Dr Stephen Higgins v General Medical Council

The Tribunal received additional evidence from the Appellant at the sanction stage, including: a reflective statement dated 13 February 2022; thank you notes and messages from patients; a development and restoration plan dated February 2022; a letter from Dr Higgins dated 29 January 2024; a letter from a BACP accredited psychotherapist dated 26 January 2024; certificates of completion of and reflections on courses on sexual harassment; and a letter from his current workplace.

The GMC’s submissions are summarised at paras 300 – 314 of the determination. Mr Kitching submitted that the only appropriate sanction was one of erasure. He also submitted that there were two aspects to insight. Firstly, an understanding of why the conduct was unacceptable and the degree to which it fell below expected standards. That kind of insight did not require any acceptance of the facts on the part of the doctor. But the second aspect was a personal understanding of why the doctor acted in the way he did. Mr Kitching contended that it was impossible to gain this second type of insight unless there was an acceptance of the conduct in question.

The submissions on behalf of the Appellant were summarised at paras 315 – 332. Mr Williamson argued that suspension was the appropriate and proportionate outcome. Mr Williamson said that Dr Higgins accepted the Tribunal’s findings in relation to misconduct, accepted that he had behaved inappropriately and had apologised. Mr Willamson emphasised that there were unique precipitating factors at the time and that it should be regarded as a temporary aberration in an otherwise unblemished career. He submitted that since the events Dr Higgins had done a great deal to ensure that he would never fall into that situation again; he had taken very positive steps to address the factors that led to the misconduct, including undergoing therapy and undertaking considerable learning and development, including a Professional Boundaries Course and a sexual harassment awareness course. He would not allow his behaviour to be repeated. Mr Williamson said that the proceedings had been a salutary lesson for Dr Higgins, who had gone to great lengths to understand why he behaved as he did.

The Tribunal summarised the applicable legal principles at paras 333 – 336. (I set out those principles from para 81 below.) It then identified the relevant aggravating and mitigating factors at paras 338 – 341, concluding at para 342, that the aggravating factors in this case outweighed the mitigation.

In terms of aggravating factors, the misconduct was “inherently serious and would be considered deplorable by fellow practitioners”. The misconduct was towards multiple young woman who worked in a junior capacity in the Practice. There was an imbalance of power and Dr Higgins’ conduct involved a breach of his professional position and a breach of trust as their employer. It also took place over a sustained period. The Appellant had asked Ms C not to tell her boyfriend and Ms D not to tell her mother. He had offered Ms A a job as a Healthcare Assistant if she did not tell anyone what he was like. Dr Higgins had some awareness of the inappropriateness of his conduct at the time, as these communications showed; and, additionally, he had found a way to hide Snapchat messages so that they were not seen by his daughter if she looked at his phone.

In terms of mitigating factors, the Tribunal took account of the Appellant’s previous good character and unblemished career, the lapse of time since the incidents occurred and the admissions he had made in relation to Allegations 12 and 13 concerning Ms D. The Tribunal also acknowledged his apology, remorse for his actions and evidence about his personal circumstances at the time of the incidents. It said that it gave weight to these matters, but bore in mind that his conduct was not an isolated incident, which could be regarded as a temporary lapse of judgement, as it was sustained over a significant period.

Unsurprisingly, the Tribunal rapidly ruled out the options of taking no action or imposing conditions. The Tribunal then considered whether suspension would be appropriate and proportionate, having regard to paras 92, 93 and 97 of the Sanctions Guidance (paras 86 – 87 below). It referred to the imbalance of power, the effect of Dr Higgins’ misconduct upon the complainants, the sustained nature of his conduct and that he had breached a fundamental tenet of the medical profession and brought the profession into disrepute. It considered that the misconduct was “behaviour unbefitting of a registered doctor, and so serious that action must be taken to protect member of the public and to maintain public confidence in the profession” (para 350).

The Tribunal then referred to the factors identified at sub-paras 97 e, f and g of the Sanctions Guidance (para 87 below). It said it had considered all the additional documentation submitted by the Appellant and noted the courses he had undergone and that he had carried out further reflections (paras 351 – 352).

Between paras 353 – 356 the Tribunal said that it had given particular consideration to his reflective statement and his 29 January 2024 letter. It noted Dr Higgins’ reflections on the importance of maintaining professional boundaries and understanding power differentials. The Tribunal quoted his statement that the Professional Boundaries Course had taught him that professional power can make those involved feel a desire to please or be afraid to stop their involvement in unprofessional behaviour. He also said that he was aware that what had happened would have an effect on those involved for the rest of their lives and that he had let them down. In light of these documents the Tribunal considered that “there had been some development of Dr Higgins’ knowledge of sexual harassment in the workplace and its impact on victims and others” (paras 353 – 354). The Tribunal also quoted a passage from the letter from Mr Seth Butcher, the BACP psychotherapist, indicating that in the sessions with him the Appellant had shown commitment and engagement, a sincere need to understand the seriousness of his behaviour and clear remorse. The letter said that Dr Higgins had “come a long way not only in putting measures into place to make sure this type of behaviour never happens again, but also with his mental health. He is no longer feeling depressed or isolated and has made a real effort to understand what happened and to learn from it…”. The Tribunal accepted that the Appellant’s attendance at these courses and the therapy he had undergone was evidence of remediation.

The Tribunal’s conclusion as to why suspension was not an appropriate sanction was as follows:

“357.

The Tribunal however remained mindful that it had found proved a pattern of sexually motivated behaviour on the part of Dr Higgins in addition to the sexual harassment which has had an adverse effect on his junior colleagues. It noted that Dr Higgins had stated that he had let down his colleagues and it was submitted on his behalf that Dr Higgins had gone to great lengths to understand why he behaved as he did. The Tribunal was mindful of Dr Higgins’ ongoing right to defend and deny any or all of the allegations, found proved. However, it did not find evidence to demonstrate sufficient understanding, reflection or insight in respect of the seriousness and gravity of the sexually motivated behaviour which included sexual gratification and pursuit of a future sexual relationship by a doctor in a position of trust and power, as found proved. Accordingly, the Tribunal took the view that Dr Higgins’ insight was not holistic and remained limited. It therefore did not consider that Dr Higgins had sufficient insight such that he would not pose a significant risk of repeating his behaviour.”

The Tribunal then addressed erasure. It had regard to paras 108, 109, 136, 137, 138, 149 and 150 of the Sanctions Guidance (paras 88 – 89 below), which it considered to be engaged. The proven conduct indicated a serious and reckless departure from the principles set out in the GMP. It also considered that there had been an abuse of the Appellant’s position as the employer of his junior colleagues and that he had departed from the GMP principles of working collaboratively with his colleagues. It further concluded that the proven sexual misconduct had the potential to seriously undermine public trust and confidence in the profession (para 360). The Tribunal weighted Dr Higgins’ interest in not being able to practice as a doctor in the balance, but concluded that the reputation of the profession, the need for public protection and to maintain public confidence and proper professional standards of conduct for the medical profession to be the more important. It concluded that the Appellant’s behaviour was fundamentally incompatible with being a doctor (para 361). Accordingly, the Tribunal determined that erasure of Dr Higgins’ name from the medical register was the appropriate and proportionate sanction (para 362).

The appeal is brought under section 40 MA 1983. Section 40(7) provides that on an appeal from the Tribunal under this section, the Court may (as relevant): dismiss the appeal; allow the appeal and quash the direction appealed against; substitute for the direction appealed any other direction which could have been given by the Tribunal; or remit the case for the Tribunal to dispose of the case in accordance with the directions of the Court. The appeal is by way of re-hearing, rather than review: PD 52D, para 19. The Court will allow an appeal where the Tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity: CPR 52.21(3).

