QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| Council for the Regulation of Healthcare Professionals
|(1) The General Medical Council
(2) Leeper (Dr Anthony)
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Roger Henderson Q.C. & Ms Jemima Stratford (instructed by Messrs Field Fisher Waterhouse, Solicitor) for the First Respondent
Mr Philip Gaisford (instructed by Radcliffes le Brasseur) for the Second Respondent
Crown Copyright ©
Mr Justice Collins:
"If the Council considers that
(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practice on the part of the practitioner concerned (or lack of such a finding) or as to any penalty imposed, or both, or
(b) a relevant decision falling within subsection (2) should not have been made,
and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court".
The relevant court is this court. S.29(7) provides that if a case is referred it is to be treated as an appeal by the CRHP. S.29(8) provides that on such an appeal the court may
"(a) dismiss the appeal,
(b) allow the appeal and quash the relevant decision,
(c) substitute for the relevant decision any other decision which could have been made by the Committee or other person concerned, or
(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court,
and may make such order as to costs as it thinks fit".
"The appeal court will allow an appeal where the decision of the lower court was
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court".
Accordingly, it is submitted that the unduly lenient test is not applicable and the court must decide whether the decision was wrong. Thus the approach should be the same as that in appeals by practitioners, giving to the disciplinary committee's decision only such deference as is appropriate in all the circumstances.
"It is not for the courts in these proceedings to review the decision of the respondent councils under section 222 Where the balance of the public interest lies is for the respondent councils to determine and not for this court".
I can see that this may well apply to the question whether it is desirable for the protection of members of the public for CRHP to take action under s.29, although the court is in as good a position as CRHP to decide that issue. In any event, the wide discretion given to the court under s.29(8) will enable it to decline to direct a different result if, notwithstanding that the direction was unduly lenient, it is persuaded that no action should be taken in the circumstances. But there is no reason to apply it to the question whether the direction or any finding or lack of finding was unduly lenient. S.36 of the Criminal Justice Act 1988 gives the Attorney General power to refer a case to the Court of Appeal if it appears to him that 'the sentencing of a person in the Crown Court has been unduly lenient'. It has never been suggested that this does not limit the powers of the Court of Appeal. CRHP may refer a case if it considers that the direction is unduly lenient. Since by s.29(7) a referral is treated as an appeal, CPR 52.11(3) applies. But 'wrong' in context means whatever the primary legislation regards as wrong in this case, that the direction was unduly lenient. The Rules cannot determine the construction of the primary legislation. Thus I have no doubt that the court should only act to vary a direction if persuaded that it was unduly lenient.
"1. Which provision of s.29(4) does the CRHP rely on?
2. Does the CRHP consider that any finding of fact by the PCC was unduly lenient or otherwise wrong?
3. Does the CRHP consider that the penalty imposed by the PCC was unduly lenient?
4. If so, what sanction does the CRHP consider the PCC should have imposed as a minimum?
5. Is it desirable for the protection of members of the public for the CRHP to refer the case to court?"
Mr. Henderson Q.C. has criticised the fourth question on the ground that the true question was whether the penalty imposed by the PCC was outside the range of sanctions which could reasonably have been considered appropriate. I do not accept this criticism since, if what in CRHP's view should have been imposed as a minimum is more severe than that in fact imposed, it must follow that it is regarded as outside the range which could be regarded as appropriate.
"That being registered under the Medical Act,
1. At all material times you were a U.K. registered general practitioner employed at Hardwicke House surgery, Stour Street, Sudbury, Suffolk CO10 2AY.
2. Mrs. A joined the practice in early 2000 as a patient.
(a) You treated Mrs. A on a number of occasions between 2000 and 2003.
(b) Mrs. A had a history of depression and you were aware, or should have been aware of that history.
3. In the period between approximately March 2002 and February 2003, you were engaged with Mrs. A in an emotional relationship.
(a) In the period between approximately March 2002 and February 2003, you were engaged with Mrs. A in a sexual relationship.
(b) In particular,
(i) On 13 March 2002 you embraced Mrs. A at the Stonehall Surgery during consultation.
(ii) On 13 March 2002 you exchanged personal mobile telephone numbers with Mrs.A.
(iii) In or about March 2002 you invited Mrs. A to come to the surgery after it was closed saying that "It will be fine and no one will see you. I will let you in at the door at the side".
(iv) In the course of that meeting you kissed Mrs. A and touched her intimately.
(v) Subsequently you invited Mrs. A to your Cottage in Wickhambrook and had sexual intercourse with her.
(vi) On another occasion between March and April 2002 you visited Mrs. A at home.
(vii) In April 2002 Mrs. A consulted you to have an Intra Uterine Device (IUD) fitted.
