England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3 August 2017

1. VICE PRESIDENT: Before we give our judgment, we would like to say that we do know that emotions are running high in relation to this case and we ask anybody present, who feels they may not be able to control those emotions in court, to leave now. Thank you.

Introduction

2. On 28th April 2017, in the Nottingham Crown Court, the offender was convicted by a jury of 17 counts of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 and three counts of unlawful wounding, contrary to section 20 of that Act.
3. On 31st May 2017 the trial judge sentenced the offender to 15 years' imprisonment in respect of each of the section 18 offences and 4 years' imprisonment in respect of each of the section 20 offences. The sentences were ordered to run concurrently, making a total sentence of 15 years.
4. Her Majesty Solicitor General (Mr Buckland QC) seeks the leave of the court to refer the sentence to us as unduly lenient.

The Facts

5. The offender is aged 59. He is of previous good character. He qualified as a doctor in 1981. In 1994 he was appointed a consultant general surgeon. Between 1997 and 2011 he worked at the Heart of England N HS Foundation Trust in Birmingham. In addition he had a private practice at two Spire Healthcare hospitals in the Birmingham area.
6. He specialised in the diagnosis and treatment of breast conditions. He was regarded by many local general practitioners as the "go to" specialist, the person to whom they would refer patients that they suspected might have breast cancer or might be at risk of developing breast cancer.
7. The jury's verdicts mean that they were satisfied that over a period of 14 years, in respect of 10 patients (nine women and one man) the offender deliberately misrepresented the contents of pathology, exaggerated the risk of cancer and advised and carried out unnecessary surgery including mastectomies.
8. The physical and psychological effects on the 10 victims have been profound. They put themselves in his hands. Believing they had a potentially fatal illness they agreed to invasive procedures and then suffered from all the physical pain and discomfort of surgery and the physical and mental scarring. They have lost their trust in others, particularly those in the medical profession. They have been left feeling violated and vulnerable, and some experience long-term psychological conditions including posttraumatic stress disorder, anxiety and depression.
9. The sentencing judge noted that it was difficult to overstate the psychological effect that the offending has had on the victims. He gave as an example one comment from the victim impact statements:

"Now and probably for the rest of my life, when I look in the mirror I see a victim of Paterson, who took away part of being a woman."