The principles applicable to the Court’s jurisdiction were summarised by Warby J (as he then was) in R (Dutta) v GMC [2020] EWHC 1974 (Admin) (“Dutta”) at para 21. His summary refers to the following section 40 appeals: Gupta v GMC [2001] UKPC 61, [2002] 1 WLR 1691, Meadow v GMC [2006] EWCA Civ 1390, [2007] QB 462, Southall v GMC [2010] EWCA Civ 407, Casey v GMC [2011], NIQB 95 Yassin v GMC [2015] EWHC 2955 (Admin) and Bawa-Garba v GMC [2018] EWCA Civ 1879. He said:

“(1)

The appeal is not a re-hearing in the sense that the appeal court starts afresh, with regard to what has gone before, or (save in exceptional circumstances) that it re-hears the evidence that was before the Tribunal. ‘Re-hearing’ is an elastic notion but generally indicates a more elastic process than a review: E I Dupont de Nemours & Co v S T Dupont (Note) [2006] 1 WLR 2793 [92-98]. The test is not the ‘Wednesbury’ test.

(2)

That said, the appellant has the burden of showing that the Tribunal’s decision is wrong or unjust: Yassin [32(i)]. The Court will have regard to the decision of the lower court giving it ‘the weight that it deserves’: Meadows [128] (Auld LJ, citing Dupont [96] (May LJ)).

(3)

A court asked to interfere with findings of fact made by a lower court or Tribunal may only do so in limited circumstances. Although this Court has the same documents as the Tribunal, the oral evidence is before this Court in the form of transcripts, rather than live evidence. The appeal Court must bear in mind the advantages which the Tribunal has of hearing and seeing the witnesses, and should be slow to interfere. See Gupta [10], Casey [6(a)], Yassin [32(iii)].

(4)

Where there is no question of a misdirection, an appellate court should not come to a different conclusion from the tribunal of fact unless it is satisfied that any advantage enjoyed by the lower court or tribunal by reason of seeing and hearing the witnesses could not be sufficient to explain or justify its conclusions: Casey [6(a)].

(5)

In this context, the test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Yassin [32(v)].

(6)

The appeal Court should only draw an inference which differs from that of the Tribunal, or interfere with a finding of secondary fact, if there are objective grounds to justify this: Yassin [32(vii)].

(7)

But the appeal Court will not defer to the judgment of the tribunal of fact more than is warranted by the circumstances: it may be satisfied that the tribunal has not taken proper advantage of the benefits it has, either because reasons are not satisfactory, or because it unmistakably so appears from the evidence: Casey [6(a)] and cases there cited…Another way of putting the matter is that the appeal Court may interfere if the finding of fact is ‘so out of tune with the evidence properly read as to be unreasonable’: Casey [6(c)], citing Southall [47] (Leveson LJ). ”

In Byrne v GMC [2021] EWHC 2237 (Admin) (“Byrne”), Morris J reviewed the case law regarding the approach that the appeal Court should take to findings of fact made by the Tribunal. In addition to cases I referred to in para 71 above, he cited Thomas v Thomas [1947] AC 484, Libman v GMC [1972] AC 217, Assicurazioni General SpA v Arab Insurance Group [2003] 1 WLR 577, McGraddie v McGraddie [2013] UKSC 58, Henderson v Foxworth [2014] UKSC 41 and Perry v Raleys Solicitors [2019] UKSC 5. He summarised the position as follows:

“12.

Firstly, the degree of deference shown to the court below will differ depending on the nature of the issue below: namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at ¶¶16 to 20…

13.

Secondly, the governing principle remains that set out in Gupta ¶10 referring to Thomas v Thomas. The starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge’s more general expertise in making determinations of fact: see Gupta, and McGraddie v McGraddie at ¶¶3 to 4. I accept that the most recent Supreme Court case interpreting Thomas v Thomas (namely McGraddie and Henderson v Foxworth) are relevant. Even though they are cases of ‘review’ rather than ‘rehearing’ there is little distinction between the two types of cases for present purposes…

14.

Thirdly, in exceptional circumstances the appeal court will interfere with findings of primary fact below. (However, the reference to ‘virtually unassailable’ in Southall at ¶47 is not to be read as meaning ‘practically impossible’ for the reasons given in Dutta at ¶22.)

15.

Fourthly, the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows:

- where ‘any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusions: per Lord Thankerton in Thomas v Thomas approved in Gupta;

- findings ‘sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence has been misread’ per Lord Hailsham in Libman;

- findings ‘plainly wrong or so out of tune with the evidence properly read as to be unreasonable’: per Casey at ¶6 and Warby J (as he then was) in Dutta at ¶21(7);

- where there is ‘no evidence to support a…finding of fact or the trial judge’s finding was one which no reasonable judge could have reached’: per Lord Briggs in Perry after analysis of McGraddie and Henderson.”

The onus of proof is on the GMC and the standard of proof to be applied by the Tribunal and by this Court is the civil standard of balance of probabilities: Byrne at para 22.

In Volpi v Volpi [2022] EWCA Civ 464, para 2, Lewison LJ summarised the “well-settled” principles applicable to appeals on question of fact, including that:

“(iii)

An appeal court is bound, unless there is a compelling reason to the contrary, to assume that the trial judge has take the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.”

If the Court finds that the Tribunal went wrong at the first stage, it should quash the conclusions reached at all three stages, unless persuaded that the error would have made no difference to the outcome: Dutta, para 20.

In Southall Leveson LJ (as he was then) confirmed that the purpose of the duty to give reasons is to enable the losing party to know why he has lost and to allow him to consider whether to appeal. He said that the duty would be satisfied if, having regard to the issues and the nature and content of the evidence, the reasons for the decision are plain, either because they are set out in terms, or they can be readily inferred from the overall form and content of the decision (para 54). In straightforward cases, setting out the facts to be proved and finding them proved would generally be sufficient (para 55). However, when “the case is not straightforward and can properly be described as exceptional” the position was different. Characterising the case before him as coming within this category, Leveson LJ explained: “I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case…” (para 56). He added that if the Tribunal had disbelieved Dr Southall “he was entitled to know why, even if only by reference to his demeanour, his attitude or his approach to specific questions” (para 57). In Byrne, Morris J described Southall as the “leading authority” on the duty to give reasons (para 24).

A sexual motive means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship: Basson v GMC [2018] EWHC 505 (Admin), para 14.

Section 26 EA 2010 provides as follows:

“26.

Harassment

(1)

A person (A) harasses another (B) if –

(a)

A engages in unwanted conduct related to a relevant protected characteristic, and

(b)

the conduct has the purpose or effect of-

(i)

violating B’s dignity, or

(ii)

creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)

A also harasses B if –

(a)

A engages in unwanted conduct of a sexual nature, and

(b)

the conduct has the purpose or effect referred to in subsection (1)(b).

(3)

A also harasses B if –

(a)

A or another person engages in unwanted conduct of a sexual nature…

(b)

the conduct has the purpose or effect referred to in subsection (1)(b), and

(c)

because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4)

In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account –

(a)

the perception of B;

(b)

the other circumstances of the case;

(c)

whether it is reasonable for the conduct to have that effect.”

The relevant protected characteristics for the purposes of section 26 include sex: section 26(5).

As there is no issue raised with the way that the Tribunal applied the law in this case, it is unnecessary for me to refer to the case law concerning this definition of harassment.

The question for this Court to ask is whether the sanction was appropriate and necessary in the public interest or was excessive and disproportionate: Sastry & Okpara v GMC [2021] EWCA Civ 623, para 31.

The Sanctions Guidance provides guidance to tribunals when imposing sanctions on a doctor’s registration. Para 14 sets out the overarching objective:

“The main reason for imposing sanctions is to protect the public. This is the statutory overarching objective, which includes to:

a.

protect and promote the health, safety and wellbeing of the public

b.

promote and maintain public confidence in the medical profession

c.

promote and maintain proper professional standards and conduct for the members of the profession.”

