England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/03/2004

Mr Justice Lightman:

INTRODUCTION

1. This is an appeal by Dr Wentzel against two decisions ("the Decisions") of the Professional Conduct Committee of the General Medical Council ("the GMC"). By the first decision ("the First Decision") the GMC found that Dr Wentzel in or around January 1999 had sexual intercourse with Ms X and that he had lied about that fact. By the second decision ("the Second Decision") the GMC found that by reason of his serious professional misconduct his name should be erased from the medical register. The appeal (which is an appeal by way of rehearing) is brought pursuant to section 40 of the Medical Act 1983 (as amended by the Medical Act 1983 (Amendment) Order 2002.

FACTS

2. Ms X was a nurse. On the 8^th October 1998 she was taken to the Accident and Emergency Department of Yeovil District Hospital following a drug overdose. The overdose was an attempt at suicide made on the break-up of her relationship with her boyfriend. Dr Wentzel at that time was Senior House Officer with the Somerset Partnership NHS and Social Care Trust ("the Trust") at Rowan Place which was part of the Summerlands psychiatric hospital in Yeovil. He was asked to see Ms X at Yeovil District Hospital. He assessed her and arranged her admission the following day to Rowan Place. From that date until the 22^nd February 1999 when he was transferred to a post at a psychiatric hospital in Taunton, Dr Wentzel was responsible for her in-patient care. During this period Ms X was an inpatient at Rowan Place from the 9^th October to the 30^th November 1998 and again from the 10^th to the 29^th December 1998.
3. Whilst Ms X was an inpatient Dr Wentzel established an emotional relationship with her in that: (1) he discussed his divorce and other personal matters with her; (2) in November and December 1998 on two occasions he took Ms X off the ward for lunch; and (3) on the 24^th December 1998 he gave her a Christmas card, a "Beanie" present and a book of "Happiness Quotations". When Ms X was discharged from Rowan Place on the 29^th December 1998 he was the Senior House Officer responsible for her out-patient care. After her discharge he telephoned Ms X on several occasions whilst she was living at home with her family.
4. On the 8^th January 1999 Dr Wentzel saw Ms X as an out-patient at Holly Court Day Centre, and the following day he went on a trip to South Africa. During that trip he telephoned Ms X. He returned after an overnight flight on the 17^th January 1999, and on the same day he telephoned Ms X and arranged to meet her that evening at a public house. He then took her back to his "mess" or accommodation. Ms X alleged that sexual intercourse took place. Dr Wentzel denies this. He said that he only took her there because she wanted to see where he lived. On the 29^th January 1999 Ms X had a further outpatient appointment where she was attended, not by Dr Wentzel, but by Dr Angus.
5. Members of Ms X's family were concerned about the relationship between Ms X and Dr Wentzel and expressed that concern to the Trust. As a consequence on the 2^nd February 1999 Dr Wentzel had a meeting with Dr Ostler, the Trust Medical Director, and Dr Angus, the locum Consultant Psychiatrist. During that meeting in answer to questions Dr Wentzel said that his relationship with Ms X was platonic. He was told that he was to be transferred to Taunton Hospital and that he was not to have any further contact with Ms X. Dr Wentzel ceased to be involved in her care on the 22^nd February 1999.
6. In late January or early February 1999 Dr Wentzel told Ms X's community psychiatric nurse, Nurse Turnbull, that he would get "struck off".
7. After his move to Taunton from February or March 1999 until on or around November 1999 his emotional relationship with Ms X was re-established and he had sexual intercourse with her on a number of occasions. The relationship however broke down because Ms X wanted a commitment but Dr Wentzel never did want it. He explained his breaking off of the relationship to Ms X saying that his new girlfriend was pregnant. Ms X then made another suicide attempt.

THE CHARGES

8. The relevant charges at the hearing before the GMC which were admitted and proved were: (1) the establishment of an emotional relationship with Ms X whilst a patient in his care; (2) the making of telephone calls to her after her discharge on the 29^th January 1998 whilst he was responsible for her outpatient care; (3) the emotional relationship and sexual relations between February or March 1999 in breach of specific instructions from the Trust.
9. The relevant charges in issue at the hearing read as follows:

"8. In or around January 1999 you had sexual intercourse with Ms X on two or more occasions.

9. From around January 1999 onwards during your out-patient sessions at Holly Court Day Centre

(a) you kissed and cuddled Ms X;

(b) you told her not to tell anyone about your relationship;

9A. During the first of 1999 you encouraged her to:

i) discharge herself from Mental Health Care Services;

ii) find her own accommodation so you could see more of each other;

10. On the 2^nd February 1999 you had a meeting with Dr Ostler … and Dr Angus … during that meeting:

a) you said that your relationship with Ms X was of a platonic nature;

b) you misled your superiors when you said this.

11. From November or March 1999 until or around November 1999 you

a) re-established your emotional relationship with Ms X.

12. That your conduct described [above] was

a) inappropriate

b) improper

c) an abuse of your professional position and

d) not in the patient's best interests."

