AC-2025-LON-000408 - [2025] EWHC 2846 (Admin)

Ground 3 - Misconduct. Setting aside charges 2, 3 and 4, which the Panel found did not amount to serious professional misconduct and are not appealed, this ground of appeal focussed on the sexual misconduct charges.

Charge 1,the Bedroom Incident. The relevant charge was as set out in the decision: “1(a) on or around 14^th November 2018 you: (a) asked Ms A whether she would spend the night with you. (b) touched her breast/s”. It did not allege that Ms A was his patient. This is in contrast to charges 2, 3 and 4 related to his treatment of her as a patient, with whom he had a close personal relationship, in the following 5 days. At J220-232 the Panel analysed whether the Bedroom Incident was serious misconduct and concluded that it was not. The reasoning is a little confusing. Firstly, the Panel stated that, although they had found that Ms A was his patient before and leading up to the Bedroom Incident (J65), because the GMC had not pleaded that she was his patient as part of and in charge 1, they could not take into account her being a patient. So, for the purpose of determining whether his conduct was misconduct, when he asked to sleep with her and touched her, this was ignored. Secondly, the Panel considered whether to take into account that they had a “close personal relationship” and the Panel stated, at J231, that they had considered the conduct without reference to charge 2(a) (which they had determined was proved and was that Dr Foy had treated her on 15.11.2018 when he had a close personal relationship with her). Thirdly, the Panel found at J232, that “there was no reason why he should not have made those advances as, at the time, he had a reasonable belief that she would consent to them”. It appears the Panel meant that if she was not a patient then he was free to act as he did.

The GMC described the Panel’s decisions to ignore (1) their own finding that Ms A was patient at the time and (2) the close personal relationship which they had found (J280), as “narrow pleading points”. They point to the Panel’s finding that Dr Foy was intent on having sex with Ms A, J164. The GMC also rely on FTP Rule 17(2)(k) which states: “(k) the Medical Practitioners Tribunal shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner's fitness to practise is impaired;” It was submitted that all the facts found proved were relevant, not just the way that the charges were framed. No authority was cited for this proposition.

In response Dr Foy made no submissions in writing or verbally.

Analysis. Prima facie one might assume that a registrant is to be sanctioned for the charges laid, defended and yet found proven and nothing more, all in the light of Good Medical Practice, the Sanctions Guide (SG) and the case law The FTP Rules specifically state that fitness to practise is determined on the basis of all the facts proved. Should the determination of his misconduct for this charge therefore be considered based upon all of the facts found instead of the wording of the charges? It is an express principle that sanctions are not imposed to punish, but to protect and promote public health, safety and confidence in the profession. It seems to me that those objectives are wider and more flexible than, for instance, criminal charges and sentencing in criminal Courts. Furthermore, the FTP Rules appear to make the facts to be considered at the fitness to practise stage wider than the charges. However, I do not consider that a registrant can be sanctioned for a charge which was not laid or amended or on facts which were not asserted in relation to that charge. It seems to me to be a matter of justice that a registrant should know the charges which he faces and be given time to prepare to answer them. If any charge needs amending an application can be made to do so. I understand that some charges were amended at the hearing, but these charges were not. Whilst all the facts are relevant to fitness to practise I do not consider that FTP rule 17(2)(k) can be used to change or amend the charges actually laid without an application. This charge was worded without reference to Ms A being a patient and so Dr Foy faced a straight charge of sexual assault without consent. The act was proven, the lack of belief in consent was not proven. The Panel determined the misconduct on the charge as drafted and I consider it was right to do so. I dismiss this ground for that reason.

Ground 2 – Aggravating factors. Breach of trust Ms A and Dr Foy called each other “Uncle” and “Niece”. Dr Foy denied being in loco parents, denied being related to Ms A and denied being her guardian in his evidence. He asserted that he was a contact for her whilst she was in the UK inter alia for medical advice at the request of her father who came from the same village as his father. The Panel accepted Dr Foy’s evidence on the breach of trust issues and preferred it over the GMC assertions of positions of trust, in particular rejecting Prof. G’s evidence (that Dr Foy was her guardian and a distant blood relative). The GMC submit that the Panel failed to take into account that Dr Foy’s actions in the Bedroom Incident and the Sofa Incident were a breach of trust and an abuse of position. They pray in aid that Prof. G had asked Dr Foy to assist his daughter, who was visiting the UK for her thesis, with her ill health; who treated her as a patient; whose family were close to Prof. G’s family; who was twice her age and whom he raped whilst she was a guest in his home. The GMC rely on the judgment of Supperstone J in Davies v BSB [2015] EWHC 2927 (Admin) at paras. 34 and 37. Para. 34 recited the judgment of Collins J in Nandi v GMC [2004] EWHC 2317, in which he ruled that the panel is required to look at the whole picture surrounding the allegation of professional misconduct when imposing sanction. Para. 37 is not relevant.

