England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28th October 2008

1. MR JUSTICE SULLIVAN: In this application for judicial review the claimant challenges the decision of the Registrar of the defendant, contained in a decision letter dated 26th May 2006, to refer a complaint against the claimant to the Case Examiners.
2. The Registrar's decision was taken under the provisions of Rule 4(5) of the relevant Rules, which provides:

"No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed."

3. The background to the matter is that between 1996 and 1998 the claimant, who is a fellow of the Royal College of Psychiatrists, treated as a private patient the complainant in these proceedings, who is referred to as Miss SH. Miss SH complained about certain aspects of the claimant's management of her case in 2005 to 2006. Those complaints do not form the subject matter of this application for judicial review.
4. However, on 1st March 2006 it seems that Miss SH saw a psychotherapist, who expressed concerns following her description of some of the claimant's treatment of her. The concerns were expressed about what were said to have been the following incidents which took place during the claimant's treatment of Miss SH between 1996 and 1998:

"(i) Dr Alexander questioned me about the usefulness of psychotherapy. I said that I was currently working on improving my assertiveness. Dr Alexander put his foot on my knee. I 'froze' and he continued to sit with his foot on my knee.

(ii) In another session Dr Alexander amusedly quoted a remark that had supposedly been made by an adolescent to his teacher. This involved foul laguage of a sexual nature. Though I am a teacher, I have always been very clear that dealing with behavioural difficulties of pupils in school never caused my depression.

(iii) At a further appointment I said that I had pulled a muscle in my back for which I had been treated by a physiotherapist. Dr Alexander told me to remove my blouse and he examined me. He rather clumsily brushed his hand across my chest, for which he apologised.

(iv) On one occasion when I had cancelled an appointment with Dr Alexander and had not seen him for almost a year, he phoned me up to offer an appointment. I felt at that time that I was fully recovered from depression but was pressurised into making an appointment. I thought that it would do no harm to have a review at that time but then felt 'emotionally blackmailed'."

5. The psychotherapist informed the complainant that it was not good practice for Dr Alexander to contact her by phone.
6. The explanation given for the delay, in so far as there was one, is contained in a letter from the complainant dated 10th April 2006, which says:

"With hindsight I can see that these incidents occurred at a time when I was confused and vulnerable, not in any position to defend myself or to get a reaction/opinion from anyone else."

7. The letter dated 26th May 2006 explains that certain issues raised by Miss SH concerned events which happened more than 5 years ago and continues:

"We can normally only consider complaints where events giving rise to the complaint occurred within the last five years. However, we do have a discretion to waive 'the five-year rule' where we consider that it is in the public interest, in the exceptional circumstances of the case, for it to proceed. When considering the public interest and the exceptional circumstances, I have considered the following relevant factors."

The letter then set out the various factors:

"Timing

The allegation was first brought to the attention of the GMC by a letter from [Miss SH] received in April 2006. The dates of the incidents given are imprecise, between 1996-98. No specific explanation for the delay bringing the complaint to the attention of the GMC has been provided. The complaint is significantly outside the five-year period and that fact alone weighs against proceeding. However, against that, it should be borne in mind that, although [Miss SH] could have brought a complaint to the GMC sooner she has explained that during a recent NHS psychotherapy session, her therapist expressed concerns after she described treatment she had received from you. That appointment took place on 1 March 2006. In exercising the discretion afforded to me by Rule 4(5) and deciding whether the case should be permitted to proceed I have taken into account the extent of the lapse of time and the lack of reasons provided."

8. Pausing there, it is evident that in terms of the lapse of time, certainly in respect of the allegations going back to 1996, they pre-dated the complaint by some 10 years. So the lapse of time was significant and although the complainant had indeed referred to the time when the incidents were said to have occurred as being a time when she was confused and vulnerable and not in a position to defend herself or get a reaction or opinion, it is not suggested that that condition persisted throughout the whole of the intervening period from 1996 and/or 1998 to 2006. Thus the letter correctly categorises the position as there being a lack of reasons provided for the significant delay. This factor therefore, on the face of it, would suggest that an extension of time should not be granted.
9. The letter then considers the gravity of the allegations:

"I have also considered the gravity of the allegations against you. When considered together, [Miss SH's] allegations present a picture of inappropriate and unprofessional practice on a vulnerable patient. In particular, the allegation of inappropriate physical contact and of an inappropriate physical examination is very serious."