THE FIRST DECISION

10. At the hearing on head of charge 8 on the issue of sexual intercourse, in the course of her evidence Ms X said that intercourse took place on more than one occasion and thought that it took place "probably two or more times". Dr Wentzel in his evidence denied that it ever took place. At an early stage in its deliberations the GMC after hearing the parties and the legal assessor deleted the words "on two or more occasions".
11. The GMC in the First Decision on whether the charges were proved found this head of charge proved. Its reasoning and its explanation for the amendment were expressed as follows:

"In finding this head of charge proved, as amended, the Committee have given detailed consideration to the evidence adduced. They found the evidence of Ms X to be reliable and credible on this point. In addition to this, the Committee have given careful consideration to the chronology of events and your account of your meeting with Ms X upon your return from South Africa in January 1999 and are satisfied so that they are sure that sexual intercourse took place on that occasion. The Committee could not be sure that other instances of sexual intercourse took place in that month. "

12. As a consequence, the GMC likewise found head of charge 10b proved, namely that Dr Wentzel had misled his superiors when he had said that his relationship with Ms X was platonic.
13. The GMC found that heads of charge 9 and 9a were not proved.
14. The GMC found head of charge 11a proved:

"There has been no dispute throughout the course of this hearing that you commenced a sexual relationship with Ms X. The Committee have considered all the evidence in the case surrounding the re-establishment of your relationship with Ms X after your move to Taunton. You had been advised both by Dr Ostler and Dr Angus not to have any further contact with Ms X. The Committee considered that, although Ms X contacted you initially, you had the opportunity to decline to meet her. You failed to do so and as such you shared responsibility for the re-establishment of the relationship."

15. The GMC found that heads of charge 12a, b, c, and d were proved and that the facts proved were not insufficient to support a finding of serious professional misconduct.

THE SECOND DECISION

16. In the Second Decision, the GMC said that it took a serious view of the evidence it had heard regarding his behaviour towards a patient whom he knew to be particularly vulnerable. Dr Wentzel allowed himself to become emotionally involved in a situation which overstepped the boundaries between doctors and patients and persisted with this behaviour against the advice and warnings of his superiors. His behaviour in establishing and then re-establishing an emotional and sexual relationship with Ms X seriously undermined the trust placed in him and the medical profession as a whole, a situation compounded by misleading his superiors as to the nature of the relationship. The GMC referred to and had regard to matters of mitigation brought forward on behalf of Dr Wentzel, and in particular: (1) his limited psychiatric training at the date in question and in particular on the 17^th January 1999; (2) the testimonials of a doctor Dr Davies and a nurse Mr Jones as to his talent and enthusiasm and the high regard in which he was held. The GMC expressed the view that Dr Wentzel had abused his professional position to prey on Ms X's vulnerability for his own sexual gratification, Dr Wentzel having admitted that there was no commitment so far as he was concerned in the relationship. The GMC also referred to Dr Wentzel's lack of insight and his refusal to accept any significant responsibility for Ms X's subsequent decline in mental state. The GMC referred to the duty of the GMC in exercise of its powers to balance the need to protect patients and the public against Dr Wentzel's own interests and the duty to maintain public confidence in the medical profession. Having considered the various alternative sanctions, the GMC concluded that, given the seriousness of the case, the only direction that would serve the public interest and restore public confidence in the profession was erasure from the Register.

CHALLENGE TO FINDING ON HEAD OF CHARGE 8

17. The challenge to the finding of the GMC on this charge is founded on the contention that Ms X was an unreliable witness. Such unreliability and finding of such unreliability, it is submitted, is to be inferred from in particular from five matters:

i) the amendment of charge 8 limiting the occasions of sexual intercourse to one occasion, though Ms X remembered more than one occasion. Ms X was questioned as to the number of occasions in the course of her evidence:

"Q. In the time immediately after [the evening of the 17^th January 1999] days/weeks immediately after that – did you have sexual intercourse with Dr Wentzel again or not?

A. Yes

Q. How many times do you think in that period of time?

A. Probably two more times, I think."

That evidence was plainly insufficient to establish on the required burden of proof that intercourse took place in January more than once, and the decision of the GMC in the light of that evidence to confine the charge (in effect) to the events of the 17^th January 1999 was plainly eminently sensible and did not impute any lack of credibility to Ms X.;

ii) the second was the finding that heads of charge 9 and 9A were not proved. It was pointed out that Ms X (as reflected in head of charge 9) initially recalled at least two outpatient appointments with Dr Wentzel when the alleged misconduct took place, when it is clear that in fact there was only one. Ms X was questioned at the hearing about her outpatient appointments. The questioning proceeded as follows:

"Q. Do you remember how many times you saw him after your discharge as an outpatient – him as opposed to your CPN or anybody like that?

A. I cannot be specific. I do not know because I have seen him a few times, but I do not know whether it was fortnightly or not. I cannot remember."