10. Many of the victims also suffered financial loss, both in the cost of their treatment, unnecessary surgery and aftercare and the impact of diagnosis and treatment on their employability.
11. To convey the full extent of the seriousness of the offending it is necessary to rehearse in some detail the offender's treatment of the 10 private patients. First, in 1997 Dr Rosemary Platt was referred to the offender for a lump on her right breast. The initial biopsy was unclear as to the presence of lobular carcinoma in situ (LCIS), that is abnormal cell growth, which is an indication of increased risk of cancer. A second opinion was sought. The offender failed to tell Dr Platt about the outstanding second opinion. He falsely described the lump as malignant. On his advice Dr Platt underwent a wide local excision, an axillary node clearance on 5th August 1997 (Count 1, an offence under section 18). Despite the fact that neither the second opinion or post-operative analysis confirmed the presence of LCIS the offender told Dr Platt that it was present. Further surgical biopsies were carried out in May 2000 and May 2001. None of the histology revealed evidence of malignancy, yet the offender advised a mastectomy. This was carried out on 25th June 2002 (Count 2, an offence contrary to section 18).
12. Subsequently the offender advised Dr Platt she may have a similar condition in her left breast. He recommended a four quadrant biopsy which was carried out in October 2001 (Count 3, section 20). Thereafter Dr Platt remained under the offender's regular supervision for the next 8 years, continuing to believe that she had cancer in her right breast and fearful of it occurring in her left breast.
13. Second, Marion Moran was referred to the offender for a lump on her left breast in 1998. Following an initial biopsy a wide local excision took place on 18th November 1998. However, when this was carried out the offender also conducted an axillary node clearance which was unnecessary, there having been no underlying malignant condition identified (Count 4 section 18).
14. Mrs Moran remained under the offender's supervision. After two further biopsies in 2001 and 2003 the offender wrote to her general practitioner, falsely stating that areas of pre-cancer had now been removed from the left breast and that unless she underwent a mastectomy there would be an inevitable deterioration to cancer. Mrs Moran, who had just lost a friend to breast cancer, was reassured by the offender's charm and reputation. She went through with the unnecessary mastectomy which was carried out in February 2004 (Count 5, section 18).
15. Third, Judith Conduit was referred to the offender in May 2000 with painful lumps in her breast. The offender conducted four excision biopsies and told Mrs Conduit that she was suffering from Durcum's disease. He said the only forward was to have a bilateral mastectomy and reconstruction. Mrs Conduit followed this advice and the mastectomies were carried out in May and July 2001 (Counts 6 and 7, both section 18). Mastectomies should have been an operation of last resort and Mrs Conduit referred instead to a specialist in pain management. During the second unnecessary operation Mrs Conduit developed a blood clot and because of post-operative infections she had to return to hospital for ongoing medical treatment on 94 occasions.
16. Fourth, Patricia Welch was referred to the offender in 1998. In 2001 he carried out a biopsy. Despite the fact that no evidence of malignancy was found the offender told Mrs Welch and her husband that she had pre-cancerous cells in her left breast and that it was inevitable she would develop cancer. He said the situation was like "a ticking time bomb". Mrs Welch agreed to undergo a mastectomy whic h was carried out in May 2001 (Count 8, section 18). The operation proved problematical and Mrs Welch underwent further operations over the next 2 years.
17. Fifth, Carole Johnson was referred to the offender in 1998. By 2002 she had undergone a serious of radiological tests, none of which revealed anything suspicious. Despite this the offender falsely described Mrs Johnson's condition as "dangerous and difficult". He recommended removing a lump and an excision biopsy was carried out on her right breast in April 2002 (Count 9, section 20). Further unnecessary operations were carried out in 2004 and 2005.
18. Mrs Johnson's insurers queried the need for the continuing treatment. In response the offender falsely stated that the latest histology had shown there to be pre- malignant potential in Mrs Johnson's breast. Notwithstanding the offender's claim the insurers refused to fund further treatment. Such was Mrs Johnson's trust in the offender that she and her husband decided to pay for the treatment themselves. In 2006 the offender falsely stated that radiology tests had disclosed a suspicious growth and a wide local excision was carried out in July (Count 10, section 18). A further unnecessary excision biopsy was carried out in 2007.
19. Sixth, John Ingram was referred to the offender in 2006 in relation to a lump under his right nipple. Tests revealed he had a common benign condition that did not require surgery. The offender did not reveal the true diagnosis. He falsely stated that Mr Ingram had pre-cancer and needed to have the lump removed. Mr Ingram followed the offender's advice notwithstanding he suffered from a phobia of undergoing a general anaesthetic. On the day scheduled for the operation he had a panic attack and could not go through with the surgery but a further date was arranged in May 2006 when he underwent a breast excision (Count 11, section 18).
20. Following that operation a second opinion was sought. Before it was obtained the offender told Mr Ingram that unless he had a bilateral mastectomy it was inevitable that he would develop cancer. This operation was carried out in June 2006 (Count 12, section 18). The second opinion subsequently revealed the operation was unnecessary. The surgery left Mr Ingram with pain in his chest which required further treatment and remains unresolved.
21. Seventh, Leanne Joseph had a consultation with the offender in 2006 after she experienced discharge from her left nipple. An ultrasound scan was carried out which disclosed that the breast appeared normal. Despite this the offender told Mrs Joseph she had pre-cancerous cells in her milk ducts and needed to have them removed. He offered to carry out the operation the following week. Mrs Joseph was devastated but she trusted the offender and agreed to the surgery. She took out a loan to pay for the procedure, which was carried out on 23rd October 2006 (Count 13, section 18). In the post operative follow up the offender falsely told Mrs Joseph it would be necessary for her to undergo the same procedure on her right breast. This was carried out in December 2006 (Count 14, section 18). The second operation caused Mrs Joseph to suffer a significant amount of pain and further surgery was required to excise scar tissue.
22. In 2007 Mrs Joseph became pregnant. On the suggestion of a midwife she consulted the offender as to whether she would be able to breastfeed. The offender displayed annoyance that his authority was being questioned by a midwife and confirmed that Mrs Joseph would not be able to breastfeed. When a subsequent scan showed that in fact many of the ducts on her breasts were still connected he hid this fact from Mrs Joseph and recommended that she took medication to prevent milk production. She found her inability to breastfeed particularly distressing.
23. Eighth, Frances Perks was under the offender's care between 1994 and 2008. When he first saw her the offender told Mrs Perks that because of her family history she was at risk of developing cancer and she would require review on a regular basis. In fact Mrs Perks' risk of developing cancer was no higher than normal. Following unnecessary biopsies on the left breast in 2003 and 2007 the offender falsely stated that Mrs Perks was likely to require a mastectomy. A biopsy on a further lump in 2008 revealed it was benign. However the offender stated that some ductal atypia had been discovered and went on to carry out an unnecessary biopsy in July 2008 (Count 15, section 20).
24. The offender sought to persuade Mrs Perks and her insurers that mastectomies of the left and right breast were required. In the event the offender carried out multiple core biopsies on the right breast in October 2008, notwithstanding the fact that until that time she had experienced no problems with her right breast (Count 16, section 18). On 15th November 2008 the offender carried out an unnecessary left breast mastectomy followed by reconstructive surgery (Count 17, section 18).
25. Ninth, Joanne Lowson was referred to the offender in 2009 in relation to a lump on her left breast. Initial tests showed nothing suspicious. The offender falsely stated that unstable abnormal cells had been found and that it could not be guaranteed they would remain non cancerous. The offender said that the only way to deal with the situation was through surgery and an operation to excise the lump was carried out in April 2009 (Count 18, section 18).
26. In 2010 Mrs Lowson discovered a new lump on her left breast. Initial tests again revealed there were no suspicious features. The offender again falsely stated that the tests were suspicious and recommended removal. A second excision procedure was carried on 8th September 2010 (Count 19, section 18).
27. Tenth, Rachel Butler was referred to the offender in 2005 in relation to a lump on her left breast. The offender said that although he was not worried about the lump he was concerned about discharge from the nipple. He advised that she needed surgery straightaway. Pre-operative radiology revealed nothing of concern but Mrs Butler accepted the offender's advice and he excised part of her left breast. She returned for a consultation in 2011. Further tests were carried out in relation to discharge from the left breast and revealed no abnormality. Instead of telling Mrs Butler the true position the offender told her she was at high risk of developing cancer and needed surgery immediately. Mrs Butler again accepted his advice and in January 2011 the offender carried out a procedure (Count 20, section 18). Following this operation Mrs Butler was ill for a long time.
28. In May 2011 the offender was temporarily suspended from the NHS and an investigation into his conduct was commenced. His last operative procedure was carried out in June 2011. A short time later he was suspended from Spire hospitals. The offender's work was examined by other experts and a pattern of false statements and unnecessary operations was revealed.
29. The offender was interviewed, under caution, in January 2013. At the beginning of the interview the offender's solicitor read out a prepared statement, in which the offender claimed that all surgical procedures he had undertaken were appropriate and necessary and he denied any allegations to the contrary. Thereafter he made "no comment" to the questions asked. His defence at trial was to similar effect.