(viii) In May Mrs. A consulted you and you expressed feelings for her and said "I don't want to come between you and your husband".
(ix) On an occasion shortly after you invited Mrs. A to your Cottage. When she arrived you gave her a glass of wine, kissed her and sexual intercourse took place.
(x) A week later Mrs. A saw you in the surgery and she said that she did not want to see you again.
(xi) Some months later Mrs. A consulted you with a trapped nerve and you complemented her on her hair.
(xii) You spoke to Mrs. A a few days later and asked if you could meet her in the surgery in the evening and she did not agree.
(xiii) On another occasion at the end of 2002, you met Mrs. A and drove her in your car to a secluded spot and had sexual intercourse with her there.
(xiv) On a further occasion at the end of 2002 you drove Mrs. A to a secluded field and had sexual intercourse with her in your car.
(xv) In January 2003 you sent a text message to Mrs. A's mobile telephone. When Mrs. A telephoned you, you arranged to meet her and had sexual intercourse.
(xvi) On 28 January you met Mrs. A when she was on the way to work and fondled her in her car.
(xvii) In mid February you met Mrs. A at Wickhambrook by arrangement and had sexual intercourse with her there.
(xviii) later in February you met Mrs. A in the pub near Bury St. Edmunds and had sexual intercourse in your car.
4. You continued to treat Mrs. A after the commencement of the relationship with her.
5. You did not make arrangements for Mrs. A to be,
(a) transferred to a different practitioner or, in the alternative,
(b) transferred to a different practice.
6. You sought to persuade Mrs. A not to disclose the full extent of the relationship during the course of telephone calls made to her on more than one occasion in late February 2003.
7. Your behaviour as particularised above was inappropriate in that,
(a) you used your professional position to pursue a sexual relationship with your patient.
(b) you did not act in the best interests of your patient.
And that in relation to the facts alleged you have been guilty of serious professional misconduct".
All the allegations were admitted and it was accepted that they constituted serious professional misconduct. Mrs. A was a vulnerable patient who had consulted Dr. Leeper because she was suffering from depression and he gave her counselling. When he gave evidence to the PCC in mitigation of his conduct, he said this:-
"Q. Now you have heard Mr. Martin open his case and describe your relationship with Mrs. A. was that description in all its salient features correct?
A. Yes, that is correct.
Q. That being so, could I just ask you then for your reflections on that relationship. First of all was it the right thing to do?
A. No, it was a wrong thing to do, and I openly admit it and recognise it, and I openly accept that this was a case of serious professional misconduct.
Q. The expression "abuse of trust" was used. Do you accept that that is a proper description of what occurred?
A. I do accept it unreservedly. It was certainly not my intention to abuse this trust, but I recognise that it is a very special thing that is given by the patient to a doctor, this trust, and whilst I did not intend to abuse it, sadly I did. And I suspect that the relationship, whilst I believed it was mutual, it could never ever be equal, because by the mere fact that this trust is bestowed upon me by the patient, that cannot make the relationship equal, and I accept it now, totally and unreservedly.
Q. And what do you want to say to this committee and to the profession, the medical profession, and to Mr. And Mrs. A in relation to your conduct?
A. I would like to give my unreserved apology, especially to the complainants Mr and Mrs. A, and I would also like to give my unreserved apology to my medical profession. I am fully aware that the Council, General Medical Council, is here to protect patients, and it has to have the public's interest at heart, and I accept that and acknowledge it, and I am extremely sorry to have caused the profession this embarrassment".
"I think Dr. Leeper was very naοve and extremely vulnerable. The shame and guilt he felt was overwhelming and his need to be punished for his transgressions meant he put in jeopardy the most important thing in his life, being a doctor".
"Hi Michael, hope you are okay after yesterday. Please don't worry. Hope you enjoyed it as much as I did".
"Once these matters are dealt with and he has sorted out his difficulties within the partnership contract [that is, a dispute arising from the termination of his partnership] I believe he will make a full recovery from his condition.
The risk of relapse in future years is mitigated by the fact that both he and his partner have developed considerable insight into his condition and are well aware of its effects on their lives.
In difficult circumstances he has been able to be analytical about his symptoms of depression versus the effects of stress. I see him as likely to be able to spot any relapse coming and take appropriate action were the need to arise".
"This encompasses a wide range of conduct from criminal convictions for sexual assault, to sexual misconduct with patients, colleagues or patients' relatives. The misconduct is particularly serious however, where there is an abuse of the special position of trust which a doctor occupies. In such cases erasure has therefore been judged the appropriate sanction:
'The public, and in particular patients, must have confidence in the medical profession whatever their state of health might be. The conduct as found proved undoubtedly undermines such confidence and a severe sanction was inevitable. Their Lordships are satisfied that erasure was neither unreasonable, excessive nor disproportionate but necessary in the public interest'.