Para 15 says that each reference to protecting the public in the Guidance is to be read as including these three limbs of the overarching objective. In deciding which sanction to impose, the Tribunal should start by considering the least restrictive sanction and work upwards to the most appropriate and proportionate sanction (paras 20 and 67). It should always have regard to the principle of proportionality, weighing the interests of the public against those of the doctor (para 20). The reputation of the profession as a whole is more important that the interests of any individual doctor (para 17). Once the Tribunal has decided that a certain sanction is necessary to protect the public, it must be imposed, even where this may lead to difficulties for the doctor (para 21).

The Tribunal is to consider and balance any mitigating and aggravating factors (paras 24 – 60). The Guidance states the following in relation to insight:

“45.

Expressing insight involves demonstrating reflection and remediation.

46.

A doctor is likely to have insight if they:

a.

accept they should have behaved differently (showing empathy and understanding)

b.

take timely steps to remediate (see paragraphs 31 – 33) and apologise at an early stage before the hearing

c.

demonstrate the timely development of insight during the investigation and hearing.”

Paragraph 31 says that “Remediation is where a doctor addresses concerns about their knowledge, skills, conduct or behaviour” and goes on to describe the forms that it can take. Lack of insight is identified as an aggravating factor at para 51, the Guidance then continues:

“52.

A doctor is likely to lack insight if they:

a.

refuse to apologise or accept their mistakes

b.

promise to remediate, but fail to take appropriate steps, or only do so when prompted immediately before or during the hearing

c.

do not demonstrate timely development of insight

d.

fail to tell the truth during the hearing…”

In relation to the option of suspension, the Guidance says:

“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 (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 acknowledgment of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated…”

Para 97 sets out a non-exhaustive list of factors, explaining that the presence of some or all of them would indicate suspension may be appropriate. The list includes: (e) no evidence that demonstrates that remediation is unlikely to be successful; (f) no evidence of repetition of similar behaviour since the incident; and (g) the tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour.

The Tribunal may erase a doctor from the medical register in a case where this is the only means of protecting the public (para 107). Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where the action is necessary to maintain public confidence in the profession (para 108). Para 109 sets out a non-exhaustive list of factors, explaining that if any of them are present this may indicate that erasure is appropriate. This list includes: (a) a particularly serious departure from the principles set out in the GMP where the behaviour is fundamentally incompatible with being a doctor; (d) abuse of position / trust (and reference is made to para 65 of the GMP); and (f) offences of a sexual nature.

Para 136 says that doctors are expected to work collaboratively with colleagues; and para 137 indicates that colleagues includes “anyone a doctor works with”. Para 138 of the Guidance states that more serious outcomes are likely to be appropriate if there are serious findings that involve (amongst other forms of misconduct) sexual harassment. The following paragraphs deal specifically with sexual misconduct:

“149.

This encompasses a wide range of conduct from criminal convictions for sexual assault and sexual abuse of children…to sexual misconduct with patients, colleagues, patients’ relatives or others…

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.”

In Alberts v General Dental Council [2022] EWHC 2192 (Admin), Foster J rejected a submission that references to “the public interest” in the General Dental Council’s Sanction Guidance did not encompass work colleagues and were focused only on patient safety (para 39). Noting that the overarching objective referred to the public and was not confined in that narrow way, she said: “Plainly the interest of fellow professionals and staff is comprehended in the public interest”.

In Arunachalam v GMC [2018] EWHC 758 (Admin) (“Arunachalam”) Kerr J summarised a number of propositions that he drew from the authorities relating to cases of sexual misconduct, including:

“34.

First, sexual misconduct is self-evidently always serious and often likely to lead to erasure, even for a first time offender. …Third, lack of what is called ‘insight’ tends to increase the severity of the sanction and, conversely, proof of insight tends to mitigate it. ‘Insight’ roughly translates as owning up, saying sorry and convincing the panel that offending behaviour will not be repeated. This is obviously more difficult if the charges are denied.

…..

37.

…Eighth, personal mitigation counts for less than in other contexts because of the imperative need to preserve and uphold public confidence in the profession and to preserve and uphold standards of behaviour…

38.

Ninth as Mr Justice Collins said in Giele v GMC [2006] 1 WLR 942 at paragraph 33, it is not the law that in sexual misconduct cases erasure should follow unless the circumstances are exceptional. The severity of the sanction required to maintain and preserve public confidence in the profession ‘must reflect the views of an informed and reasonable member of the public’.”

Kerr J also addressed the situation where the sexual misconduct involved a colleague:

“59.

Where the victim is a colleague rather than a patient, severe sanctions in such cases are generally necessary, in addition, to protect and uphold the dignity of the workplace in the profession and to protect their freedom to work without being molested.”

In Yusuff v GMC [2018] EWHC 13 (Admin) (“Yusuff”) Yip J made a number of observations regarding the relevance of insight. Whilst she was focused on a subsequent review hearing, the parties were agreed that her remarks are of wider import:

“18.

It would be wrong to equate maintenance of innocence with a lack of insight. However, continued denial of the misconduct found proved will be relevant to the Tribunal’s consideration on review. As…the Sanctions Guidance makes clear, refusal to accept the misconduct and failure to tell the truth during the hearing will be very relevant to the initial sanction…A want of candour and continued dishonesty may be taken into account by the Tribunal in reaching its conclusions on impairment…

…..

20.

I conclude having reviewed all the relevant authorities that at a review hearing:

a.

The findings of fact are not to be reopened;

b.

The registrant is entitled not to accept the findings of the Tribunal;

c.

In the alternative, the registrant is entitled to say that he accepts the findings in the sense that he does not seek to go behind them whilst still maintaining a denial of the conduct underpinning the findings;

d.

When considering whether fitness to practice remains impaired, it is relevant for the Tribunal to know whether or not the registrant now admits the misconduct;

e.

Admitting the misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it;

f.

…..

g.

A want of candour and/or continued dishonesty at the review hearing may be a relevant consideration in looking at impairment.”

In Irvine v GMC [2017] EWHC 2038 (Admin) (“Irvine”) at para 83, Holroyde J (as he then was) observed that it was “not wrong or unfair of the Tribunal to take into account when considering impairment, that Mr Irvine was doggedly maintaining an account of administrative sloppiness when they had found that his misconduct was much more serious than that”. The Judge went on to say that it would have been “illogical, and wrong” for the Tribunal to ignore that he was maintaining an untruthful account when considering whether there was a realistic prospect of remediation.

In Professional Standards Authority v The Health and Care Professions Council [2017] EWCA Civ 319, Lindblom LJ observed that whether a registrant had shown insight into their misconduct and how much insight they had shown were “classically matters of fact and judgment for the professional disciplinary committee in light of the evidence before it” (para 38).

Ground 1 alleges three respects in which the Tribunal failed to have regard to evidence that is said to be fundamental to the factual issues in the case.

Firstly, the following messages sent by Ms A to the Appellant (given that he contended that her allegations were made up or the behaviour was “entirely consensual”; whereas she said that the conduct was unwanted and made her uncomfortable):

Ground 1 contends that Ms A failed to explain why she sent these messages to the Appellant and why she did not disclose them in her initial accounts. It is alleged that this went to Ms A’s credibility and/or to the questions of whether the Appellant’s conduct was “unwanted” and/or to whether it could amount to unlawful harassment and/or to the nature of his sexual motivation and/or to the seriousness of his conduct.

Secondly, in relation to the 9 October 2020 assault (Allegation 6) evidence that was relevant to the credibility of Ms A’s allegation, namely:

In this regard reference is also made to the fact that Ms A did not make any formal complaint about the alleged assault until November 2021 and did not disclose the messages referred to in the preceding paragraph. It is also said that Ms A’s credibility was relevant to the allegations made by the other complainants, given the alleged collusion and given that the Tribunal relied on there having been a pattern of behaviour on the part of the Appellant.

Thirdly, in relation to Ms B it is alleged that in finding that the Appellant’s conduct was unwanted, unlawful harassment and sexually motivated, the Tribunal failed to consider the significance of Ms B deliberately and willingly engaging in messaging contact with him and that she was motivated to engage in such conduct by an intention to collect evidence. Further, that the Tribunal failed to have regard to a discrepancy between Ms B explaining that she added the Appellant on Snapchat because she thought she might be able to obtain some evidence that way and her saying that the reason she had not saved any of the allegedly inappropriate messages that he sent was because he would be alerted to this if she did so, due to a technicality with Snapchat.

