2022-05-25 14:23:03
At our seminar on 4 May 2022, Mark Harries QC gave a presentation on Sexual misconduct in healthcare fitness to practise cases. The presentation, comprised of two documents, can be accessed on the home page of our website. Amongst other things, Mark remarked on the different approaches of Mr Justice Mostyn and Mrs Justice Foster to the determination of whether a registrant’s conduct was sexually motivated.
Less than a week after our seminar, Mrs Justice Foster gave judgment in Alberts v General Dental Council [2022] 5 WLUK 119.
Mr Alberts, a dentist, had made inappropriate comments to a dental nurse, including about her eyes, that left her eeling uncomfortable and embarrassed. The General Dental Council found that his actions amounted to misconduct that impaired his fitness to practise. The GDC imposed a 12-month suspension. Mr Alberts appealed, arguing that the length of suspension was disproportionate. He argued that:
- the GDC had been wrong to find that his fitness to practise was impaired on the; grounds of public protection because the nurse was not a member of the public;
- his behaviour was no more than over-friendly and had not caused harm; and
- his misconduct was at the lower end of seriousness for sexual misconduct.
Dismissing the appeal, Mrs Justice Foster held:
- The GDC’s overarching objective of protecting the public included within the meaning of “the public” not only patients but also colleagues and visitors to the dental practice.
- It was wrong to say Mr Alberts’ conduct caused no harm: inappropriate sexual behaviour often came with a power imbalance. This case involved an experienced professional and a new dental nurse who was a third of his age. Even if the embarrassment and discomfort caused to her were moderate, harm had still been caused. A woman was entitled to be protected from sexually motivated commentary, especially in her work environment.
- It would have been open to the GDC to impose a shorter period of suspension, but the sanction could not be characterised as disproportionate.