Two bites of the apple- limitation in professional negligence cases
The giving of reasons
In a case originally presented by Kingsley Napley, the principle set out in Southall v the General Medical Council  EWCA Civ 407 was considered alongside the reasoning given by the Panel for dismissing expert evidence when making their decision.
The Appellant was a music therapist. She was employed at the Royal Welsh College of Music and Drama between September 1997 and July 2008. In 2009, an anonymous complaint was made regarding the Appellant’s conduct during the course of her work at the college. The Appellant faced eight allegations in total; not all were proved. The Appellant’s fitness to practise was found to be impaired. The Appellant appealed against both the decision and sanction imposed.
Allegation one alleged that the Appellant utilised psychodynamic therapeutic techniques inappropriately in a higher education setting. The allegation was supported by nine separate particulars. The Appellant alleged that she had never crossed the line between teaching therapeutic techniques to students and practising on them. She relied upon expert evidence from the Head of Music Therapy at the Guildhall School of Music and Drama.
It was submitted that the findings of the Committee in respect of this allegation were fatally flawed because the Committee appeared to ignore the evidence of this expert. In their decision the Committee noted, “Dr Levinge’s witnesses provided a more limited view of the issues in particular, X (the expert) had never visited the college”. They acknowledged her evidence but did not attach as much weight to it as they did to the evidence provided by the students about the techniques practised by Dr Levinge.
Justice Williams held that it was wholly wrong for the Committee to dismiss the expert’s evidence on the basis that she had never visited the college. She had provided the panel with a written report which supported the Appellant’s case, as well as giving oral evidence.
The expert gave evidence which was capable of giving significant support to the Appellant’s case. In those circumstances, it was incumbent upon the Committee to explain why it was that the expert’s evidence was not accepted. If her evidence was rejected on the basis that she had not visited the college then the Committee fell into significant error.
Justice Williams cited and followed the reasoning in Southall. He confirmed that in straightforward cases setting out the facts to be proved and finding them proved will generally be sufficient, however, when the case is not straightforward (or exceptional) the position is different. It is essential to include a few sentences dealing with the salient issues.
Although the Committee’s findings in respect of allegation 1 were flawed and could have been remitted, the Committee was entitled to find that allegations 2, 3, 4(d), 5 and 7 were proved. On the basis of those findings it was reasonable to conclude that the Appellant’s fitness to practise was impaired. Therefore, it was not necessary to remit the case back to the Committee.
The principle set out in Southall remains good law and when the case includes expert evidence which is rejected, the decision should include detailed reasons as to why this is the case.
Laura Ryan, Associate
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