It was clearly established that there was in fact only one appointment. Against the background of evidence of this character the GMC were fully entitled to find head of charge 9 not established. The finding on head of charge 9A may have turned on the proper interpretation of what was said at the time. The findings on heads of charge 9 and 9A do not or do not necessarily impugn her veracity, let alone her veracity on head of charge 8;

iii) the third was that Ms X previously denied to Dr Angus that she had had sexual intercourse with Dr Wentzel. This statement may merely have reflected her desire to protect Dr Wentzel and their on-going relationship;

iv) the fourth was that Ms X told Nurse Turnbull that she was seeing Dr Wentzel on "a social level". This statement is ambiguous and certainly does not rule out the existence of a sexual relationship; and

v) Dr Mortimer, a psychiatrist who treated Ms X, said that whilst under his care:

"She did sometimes misrepresent the behaviour of her psychiatric team to her family and friends…. "

Again this statement is scarcely informative, still less indicative as to the credibility of her evidence as to the events on the 17^th January 1999.

18. The GMC had the advantage of having seen and heard the evidence of Ms X and Dr Wentzel and observed their demeanour. Notwithstanding the matters relied on by Dr Wentzel, the GMC was entitled to reach the conclusion which it did accepting that Ms X was a credible witness and that her evidence was credible as to events on the 17^th January 1999 most particularly since it was corroborated and confirmed by: (1) the existence of the improper emotional relationship before and after the 17^th January 1999 and the improper sexual relationship that undoubtedly existed later in 1999; (2) the unusual conduct for a treating doctor towards a patient of making telephone calls from South Africa followed by the further telephone call immediate upon Dr Wentzel's return from South Africa and the obviously inappropriate conduct of meeting her at the public house the same evening and inviting her to visit his mess; (3) the statement by Dr Wentzel to Nurse Turnbull that he would be struck off.
19. In my judgment the decision of the GMC was one which it was fully entitled to reach on the evidence before it and for this purpose to accept the evidence of Ms X as credible on this head of charge.

ERASURE

20. On the issue of sanction, the GMC had in the forefront of its mind the nature of the relationship of Dr Wentzel with Ms X and her dependency on him. Dr Wentzel in his evidence to the GMC accepted that Ms X "was a needy, vulnerable, broken person in desperate need of attention" (see D2/12C). Its findings included that his relationship was one of sexual exploitation of her, the lie to his superiors about the nature of his relationship with her; and the continuation of that relationship in total disregard of instructions and advice of his superiors to the contrary. As I have already set out, the GMC considered the various mitigating factors but concluded that the restoration of public confidence required erasure.
21. On this appeal criticism has been made of the finding that Dr Wentzel had no insight into what he had done. This finding was based on the fact that he did not accept that his conduct may have been a factor in her subsequent breakdown and it was submitted that this was reasonable because no expert medical evidence was called to prove its cause and because in a letter to her mother regarding her condition Ms X did not mention Dr Wentzel as a cause. It seems to me that it was well open to the GMC to find that Dr Wentzel's conduct was indeed the cause: expert evidence was scarcely necessary for this purpose. And the absence of any reference to Dr Wentzel in the letter to her mother proved nothing. The explanation was that Ms X did not discuss sex with her mother or family. I was shown a later passage in his evidence in re-examination where Dr Wentzel expressed regret for his conduct and apologised. Nonetheless I think that the GMC was entitled to find a lack of insight, notwithstanding the late expression of regret at the hearing.
22. The real thrust of the appeal on sanction lay in the draconian consequences of erasure on Dr Wentzel and the public. It was pointed out that since 2000 a doctor cannot seek to be restored to the Register for five years after his erasure from the Register and that therefore erasure will effectively end Dr Wentzel's career. It is submitted that three interests fall to be weighed in deciding what sanction to impose: (a) public confidence in the medical profession; (b) the public interest in retaining the services of a doctor with considerable abilities and commitments; and (c) the interests of the doctor in not having his career cut short. I have been pressed with testimonials from Dr Davies and Mr Jones as to Dr Wentzel's abilities as a psychiatrist, the shortage of psychiatrists and the regard in which he is still held by the Trust.
23. Reliance was placed on a passage in the judgment of Lord Hoffmann in Bijl v. GMC [2002] Lloyds Med Rep 60 at 62 paragraph 13 where he said that it should not be felt necessary to erase:

"… an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment."

24. Dr Wentzel is no doubt a competent and useful doctor, a valuable asset much needed by the health service, and there is no finding of any risk of repetition of his misconduct. But in the judgment of the GMC the need to erase him is not in order to satisfy a demand for blame and punishment or protect against any such repetition, but (as they make clear) to maintain confidence in the medical profession. In the words of Lord Bingham MR in Bolton v. The Law Society [1994] 1 WLR 512 at 519E adopted by the Privy Council in Gupta v. GMC [2002] LLR (Med) 82 at 86 paragraph 10:

"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price."

25. Of the three interests to be weighed the maintenance of the public confidence in the medical profession is the paramount interest. In view of the extreme character of his misconduct, the sexual exploitation for personal gratification of his vulnerable patient by a psychiatrist, the GMC was fully entitled (if not bound) notwithstanding the consequences for Dr Wentzel and the health service, to order erasure and there is no basis on which the court can or should interfere with the determination of that expert and informed body.

CONCLUSION

26. I accordingly dismiss this appeal.