in Re Grayan Building Services Ltd at 254 that is quoted in Bawa-Garba v GMC at [64]. Although the MPT's factual assessment is not, per se, disputed by the GMC on this appeal, that factual assessment informed the multi- factorial decision that resulted in a sanction of suspension rather than erasure.

69.  I also bear in mind the following observation of Laws LJ in Raschid v GMC at [19]:

“As it seems to me the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel.”

…

71.  Dr Ahmed gave a reflective statement to the MPT before the Sanction Determination stage but did not attend to be cross-examined. I have noted at [55] above Mr Hare’s reference to the comment of Yip J in Yusuff v GMC at [30] that it is difficult to assess issues such as remorse and insight on paper. I set against that, however, the observation of Sales LJ in R (Smech Properties Ltd) v Runnymede Borough Council at [29] that, even where a first instance court's determination is made on the basis of written evidence that is also available to the appellate court, as in the case of Dr Ahmed's reflective statement dated 20 October 2020, “it will often be appropriate for [the appellate] court to give weight to the assessment of the facts made by the judge below”. Sales LJ goes on to make a number of related observations, all of which I bear in mind. The key point, in my view, is that I should be wary of differing from the MPT's multi-factorial decision on sanction given the extent of oral and written evidence that was available to the MPT, including Dr Ahmed’s oral evidence (and the oral evidence of the other witnesses, factual and expert) at the Factual Determination stage.”

Conclusion