The Panel carefully considered the legal principles at J203-211 and neither Appellant challenged their approach to those. They considered the Sofa Incident and listed failing to wear a condom and ejaculating as aggravating factors. The Panel rejected the GMC assertions that Dr Foy pre-planned the attack, or that Ms A was an especially vulnerable person, or that there was any betrayal of trust. They decided, as a fact, that Dr Foy was not her guardian or in loco parentis. They ruled that Dr Foy was not a relative of Ms A in biological terms. They rejected the submission that age was a relevant aggravating factor. The GMC does not expressly challenge any of those findings save to assert that age was an aggravating factor and there was a breach of trust.

Dr Foy did not make written or oral submissions in response.

Analysis. The Panel found, at J236, that the Sofa Incident amounted to serious professional misconduct, was culpable and disgraceful but noted that their decision was not a criminal conviction. This ground of appeal probably goes to impairment and sanction as well as seriousness. I have not been provided with the document Good Medical Practice however,abuse of a position of trust is mentioned in paragraph 109 (d) of the SG, which states by reference to para. 65 of Good Medical Practice that “you must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession”.

For there to be a relationship of trust, the relationship needs to involve something more than just inter family friendship or doing a family friend a favour, or social friendship. Dr Foy was expressly found by the Panel not to have been her guardian (he was cross examined upon that) or in loco parentis. The Panel accepted his evidence. The Panel found that Ms A was not his patient when he drove her back to Blackpool on 2.12.2018 (in contrast to the relationship in November 2018). He was merely doing her a travel favour at her request to save her money. She was not a child; she was a grown woman. Yes, she placed her trust in him as a friend who had helped and treated her in the past, but she did so with her eyes open, in the knowledge that he had asked her to sleep with him a mere two weeks before. In my judgment the challenge to the finding that there was no breach of trust is not made out.

I do not consider that the challenge to the ruling that age was not an aggravating factor is sustainable. Ms A was an educated woman, aged 25, pursuing a thesis. She had enjoyed past sexual relationships, she had experience of life. Her adult life was her own to live as she wished and she was entitled to have relationships with adult partners of her own age, younger or older. She was not a child. Her father, sister and brothers were alive and available for advice and support. She had one brother in Glasgow and another in the USA. If she had been aged 18 the point might have had some weight.

Ground 5 - seriousness. The GMC submit that the Panel’s assessment of the seriousness of the rape was wrong on the basis of the following matters: (1) the Panel was “victim blaming”, as Ms Grey KC put it in submissions; and (2) the Panel failing adequately to classify Dr Foy’s intent; and (3) failing properly to assess the harm to Ms A. As a result, the GMC submit the panel lowered the seriousness of the rape. I am not sure that I fully understand the subtlety of how this ground was put because the Panel decided at J236 that the rape was serious misconduct and disgraceful.

Dr Foy did not make written or verbal submissions in response.

Analysis. The Panel found that Dr Foy had no preplanned intention to rape Ms A and the GMC highlighted no evidence to show that this finding was wrong. No evidence was led by the GMC from any doctor, GP, psychiatrist or psychologist, diagnosing any medical condition caused by the rape, so the only evidence of harm came from Ms A. There was almost nothing in her four GMC witness statements on harm. The Panel considered the seriousness of the conduct between J229-236, but the GMC rely on subsequent paragraphs: J239, 278 and 279 and 281. In 237-240 the Panel summarised their findings of fact on the lead up to the rape in the context of impairment. They took into account Dr Foy’s good character and impeccable testimonials. They stated that they did not apportion blame on Ms A. Then set out her three visits to his house, his visit to her whilst she was in hospital in Glasgow, his desire to have sex with her, his request for sex made on 20.11.2018 (which she refused), and Ms A’s subsequent request for him to drive her to Blackpool two weeks later, in the knowledge that he had wanted sex with her which she sternly rebuked and that she would need to stay over. Then her decision to lay between his legs on his pelvis with her head on his abdomen, over a cushion. The Panel found his sexual actions were initiated as a result of his desire arising from her lying on him, which he honestly believed was reciprocated. Ms Grey submits that none of that excuses rape after Ms A said “no” nor does it reduce the seriousness of the rape. I agree. If this background was used to minimise the seriousness of the rape this ground of appeal would have legs, but I do not read J239 as saying that. It is under the heading impairment. It is the background to their consideration of whether Dr Foy is impaired. They then went on to consider his lack of apology; his lack of insight; the testimonials from female colleagues; his clinical competence and found that his fitness to practice was not impaired on public protection grounds. The attack on that finding is in ground 6, to which I shall turn below.

