Not always.
The judgement in Doctor Foy-Yamah’s case is 163 pages long, the hearing ran for 65 days and we believe there were more than 20 witnesses. We will not rehearse the factual allegations, suffice to state that the Tribunal found a serious sexual assault took place. Dr Foy-Yamah is appealing that finding. The GMC are appealing the sanction of 12 months’ suspension. Both Appeals will go to the High Court (or appeal and cross appeal as may be, we have not seen the pleadings and we will correct any missing detail regarding the appeals as soon as we have sight of them).
We suspect both parties will face stiff countervailing winds. Appellate Courts afford lower courts a large margin of discretion where findings of fact are concerned. The High Court will not rehear all the evidence and the frequent approach taken by the High Court is that the Tribunal which heard the evidence had the benefit of hearing it first-hand. The MPTS is also afforded significant discretion on sanction. Although the High Court has the power to substitute its own sanction, there is authority for not interfering with the MPTS panel’s decision because of their level of expertise and experience.
In Dr Foy-Yamah’s case the Tribunal stated the “misconduct came right up to the line of erasure but fell just short of crossing it. The Tribunal recognised that on the face of it, a member of the public may consider Dr Foy-Yamah’s actions were fundamentally incompatible with continued registration. However, the Tribunal considered that a reasonable member of the public, fully informed of the facts and circumstances would not”. It also stated that “12 months [suspension] is necessary to maintain public confidence in the profession and to send the appropriate message to the profession that conduct of this nature is wholly unacceptable”.
In respect of sanctions it has to borne in mind that sanctions are not intended to be punitive or “satisfy a demand for blame or punishment”. The reputation of the profession as a whole is more important than the interest of a single doctor. The public interest includes keeping competent and useful doctors practising – provided there is no danger to the public.
In Dr Foy-Yamah’s case the aggravating factors were that it was serious sexual misconduct, it occurred in his personal life, he did not use a condom, he ejaculated, it involved a degree of force and it caused the person harm. Against that the Tribunal found it was not pre-planned, predatory nor involving the doctor-patient relationship or his professional position. It was isolated, it occurred 6 years ago and he had worked all that time, championing staff protection during the Covid pandemic and “was always on the shop floor”. There was significant testimonial evidence and the Tribunal found nothing like that would happen again.
Dr Foy-Yamah will not be the first doctor to be suspended rather than erased where serious sexual assaults have been found to have occurred. In 2022 there were two High Court appeals on sanction, both of which left the sanction finding undisturbed.
Conversely there will be those cases where erasure will almost certainly follow. This includes cases involving children, vulnerable people, patients, misconduct in a professional setting, abuse of professional position, entry on the sex offenders register and misconduct that is not isolated.
Reasonable people can reasonably disagree about sanctions.
Please note that the comments in this case review are generic, if you have any fitness to practise concerns please contact us for specific advice on your matter.