10. Pausing there, while of course any allegation of inappropriate physical contact and inappropriate physical examination by a medical practitioner (and a psychiatrist in particular) is a serious allegation, it is difficult to see how these particular allegations, placing the claimant's foot on the complainant's knee, using foul language of a sexual nature and pressing her to make a further appointment could sensibly be described as in the very serious category.
11. Arguably, only aspect of the complaint - that is to say, the instruction to remove the complainant's blouse, followed by an examination during which the claimant is said to have clumsily brushed his hand across the complainant's chest - might fairly be described as very serious, bearing in mind the kinds of inappropriate and unprofessional conduct that are, sadly, alleged and on occasion proved, against doctors. This is not one of those cases where the practitioner is alleged, for example, to have had an affair with the complainant, to have had sexual intercourse with the complainant or to have committed a serious indecent assault, e.g. by fondling the complainant's breasts. All allegations which, sadly, are made and which could fairly be described as very serious allegations against a medical practitioner. As an indecent assault, the claimant's alleged conduct is at the least serious end of the spectrum.
12. Moreover, a relevant factor that does not appear to have been considered in the context of the gravity of the allegations is the alleged impact on the patient herself. This does not appear, on the face of the complaint, to be a case where it is said that the allegedly inappropriate conduct had any particularly serious consequence in terms of impact upon the patient.
13. The next factor considered in the letter was continuing risk:

"The extent of any continuing risk to the public posed by the practitioner is also a factor to consider when assessing waiving the 5-year rule. The extent of any risk posed must be assessed with reference to the gravity of the allegation. When considering this factor, I have referred to the opinion of a Performance Assessment Panel, whose report was commissioned by the GMC and prepared in March 2005. The report recommends that you should not work in unsupervised practice. This suggests that there is a continuing risk."

14. So far as the position before the Performance Assessment Panel was concerned, that was accurate as 26th May 2006. But in due course, at a hearing before the Fitness to Practise Panel, it was concluded that there was no case to answer in respect of the claimant's performance and a warning that he should not practice unsupervised was subsequently quashed by consent.
15. It can fairly be said on behalf of the defendant that all that was in the future as at 26th May 2006. However, the point made on behalf of the claimant is that the Registrar appears to have believed that there was or might be some sort of connection between the matters complained of by Miss SH and the issues that were at that stage to be determined by the Fitness to Practise Panel. In fact there was no such connection. The complaints were entirely unrelated and in respect of different kinds of concern, and the performance assessor's recommendation that the claimant should not work unsupervised was out of concern for his competence as a psychiatrist, rather than any concern that he might have inappropriate physical contact with his female patients.
16. Thus, there was, it might be said, a "continuing risk" as at 26th May 2006. However, on the evidence it was not a continuing risk of the kind of conduct that Miss SH was complaining about. Until such time as the case against the claimant before the Fitness to Practise Panel was dismissed, there was a continuing risk that he would act incompetently as a psychiatrist, not that he would act inappropriately in a sexual manner towards his patients.
17. It does seem to me that this aspect of the matter, continuing risk, must, in the absence of any other matter of particular significance, have been thought by the Registrar to be highly significant. Whatever may be said about the gravity of the allegations, they were not the kind of allegations that were so grave that regardless of any question of continuing risk, it might conceivably be said there were exceptional circumstances which would justify such a belated referral to the Case Examiners.
18. The decision letter then deals with the availability of evidence. I can deal with that matter very shortly because it is not suggested in the letter that, despite the lapse of time, significant evidence would be available in the form of reports and so forth. All that is said is that certain clinical notes may be available and it is said that if it becomes clear that evidence is not available, that is a matter that can be raised at a later stage.
19. I say that the matter can be dealt with in summary because, in response to the claim for judicial review, the GMC in a letter dated 14th August 2006 accepted that the lack of evidence was a factor which must have weighed against waiving the 5-year rule.
20. Then the public interest is considered, and all that is said by the Registrar is:

"... I have also taken into account whether the public interest warrants these allegations being ventilated and investigated in order to maintain confidence in the medical profession."

21. Again, in respect of that consideration there would appear to be nothing in the least unusual, much less exceptional. In so far as it is desirable that allegations against the medical profession are ventilated and investigated in order to maintain confidence in the profession, that would apply with equal force to any complaint against a practitioner.
22. The threads are drawn together in the penultimate paragraph of the decision letter, under the heading "Decision":

"Having considered the factors as outlined above in relation to time frames, the gravity of the allegations, the potential ongoing risk and the availability of the evidence, I have weighed up your interests against the public interest in investigating this matter further. Having carried out this exercise, I do consider that it is in the public interest, in the exceptional circumstances of this case, for it to be investigated further."

