High Court dismiss appeal against decision of Conduct and Competence Committee of HCPC.
The Appellant, Gillian Levett, a Chartered Psychologist, appealed against the decision of the Health and Care Professions Council’s (HCPC) Conduct and Competence Committee (the Panel) that her fitness to practise was impaired and that her name was to be struck from the Register.
The Registrant has been in private practise since 1987. On 10 October 2006 Ms A attended an “assessment” appointment with the Registrant at the Registrant’s clinic. On 9 November 2006 Ms A attended a second appointment with the Registrant and on 12 January 2007 Ms A’s file was closed. A few days later the Appellant duly sent a letter to Ms A’s Consultant Paediatrician informing him of the outcome. In November 2007, Ms A arrived unexpectedly at Ms Levett’s clinic in need of help. Ms Levett made arrangements to assist Ms A with accommodation: between 4 and 14 November 2007 Ms A spent most days and nights staying at the home of the Registrant’s secretary. Ms Levett’s secretary, AB, was herself a former patient of the Registrant. For the following 18 months the Registrant continued to see Ms A in circumstances which the Panel found amounted to an “inappropriate relationship”. The Panel concluded that the relationship “crossed the line” and was professionally inappropriate and misguided, albeit with good intention.
On 18 February 2008 Ms A’s father made a complaint to the British Psychological Society (BPS). On 25 July 2008 the BPS found that no professional relationship existed as at November 2007 between Ms A and Ms Levett and that there was no evidence of an inappropriate relationship between them. In June 2010 the HCPC received a complaint about the Appellant.
Fitness to practise proceedings were commenced by the HCPC against Ms Levett. Hearings were held before the Panel in September, October and November 2013, the hearing lasting 9 days. The Panel found three main factual allegations proved:
The Registrant conducted an inappropriate relationship with a patient and failed to maintain proper professional boundaries between November 2007 and July 2009.
The Registrant breached the confidentiality of Ms A by revealing personal information about her that was given to the Registrant in confidence to KK.
The Registrant conducted inappropriate relationships with former patients KK and GA.
Dealing with each of the grounds of appeal in turn;
The first ground of appeal relied on by Ms Levett was that the Panel’s finding that the Registrant had breached patient confidentiality in relation to Ms A was wrong and irrational. It was submitted on behalf of the Registrant that the Panel had based its finding in this regard on a letter from KK to Ms A, dated 11 December 2007, but that they had paid no regard to the fact that KK’s letter was clearly a reply to a letter by Ms A to her in which she had volunteered a number of personal details about herself, including her medical conditions and her parental and family problems. It was held that the Panel did not take Ms A’s important letter into account. This finding was supported by the fact the Panel had found erroneously that Ms A had suffered from the same condition as KK when in fact KK had suffered from another quite different condition. It was held that the only proper inference was that confidential information about Ms A’s condition and parental and family problems which formed the substance of the Panel’s finding under allegation three came from Ms A herself. Accordingly this ground was upheld.
It was argued that the Panel’s finding that Ms A was “a patient” of Registrant was wrong and irrational. It was submitted on behalf of Ms Levett that the Panel had failed to direct themselves as to what the proper test was for determining whether there was a “clinician-patient” relationship. It was further argued that the Panel failed to give adequate reasons for their decision and that the evidence as a whole did not support the Panel’s findings. It was held by the Court that none of these complaints stood up to analysis. The Panel had provided six succinct reasons which were a reasonably cogent explanation for their findings. It was said that;
“the question whether or not someone is a patient is prosaic rather than sophisticated. It does not turn on fine definitions. The answer depends on the factual evidence, i.e. how the actors said to be in a “clinical-patient” relationship conducted themselves and the view taken by the fact finding tribunal as the documentary and witness evidence as a whole”.