In dealing with suspension, this is said, at Paragraph 18:-
"Suspension can be used to send out a signal to the doctor, the profession and public about what is regarded as unacceptable behaviour. Suspension from the register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the period of suspension. It is likely to be appropriate for misconduct that is serious, but not so serious as to justify erasure (for example where there may have been acknowledgment of fault and where the Committee is satisfied that the behaviour or incident is unlikely to be repeated)".
"The Committee have carefully considered all the evidence they have heard in this case. You have admitted and it has been found proved that between March 2002 and February 2003 you were engaged in an emotional and sexual relationship with Mrs. A, a patient of yours, who had a history of depression.
The Committee consider that the facts found proved in this case represent a serious abuse of your professional position and a serious breach of the trust which Mrs A was entitled to expect of a doctor.
Inappropriate behaviour by a doctor towards patients is always a matter of grave concern to this Committee. This is particularly so in the case of vulnerable patients. Such behaviour reflects adversely on the doctor concerned and undermines the trust which the public places in the profession as a whole.
The Council's guidance, "Good Medical Practice" (May 2001) states that the doctor-patient relationship depends on trust. Doctors must not abuse their professional position by establishing improper relationships or using their position to gain any advantage over their patients.
Taking all these facts proved into consideration, the Committee have found you guilty of serious professional misconduct.
The Committee have heard of your own profound distress at the breakdown of your marriage and isolation from your children but do not accept that this in any way diminishes the seriousness of your professional misconduct in forming a sexual relationship with Mrs. A, whether or not there had been any mutual consent. All patients must be regarded as potentially vulnerable and Mrs. A, because of her depressive illness, was clearly vulnerable. The primary responsibility of all doctors is to their patients but they also have a responsibility to the profession to ensure that their professional standards are not compromised.
In determining the action which should be taken against your registration, the Committee have taken into consideration the submission of your counsel, your own evidence, and the exceptional quality and number of testimonials strongly in your favour from patients, doctors, nurses and others within your local community. They have noted your public apology, your expressions of regret and your solemn undertaking that such behaviour will never be repeated. The Committee recognise that by admitting all the heads of charge, you have spared Mrs. A the further distress of appearing before the Committee. They have noted your willingness to admit your shortcomings and your inappropriate behaviour. They also note that there have been no previous proceedings brought against you by the General Medical Council in relation to your fitness to practise and that there have been no subsequent complaints against you since these events. The Committee have also heard from you that you have not practised medicine for a year.
In coming to their decision, the Committee have considered the issue of proportionality and have balanced the interests of patients and the public against your interests. The Committee have a duty to ensure the protection of the public, the maintenance of public confidence in the profession and the maintenance of proper standards of behaviour by all medical practitioners.
The Committee have decided that it is necessary to take action against your registration and have considered the range of sanctions available. The Committee are of the view that any sanction imposed must mark strong disapproval of your behaviour. They concluded that a reprimand would be insufficient.
The Committee seriously considered whether to order your erasure. In these particular circumstances, and mindful of the words of Lord Hoffman in the Privy Council judgment of Bijl (Appeal No.78 of 2000), "Procedures for dealing with doctors who lapse from professional standards should not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment", they concluded that erasure would be disproportionate and not in the public interest. Similarly, a period of suspension would be punitive and serve no purpose in addressing the deficiencies which led to your professional misconduct.
In order to retain the service of a competent doctor with an otherwise unblemished career, the Committee have determined to impose conditions on your registration for a period of two years as follows:
1. For the duration of these conditions you must not work in a single handed practice and you will obtain a substantive post in a group practice.
2. In that practice you will work with and be responsible to an experienced general practitioner with a background in training.
3. You shall consult with your postgraduate dean and then appoint a mentor approved by him for a period of two years to assist in the development of your self-management skills, in particular, maintaining appropriate boundaries. You will meet with the mentor at regular intervals.
4. You shall arrange for the provision of reports on your progress from your mentor and from your GP trainer to the General Medical Council.
The Committee will resume consideration of your case at a meeting to be held before the end of this two-year period. The Committee will then consider whether it is necessary to take any further action in relation to your registration. You will be informed of the date of the meeting and you will be invited to attend. The Committee would expect to see reports of your progress with particular references to self-management skills, in particular, maintaining appropriate boundaries.
The effect of the foregoing direction is that, unless you exercise your right of appeal, your registration will be subject to conditions for a period of two years commencing 28 days after formal notice of this direction is deemed to have been served upon you".
"Similarly, a period of suspension would be punitive and serve no purpose in addressing the deficiencies which led to your professional misconduct".