The Appellant contends that the Tribunal failed to give reasons for its findings of fact on disputed issues that were central to the case. Firstly, it is said that the Tribunal made no reference to the matters identified under Ground 1 when rejecting Dr Higgins’ evidence and accepting that Ms A’s evidence was cogent and credible, even though they were fundamental to the truthfulness and reliability of her account. The Tribunal failed to provide adequate reasons for accepting Ms A’s account and rejecting the Appellant’s; and did not assess the evidence that suggested consensual contact by Ms A.

Secondly, it is said that the Tribunal failed to adequately address the matters raised on behalf of Dr Higgins listed at para 19 of the Grounds, in circumstances where it was obliged to consider and to give reasons in respect of its assessment of this evidence. The listed matters are:

The Appellant further alleges that the Tribunal provided inadequate reasons for accepting Ms B’s account and rejecting the Appellant’s. It is said that the Tribunal gave no reasons why it accepted Ms B’s account despite the discrepancy highlighted under Ground 1 and in circumstances where there were no contemporaneous messages retained.

It is also said that the Tribunal gave inadequate reasons for finding that the Appellant’s conduct towards Ms C was of a sexual nature in circumstances where she had said that “sexual was not the right word” to describe his behaviour towards her. Similarly, the Tribunal failed to explain why it had rejected Ms D’s characterisation of his behaviour towards her as a joke.

Ground 3 alleges that the Tribunal was inconsistent in its treatment of inculpatory and exculpatory evidence in a way that favoured the GMC’s witnesses and was to the Appellant’s disadvantage. Specifically:

At para 46 of its determination, the Tribunal considered that Ms A’s willingness to accept that she had the day of the week wrong in relation to Allegation 2 added to her credibility, rather than detracting from it, when this was not a conclusion that was open to it as Ms A had had no alternative in the circumstances, when faced with the point in cross-examination, to do other than accept that she had got this wrong.

At para 84 of its determination, the Tribunal accepted that certain parts of her evidence that were not in her video account were not an embellishment or something that detracted from her credibility; whereas, by contrast, it recorded at para 106 that the Appellant was unable to explain why he did not include the version of events that he gave in evidence in his statement;

In relation to Allegation 6, the Tribunal found Ms A’s account to be consistent and credible although she could not recall what had happened to the container of urine; whereas, by contrast, it considered that the Appellant was “slightly confused” as to whether or not he had wanted to show Ms A how to test the urine; and

In relation to Ms B’s evidence, the Tribunal considered it understandable that she had some confusion over the detail, given the time that had elapsed; whereas it did not afford the Appellant the same degree of latitude, stating that it found his account to be confused and unreliable.

This is advanced as a free-standing point if Grounds 1 – 3 fail. Ground 4 contends that the Tribunal erred in imposing the sanction of erasure as:

In this section of my judgment, I will not repeat the contentions that I have already identified in setting out the grounds. However, I will summarise the way in which they were developed in Mr Williamson’s skeleton argument and oral submissions. I will focus on the overarching and general points that he made, identifying some further specific aspects that he advanced when I come on to explain my conclusions. As I indicated to Mr Williamson during his oral submissions, I do not intend to entertain free-standing submissions that raised new points, rather than supported existing grounds of appeal. For the avoidance of doubt, no application was made to amend the grounds of appeal.

There was considerable overlap in the submissions made in respect of these three grounds. The central focus of Mr Williamson’s contentions was on the messages that Ms A had sent to Dr Higgins in the periods July – October 2020 and May – July 2021 (paras 97 and 99 above), which she had not revealed and the Appellant had disclosed. He submitted that although the Tribunal had made brief reference to her sending messages to him (in particular in paras 25 – 26 of its determination), it had simply and uncritically recited her evidence on these matters and accepted it without subjecting it to any of the rigorous analysis that was required. He stressed that this was particularly necessary given that Ms A’s credibility was central to the case against Dr Higgins; given that the disputed messages he was alleged to have sent her had not been retained and so were not available to the Tribunal; and given that findings were required as to the nature of the relationship between them, which the Appellant said was entirely consensual. Mr Williamson emphasised that the messages that the Appellant produced were the best contemporaneous evidence available to the Tribunal. In that regard he referred to the case law that has emphasised that the demeanour of a witness is not a reliable pointer to their honesty and that contemporaneous documentation will always be of the utmost importance, in particular Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) at para 96 and the review of the authorities in this area by Warby J (as he then was) at paras 38 – 42 in Dutta. Mr Williamson sought to draw an analogy with the errors made by the Tribunal in the latter case.

Mr Williamson emphasised that the 2020 messages spanned a similar period to Allegations 3 – 6 and that the first message in the series was sent by Ms A, who had initiated this contact between them. He also said that her conduct in relation to the messages was consistent with that of a “willing responder” and inconsistent with the account she gave in her December 2021 Zoom interview where she said that she would ignore it when Dr Higgins sent her inappropriate messages. Mr Williamson also stressed the photographs that Ms A had sent to the Appellant in July 2020, saying that this behaviour was not consistent with her account in her statement that she would say just enough for the Appellant to leave her alone (referred to at para 207 of the Tribunal’s determination). In relation to Allegation 6, Mr Williamson highlighted the “I’m bored up here on my own" message from Ms A, submitting that sending this communication to Dr Higgins was inconsistent with her account of being assaulted on 9 October 2020.

Another central theme of Mr Williamson’s submissions was that the Tribunal had not grappled with a number of the points that he had made in cross-examining Ms A and/or in his submissions and that this was a further indication that it did not subject her account to the proper scrutiny that was required. By way of example, he said that the Tribunal had failed to deal with Ms A’s inconsistent accounts as to why she had left the Practice: in her witness statement she had said that it was “completely because of him” (Dr Higgins) that she had left; whereas her contemporaneous messages indicated that she was unhappy at work and thinking of leaving for various reasons including that she disliked the practice manager. The Tribunal had characterised Ms A’s evidence as “consistent” without assessing these sorts of points.

Mr Williamson submitted that the Tribunal had not grappled with the lapse of time that had occurred before Ms A gave her first account and how that had affected its reliability. Furthermore, the determination was silent on the concerns raised by the Appellant as to how Ms A’s account came to be prepared.

As regards the other complainants, Mr Williamson said that the Tribunal’s reasons did not deal at all with why the messages to Ms B were unwanted, in circumstances where she had deliberately sent messages to Dr Higgins with the intention of eliciting his responses. As regards Ms C, she had been clear in her evidence that “sexual” was not the right term for Dr Higgins’ conduct towards her and Ms D had described his messages as “dad jokes”. These characterisations were consistent with the Appellant’s own account and the Tribunal had given no reasons for rejecting this.

Mr Williamson’s overarching submission was that the sanction of erasure was wrong, excessive and disproportionate. The Tribunal had accepted that Dr Higgins’ conduct was not at the higher end of the sliding scale; the GMC had acknowledged that this was not a case involving “serious harm”; he otherwise had an unblemished record; he had accepted that his conduct was deplorable and had undertaken a substantial amount of remediation and reflection; and there was no evidence of a risk of recurrence. In terms of his insight, Dr Higgins had accepted that he had behaved disgracefully towards the complainants and that he had crossed boundaries that he should not have crossed. The case was distinct from one where a doctor continued to deny the misconduct in total; and there was nothing to support the Tribunal’s analysis that Dr Higgins did not appreciate the gravity of his conduct.

