CO/11333/2008 
Neutral Citation Number: [2008] EWHC 3354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 15th December 2008
 
B e f o r e: 

MR JUSTICE CRANSTON
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Between: 
THE QUEEN ON THE APPLICATION OF HEALTH PROFESSIONS COUNCIL 
Claimant

v 

HIRSH DEREK GALE 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Ms J Norris (instructed by Kingsley Napley) appeared on behalf of the Claimant
The Defendant appeared as a litigant in person
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J U D G M E N T
1.	MR JUSTICE CRANSTON:  This is an application by the Health Professions Council which seeks an extension of the interim suspension order made in June 2007.  That order was pursuant to the Health Professions Order of 2001, paragraph 31(2).  The period of the order was 18 months, which expires later this month.  The defendant, Mr Gale, is a registered art therapist and in 2007 a number of allegations were made about his behaviour as a therapist.  The allegations I return to in a moment.  For the sake of completeness, I should explain that the interim order has been reviewed and confirmed on five occasions by the Council.
2.	The power of this court is derived from paragraph 31 of the Health Professions Order 2001, which in paragraph 31(8) says that the Council may apply to the court for an extension of that order.  Subparagraph (9) says that the court may further extend the period of the order for up to 12 months.  That is the nature of the application before me.
3.	The analogy derived from the operation of a similar power in relation to the General Medical Council means that an extension will be based on the same criteria as apply to the imposition of the original order.  Paragraph 31(2) of the 2001 Order empowers the making of an order where it is necessary for the protection of members of the public, or is otherwise in the public interest, or is in the interests of the person concerned.  That power has been authoritatively considered by the Court of Appeal in General Medical Council v Hiew [2007] EWCA Civ 369.  In that case, at paragraph 28, Arden LJ accepted a submission from counsel for the General Medical Council to the effect that the court would take into account matters such as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons that the case has not been concluded, and the prejudice to the practitioner if an interim order were to be continued.  The onus is necessarily on the Council.
4.	In this case, I have heard from Mr Gale, who appeared in person, in relation to range of matters, some of which have no relevance to the application today.  Mr Gale referred to a decision, Wright v Secretary of State for Health [2007] EWCA Civ 999, which certainly goes to the way that the registrant's rights to natural justice and Article 6 rights are to be respected.  But that relates primarily to the hearing before the Council rather than to the powers of this court.
5.	Mr Gale said that he found it difficult to defend himself in relation to these allegations.  He asked rhetorically: what evidence did he need to produce to refute the allegations made against him?  He also referred me to adverse publicity which his case had attracted.  None of these matters are pertinent to the application before me today.  It may have been that if Mr Gale had challenged the original order by way of judicial review it would have been necessary to address some of them.  These are important points, but they relate to the hearing before the Council which will occur early next year.
6.	However, Mr Gale did raise a number of points which bear on the factors identified by Arden LJ in Hiew.  Let me consider each in turn.  First of all, the Council has to convince me that these are serious allegations.  On instructions, Miss Norris has said that these allegations, as she put it, strike at the heart of the therapist/client relationship.  They involve a gross breach of trust and they allegedly involve a transgression by this therapist of the acceptable boundaries.  Before me today, a consolidated list of the allegations was available.  A cursory glance demonstrates that they are serious allegations.  They involve behaviour which might be said to be a breach of trust, which involve a crossing of acceptable boundaries in terms of the personal relations between a therapist and a client.  They involve, for example, socialisation between the therapist and client outside acceptable parameters and include unpaid work by a client on the premises of the therapist.
7.	I make no finding on any of these allegations.  That is not my function.  My function is to assess the seriousness of these allegations.  Mr Gale says that in terms of the notion that some of this behaviour crosses boundaries, it is inherent in the nature of the therapist/client relationship that sometimes it might be that boundaries are stretched.  However, he says, if that happens it can be properly explained in terms of the circumstances of the particular relationship.  Of course, I also note at this point that Mr Gale refutes a number of these allegations as matters of fact, rather than any interpretation which might be put on them.  During the hearing we did not identify which allegations he accepted and which he refuted.  That was not for today.  
8.	Mr Gale did raise an issue which was identified by tables he had drawn up about the change brought by the Council.  As time went on it seems that the charge has been reformulated in some respects.  However, there is now a final reckoning, as it were, by the Council of the allegations which Mr Gale must meet early next year.  That reformulation of the charge does not affect any decision I must make today.
