GMC v Dr Awan appeal case study

GMC v Awan [2020] 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.

Facts

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.

Appeal

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.

Commentary

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.