As it was not entirely clear to me from the remediation documents, the Tribunal’s summary of counsel’s submissions or his skeleton argument, I asked Mr Williamson to clarify the extent to which the Appellant had admitted the misconduct by the time of the sanctions hearing, the extent to which he admitted it now and whether, for the purposes of the appeal, the Appellant had reneged on admissions that were made at or by the time of the sanctions hearing. Mr Williamson said that there had been no change of position (other than the fact that Dr Higgins now admitted Allegations 10 and 11 in relation to Ms C: see para 10 above). He said that at the time of the sanctions hearing, Dr Higgins accepted the Tribunal’s findings in the sense that he accepted they had been made and that the hearing would proceed on that basis. Furthermore, he had admitted Allegations 12 – 13 in relation to Ms D and Allegation 3a in relation to Ms A and, more generally, he had admitted that he had failed to respect or maintain professional boundaries with the complainants, that it was his responsibility to do so and that he should not have been sending them personal messages. However, (save for Allegation 3a) he had continued to deny the proven conduct that was the subject of Allegations 2 – 11 and 14 – 15.

As counsel did in their submissions, I will first address Grounds 1 and 3 and then turn to Ground 2. At the outset I will make some overarching observations. Ms A alleged that Dr Higgins had behaved in the way described in Allegations 2 – 6 and he denied this (save for Allegation 3a), characterising her complaints as fabricated or instances where she had deliberately misrepresented what were consensual exchanges between them. In addition, the Appellant contended that Ms A had colluded with and influenced Ms B and Ms C in the untrue allegations that they made. Accordingly, the Tribunal had to determine where the truth lay in terms of these allegations and denials. To do so, the Tribunal heard evidence from Ms A over a day and from Dr Higgins over three days (para 15 above). It also heard from the other complainants (para 4 above). The Tribunal had the opportunity to evaluate these witnesses. The points that Mr Williamson seeks to raise in support of Grounds 1 and 3 were made by him in cross-examination and/or in his closing submissions and the Tribunal had the opportunity to consider them during their seven days of deliberations. There is no reason to believe that they did not do so conscientiously.

It follows that the Tribunal had the significant advantage over this Court of seeing and hearing the witnesses give their evidence. In these circumstances, the appeal Court should be very slow to interfere with its findings of primary fact (paras 71 and 72 above).

Furthermore, Mr Williamson does not suggest that the legal directions set out in the determination were other than correct. Amongst other directions, the Tribunal reminded itself to consider all the evidence, before making findings as to the credibility of any of the witnesses (para 17 above).

As I have summarised at para 97 above, the first part of Ground 1 contends that the Tribunal failed to have regard to the messages that Ms A sent to the Appellant in the period July – October 2020. This proposition is simply inaccurate. The Tribunal referred to these messages at paras 25, 53 and 207 of its determination (paras 18, 23 and 42 above). Moreover, when Mr Williamson complained in his submissions at the Stage 2 hearing that the Tribunal had not had regard to these messages in arriving at its earlier findings, the Tribunal responded in terms at para 276 of its determination that it had considered the nature of the relationship between Ms A and Dr Higgins, explaining that whilst Ms A had sent him messages there was nothing of an inappropriate or sexual content in them and the Tribunal had had regard to the clear imbalance of power in the dynamic of their relationship (paras 52 and 54 above). Furthermore, in so far as Ground 1 also asserts that Ms A failed to explain why she sent these messages to the Appellant, this is also inaccurate. The explanation that she gave is set out in the Tribunal’s para 25 (para 18 above). It was open to the Tribunal to accept this explanation.

No doubt mindful of the difficulties that I have just identified, Mr Williamson developed a more nuanced version of this contention in his oral submissions. Rather than asserting that the Tribunal had failed to have regard to this material, he said that it had failed to analyse Ms A’s evidence with the necessary rigour, uncritically accepting it, including her explanation for sending these messages. I also reject this version of the submission. It is not borne out by the Tribunal’s determination. As I have set out at some length between paras 22 – 30 above, the Tribunal examined each of the allegations made by Ms A with care and in considerable detail. Prior to this, the Tribunal began its evaluation of her allegations by reminding itself at its paras 22 – 29 of some overarching points that had been made on Dr Higgins’ behalf (paras 18 – 19 above). The overarching points the Tribunal noted at that stage included: changes in her accounts as to why she had left the Practice; mistakes that she made over dates; the messages and photos that she sent to Dr Higgins via EMIS and Snapchat in both 2020 and in 2021; and why she had made her complaint in November 2021. It is apparent from this that the Tribunal had these overarching credibility points in mind when they evaluated each of her allegations. As it explained at para 40 of the determination, the Tribunal then considered each of the allegations separately, but it evaluated all the evidence in making its findings (para 21 above). This approach is unassailable. In his skeleton argument, Mr Williamson suggested that paras 22 – 29 of its determination indicated that the Tribunal had made up its mind prematurely on whether it believed Ms A, before turning to the detail of the allegations. I reject that suggestion; that is not what the decision says and Mr Williamson accepted in his oral submissions that the Tribunal did not do this.

For these reasons I reject the first part of Ground 1. Mr Williamson suggested that the July – October 2020 messages should have played a particularly prominent part in the Tribunal’s reasoning because they were the only contemporaneous records. However, whilst they were relevant for the Tribunal to consider (as they did), these messages proved nothing about the core questions of whether the conduct alleged in Allegations 2, 3, 4, 5 and 6 respectively took place. As such, they were bound to take a less central role than a truly contemporaneous document would have done. For example, had the messages referred to in Allegations 3, 4 and/or 5 been available, they would plainly have provided the starting point for evaluating these allegations. Even on the Appellant’s case, at their highest, the July – October 2020 messages from Ms A did not go directly to whether the conduct in Allegations 2, 3, 4, 5 and 6 occurred, rather they went to: her credibility; to whether the conduct, if it occurred, was unwanted (Allegation 15); and to the seriousness of any established misconduct. There is no analogy to be drawn between the Tribunal’s careful decision in this case and the flawed approach of the Tribunal in Dutta, where it asked itself whether it believed the complainant before considering the contemporaneous documents, deciding that it believed her on an “impressionistic” basis as a result of her demeanour; and it adopted “a novel case theory” not advanced by the GMC, rather than considering the evidence in the round (paras 42 – 43).

In so far as Mr Williamson also relies upon the fact that Ms A did not disclose the existence of the messages that she sent to Dr Higgins, Ms A was asked about this in cross-examination and she said that it was because she did not regard them as sexual or inappropriate and she did not think of them when giving her earlier accounts. It was open to the Tribunal to accept this explanation and to conclude that her earlier failure to mention the messages did not materially undermine her credibility. As I have already explained, it cannot be inferred that the Tribunal failed to consider this aspect, simply because they did not refer to it explicitly.

The second aspect of Ground 1 alleges that the Tribunal failed to have regard to the messages sent by Ms A to Dr Higgins in the period May – July 2021 and her approaching him about a gynaecological issue in March 2021 or later. Again, this contention is unsustainable as the Tribunal in fact referred in terms to these messages at para 26 of its determination, as part of the overarching points it set out regarding Ms A’s credibility (para 18 above). Again, it is also incorrect to say that Ms A provided no explanation for sending these messages. Her explanation is recorded in the Tribunal’s para 26 and it was entitled to accept it.

Mr Williamson advanced what I have described as the more nuanced version of this contention as well at the oral hearing. I reject it for the same reasons as I have set out at paras 124 – 126 above in relation to the July – October 2020 messages, save that his argument is even weaker here as the contact from Ms A came months after the Allegation 6 alleged assault and thus could not be characterised as contemporaneous documentation or as throwing any direct light upon what occurred on 9 October 2020.

In so far as Ground 3 alleges that the Tribunal did not consider the impact of the July – October 2020 and the 2021 messages on Ms A’s credibility, I have just addressed this when I considered Ground 1.

Whilst not quite how it is put in the grounds, in his skeleton argument and oral submissions Mr Williamson suggested that it was not rationally open to the Tribunal to find that the Appellant’s conduct was “unwanted” within the meaning of section 26 EA 2010, in light of the messages that Ms A had sent to him. This proposition is unsustainable. Between paras 206 – 226 the Tribunal explained in some detail why it concluded that the conduct it had found proved in Allegations 2 – 6 was unwanted by Ms A. I have summarised its reasoning at paras 42 – 46 above.

