QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DR JOHN RUMBOLD
|- and -
THE GENERAL MEDICAL COUNCIL
Mr Martin Chamberlain (instructed by Ms Toni Smerdon, General Medical Council)
for the Respondent
Hearing date: 26th October 2007
Crown Copyright ©
Mr Justice Wyn Williams :
The Hearing on 12 February 2007
"For the following reasons, I can see no basis for faulting Collins J's simple expression of the test, save that I doubt whether the adverbial emphasis of "clearly" adds anything logically or legally to an appellate court's characterisation of the decision below as "wrong".
In paragraph 126 to 128 Auld LJ gave the reasons which led him to that conclusion and in order to understand them fully it is also necessary to read paragraphs 117 to 124 of his judgment. As Mr Chamberlain points out, however, in his supplementary written submissions, Auld LJ returns to the issue of the appropriate test to be applied in paragraph 197 of his judgment under the heading "Conclusions." Paragraph 197 reads as follows:-
"On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the Court must have in mind and give such weight as appropriate in the circumstances to the following factors: [ in his judgment the phrase "as is appropriate in the circumstances" is highlighted]
i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expect of its members in matters of medical practise deserve respect;
ii) The tribunal has the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
iii) The questions of primary and secondary facts and the overall value judgment to be made by a tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
"16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1 April 2003. First, the Privy Council is of course a source of high authority; but, secondly, we are in any event considering an effectively identical statutory regime. As it seems to me there are in particular two strands of relevant learning before 1 April 2003. One differentiates the function of the panel or committee on imposing sanctions from that of a Court imposing retributive punishment. The other emphasises the special expertise of the panel or committee to make the required judgment.
17. The first of these strands may be gleaned from the Privy Council decision in Gupta v The General Medical Council  1 WLR 1691, para 21. In the judgment of their Lordships delivered by Lord Rodger of Earlsferry:
"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for example, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society  1 WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practise when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded at p519: 'The reputation of the profession is more important than the fortunes of an individual member. Membership of a profession brings many benefits, but that is a part of the price.' Mutatis Mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case."
18. The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of a doctor. This, as it seems to me, engages the second strand to which I have referred
19. As it seems to me the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millet's observations in Ghosh v The General Medical Council  1 WLR 1915, 1923, para 34:
"the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amounts to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the Committee's judgment more than is warranted by the circumstances."
20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 Appeal. The approach they commend does not emasculate the High Court role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.
21. Now I may return to the decisions of Collins J. In my judgment the test which he applied, namely whether the decision of the panel was clearly wrong, is with respect not helpful or adequate, at least unless it is very clearly understood in the context of the two principles or strands, which I have described, which emerge from the Privy Council cases. Although Collins J in both of these cases acknowledge in one way or another the need for a degree of deference to the panel still the exercise he undertook came very close, if it did not constitute, an exercise in re-sentencing"
"This encompasses a wide range of conduct from criminal convictions for sexual assault, sexual abuse of children (including child pornography) 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, or where a doctor has been required to register as a sex offender. The risk to patients is important. In such cases erasure has therefore been judged the appropriate sanction:"
"8. Child pornography involves the exploitation or abuse of a child. Accessing, storing or distributing such material is illegal and regarded in society as morally unacceptable. For these reasons any involvement in child pornography by a registered medical practitioner raises the question whether the public interest demands that his or her registration be affected.
9. The Court of Appeal in the case of Oliver heard in November 2002, identified, five levels of seriousness. This makes clear that for the lower grade offences a fine or conditional discharge may be appropriate. Custodial sentences are appropriate where more serious offences are involved.
10. Whilst the Courts properly distinguished between the degrees of seriousness, the Council considers that any conviction for child pornography against a registered medical practitioner to be a matter of grave concern because it involves such a fundamental breach of patients' trust in doctors and inevitably brings the profession into disrepute. It is therefore highly likely that in such a case the only proportionate sanction will be erasure but the panel should bear in mind paragraphs 12-16 in section 1 (page S1-3) of its Guidance, which deals with the options available to the Panel, and the issue of proportionality. If the Panel decides to impose a sanction other than erasure, they must take particular care to explain fully the reasons and thinking that has led them to impose this lesser sanction so that it is clear to those who have not heard the evidence in the case.
