Civil Fraud Quarterly Round-Up: Q2 2020
General Medical Council v Stone
 EWHC 2534 (Admin)
Before Mr Justice Jay
Pursuant to the power bestowed to the GMC by virtue of section 40A of the Medical Act 1983 (the Act), it sought to appeal against a determination of a Medical Practitioners Tribunal (MPT) dated 4 August 2016 to suspend the registration of Dr Stone (Dr S) for 12 months. The GMC’s principal argument being that the sanction imposed by the MPT was insufficient to protect the public.
Dr S practised as a GP having initially qualified in 1977. The principal allegation against him was that he had engaged in a sexual and emotional relationship with a vulnerable patient, Patient A. The relationship lasted between November 2011 and July 2014, and during its course the doctor continued to act as Patient A's GP.
The relationship started breaking down in or around March 2014, at which time Patient A's health also deteriorated. She attempted to take her life on three occasions in March and April 2014. When the relationship formally ended Dr S self-referred to the GMC.
Patient A's witness statement was admitted in evidence as hearsay, as by the time the hearing took place she was sadly deceased. Dr S admitted that:
Dr S denied dishonesty in relation to providing two supportive letters regarding Patient A on or about 1 October 2012 and 17 May 2013, in relation to her claim for benefit support. The dishonesty concerned his failure to disclose his sexual relationship with her. It is of note that the MPT upheld this charge stating that: “an ordinary informed member of the public would consider the production of these letters, in the circumstances, to be deceitful and dishonest. This would be the case even though the contents of the letters are true and accurate” [para 49].
At Stage 2 of the proceedings Dr John Hook, Consultant Psychotherapist (who had also practised as a Consultant Psychiatrist), gave evidence. Dr S’s account to Dr Hook was that although Patient A initiated the relationship he considered his own conduct to be "criminal ... massively wrong, hurtful, and destructive". Ahead of giving evidence Dr Hook had conducted a mental state examination and a variety of questionnaires with Dr S.
Dr Hook summarised the position as such:
…… Whilst on the face of it, it appears that the relationship with Patient A was sexually motivated I am of the opinion that there is an alternative explanation based in his character pathology and personal circumstances for these behaviours. In my view the combination of the above factors created a perfect storm in which he was confused by his own feelings and behaviours to a degree which interfered with and overrode his professional judgement. She represented aspects of his mother - dominating and demanding but with a more obvious vulnerability which he responded to in the hope of rescuing her from her unhappy situation. His psychological needs become predominant and caused internal conflict with his professional ethical code. He was not able to sufficiently prioritise his patient's needs over his own. I do not think that his behaviour was sexually predatory”.
The MPT accepted Dr Hook's report and evidence and concluded that Dr S was highly unlikely to repeat his behaviour.
As to impairment, the MPT determined that Dr S had not yet developed full insight and understanding into the circumstances that led him to act in the manner which he did; thereby his fitness to practise was impaired. At Stage 3, the MPT expressly referred to the Sanctions Guidance, and stated that the nature of Dr S’s health condition mitigated his misconduct “to a sufficient degree and that it is able to conclude that your behaviour falls short of being fundamentally incompatible with continued registration." As to dishonesty, the MPT concluded that it was directly linked with Dr S’s personal and sexual relationship with Patient A.
Summing up the MPT stated:
The tribunal is satisfied that a period of suspension is sufficient to maintain public confidence and trust in the profession. It has determined that the maximum period of 12 months is appropriate to send a message to the profession and the public and allow you the time to undertake the recommended psychotherapy” [para 41].
Mr Justice Jay clarified that the amount of deference which should be paid to the MPT “must depend on the context and the nature of the issues under scrutiny…... the MPT is an expert tribunal. However, the context is important because dishonesty and sexual misconduct cases are ordinarily more familiar to this court than, for example, cases involving a doctor's clinical performance. Plainly, deference is on a spectrum and no precise formulation of its intensity should be attempted”.
Mr Justice Jay noted that the present case did not involve “a momentary lapse of judgment”. Further, Dr S was fully aware of Patient A’s vulnerabilities. The circumstances were in fact compounded by Dr S’s dishonesty.
Considering the Sanctions Guidance, Mr Justice Jay stated that he would have expected the MPT to specifically refer to paragraphs 103, 137, 140 and 144 in its Determination on Sanction given their specific relevance. Yet, the MPT failed to do so. Materially he stated:
….the MPT did refer in general terms to the Sanctions Guidance and stated that it was taken into account, but in my judgment there is no indication that the MPT grappled with the seriousness of this case, including the salient features I have itemised, in the context of sanction. Instead, there is merely a generalised assertion that erasure would be a disproportionate sanction and that the doctor's conduct was not incompatible with his continued registration”.
As to Dr S’s health condition, Mr Justice Jay noted that the Sexual Offences Guideline published by the Sentencing Council makes clear that "mental disorder" is a mitigating factor, but distinguished the present case as the MPT was fundamentally different from that of a criminal court. Firstly, Dr S had not committed a criminal offence and, secondly because the defence of diminished responsibility is only available in homicide cases. Further, in the disciplinary context, personal mitigation must carry less far less weight than in the criminal sphere.
As to the evidence of Dr Hook, Mr Justice Jay stated that the MPT “should in my opinion have drawn a distinction between the doctor's moral and professional responsibilities and duties, and factors which an expert in mental health would take into account in reaching a diagnosis. There is some link between these two aspects, but in the circumstances of the present case it could only have been modest…..the MPT gave excessive weight to Dr Hook's evidence in evaluating the tripartite public interest. Put another way, the wider public interest is not upheld by tribunals accepting expert evidence of this nature, and applying a "plausible and psychologically coherent narrative" to the issues under scrutiny”.
Mr Justice Jay quashed the sanction and substituted it under section 40A(6) of the Act with erasure.
This is a helpful case to have in the knowledge bank. Mr Justice Jay has re-emphasised the principal issue which is at play in the disciplinary sphere: public protection. As such, whilst expert evidence which speaks to a practitioner’s state of mind is useful to help a tribunal evaluate the seriousness of their conduct, it cannot be used to trump public protection and the wider public interest.
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