I remind myself that Dr Higgins’ proven conduct included: asking Ms A to send him a naked picture and on another occasion to send him a picture of her breasts; inviting Ms A and Ms E to his room to “have a threesome”; messaging her that he could imagine what he would do to her on the examination table; grabbing her and trying to kiss her and then messaging her afterwards “that was fun”. Furthermore, by the time it came to consider Allegation 15, the Tribunal had also found that this behaviour was sexually motivated. Accordingly, this serious conduct went way beyond the messages that Ms A had sent to the Appellant and the Tribunal was fully entitled to take the view that there was no equivalence, all the more so, when it factored in, as it did, the difference in age and the complete imbalance of power in their relationship.

Furthermore, the Tribunal was entitled to accept that Dr Higgins’ behaviour made Ms A feel uncomfortable and that at times it scared her and freaked her out, as she had described (para 42 and 45 above). It is apparent that Ms A had articulately explained that she did not want to be confrontational; that she was scared of the repercussions and so had tried to laugh off Dr Higgins’ behaviour; that she had found “it was a very difficult situation to be in”; and she was “young and naïve” and felt that he had taken advantage of this (paras 43 - 44 above). Ms A also explained that she did not want to make a scene as Dr Higgins had promised to help her obtain a Health Care Assistant role if she did not tell anyone about his behaviour and that he would make her feel sorry for him (para 45 above). The Tribunal was entitled to accept this evidence and to find, as it said, that there was “considerable evidence” that the conduct was unwanted (para 44 above). It is also apparent from the Tribunal’s findings that Ms A felt she had to alter her behaviour as a result of Dr Higgins’ conduct: she left work early after receiving the “threesome” message; she would try to get other members of staff to go to his room instead of her; and after the 9 October 2020 incident she blocked him on Snapchat (paras 43 and 46 above). I also note that the finding that the Allegation 6 assault involved unwanted conduct followed almost inevitably from the nature of the conduct that was found proved.

Mr Williamson submitted that the response from Ms A recorded at para 207 of the determination, where she said that she would say just enough for Dr Higgins to leave her alone (para 42 above) was inconsistent with the messages that she sent to him and that the Tribunal’s apparent failure to appreciate this showed an absence of critical evaluation on their part. I do not accept this. The point was just one of many that Mr Williamson advanced on his client’s behalf; the Tribunal could not be expected to expressly reason through every one of these points in what was already a long determination. The fact that they did not refer to it explicitly is no indication that it was not considered (para 74 above). In any event, I do not see any inconsistency as at that juncture Ms A was talking about not revealing details of her personal life; the messages that she sent that Mr Williamson relies upon did not do so.

Similarly, the fact that more than nine months after the 9 October 2020 assault, in circumstances where she saw him every working day at the Practice, Ms A sent him the “bored up here” message was material that the Tribunal were entitled to regard as not significantly denting the credibility of the assault allegation. Again, the fact that the Tribunal did not refer to it expressly cannot be taken as an indication that it did not have regard to this message. In any event, the Tribunal identified multiple reasons why it preferred Ms A’s account of those events, as I have summarised at paras 28 – 30 above.

Ground 3 also alleges that the Tribunal failed to consider the method by which Ms A’s account came to be given. Mr Williamson rests this on the fact that the determination does not describe the process that I summarised at para 15 above. However, it was not incumbent upon it to do so. The Tribunal had watched her video interview given in December 2021 to The Practice and was able to evaluate it and compare it with her testimony. The Tribunal were aware that she was asked in cross-examination about why she had not complained any earlier than November 2021. At its para 29 the Tribunal noted Ms A’s account as to why she complained when she did (para 19 above); and as I have just highlighted, when identifying why it found that the conduct was “unwanted”, the Tribunal noted that Ms A had explained the means that Dr Higgins’ had used to induce her not to complain at an earlier stage. The Tribunal was entitled to accept this evidence. Furthermore, at various points during its fact finding, the Tribunal referred to the Appellant’s assertion of collusion between the complainants, explaining why it rejected that proposition (paras 20, 23, 31, 32 and 35 above). In so far as Mr Williamson put some emphasis on Ms A’s failure to retain and disclose the notes that she made prior to the video interview, Mr Hopkins indicated that this was not a point that was pressed before the Tribunal and nor was it suggested that this prejudiced Dr Higgins’ ability to defend himself against the allegations; in the circumstances there was no obligation on the Tribunal to address it explicitly.

Mr Williamson also submitted that the Tribunal had failed to engage with Ms A’s reliability, in circumstances where she could not recall details that had not been recorded in her earlier account. The main example that he gave was that when asked in cross-examination, she was unable to say what had happened to the sample of patient urine that she had been carrying immediately prior to the 9 October 2020 assault. This point is also unmeritorious. Firstly, the Tribunal did in fact engage directly with this point in its determination (para 28 above). Secondly, if the Appellant behaved towards Ms A as alleged, it is perfectly understandable that she was not at all focused upon what she did with the urine container and the Tribunal were entitled to accept her explanation in that regard.

Mr Williamson emphasised the way that the Tribunal had dealt with Ms A’s error in respect of the day when Allegation 2 occurred. He said that the Tribunal was wrong to give her credit for conceding that she must have got the day of the week wrong, in circumstances where she had no choice but to do so, as she was shown that 14 May 2020 was not a Monday. I have summarised the Tribunal’s reasoning in respect of this at para 22 above. The Tribunal had the benefit of hearing Ms A’s evidence. There are many circumstances in which witnesses do not accept that they are wrong about something, even when presented with seemingly incontrovertible material to that effect; the Tribunal was perfectly entitled to have regard to the willingness shown by Ms A to accept that she was wrong about this matter.

Ground 3 also seeks to compare the way that the Tribunal viewed discrepancies in Ms A’s accounts, with discrepancies in the Appellant’s accounts; the suggestion being that the Tribunal acted unfairly. One of the two examples given relates to Allegation 6. It is said that the Tribunal found Ms A’s account to be consistent and credible, although she could not recall what happened to the container of urine; whereas it characterised the Appellant as “slightly confused” over whether he had wanted to show Ms A how to test the urine. There is nothing in this complaint. I have already addressed why the Tribunal were entitled to regard Ms A’s inability to recall what she did with the urine jar as insignificant (para 136 above). By contrast, Dr Higgins had relied upon offering to show Ms A how to test the urine sample as the reason why they were together in his room. Accordingly, the Tribunal were entitled to regard this lapse in recollection as a rather more significant feature. However, in any event, the Tribunal only described this aspect of his evidence as “slightly confused”; and it is apparent from its reasoning on Allegation 6 read as a whole, that this was not the main reason why it rejected his denials,the central features being that the account he gave was “implausible” and his apparent admission to earlier inappropriate conduct when he said afterwards that he would not “ever try it on with you again” (para 28 and 29). In short, there was no unfairness or inconsistency in the Tribunal preferring Ms A’s account.

The second example seeks to contrast the Tribunal’s acceptance in respect of Allegation 5a(ii) that aspects of Ms A’s evidence that did not feature in her earlier video account were not an embellishment (para 26 above), with the way that it dealt with the Appellant’s evidence in respect of Allegation 6 (para 28 above). Again, there is nothing to suggest unfairness in the Tribunal’s approach. The Appellant is not comparing like with like. The respective evidence was given in relation to two different allegations and in circumstances where, as I have already noted, it identified a number of additional reasons for rejecting Dr Higgins’ denial of the 9 October 2020 assault. Furthermore, as the question of whether he grabbed her (as she said) or offered to hug her (as he said) was central to the Tribunal’s resolution of Allegation, it is unsurprising that it attached some significance to the Appellant’s failure to mention in his witness statement the explanation that he now gave for offering the hug.