At J278 the Panel took into account that the charges were proven to the civil standard not the criminal standard. Looking at the SG there is a focus on criminal convictions as distinct from civil wrongs. For instance, paras 109 (f) uses the word “offences”, and para 151 describes criminal convictions, and the paragraphs on sexual misconduct, 149-150, focus on criminal convictions. I do not consider that the Panel fell into error by making some distinction between rape proven to the civil standard and criminal convictions. The word rape is the same and the actions are the same, but the standard of proof is intentionally different. How much of a distinction is a factor in the multi-factorial assessment they had to make.

The Panel took into account their finding that the rape occurred in Dr Foy’s private life, not on a current patient. That was a relevant factor, and I do not accept the GMC’s submission that it should have been ignored.

At J279 the Panel was unable to assess Dr Foy’s level of insight because he denied the rape. But that is really relevant to ground 6 not ground 5. Overall, I do not consider that the Panel fell into error when assessing the seriousness of the conduct because they reviewed the relevant evidence and stated they found it serious and disgraceful. They considered his intention and inferred it from his actions, they set out Ms A’s actions which were relevant to his arousal, and they were given scant evidence from the GMC of the level of harm caused to Ms A. They could only work with the evidence provided.

Ground 6 – Risk assessment. This ground appears to me to be the crux of the GMC’s concerns about the sanction. The Panel found that there was no risk of future repetition of rape by Dr Foy, so the public are safe, and he had no impairment on public protection grounds, see J248. The GMC submit that the Panel were wrong so to find and their reasoning at J241 and 247 leading to J248 disclosed that error. At J241 the Panel stated that rape was not easily remediable and Dr Foy had presented no evidence of efforts to remediate his conduct because he denied it. Against that, they considered that this was an “isolated incident” and were satisfied that “in the circumstance of the case it is inconceivable that Dr Foy-Yamah would repeat the behaviour which led to the finding … ever again.” They stated that Ms A had entered his life at the request of her father and she “captured his imagination to the extent that he developed a sexual interest in her”, they spent evenings together, she attended his birthday party, and they exchanged familiar messaging. Later, he denied the rape and asserted he was being blackmailed and faced the abyss, but that did “not detract from its [the Panel’s] determination that Dr Foy-Yamah will not repeat his behaviour”.

Dr Foy did not make written or verbal submissions in response.

Analysis. Objectively, in my judgment, the factual findings made by the Panel about the circumstances leading up to the rape were hardly unusual. They could occur anytime in a huge range of similar circumstances. An older man who, living away from his family 5 days a week and working hard in the day, develops a sexual fixation in his social life on a younger woman who had visited his house twice. They went out to a party. He had proposed sex, and she had rebutted him. Despite her rebuttal, two weeks later she asked for a long ride up to Blackpool in his Maserati and stayed over. When he made a move on her, because she was lying on his groin, she said again that she did not want sex with him. The fact that he was aroused is not an excuse for him to ignore her free will and rape her. The incident was isolated only because he had not raped anyone before. He had however, twice before become aroused with her and backed off. This time he did not back off. Nothing in the facts of the lead up to the incident made it isolated in the sense that countless similar situations could arise in his social life in future, away from home, with any woman friend who entered his house, who would then be in danger were she to say no.

Furthermore, the lack of insight shown by Dr Foy after the event is very troubling. Whilst he was found to have admitted to sexual assault of Ms A to O and Prof. G, his explanation to the Panel, that he was admitting only to one peck on the cheek, which was clearly rejected by the Panel and showed no insight. The tone and content of his admissions to O and Prof. G did not sit well, according to the Panel, with a mere peck on the cheek. They were illogical on his own case. His denial at the hearing was part of his right to defend himself but his lack of any insight and remediation gave the Panel no room to feel secure that his disgraceful and dangerous behaviour would never happen again. His excellence at work before and since does not go to that risk. It goes to clinical competence.

In my judgment ground 6 is made out. Despite the deference thresholds to overturning findings on appeal, I consider that the determination by the Panel that Dr Foy presented no risk to women in future was made without logical foundation, lacked any or any sufficient evidential foundation and failed properly to take into account his conduct, lack of insight, his lack of remediation. On the evidence, in my judgment it is clear that there are substantial risks to any woman who may become friendly with Dr Foy outside work, in Blackpool, and may then go back to his house (or to her accommodation) and lead him to feel aroused. Furthermore, there was no sufficient evidence before the Panel that Dr Foy realised that when Ms A said no, that meant no, quite the opposite.