11. The Panel should be aware that any conviction relating to child pornography will lead to registration as a sex offender and possibly to court ordered disqualification from working with children. The Council has made it clear that no doctor registered as a sex offender should have unrestricted registration. The Panel will therefore need to ensure that, in cases where it imposes a period of suspension, the case should be resumed before the end of the period of suspension to consider whether a further period of suspension is appropriate or whether the doctor should be permitted to resume practise subject to conditions.
12 The Council has also expressed the view that, in order to protect the public interest the Panel should consider whether any such conditions ought to include no direct contact with any patients during the period the doctor is registered as a sex offender. (Doctors may of course be registered as sex offenders following other sex offences not related to child pornography.)
13. The Panel should also consider where doctors registered as sex offender should be required to undergo assessment, for example, by a clinical psychologist, to assess the potential risks to patients before they may be permitted to resume any form of practise".
14 In the case of CHRP v (1) GDC and (2) Mr. Fleischmann  EWHC 87 (Admin) the Court has given guidance on the handling of cases involving Internet pornography."
The extracts from the Indicative Sanctions Guidance set out above make it plain that the Respondent views convictions for internet child pornography as being extremely serious and, in my judgment, it is completely justified in so doing. They also make it clear, in addition, that a doctor's registration on the Sex Offenders Register is a highly material consideration in any decision upon sanctions.
"Passing sentence in December 2002, the Judge said that he had considered a custodial sentence but he had decided it was just possible to pass a different form of sentence. He went on to describe in his sentencing remarks how one of the images showed "a young child abused in the most despicable and disgusting fashion."
"The Panel have had regard to all the documents provided to it today and have noted that you have made significant progress in some areas of your rehabilitation as noted in the Sexual Offending Groupwork Programme post treatment report dated 14 June 2006, in particular the relationship with your wife. It is also encouraged by the role your wife now has in providing you with support and your acknowledgement of the importance of her support. The Panel did, however, note your evidence that you disagreed with the post-treatment report in which it is suggested that a level of sexual preoccupation was present in your offending. The Panel found the contents of the report compelling.
The Panel has also taken into consideration the report dated 9 February 2007 from Dr Badcock. He stated that you have insight into your motivation for the offences and have learned sufficiently from the SOTP groups to continue working on the relevant personal issues without risks to patients or the general public should you return to work.
The Panel has also taken into consideration the numerous certificates from Doctors. Net UK confirming the various on-line courses that you have completed in an effort to keep your medical knowledge up to date.
The Panel has further noted the letter from professor David Wall, the Deputy Regional Postgraduate Dean of the West Midlands Deanery dated 9 February 2007. Professor Wall states you have discussed with him career in medicine and in particular specialities where there is no direct doctor to patients contacts, such as pathology and public health medicine. However, you made clear to Professor Wall that you would prefer to return to a medical career where you can deal with patients.
The Panel also noted the letter from West Midland Police dated 19 January 2007. They confirmed that you are currently registered as a sex offender. Your risk of re-convictions has been assessed as low and that you have not come to notice of the police since your conviction.
However, the Panel has concluded that it would be insufficient to impose conditions at this stage.
In reaching this conclusion it is taken into account the following factors
1. The seriousness of the offences of which you were convicted;
2. Public confidence in the profession in light of your being subject to the statutory Sex Offender Notification Requirements until November 2007;
3. Although you have shown some degree of insight in psychological terms as to how your offences occurred, it believes that you still do not have sufficient understanding of your behaviour to permit a return to any form of medical practise at this stage;
4. Whilst you have discussed your future career with the Postgraduate Dean you have not made any specific enquiries as to the availability or feasibility of training or employment opportunities and your expressed intentions are unspecified.
