The suspension of Dr Awan has been upheld following an appeal by the General Medical Council ('GMC') of a decision of the Medical Practitioner's Tribunal. The appeal case reiterates that a registrant can advance any proper defence and should not face further charges, even when that defence is fanciful, as a result.
The matter also serves as a reminder to the appellate courts that the lower tribunals are best placed to evaluate live evidence and there's no need for every fact to be included in the determination.
GMC v Awan  EWHC 1553 (Admin)
In November 2019, the Medical Practitioner’s Tribunal (‘MPT’) suspended Dr Awan for nine months (with a review) following its determination that he had engaged in conversations, by online chatrooms, text and WhatsApp messages, with a person he thought to be a 13-year old girl, and that these conversations had been sexually motivated. A further charge of not reporting a vulnerable child to a child protection agency was also found proved.
In an appeal before Mostyn J, the General Medical Council (‘GMC’) advanced a number of grounds as to why the sanction was too lenient, each of which was rejected with the appeal being dismissed in its entirety.
In the proceedings before the MPT, Dr Awan admitted a number of charges but denied others, including that his behaviour was sexually motivated. Dr Awan argued that he immediately knew that the ‘child’ was an imposter and she was, in fact, much older (it turned out the ’13-year old child’ was an undercover police officer).
Dr Awan explained to the MPT that he had played along with the pretence so he could expose her and her true age, and his conduct was not, therefore, sexually motivated. The MPT rejected his defence and found the facts against Dr Awan proved, that this amounted to misconduct and that his Fitness to Practise was impaired.
The GMC appealed the sanction imposed on Dr Awan on the following grounds:
- The MPT should have had, but failed to, have regard to the manner in which Dr Awan gave evidence before it;
- In determining sanction, the MPT considered an irrelevant factor, namely the public interest in not depriving the public of the services of an otherwise competent doctor (Dr Awan having emigrated to Canada); and
- The MPT failed to apply the Sanctions Guidance (‘the Guidance’) appropriately.
Mostyn J rejected each of the GMC’s grounds. In his judgment, the pertinent points in his dismissal of the appeal were:
- A registrant should be allowed to put forward any defence that they wish, however “ludicrous”, and should be able to do so “…without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions”;
- The MPT would clearly have in mind the manner in which a registrant defends himself when considering insight;
- Whilst the public interest in maintaining a competent doctor is most relevant to the UK public, “…the objective of protection would extend to the global community”; and
- A tribunal does not have to “…slavishly restate the terms of the Guidance”, which is non-binding, especially when the Guidance’s factors have obviously been considered in the MPT’s disposal of the case.
As Mostyn J clearly states, there is no doubt that Dr Awan’s actions that led to the charges before the MPT were “serious and deplorable” nor that his defence before the MPT was “ludicrous”. A fanciful defence may be less likely to prove successful, and may provide some difficulties to the registrant in the latter stages of proceedings when considering insight. However, fairness in proceedings must allow a registrant to advance a case for his defence as he wishes without this being an aggravating factor on sanction.
This case is also a useful reminder that the entirety of a tribunal’s considerations do not have to be included in its decision and, indeed, it’s unlikely that this could even be possible. If, at the heart of a decision, the flavour of the considerations given can be understood and the reasoning as to why the tribunal reached its decision, especially a tribunal with the benefit of live evidence, an appellate court should be hesitant about interfering in the decision.
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