Ed Madden, BL, seems at a latest England and Wales Excessive Court docket case through which the Normal Medical Council challenged a choice of a Medical Practitioners Tribunal that the health to practise of a medical practitioner was not impaired by purpose of his misconduct
In October 2024, the England and Wales Excessive Court docket delivered its judgment in a case through which the Normal Medical Council (‘the GMC’) appealed towards the choice of a Medical Practitioners Tribunal (‘the Tribunal’) that the health to practise of a medical practitioner was not impaired by purpose of the misconduct that the Tribunal discovered had been confirmed towards him. The Skilled Requirements Authority for Well being and Social Care (‘the Authority’) joined the attraction as a further appellant.
When the case got here on for listening to, the Court docket was instructed that in March 2008 Dr Maxwell Dugboyele commenced working as a specialty grade physician in obstetrics and gynaecology for the Harrogate and District NHS Basis Belief (‘the Harrogate’).
The allegations that led to the Harrogate’s referral of Dr Dugboyele to the GMC associated to incidents that occurred over a time frame extending from Might 2017 to September 2020. It was alleged that in that point, he sexually harassed a number of feminine colleagues on the Harrogate. It was claimed that he had ‘kissed, stroked, hugged, and touched junior feminine colleagues within the office, even after they repeatedly made clear to him that the behaviour was not welcome’.
In March 2018, he obtained a written warning from a senior colleague admonishing him for his ‘over-familiarity’ with junior feminine colleagues. He was particularly warned to not put his arm round employees members, and directed to ‘keep away from standing too near colleagues and inflicting them discomfort’. Regardless of this warning, the behaviour continued.
Following an inner investigation, the Harrogate discovered Dr Dugboyele responsible of gross misconduct. A disciplinary assembly was convened with him in October 2020. Nevertheless, the assembly didn’t go forward when the physician gave discover the day prior to this that he was resigning from his submit. He continued working for the Harrogate till March 2021. Following his departure, he started work as a center grade physician in obstetrics and gynaecology on the Airedale NHS Belief (‘the Airedale’).
On the listening to earlier than the Tribunal took Might 2023, Dr Dugboyele represented himself. The allegation of misconduct towards him was comprised of some 45 particular cases of alleged misconduct towards seven complainants, every of whom was a midwife or pupil midwife. The precise cases had been set out in eleven numbered paragraphs. Paragraph 12 of the Allegation alleged that ‘these cases had been an abuse of Dr Dugboyele’s skilled place. The physician admitted numerous the allegations however he disputed the rest. Nevertheless, all of them had been discovered by the Tribunal to have been proved towards him.
The ultimate numbered paragraph of the allegation, paragraph13, reads as follows: ‘Your actions had been illegal sexual harassment associated to intercourse by advantage of Part 26 of the Equality Act 2010, in that you just engaged in undesirable conduct associated to intercourse which had the aim or impact of violating the dignity of or creating an intimidating, hostile, degrading, humiliating or offensive setting for [the seven complainants]’. Dr Dugboyele admitted this a part of the allegation, however solely after the GMC had clarified that it was not alleging that his conduct was sexually motivated.
The Tribunal went on to search out that the precise cases of misconduct fell thus far wanting the requirements anticipated of a medical practitioner that it amounted to severe skilled misconduct. The Tribunal then turned to the query of whether or not Dr Dugboyele’s health to practise had been impaired because of the misconduct. On the impairment stage, the Tribunal obtained additional proof together with, a doc ready by the physician entitled ‘Reflection and Proof of Remediation’ dated Might 15, 2023, and an announcement dated March 8, 2023, from his Accountable Officer on the Airedale. Character references had additionally been supplied by two Administrators of the Airedale in relation to his conduct of their employment.
The Tribunal concluded that Dr Dugboyele’s health to practise was not impaired. Having famous that in these circumstances it couldn’t impose a sanction, it went on to contemplate whether or not a proper warning was warranted. Having mirrored on submissions from the events and having thought-about the related authorized rules, it decided {that a} formal warning was applicable.
The central competition of the GMC and the Authority (as appellants within the case) was that, in making its dedication on impairment, the Tribunal centered an excessive amount of on questions in relation to future danger and the extent of Dr Dugboyele’s remediation. In so doing, it failed to provide correct consideration as to if the necessity to uphold skilled requirements and preserve public confidence can be undermined if there was not a discovering of ‘present impairment’.
Giving his judgment within the case, Mr Justice Murray agreed with the competition of the appellants concerning the findings on impairment. The decide expressed his shock on the concession made by the GMC in the midst of the Tribunal listening to that it was not alleging that Dr Dugboyele’s conduct was sexually motivated. The physician’s assertion that his conduct was motivated purely by ‘friendliness’ was merely not able to perception, given the factual findings of the Tribunal. There was no credible harmless rationalization of the physician’s conduct.
The decide quashed the choice of the Tribunal on impairment. The choice to concern a warning was additionally quashed. In permitting the attraction, the Court docket substituted a discovering that Dr Dugboyele’s health to practise was impaired by his severe skilled misconduct. It remitted the case to a otherwise constituted Tribunal to contemplate the query of sanction. 
Reference: [2024] EWHC 2651 (Admin)
