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
		28/07/2009

The Hon Mr Justice Sales:

1. This is an appeal against (i) a decision dated 8 January 2009 of the Fitness to Practise Panel ("the FTPP") of the General Medical Council ("the GMC") that the fitness to practise of the Claimant ("Dr Yeong") is impaired by reason of misconduct, pursuant to s. 35C(2)(e) of the Medical Act 1983 ("the Act") and (ii) a related decision of the FTPP dated 9 January 2009 to suspend Dr Yeong's registration as a medical practitioner for a period of 12 months. The role of this court on the appeals is to determine whether either of the decisions of the FTPP was "wrong": see CPR Part 52.11(3)(a) and the discussion in General Medical Council v Meadow [2006] EWCA Civ 1390 at [125]-[128].

Factual Background

2. Dr Yeong was born on 4 October 1965. He grew up and studied in Singapore, qualifying as a doctor in 1989. He came to specialise in obstetrics and gynaecology.
3. In 1997 he married. He and his wife have three children, aged 10, 8 and 6.
4. In 1999 Dr Yeong came to the United Kingdom and worked at Guys and St Thomas' Hospital in London as a senior registrar in the Assisted Conception Unit. He then returned to Singapore and worked as a consultant in the department of reproductive medicine at Kedang Kerbau Hospital between January 2001 and April 2005, assisting couples who were having difficulties in conceiving.
5. In April 2005, Dr Yeong moved into private practice in Singapore. He worked at the Tow Tung Clinic, practising in general gynaecology, and at the Thompson Fertility Centre, practising as a fertility/ IVF specialist.
6. In July 2002, whilst Dr Yeong was working as a consultant at the Kedang Kerbaul Hospital, a lady (whom I will call "GN") made an appointment to see him in respect of medical complaints. She saw him for consultations again in February and in March 2003. Shortly thereafter, Dr Yeong met GN for lunch. On Dr Yeong's account, set out in a written plea of mitigation to the Singapore Medical Council ("SMC") which was also before the FTPP, during this lunch meeting GN propositioned Dr Yeong and suggested they should go to a hotel room together. Soon afterwards they began a sexual relationship. In the course of that relationship, GN insisted that Dr Yeong pay substantial sums of money into her bank account. Dr Yeong paid her 4000 Singaporean Dollars (approximately £2000) per month over the course of the relationship, which was continued over about two years, resulting in a total payment to her of approximately £44,000. He also provided her with gifts. GN threatened to expose their relationship to his wife if he did not satisfy her demands.
7. In July 2005, Dr Yeong terminated the relationship. Thereafter, according to Dr Yeong, GN harassed him and his wife by sending him text messages, making telephone calls and accosting Dr Yeong at work.
8. Dr Yeong concluded that his presence in Singapore provided impetus for GN to harass him and his family. He therefore decided to leave his family behind in Singapore and work overseas, in the United Kingdom. In October 2005, he travelled to the United Kingdom to renew his registration with the GMC to practise medicine here. He was offered and accepted a full time position at the CRM Fertility Clinic in London ("CRM") in December 2005. He has worked with CRM since that time.
9. In January 2006 Dr Yeong was notified that GN had made a complaint about him to the SMC. Dr Yeong notified Mr Forman of CRM of the complaint against him. Having considered the position, Mr Forman concluded that the offer of employment for Dr Yeong at CRM should remain open. Accordingly, Dr Yeong commenced employment with CRM in February 2006.
10. There were four charges against Dr Yeong before the SMC as follows:

1) Improper conduct bringing disrepute to the medical profession by engaging in a sexual relationship with a patient (GN) during the period from 21 April 2003 to around March 2005, and failing to preserve the absolute confidence and trust of a doctor-patient relationship, in breach of the Singaporean Medical Registration Regulations and the SMC's Ethical Code and Ethical Guidelines;

2) Improper conduct bringing disrepute to the medical profession by tampering with and/or improperly causing inaccurate changes to be made to the biodata of a patient (GN) during the period from around June 2004 to around August 2005, and thereby failing to keep medical records which were accurate, in breach of the Singaporean Medical Registration Regulations and the SMC's Ethical Code and Ethical Guidelines;

3) Professional misconduct by failing during the period from February 2003 to March 2005, to record or properly document details of the patient's (GN) visits, medical condition and results on medical examinations in the case notes for the period of treatment; and

4) Professional misconduct by failing properly to maintain patient confidentiality by improperly disclosing to a third party (GN) confidential information relating to the treatment and care of two other patients of the Kedang Kerbau Hospital during the period from February 2003 to March 2005.

11. Dr Yeong pleaded guilty to those charges.
12. In relation to the question of sanction, Dr Yeong put in a lengthy written plea in mitigation. This included the following claim;

"In sentencing, this Committee must also realise that the charges against him arises mainly as a result of his relationship with [GN] and have nothing to do with the way in which Dr Yeong generally practises. Neither was the care given to [GN] in any way compromised. Just as importantly, his acts have no impact on any other patient."