The Sentencing Hearing

30. It was agreed by the parties, and accepted by the judge, that both the section 18 and the section 20 offences fell within category 1 of the two relevant guidelines in the Sentencing Council's Definitive Guideline on Assault. For an offence of section 18 this provides a starting point of 12 years and a range of 9 to 16 years. For an offence of section 20, it provides a starting point of 3 years and a range of two-and-a-half to 4 years. The factors which place the case in category 1 were the vulnerability of the victims, the serious nature of the injuries and the fact that some victims were repeatedly assaulted (greater harm) and the significant degree of premeditation (higher culpability). The judge recognised that there were multiple factors indicative of greater harm and also the aggravating factors of the abuse of the offender's position of responsibility and ongoing effect on the victims.
31. In terms of mitigation, the judge noted that the offender had no previo us convictions, his professional career had ended, the offences had taken place some time ago and he was suffering from symptoms associated with an adjustment disorder (albeit the judge noted he had exaggerated those symptoms in an attempt to avoid prosecution).
32. The judge stated that the true extent of the offender's motivation will never be known. There was no doubt in the judge's mind that it involved self-aggrandisement and the financial rewards of a private practice. He described the offender as arrogant, as having manipulated vulnerable patients and deliberately played on their worst fears. They had in common the fear of cancer.
33. The prosecution had accepted that the offender was not dangerous for the purposes of the sentencing provisions of the Criminal Justice Act 2003 and the judge agreed that the offender was not dangerous outside the medical context. He concluded therefore that a determinate sentence was appropriate. He obse rved however that to determine the appropriate figure for that sentence was far from straightforward given the unusual nature of the offending.
34. In terms of totality, the judge stated that a balance had to be struck between the multiple offending and the imposition of a just and proportionate sentence. After giving the matter very careful thought and taking into account the balance of aggravating and mitigating factors, the judge concluded that the multiplicity of offending required an uplift from the starting point of 12 years for the most serious offences but not such that the total sentence fell outside the guideline range.
35. It is at this point that Her Majesty's Solicitor General suggests the judge fell into error.