Stepping back from these particular examples, when assessing alleged discrepancies in the witnesses’ evidence, the Tribunal did so in the context of the totality of the evidence. As Ms A and Dr Higgins gave conflicting accounts in relation to a number of important matters, the Tribunal had to decide who it believed; it could not simply believe both of them. The fact that it preferred the evidence of Ms A to that of Dr Higgins, simply indicates that it was carrying out that task; it is not indicative of unfairness.

Furthermore, as Mr Williamson’s submissions tended to suggest that Dr Higgins was unfairly penalised by the Tribunal for minor inconsistencies in his evidence (when Ms A was not), it is worth recalling that changes in his account was something that was highlighted by the Tribunal on multiple occasions: see for example paras 22, 24, 25, 26, 27, 30 and 34 above.

It is also worth recalling that the Tribunal identified a substantial number of reasons why it rejected Dr Higgins’ denials. This was not simply because there were some inconsistencies in his account. The reasons included: the Appellant accepted that he was “out of control” and had failed to maintain professional boundaries in messaging junior colleagues on personal matters outside of work hours (paras 20 and 26 above); he described being in “a bad place” and being unable to stop the messaging even if he tried (para 20 above); he acknowledged that his communications with Ms A were “disgraceful conversations” to be having with a 20 year old (she was, in fact 18) (para 22 above); he accepted that he had undertaken “racy exchanges” with Ms A (para 23 above); his explanation in relation to the 9 October 2020 allegation was implausible and did not make sense (para 28 above); he had admitted to improper conduct in subsequent messages to Ms A (para 29 above); he agreed that he tried to keep his messaging activities secret from his family (para 30 above); he told Ms B not to tell her mother about the messages (para 38 above); and he told Ms C not to tell her boyfriend (para 39 above).

The first aspect of the complaint in relation to Ms B, is that the Tribunal concluded that the conduct proved under Allegation 9 was “unwanted” without having regard to the fact that she had deliberately engaged in messaging the Appellant as she was wanted to collect evidence against him. This contention is unsustainable. When it considered the “unwanted” issue as part of Allegation 15, the Tribunal expressly referred to the fact that Ms B was willing to add Dr Higgins as a friend on Snapchat in order to collect evidence (para 47 above). However, it went on to find that the 19 November 2021 message was unwanted conduct as it scared Ms B, caused her to leave the office early that day and to move from her allocated workspace to avoid being alone with him (para 47 above). This was a sufficient evidential basis for finding that the conduct was unwanted and it was an unsurprising conclusion considering the power imbalance between them and the proven contents of this message. In any event, the fact that an individual takes steps to record a person’s behaviour does not convert what would otherwise be unwanted conduct into wanted conduct. Indeed, on her account, it was precisely because Ms B had concerns about Dr Higgins’ behaviour that she was seeking to obtain supporting evidence of it.

The second point made under Ground 1 is that the Tribunal failed to have regard to the alleged discrepancy that I have summarised at para 101 above. The short answer is that the Tribunal was aware of this; it was highlighted by Mr Williamson and the Tribunal referred to both of these aspects of Ms B’s evidence (paras 32 and 47 above). This point went primarily to Ms B’s credibility and to whether Allegation 9 was true (in circumstances where the Appellant wholly denied it), rather than to the question of whether it was unwanted. The Tribunal carefully evaluated the evidence, identifying a number of reasons why it found Allegation 9 proved, not least that Ms B had no motive to lie about the message (paras 32 – 33 above). This provided a rational basis for the Tribunal to accept Ms B’s account. Moreover, in its reasoning the Tribunal referred in terms to the fact that Ms B had not retained the message and it was clearly alive to the significance that Mr Williamson attached to that point (para 32 above). What it made of the point was a matter for the Tribunal’s assessment.

So far as Ms B is concerned, Ground 3 alleges that the Tribunal adopted an inconsistently unfair approach to discrepancies in her evidence, as against discrepancies in Dr Higgins’ evidence, suggesting that he was not afforded the same degree of latitude. The grounds give no examples of this, but one is provided in Mr Williamson’s skeleton argument. The discrepancy in Ms B’s evidence that he highlights concerned whether the Allegation 9 message had been sent via Snapchat or EMIS (para 33 above). Given the time that had elapsed, the Tribunal was perfectly entitled to regard her confusion in relation to this as understandable. It noted that her core allegation had not wavered in any of her accounts. By contrast, there were multiple, significant inconsistencies in Dr Higgins’s accounts; I have listed some of the Tribunal’s references to them at para 141 above. The Tribunal was entitled to take the approach that it did. Furthermore, this was not the only reason why Ms B’s account was accepted. As I have summarised earlier, the Tribunal identified multiple reasons why it preferred her account in respect of the factual allegations (paras 31 – 33 above) and why it regarded the Appellant’s conduct towards her as unwanted (para 47 above).

Accordingly, I reject Grounds 1 and 3. The Appellant has not made out the specific complaints that he makes. The Tribunal clearly had regard to the evidence that he says was ignored and the conclusions it reached were reasonable ones that were open to it. There is nothing to suggest that the Appellant’s points were not considered and it was for the Tribunal to assess the witnesses’ accounts. In truth, Grounds 1 and 3 are no more than expressions of disagreement with the Tribunal’s conclusions. Whichever formulation from the earlier authorities is applied (para 72 above), this is plainly not a case where any legitimate basis has been shown for interfering with the Tribunal’s findings of primary fact or its evaluative assessments.

The first complaint made under Ground 2 is that the Tribunal failed to provide adequate reasons for accepting Ms A’s account and rejecting the Appellant’s denials and that it did not assess the evidence suggesting consensual contact (para 102 above). The latter point is simply a repetition of part of Ground 1, which I have already addressed. I have summarised what is required by way of reasons at para 76 above. Even if this is properly regarded as an “exceptional case” within the Southall categorisation, the Tribunal more than met the duty to provide “a few sentences dealing with the salient issues” and an explanation as to why Dr Higgins’ was disbelieved “even if only by reference to his demeanour, his attitude or his approach to specific questions”. A Tribunal’s decision is to be read as a whole and it is readily apparent from my earlier summary of its reasoning, that the Tribunal in fact identified multiple reasons why it preferred the accounts of the complainants over that of the Appellant (paras 18 – 51 above).

The second complaint is that the Tribunal failed to explicitly address the matters listed in para 19 of the grounds (para 103 above). I reject this as well. The Tribunal was not obliged to deal explicitly with every point that Mr Williamson made in cross-examination or closing, as he accepted during the appeal hearing. The Tribunal’s reasons were obliged to meet the standard that I have identified and plainly did so. As regards Mr Williamson’s specific points: (i) I have addressed his concern about the absence of express mention of the process by which Ms A made her account at para 135 above; (ii) contrary to the Appellant’s contention, the Tribunal did address the point about the urine container (para 136 above); (iii) the Tribunal were entitled to treat the fact that Ms A had not indicated how long the assault lasted in her earlier accounts as insignificant – nothing turned on this and there is no indication that she had been asked about its length at an earlier stage; and (iv) the Tribunal did remind itself of the inconsistency in Ms A’s account as to the reasons why she left the Practice, when it set out some of the overarching criticisms that had been made of her evidence (para 18 above).

It is said that the Tribunal gave inadequate reasons for accepting Ms B’s account and rejecting the Appellant’s. I do not accept this. The Tribunal gave multiple reasons for doing so, as I have summarised at paras 31 – 33 above and discussed at paras 144 – 145 above.

It is also alleged that the Tribunal gave inadequate reasons for finding that the Appellant’s conduct towards Ms C and Ms D was of a sexual nature, when the complainants had not characterised it in that way (para 105 above).