9.	The second point identified by Arden LJ concerns the evidence.  Miss Norris explained that the Council would be calling four witnesses: JB, GD, IJ and PC.  Those witnesses, she explained, supported the allegations made.  Their witness statements averaged in length some 30 pages.  Mr Gale said that the witnesses were untruthful.  He also said that there were only four witnesses, although at other points in the Council's case other witnesses were going to be called.  Again, this is not a matter for me.  It is not my responsibility to examine the evidence, in Miss Norris' submission, supports the allegations.  In as much as Mr Gale can only make general refutations with regard to the untruthfulness of the witnesses, that, in my judgment, does not undermine the Council's case relating to this. 
10.	The next heading identified by the Court of Appeal in Hiew was risk.  Here, Mr Gale said that he had, over his many years as a therapist, dealt with hundreds, even thousands, of clients and had not received complaints.  He also said that it was the nature of psychotherapy for allegations to be made by clients.  He referred to Freud and feelings of transference. 
11.	Perhaps the most powerful point is that he has been able to assemble a considerable number of letters which testify to his work as a therapist.  Six of these letters come from fellow professionals and they testify to Mr Gale's qualities as a therapist.  There were also a number of letters from clients who tell of the great benefit which Mr Gale has been able to bring to their lives, and who add that in many cases their well‑being has been adversely affected because Mr Gale is no longer able to treat them.
12.	It seems to me, however, that the issue of risk returns us to the nature of allegations made.  These are serious allegations and, if true, could satisfy the public risk element of the case which the Council is bringing.  It may be that at the hearing Mr Gale is able to demonstrate that there is nothing to these allegations and that all the good work to which these letters testify is the true character of Mr Gale's practice as a therapist.  On their face, however, the allegations satisfy me that there is a risk to the public.
13.	The fourth factor ‑‑ possibly it is the most troublesome ‑‑ is the issue of delay.  Mr Gale has had these allegations hanging over his head, to put it colloquially, since the middle of 2007.  That delay also bears on the final factor: the impact on him.  Since the time the original interim suspension order was imposed in June 2007, he has not been able to practise as an arts therapist, although he told me that he was able to do other limited work.
14.	The Council seeks to explain the delay as follows.  The original complaint was received in the middle of May 2007 and it was followed by another complaint in early June.  The Director of Fitness to Practise of the Council decided that those complaints met the standard of acceptance for allegations, and the Director referred the matters to the Investigating Committee.  Mr Gale was notified on 19th June 2007 that the Council was in receipt of those allegations and that the Council intended to apply for an interim order.  Later that month, there were further complaints by other persons to the Council and on 27th June the 18‑month interim suspension order was made.  Then in July 2007 a further complaint was received, and another complaint from another complainant in October.  Although I am troubled by the delay involved in the final formulation of the details of the allegations against Mr Gale, which were not sent to him until 23rd November 2007, I have been satisfied that during those months the Council was assembling the evidence necessary to justify action against him.
15.	There was then a period over Christmas and New Year in 2007/2008.  There was a delay in the review of the interim suspension order and its confirmation.  That has been explained on behalf of the Council as follows.  The officials of the Council cannot give more than a 28‑day extension, whereas Mr Gale had made a request that because of his health he be given until 29th February.  Therefore, the Chairman of the Investigating Committee needed to assemble a meeting of his/her Committee to take the appropriate action.  So that delay in late 2007 and early 2008 is explained.
16.	There then followed the investigation of matters in 2008.  On 26th March the matter was put in the hands of Kingsley Napley, who were instructed to investigate the allegations.  Within a relatively short period of time various former clients had been interviewed and an advice prepared which was sent to the Council.  Then in May there was a review of the interim suspension order and its confirmation.  On 30th May the Chairman of the Committee ruled that the Council had until the end of June finally to disclose to Mr Gale whether conduct not previously raised might lead to the drafting of new particulars.
17.	On 30th June the final hearing was provisionally fixed for 9th February 2009, to be conducted over a five week period.  That date, so far in advance, was selected for the convenience of Committee members, the legal assessor to the Committee and the witnesses.  It was necessary to arrange accommodation, and of course it was necessary also to ensure that both Miss Norris and Mr Gale would be available.  I note that in the middle of July 2008 Mr Gale himself had requested that the hearing be vacated and refixed for April 2009.  So in as much as there has been delay since the end of June until the present, given that both sides did not want the final hearing to occur until early next year, there cannot be any complaint about delay.  So although the matter has been ongoing for 18 months the delay is explicable.
18.	In terms of the various criteria which Arden LJ identified in Hiew, in my judgment the Council has discharged the burden in this case and are entitled to the order.  As I have said during the course of this hearing, there may be nothing whatsoever in these allegations.  The evidence which is adduced by the Council may in the course of the hearing be discredited.  Mr Gale may emerge untarnished by any of the complaints.  But that is not a matter for me today and I consider an extension appropriate.
19.	Do you want 12 months? 
20.	MISS NORRIS:  Six months, please.
21.	MR JUSTICE CRANSTON:  Is there anything more?
22.	MISS NORRIS:  No, thank you.
23.	MR JUSTICE CRANSTON:  Thank you very much.