It was held by the Court that the documentary and witness evidence pointed strongly in the direction of there being a clinical-patient relationship for the following reasons; firstly it was common ground that the genesis of the relationship was professional, secondly there was a raft of correspondence which was redolent of the Registrant acting all material times in a clinical role, thirdly that after one particular meeting the Registrant subsequently invoiced Ms A’s mother in the sum of £1,057.00 for what the invoice described as a “clinical appointment”, fourthly it was clear that Ms A regarded herself as a patient of the Registrant, fifthly that the Panel were entitled to come to a different view to that of the BPS. This ground of appeal was therefore rejected.
The third ground of appeal was that it was now open to the Panel to find the Registrant had an inappropriate clinician-patient relationship with Ms A. This necessarily failed as a result of ground two being unsuccessful.
The fourth ground of appeal was that the Panel’s finding that the Registrant had an inappropriate relationship with former patients KK and GA was wrong and irrational. The Panel had found that the Registrant’s relationship with two former patients, GA and KK was inappropriate since she had got them to provide renovation work on her property and had socialised with KK on a number of occasions. It was submitted on behalf of Ms Levett that the relevant professional guidance in force at the time did not prohibit employing former patients and there was no financial impropriety involved. It was held by the Court that this issue was “prominently a matter of judgement for the specialist disciplinary Panel and the Court should not interfere absent of patent error or failure to take account of material evidence. There was no discernible error or omission”. The Panel had rightly pointed out the central mischief of boundary transgression such as this, namely that there “could be a power imbalance between a psychologist and a former patient”. This ground of appeal was therefore rejected.
The fifth ground of appeal was that the Panel’s finding that Ms A was a credible witness was wrong. The Court made it clear that, as ever, it is an uphill struggle to persuade an appellate Court to overturn findings as to credibility of witnesses. Ms A had been extensively cross-examined by Ms Fenella Morris QC over no less than three days. It was clear from the transcript that Ms A was clearly doing her best at all times to assist the Panel and was unshaken in cross-examination. In any event the Panel clearly did not actually find the Registrant a credible witness or someone who was objective to her situation and her actions; they rejected much of her evidence and explanation as to what went on. The fifth ground of appeal was therefore rejected.
The sixth ground of appeal was that there was a serious procedural irregularity at the hearing because the Registrant was unable to hear Ms A’s evidence, which was given from behind a screen. The Court rejected this ground of appeal. The Registrant was represented by Counsel and a Partner of Berrymans Lace Mawer and at no stage did they apply for an adjournment or formally complain the hearing was unfair because of an audibility problem. It also appeared from the transcript that Ms Morris QC was not inhibited by lack of instructions from her client given the detailed and lengthy cross examination of Ms A.
It was argued on behalf of Ms Levett that the majority of the matters found proved by the Panel were capable of amounting to misconduct however Counsel challenged that two findings of the Panel which he submitted were not capable amounted to misconduct was a) treatment outside normal clinic hours and b) treatment at the Appellant’s home. As argued on behalf of the HCPC the Panel were not assessing whether individual acts or episodes viewed in isolation amounted to misconduct, but looking at the overall picture and seeing if an inappropriate relationship existed between the Registrant and this patient. This ground of Appeal was rejected. The last ground of appeal was that the sanction imposed was disproportionate. The Court held that this ground of appeal should not be upheld and concluded that;
'the only appropriate sanction in the circumstances of this case is that the Registrant should be struck off”. In my judgement the persistent breach of professional boundaries by the Registrant were so serious and a lack of insight into the inappropriateness of her own conduct so profound that striking off is the only appropriate and proportionate sanction which both reflects the case and protects the public interest.’
The Court accordingly rejected the Registrant’s challenges to the Panel’s decision, save in relation to allegation three and the appeal was dismissed.
The interesting aspect of this case is the comment of the Court in relation to the test for a ‘patient-clinician’ relationship. This case is in line with recent case law that commends a common sense approach to the definition of terms in fitness to practice hearings, such as Edward Mills v General Dental Council  EWHC 89 (Admin). Bearing in mind a number of registrants appear before tribunals unrepresented, overly legalistic and over analysed definitions of ordinary English words or terms does not assist.