This complaint is not well-founded. The Tribunal gave a detailed explanation of why it found that Dr Higgins’ conduct towards Ms C was sexually motivated, as I have summarised at para 39 above. The Appellant had told her that he really liked her and wanted to get to know her better. He told her not to tell her boyfriend. He messaged her outside of work hours and on 20 September 2021 suggested she come to his office for a cuddle. The Tribunal was entitled to view this as part of a pattern with the misconduct that it had found proven in relation to Ms A and Ms B. It noted that there was no other plausible motivation for the Appellant’s actions. Then when the Tribunal came on to consider Allegation 15, it reminded itself that Ms C had said that “sexual was not the right word” to describe the messages (para 48 above). However, this did not preclude the Tribunal, with the benefit of the wider evidential picture that it had and the findings it had already made (which included overtly sexual behaviour towards Ms A), from concluding that this was conduct of a sexual nature. I summarised the reasons the Tribunal gave for doing so at para 49 above. The reasons given in relation to the findings on both Allegations 14 and 15 were sufficient.

As regards Ms D, I have summarised why the Tribunal found the admitted conduct to be sexually motivated at para 40 above. Essentially, this was because it rejected the plausibility of Dr Higgins’ explanation that he had simply made the comments as a joke. Furthermore, it is not accurate to characterise Ms D’s evidence as agreeing that his comments were a joke; she said that she was “uncomfortable”, “surprised”, and had emitted a “shocked laugh” (para 40 above). She also said that she did not find it funny and it made her feel angry (para 51 above). The Tribunal highlighted this evidence, as I have indicated in my earlier summary. The Tribunal was also entitled to take into account the findings it had made in respect of his behaviour towards the other complainants. The reasons give by the Tribunal were sufficient.

It therefore follows that I also reject Ground 2 in its entirety.

The Appellant’s complaints are twofold: that the Tribunal failed to have sufficient regard to the clear evidence of his insight and remediation; and that it erred in treating his denials as precluding him from demonstrating insight and remediation (para 111 above).

It is apparent from its reasoning that the Tribunal carefully considered the evidence of insight and remediation provided by the Appellant (para 67 above). The Tribunal found that there had been “some development” in this regard, but that he had not demonstrated “sufficient understanding, reflection or insight in respect of the seriousness and gravity of the sexually motivated behaviour”, such that his insight remained “limited” (paras 67 – 68 above). It was entitled to do so.

Contrary to the Appellant’s submission, the Tribunal did not suggest that the Appellant’s denials precluded him from showing he had developed insight; it accepted he had developed some insight, but not enough. Plainly the Appellant’s continued denials were relevant in this regard and the Tribunal was entitled to take them into account. If there were any doubt about this, the position is confirmed by the passages in Arunachalam at para 34, Yusuff at paras 18 and 20 and Irvine at para 83 (paras 91, 93 and 94 above). Although he admitted that he had failed to maintain professional boundaries with the complainants, that he should not have been sending them personal messages and that his conduct was disgraceful, the Appellant continued to deny that he behaved in the ways found proven at Allegations 2, 3 (save for 3a), 4, 5, 6, 7, 8, 9 and 10. He also continued to deny that his conduct had been sexually motivated (Allegation 14) and that he had sexually harassed the complainants (Allegation 15), both of which the Tribunal had also found proven. In this regard his position had not altered from the fact-finding stage of the proceedings, despite the Tribunal’s careful, reasoned findings at stage 1. In these circumstances, whilst he was not precluded from doing so, it was inevitably difficult for Dr Higgins to establish anything close to full insight and difficult for the Tribunal to be satisfied that he had truly developed the necessary understanding of his misconduct and the seriousness of what he had done, in circumstances when he continued to deny that the large majority of it had occurred. The admissions that he had made were to a significantly lower level of inappropriate behaviour. There is force in the distinction that counsel for the GMC drew in his closing submissions (para 60 above).

I reject the suggestion that the present case is distinguishable from the judicial observations made in the trio of cases I have referred to in the preceding paragraph. As I have explained, the Appellant only admitted to a much lower level of inappropriate conduct than that found by the Tribunal and so the force of those observations is not diminished.

Stepping back from the individual allegations which Dr Higgins continued to deny, the submissions made on Grounds 1 – 3 in this appeal did not assist his case in this regard. Despite the Tribunal’s clear explanation of the power imbalance and how this dynamic had affected the behaviour of the complainants and the impact of the misconduct upon them, oral submissions referred to Ms A as a “willing responder” (para 114 above) and, via Mr Williamson’s skeleton argument, the Appellant continued to contend that this was “an entirely mutual relationship” (para 26). Whilst this material was not before the Tribunal and I would have reached the same conclusion without it, it does underscore the validity of the Tribunal’s assessment that his insight remained limited. Mr Williamson continued to characterise the relationship between Ms A and Dr Higgins as a consensual one for the purposes of his submissions on Ground 4. However, that approach is unrealistic; Ground 4 is advanced on the basis that Grounds 1 – 3 have not succeeded; and, accordingly, in circumstances where Dr Higgins had behaved (amongst other respects) as set out in Allegations 5, 6, 14 and 15.

The Tribunal’s approach was also consistent with the Sanctions Guidance. In the main the Appellant had refused to accept the misconduct and, on the Tribunal’s findings, had failed to tell the truth about his behaviour during the hearing (para 85 above). In the circumstances he had not addressed the Tribunal’s concerns about his misconduct (para 84 above). The Tribunal also took into account, as it was entitled to do, that much of misconduct occurred after the time when the Appellant said in his evidence that he had started to improve after realising that he has lost his boundaries (para 57 above).

As I have noted at para 95 above, assessment of insight is classically a matter for the Tribunal to assess. The Tribunal saw and heard the Appellant giving evidence over three days; subsequently it heard detailed submissions on sanction and it considered the remediation materials submitted by Dr Higgins. There is no basis for finding that it erred in the way that it assessed his level of insight.

As I have indicated, Mr Willamson disputes that the circumstances fell within para 150 of the Sanctions Guidance. He contends that this text was aimed at situations where a doctor abused the special position of trust that they held with a patient. I have set out para 150 of the Guidance at para 89 above. The wording is not confined to the doctor – patient relationship. Those who drafted the Guidance could have expressed the proposition in that narrower way, if that was their intention. The reference is simply to “the special position of trust a doctor occupies”. I see no reason why this should not include a doctor’s abuse of the power that they have over junior colleagues. Indeed, in addition to the overall power imbalance, Dr Higgins specifically tried to use his power in the employment relationship, promising Ms A a Health Care Assistant’s role if she did not reveal his behaviour (para 45 above). On the face of it, that is something that makes the misconduct particularly serious, and so it would be surprising if para 150 did not cater for that situation. Such an approach is also consistent with the inclusion of fellow staff within the overarching objective of protecting and promoting the health, safety and wellbeing of the public (paras 82 and 90 above), and with judicial recognition of the seriousness of sexual misconduct towards a colleague (para 92 above).

Accordingly, I consider that the Tribunal were correct to treat these circumstances as coming within para 150 of the Sanctions Guidance, as I have summarised at para 69 above.

The Tribunal were plainly alive to the Appellant’s otherwise unblemished career, which it referred to on a number of occasions. Nonetheless, given that it had legitimately found that Dr Higgins had only developed limited insight into the nature and seriousness of his misconduct, it was entitled to conclude that it was not satisfied that there was other than a significant risk of him repeating his behaviour (para 68 above).

I do not accept that the sanction of erasure was excessive or disproportionate in the circumstances of this case. I am satisfied that it was appropriate and necessary (para 81 above).

As I have summarised at paras 63, 65, 68 and 69 above, the Tribunal took into account that:

This approach was consistent with its findings on the evidence and consistent with the Sanctions Guidance and the caselaw principles. The Tribunal, rightly, also identified and took into account the mitigating factors, the evidence of remediation and the impact on Dr Higgins (paras 64, 67 and 69 above). In the circumstances the Tribunal was entitled to find that the proven sexual misconduct had the potential to seriously undermine public trust and confidence in the profession; and to have regard to the importance of the reputation of the profession, the need for public protection and to maintain public confidence and proper professional standard standards. The Tribunal was entitled to conclude that the Appellant’s behaviour was fundamentally incompatible with being a doctor and to impose the sanction of erasure from the register.

Accordingly, and for the reasons I have identified, the appeal is dismissed.