Therefore, in all of the circumstances of your case the Panel has determined that it would not be in the public interest or in the interests of the profession or in your own best interests to allow you to return to medical practise at this present time. It is therefore determined that a further period of suspension for 12 months would be appropriate and proportionate."
"Q: I am going to take you, please, to Dr Badcock's latest report, which we have at D2. I want your assistance with this, please. I think you saw him quite recently on 6 February this year. Is that correct?
A: Yes, that is correct.
Q: I am going to take you, first of all, to his examination of offence motivation, which we have at page 5 of this report?
Q: We see there, Dr Badcock saying: -
"In view of the continuing importance of this question some time spent reviewing Dr Rumbold's level of insight. Three separate motivational processes were identified."
I am going to read this out in detail. I hope I can fairly summarise these. First was a motive that arose out your mother telling you about her own experience of abuse at the hands of an uncle when she was a young girl?
Q: What was it about that communication from her that prompted you to seek out this material?
A: For me, because of the environment that I was brought up in, which retrospectively I attribute a lot to this abuse that mum suffered, it was very difficult for me to talk about these sort of things, and I did not want to make things worse for my mother really, by asking her the details. It was a desire to exercise my own feelings about it really, by knowing more about what might have happened to my mother.
Q: The second motivational area identified by Dr Badcock is at paragraph 2, where he talked about some of the images also giving you a sense of getting back at girls. You described to him your relationship with girls at your school arising out of poor background, bookish manner and failure to shine at sports.
In the third paragraph there, Dr Badcock says this:
"He does not recall"
- that is talking of you
"consciously sadistic masturbatory fantasies, but recognises that the sense of ' getting back' at seeing some images of abuse is sadistic in nature."
Do you accept that comment, by Dr Badcock?
A: Yes, qualified but what he says later I mean, I am certainly not a sadist by nature.
Q: Are you referring to what he says in his conclusion at page 8?
Q: Where he says that:
"Although the index offences involved use of child pornography and some of his motivation included sadistic thinking, he is neither a paedophile not a sadist"?
A: Yes, that is correct.
Q: Adding that to his view, you accept those views of Dr Badcock as being a correct assessment of an element of motivation?
Q: I think the third element of motivation identified by Dr Badcock is under paragraph 3, a sense of rebelling against the constraints of your mother's religious views, particular arising out of her own religion, against a feeling of externally imposed personal inhibition. You talked about what you disclosed to Dr Badcock, about your mother's inhibitions. Is that right?
A: Yes that is correct
Q: Over the page, slightly mixed views about your decision to get married and using the images in an attempt to explore or mitigate some aspects of your own inhibitions, although not with the intention to explore abuse. Again, do you accept that as another strand of what motivated you to commit these offences?
A: Yes I do."
Later in the sequence of the questions and answers the Appellant was asked to consider the Post-Treatment Report which had been written following the completion by him of the Sex Offenders Treatment Programme.
"Q: I am just going to pick up a few points please. Under the first domain, Sexual Interest, progress so far:
"There is no evidence available to suggest that [you have] a sexual preference for children. However the commission of this offence demonstrates a capacity to respond sexually to children. Mr Rumbold although maintaining his view that he looked at the images primarily as a result of his mother disclosing that she was abused was able to recognise that he found the images sexually arousing."
Is that correct assessment?
A: No, I would not say this is correct, no.
Q: In what sense is it not correct?
A: I did not find it sexually arousing as such. I agree that there was a preoccupation, I did not actually find them sexually arousing.
Q: She says:
"He was also able to recognise compulsive nature of this type of offending describing himself as being 'morbidly fascinated' and 'obsessed' with the images. This suggests that a level of sexual preoccupation was also present in this offence."
What do you say to that?
A: Yes, I agree with that"
"Q: Moving on from that, I am not going into the original offending in any great detail and so on, can I just ask, do you accept there was any sexual element to the offences you committed at all?