23. It will be noted immediately that although it is said there are exceptional circumstances, what it is that is exceptional about this case is nowhere identified. Mr Hare submits that that is not fatal to the decision because the exceptional circumstances can be readily inferred. I would accept that in principle merely because the exceptional circumstances are not spelt out, that does not mean that the Registrar's decisions in such cases will necessarily be flawed.
24. However, having to identify the exceptional circumstances is a useful discipline. The utility of that discipline is well illustrated by this case because it is extremely difficult to see, on the face of the decision, what it was that was thought to be exceptional about this case. There is certainly nothing exceptional in terms of the availability of evidence, nothing exceptional in respect of the lapse of time or the absence of reasons for the lapse of time, other than the explanation that some 8 or 10 years previously the complainant was in a vulnerable state and confused.
25. Mr Hare submitted that the gravity of the allegations and the fact that they took place repeatedly over a period of time were the aggravating features which made this case exceptional. In my judgment, that significantly overstates the position. There were various incidents, only one of which could sensibly be described as serious, that is the request to remove the complainant's blouse, the examination and then the clumsy brushing of the claimant's hand across the complainant's chest, for which he then apologised. There was no repetition, save in the sense that these various incidents occurred in respect of this patient, apparently, over a 2-year period. But what is important is that there is no suggestion of any further sexual touching of this patient.
26. I have already indicated that this is not a case where it appears from the complainant's own case - which of course has to be taken at face value by the Registrar at this stage - that there was any particularly serious impact upon the complainant herself. While in one sense it might be said that any such allegation against a medical practitioner is a very serious allegation, what has to be looked for in the context of Rule 4(5) is not something that might be alleged in any unexceptional case against a medical practitioner, but something about the complaint that can genuinely be described as exceptional circumstances.
27. I recognise that the court is exercising a judicial review function here, it is not exercising an appellate function, and that the court must pay due respect to the Registrar's view as to what is in the public interest and what is exceptional. Perhaps that makes it all the more important for the Registrar to explain in any particular case why he or she thinks it is in the public interest in the particular circumstances of this case, and what are in his or her view the exceptional circumstances of the case which justify its examination by the Case Examiners out of time.
28. For the reasons that I have given, I am satisfied that no reasonable Registrar could have determined that there were exceptional circumstances in this case and for those reasons the reference to the Case Examiners must be quashed.
29. MR JAY: My Lord, there is an application for costs, which in my respectful submission should follow the event.
30. My Lord, a costs schedule has been furnished. May I hand up your Lordship a copy. I have given it to my learned friend and he has received a copy. My Lord, it refers to the respondent - it should say the claimant - but aside from that the figure is the rather modest sum of £12,842. My Lord, counsel's fees made up the majority of that. My Lord they include not just today but drafting the judicial review papers, appearing at the permission application before Collins J and today.
31. MR JUSTICE SULLIVAN: What do you want to say about that, Mr Hare?
32. MR HARE: My Lord, before I deal with that can I just mention one matter from your Lordship's judgment?
33. MR JUSTICE SULLIVAN: Of course, yes.
34. MR HARE: In the very first paragraph your Lordship referred to Rule 5, rather than Rule 4(5). I know your Lordship said it correctly later on.
35. MR JUSTICE SULLIVAN: So sorry, 4(5).
36. MR HARE: Turning to the question of costs. We cannot resist costs in principle, of course. I would remind your Lordship just of the following matter. Firstly, not a great deal of work needed to be done in this case in terms of getting the documents ready. Even with an original and a supplemental bundle, it still only ran to a little over 100 pages.
37. As regards my learned friend's fees, which, as he indicated, constitute by a very substantial extent the most important aspect of it, I would point out that in the original grounds as drafted, this ground, i.e. what became the fourth ground in this skeleton before your Lordship, the Wednesbury unreasonable challenge, the only one which has succeeded, did not appear. That appeared in his skeleton argument only as a result - it appeared at the suggestion of Collins J at the oral renewal. So to that extent time that was spent on the original grounds, detailing the three arguments which have not succeeded before your Lordship, was not time which contributed as effectively as it might to the assistance of the court.
38. MR JUSTICE SULLIVAN: Except that they do go together somewhat, do they not: the timing point; the evidence point and so on.
39. MR HARE: They were made in a very different way, as your Lordship will be aware. The point, for example, in relation to the performance assessment was in the original grounds that it was inappropriate for the Registrar to have taken account of the fact, even while that was ongoing, and the other points in relation to the availability of notes are ones which have not been pursued or succeeded. So I make those points in relation to the quantum of counsel's fee.
40. MR JUSTICE SULLIVAN: I do not know, did I have a schedule from the GMC?
41. MR HARE: No. I have one which I can hand up.
42. MR JUSTICE SULLIVAN: It would help, I think, if I am to do anything.
43. MR HARE: Sensing your Lordship was against me, I put it to the very bottom of my papers.
44. MR JUSTICE SULLIVAN: I cannot think how you sensed that at all. You probably gave a copy to Mr Jay.
45. MR JAY: No, we do not have one. My Lord, my learned friend can no doubt tell us the bottom line and his brief fee.
46. MR HARE: I have found it, forgive me. (Handed)
47. MR JUSTICE SULLIVAN: Not hugely different actually. Yes.
48. The claimant should have his costs against the defendant. Looking at the matter in the round, bearing in mind that this is a matter which would not on any basis have taken a whole day, I think it was down for half a day, it seems to me that the reasonable course would be to summarily assess the costs in the sum of £10,000. That includes VAT, I add, i.e. it is a grand total. Thank you.