Submissions

36. Mr Buckland contends that a sentence of 15 years' imprisonment was not sufficient to reflect the seriousness of the overall offending. Both the harm caused and the offender's culpability were of the utmost gravity for offences of this kind. Taking a starting point of 12 years was appropriate for a single section 18 offence but it was only a starting point. There were multiple factors that put the offence into the highest category and those not used to categorise the offence should have been reflected as additional aggravating factors increasing the seriousness of the offence and justifying a very significant uplift to beyond the top of the range. The relevant factors included:

(i) The totality of the offending on the indictment: there were 17 offences of wounding with intent and three of wounding in respect of 10 different patients committed over a long period of time.

(ii) The offences caused a very high degree of physical and psychological harm of an ongoing nature.

(iii) The breach of trust and the abuse of power were of a particularly serious nature.

(iv) The offending was targeted at and exploited victims who were particularly vulnerable.

(v) Some of the victims were assaulted on multiple occasions and their suffering prolonged.

(vi) The offending involved a significant degree of premeditation.

(vii) The offender's motivation included financial gain.

(viii) The offending caused financial loss to others.

37. Mr Buckland suggested but two mitigating factors and invited the court, in the circumstances of the offending, to place little weight upon them. First, the offender has no previous convictions (to be considered in the context of the long period during which the offending occurred). Second, the offender suffers from symptoms associated with adjustment disorder.
38. On behalf of the offender Mr Johnson QC, who was trial counsel, acknowledged the seriousness of the offending but reminded the court that the sentencing judge is one of the most experienced criminal trial judges in the country. He presided over the trial and had ample opportunity to see and hear from the victims and understand their suffering, to assess the offender and his offending. The judge also heard and received a substantial body of evidence from other patients. They testified to some of the excellent work the offender has done over the years as a surgeon and for various charities. A number of former patients have no doubt that they would not be alive today but for the offender.
39. The offender is now ruined. He will never work as a doctor again. He has lost his career, his home and these proceedings have had a devastating effect upo n his family. He is now approaching his 60th birthday and, on any view, will spend a long time in prison in potentially difficult circumstances.
40. Finally, Mr Johnson suggested that there was an error in Her Majesty's Solicitor General's approach because he had effectively been guilty of double counting factors that were relevant to the categorisation of the offence and then treating them as aggravating factors.