13. Dr Yeong also obtained an expert report from an experienced psychiatrist, Dr Khean. Dr Khean's assessment was that Dr Yeong did not have a psychological disposition to engage in sexual relationships with patients. Dr Khean's assessment was that Dr Yeong fell into the category of physicians who may have a personal crisis or loss that causes them to be vulnerable and to seek out a patient who appears to provide support, rather than the category of persons who have some psychological disorder. According to Dr Khean, the category into which Dr Yeong fell was that most amenable to intervention and least likely to repeat such an act. Dr Khean concluded:

"The complainant had acted to 'punish' Dr Yeong and to make him suffer. She had also benefited financially to the amount in excess of about $90,000 from the relationship. The complainant played an active part in pursuing the relationship and in some respects was the dominant party (making requests and demands). Dr Yeong passively gave in to many of these demands to oblige her and avoid confrontation/conflicts with her and his wife. This only allowed the demands and problems to escalate culminating in a situation whereby he could no longer meet the demands. This led to anger and frustration in the complainant, who became more demanding. …

Judging from the testimonials and references, Dr Yeong is held in the highest regard by his professional colleagues and patients. His current mentor Dr Robert Forman has confirmed that since his time working in London, no complaint about Dr Yeong had been received. Dr Yeong should be allowed to work and contribute to the best of his ability to Singapore medicine. He erred and should be given a chance to redeem himself. …

The likelihood of recurrence is extremely low and this is reflected in the literature."

14. In the light of these materials the SMC made the following observations in deciding to impose a suspension of Dr Yeong's medical registration in Singapore for 24 months (rather than striking him off the register):

"In respect of the first charge, it is important to bear in mind that one of the most fundamental duties of a doctor, recognised for as long as the profession has been in existence, is that a doctor must never permit his professional relationship with a patient to deteriorate into an association which would be described as improper. The Courts in Singapore and also in England have always supported the finding of the medical body that sexual intercourse with a patient is a most serious breach of the proper relationship between doctor and patient amounting to infamous conduct in a professional respect.

In any sexual relationship between the doctor and the patient, the principle is whether there is any exploitation of the patient. The patient may be physically or psychologically vulnerable to the doctor's advances. There is no evidence of this in your case. In your case, the patient was not vulnerable, and in the view of the Committee, the patient was in fact the dominant person in this doctor-patient relationship. From the first encounter, it was by mutual consent. Furthermore, there was a series of financial transactions as a result of which, a total of over $90,000 was paid to the patient over a period of 2 years.

The Committee also noted that you readily pleaded guilty to prevent putting the complainant/patient through the limelight of a hearing to state her case.

Your conduct transgressed the professional boundary between the doctor and his patient. However, you have no previous offences. On the basis of the report from Dr Ung Eng Khean, Senior Consultant Psychiatrist and Psychotherapist (Adam Road Medical Centre and MD Specialist Healthcare), the Committee is of the view that the risk of you repeating your offence would be very low.

Factors that helped the Disciplinary Committee in deciding the verdict are that:

i) Your practice of medicine is exemplary;

ii) There is no previous evidence of any wrong doing;

iii) You pleaded guilty to the charges;

iv) You are now aware of the seriousness of your misdoings and the damage done to the profession;

v) You have accepted that your conduct was abhorrent and disgraceful; and

vi) You have many favourable testimonies from patients and colleagues.

One particular concern in such cases of moral turpitude is that the public reputation of the profession may suffer and public confidence in it may be prejudiced.

It is not the function of the Disciplinary Committee to be punitive, but it is tasked to mete out robust determination when necessary – on this occasion, the transgression of professional boundary between the doctor and the patient.

The Committee is of the view that your action is a serious breach of professionalism and has to send a clear signal to the profession that gross improper behaviour between a doctor and his patient cannot be tolerated. The Committee also stresses the need for protection of the public and to restore public confidence in the profession. The Committee considers that this was a prolonged relationship that spanned almost two years.

Further, the Committee takes into account the testimonials and letters provided by your patients and colleagues in the medical profession, and notes that you are a competent doctor."

15. The question then arose of what should happen in respect of Dr Yeong's registration to practise medicine in the United Kingdom. The position is governed by s. 35C of the Act, which provides as follows;

"Functions of the Investigative Committee

(1) This section applies where an allegation is made to the General Council against-

(a) a fully registered person; …

that his fitness to practise is impaired.

(2) A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of-

(a) misconduct … or

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care professional … to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect…".

16. Section 35D of the Act provides as follows;

"Functions of a Fitness to Practise Panel

(1) Where an allegation against a person is referred under section 35C above … to a Fitness to Practise Panel, subsections (2) and (3) below shall apply.

(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit-

(a) except in a health case, direct that the person's name shall be erased from the register;

(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or

(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests.

(3) Where the Panel find that the person's fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance."