Q: Can you tell us what the sexual element was, as far as you are concerned?
A: As detailed in Dr Badcock's report, that detail was motivation. There were feelings of sexual inadequacy involved when I was younger, I think that was one of the main things. I would say that was the main component of that.
Q: Do you accept that there was any element of sexual gratification in the offences, at all?
A: I would not describe it as gratification, no.
Q: Can I clarify, in my own mind, what was the time frame over which you were downloading the images?
A: Six weeks it has been noted in previous hearings.
There then followed a series of questions designed to show that the period had been longer. There then followed this exchange:
"Q: Can I just ask you, you actually printed some of the images off and they were found during the course of the police search?
A: That is correct.
Q: Why did you retain those images in that form?
A: Initially my justification to myself was to take them to the police, then I actually forgot about them, which is why they were still there.
Q: Forgot about them
A: Yes, because they were hidden away, under the bed."
"That is what I thought at the time, that was my justification, and that is what I told myself at the time. There is obviously more to it than that, as Dr Badcock says, there is a series of motives basically."
"Q: Dr Rumbold, if I can take you to page 118 of the bundle again. In particular it says "Further work needed in this Domain". I think this in a way is the opinion of the Probation Service. Can you explain how you have been vigilant so that you do not relapse?
A: I think the most important thing is self awareness, you have to be honest with yourself. Also, a large amount of it is down to my wife as well, I think. Once you are aware and obviously you are aware once you have offended of the potential of these things to happen, then that is obviously a cautionary thing.
Q: Do you dispute their analysis in this case?
A: I think it is wise. The thing is I dispute this, I am not sure how much they are saying I have to be aware that I am going to re-offend, because I do not believe that I will. The way my life has changed and the particular circumstances in which I offended, but then the fact is I have offended, so therefore I am at risk of re-offending, so I completely take their advice on board.
I guess where I am coming from is, when I was on the programme, they would have people there that would say, if I go on the bus and there is a young girl at the bottom of the bus, I go to the top of the bus. Personally, I do not feel that is necessary, I feel that is ostracising myself too much, because I do not find that an issue for me. I think it depends on the degree.
There are some people that who will go to immense degrees to avoid any risky situations.
My risky situations are more confined to myself and how I am feeling, rather than any sort of physical situation. Yes, I have to be careful about how I am feeling, but like I say this is the whole thing of keeping busy, and I certainly acknowledge that I have got to make sure that I am not ruminating about things, it is the "poor me" thing really that is very much a problem, the situation, at the time of the offending.
Q: You did not identify yourself with any of the offenders on the programme at all?
A: Yes, there were people in very similar situations, but some of them were at a far more serious end of the spectrum and they are persistent offenders, so their situations were not as similar. There were people in exactly the same situation as myself, so I could certainly relate to their situation."
"Although you have shown some degree of insight in psychological term as to how your offences occurred, it believes that you still do not have sufficient understanding of your behaviour to permit a return of any form of medical practise at this stage."
"The Panel did, however, note your evidence that you disagreed with the post treatment report in which it is suggested that a level of sexual preoccupation was present in your offending."
If the conclusion that the Appellant had insufficient understanding was solely linked to that earlier sentence I would have considerable doubt about whether the same could be justified. Strictly, the Panel's recording of the evidence given by the Appellant is not accurate since his disagreement related not to the question of preoccupation but to the question of arousal or gratification. In my judgment, however, to focus on this one sentence is an unduly narrow view of the Panel's approach. There is nothing in the oral pronouncement or decision letter to suggest that the only reason that the Panel concluded that the Appellant had insufficient understanding was the disagreement to which they refer. In my judgment the probability is that in reaching its conclusion as to an insufficiency of understanding the Panel relied upon the whole of the evidence taken in the round which, of course, included the extracts which I have set out above, the Post-Treatment Report which the Panel described as compelling, Dr Badcock's evidence and, of course, its own assessment of the Appellant.