Our conclusions

41. This was a difficult sentencing exercise. There is no sentencing precedent for a doctor convicted of 20 offences of deliberately wounding his during the course of his medical practice in these circumstances. It is important to emphasise for those not familiar with the facts of this case, that on the 17 section 18 offences the offender was convicted on the basis of his intending to cause really serious bodily harm to his patients and not on the basis that he was grossly negligent or reckless.
42. How any doctor, let alone one who had earned an enviable reputation in the medical profession, could have engaged in this level of offending one will never know. Theories have been advanced about his motivation, greed, self-aggrandisement and power. However, such motives do not come close to explaining how a doctor can falsely tell a patient he or she has cancer, with all such a diagnosis entails for the patient and members of their family. Nor, can it explain how a doctor can then insist that the patient undergo unnecessary and serious operations, including mastectomies with all the physical and psychological pain and suffering that such operations cause.
43. The offender's patients trusted him implicitly. They could never have imagined he would put them through the agony of the diagnosis of cancer and the agony of the subsequent treatment and the mutilation of their bodies with no justification. Some of the patients were put through their ordeal more than once. His victims must feel that no sentence imposed could properly reflect their suffering and the suffering of their families.
44. Nonetheless the court must do its best to assess the appropriate level of sentence, remembering, as the trial judge did, that in a case such as this the court cannot simply take a figure for one offence and multiply it by 17. A proper balance must be struck between the acknowledgement of the multiple and very serious offending and the imposition of a just and proportionate sentence.
45. This is not an easy task. It is obvious from the trial judge's extremely thorough and careful sentencing remarks that he found this sentencing exercise as difficult as we have found it. His general approach to his task was impeccable. He bore in mind the number of victims, the seriousness of the offending, the relevant aggravating factors and, where relevant, any mitigating factors. However, and with great respect, we part company from him in his specific conclusion that the range of 9 to 16 years provided for one offence contrary to section 18 allowed for the imposition of a just sentence.
46. There are two principal reasons for our conclusion. First, just one of the section 18 offences would, as Mr Buckland observed, have justified a significant upward adjustment from the starting point of 12 years, to reflect the aggravating features. Any downward adjustment to reflect mitigation would have been relatively small. We take just one example if she will forgive us. Dr Platt: for 12 years she lived under the very real cloud of cancer. She suffered an unnecessary mastectomy together with several other procedures. The offender's treatment of her was brutal and it was sustained. Had her case stood alone a sentence close to the upper end of the range provided for a category 1 offence would have been appropriate.
47. But, Dr Platt was far from alone. There were nine other victims and many other grave offences. The guideline is directed at one section 18 offence only. Where an offender is convicted of multiple offending on this scale, and with such devastating consequences for so many victims, a sentence outside the range is inevitable. Again, as Mr Buckland observed, both the harm and culpability here were exceptionally high.
48. We are conscious that we must be careful to avoid any element of double counting of aggravating factors. We must also be careful to ensure that the factors not used in identifying the correct category of the offence are properly reflected in the overall sentence. All three greater harm factors were present in the section 18 offences and to a significant degree. Two higher culpability factors were also present, a significant degree of premeditation and deliberate targeting of the vulnerable. Aggravating factors included the ongoing effect on the victims, the abuse of power to the extent this is not reflected in the vulnerability of the victims, financial gain and financial loss, the lengthy period over which the offences were committed and, of course, the number of victims.
49. The mitigating factors include:

(i) His previous good character,

(ii) His work as a doctor about which no complaint was made (as evidenced by the testimonials from former patients who still respect and admire him and credit him with saving their lives.

(iii) He has lost everything: his career (he has now been struck off by the GMC), his home and reputation and has suffered public humiliation.

(iv) He now suffers from an "adjustment disorder" (albeit that cannot compare to the suffering he has inflicted on his victims).

50. Bearing all those aggravating and mitigating factors in mind, we are satisfied that the total sentence imposed was unduly lenient. We give leave. Rather than impose consecutive sentences that, bearing in the mind the principle of totality, could not reflect the seriousness of the individual offences, we shall adopt the same approach as the judge. We shall impose sentences on each section 18 offence that, in our judgment, better reflects the seriousness of the overall offending, but we shall order such sentences to run concurrently. Accordingly we quash the sentences of 15 years imposed on the section 18 offences and we substitute for the sentences of 15 years a sentence of 20 years on each count to run concurrently. The offences on the section 20 offences will remain the same.
51. MR JOHNSON: My Lady, can I deal with one ancillary matter please? This case comes before this court with commendable speed. My professional commitments have largely prevented me from - I use the phrase - baby-sitting the case and that duty has fallen to Mr Walmsley, who has always done it with great care and skill. The representation order that was granted by the Registrar provided only for the services of Queen's Counsel, albeit that the Solicitor General is here in person assisted by Queen's Counsel. I wonder whether in all the circumstances the court would consider extending the representation order to cover the services of junior counsel?
52. VICE PRESIDENT: I am afraid Mr Johnson the usual rules apply. It will be a matter between you and Mr Walmsley. Thank you very much.