Keywords: Capacity, Vulnerable adults, professional misconduct
The GMC appealed a decision by the Medical Practitioner’s Tribunal to suspend rather than strike off a doctor who had entered into a sexual relationship with a vulnerable former patient. In part, the tribunal’s decision on the punishment was due to an erroneous finding that the patient was not vulnerable.
The patient (X) was a young woman who had multiple sclerosis. The doctor, who had previously treated X, had obtained her contact details from medical records and entered into an emotional and sexual relationship with her, telling her that having sexual intercourse with him would be beneficial for her MS.
X had given evidence to the tribunal that that she felt used; further, her relationship with the doctor had left her in a poor psychological state, and that she no longer had confidence in professionals.
The guidance on appropriate sanctions stated that more serious action was likely to be required where conduct involved predatory behaviour or a vulnerable patient. The tribunal had found that the doctor had used personal contact details from medical records which was predatory behaviour.
The tribunal had based its decision as to sanction on the reasoning that X was not vulnerable as per the description in the guidance. This reasoning was erroneous. The description of vulnerability in the guidance was not exhaustive. The tribunal had reached factual findings that the patient was young, vulnerable and had been exploited. It was therefore clear that X should have been regarded as vulnerable.
The tribunal’s sanction of suspension was overturned and the doctor was struck off.
The finding that ‘vulnerability’ is a characteristic which can be more broadly drawn than specific examples given in guidance has implications in the context of adult social care. Adult social care practitioners should be wary of the common tendency in Adult Safeguarding to consider adults as ‘vulnerable’ only where they lack capacity. The s.42 Care Act Safeguarding Enquiry duty applies to all adults with needs for care and support who are unable to protect themselves as a result of those needs. ‘Unable’ should be broadly interpreted in this context (i.e. not as being limited to ‘unable’ in terms of one of the 4 functions in s.3 Mental Capacity Act). Councils should ensure that full consideration is given to recourse to the Inherent Jurisdiction of the High Court if necessary to protect adults who are vulnerable but who may not lack capacity.
It can also be taken as a reminder that Care Act statutory advocacy requirements (s.67 & 68) are based on ‘substantial difficulty’ and are also not limited only to those who lack capacity (i.e. ‘unable’ in the MCA sense).
A transcript of the original MPT hearing is available at: https://www.mpts-uk.org/static/documents/content/Dr_Kwame_SOMUAH-BOATENG_10_July_2017.pdf
The full High Court judgment is not available.