17. Consideration of a complaint against a registered medical practitioner by a FTPP falls into three stages:

1) Determination of whether the facts of the case alleged against the practitioner are made out;

2) Consideration whether such facts as are established amount to impairment of the practitioner's fitness to practice; and, if so,

3) Consideration of the appropriate sanction to be imposed.

18. The regime based on impairment of fitness to practise is based on amendments to the Act which came into effect in 2004. Before that, the relevant concept under the statutory regime for matters relating to a medical practitioner's conduct was that of serious professional misconduct rather than impairment of fitness to practise.
19. It appears that a reason for the change in concept may have been to emphasise that the regime under the Act is concerned with a medical practitioner's current and future fitness to practise rather than with imposing penal sanctions for things done in the past, although that was also the case under the previous version of the regime (in common with the position in relation to a range of bodies which regulate professionals): General Medical Council v Meadow [2006] EWCA Civ 1390, [28]-[32]. The statute requires the FTPP to consider whether the fitness of a medical practitioner to practise "is" impaired: see s. 35D(2). Accordingly, the FTPP has to assess the current position looking forward not back: see also Meadow at [32] per Sir Anthony Clarke MR; Zygmunt v General Medical Council [2008] EWHC 2643 (Admin) at [31] (Mitting J). However, as Sir Anthony Clarke MR also observed in Meadow at [32]: "… in order to form a view of the fitness of a person to practise today, it is evident that [the FTPP] will have to take account of the way in which the person concerned has acted or failed to act in the past."
20. Important features of the statutory regime under the Act remain unchanged. As previously, the purpose of a FTPP (acting for the GMC) is to regulate the medical profession for the benefit of the public. Section 1(1A) of the Act states that the main objective of the GMC is "to protect, promote and maintain the health and safety of the public". In the light of that objective, the reference to "misconduct" in s. 35C(2)(a) of the Act is to be construed as signifying no lower threshold for disciplinary intervention by the GMC than the previous concept of "serious professional misconduct": Meadow at [198]-[200] (Auld LJ). The misconduct must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute and it must be serious – the sort of conduct "which would be regarded as deplorable by fellow practitioners": ibid at [200]. In the present case, it is the operation of s. 35C(2)(a) in combination with s. 35C(2)(e) of the Act which is in issue, since the decision of the FTPP regarding Dr Yeong's fitness to practise was based upon the determination of the SMC, in accordance with his plea of guilty, regarding his conduct while in practice in Singapore.
21. It is a corollary of the test to be applied and of the principle that a FTPP is required to look forward rather than backward that a finding of misconduct in the past does not necessarily mean that there is impairment of fitness to practise – a point emphasised in Cohen v General Medical Council [2008] EWHC 581 (Admin), at [63]-[64] (Silber J), and Zygmunt, at [31]. In looking forward, the FTPP is required to take account of such matters as the insight of the practitioner into the source of his misconduct, any remedial steps which have been taken and the risk of recurrence of such misconduct. It is required to have regard to evidence about these matters which has arisen since the alleged misconduct occurred: see Cohen, at [69] to [71], and Azzam v General Medical Council [2008] EWHC 2711 (Admin), at [44] (McCombe J).
22. Before the FTPP, Dr Yeong relied on the materials that had been put before the SMC together with two additional psychiatric reports from Dr Khean and further evidence given by Dr Yeong himself to the FTPP in which he described his insight into his problems and his efforts to deal with them. Dr Forman from CRM gave evidence for Dr Yeong of his experience of Dr Yeong in working with him for some three years and about the remedial action Dr Yeong had taken and his general conduct with patients. In addition, two female nurses from CRM gave evidence for Dr Yeong about their experience of working with Dr Yeong, his conduct with female patients, carefulness in note-taking and so forth.
23. In his second report, Dr Khean repeated the basic thrust of his first report. His assessment once again was that Dr Yeong did not have a psychological disposition to engage in sexual relationships with patients, but that "in a moment of folly he had acted impulsively against his better judgment and character", and that once embroiled he was not assertive enough to extricate himself from this position. Dr Khean reported that Dr Yeong had become more aware of his weaknesses and was working at dealing with these, for example by trying to be more assertive. He had also turned back to his Christian faith. Dr Khean repeated his assessment that Dr Yeong fell into the category of physicians who do not have a psychological disorder, and who are most amenable to intervention and least likely to repeat such misconduct. He said:

"This factor, together with Dr Yeong's continual reminders of his mistake by way of separation from his family, his continued supervision and mentoring by Robert Forman, the excellent record for the time that he has been with Dr Forman, his remorse and efforts to 'learn' from his mistake, his re-established faith and relationship with God, his continued work with myself and his pastor, and the vastly improved marital relationship would lead me to the conclusion that Dr Yeong does not pose a risk to patients in his capacity practising as an obstetrician and gynaecologist. In fact, given all the factors above, I would rate that a boundary transgression would be more likely in a group of doctors selected at random than in Dr Yeong's case …

Dr Yeong erred and he accepts his responsibility. His case is unique in that he was the non-dominant party. Everyone has suffered enough and I believe that there should be closure and every effort made to move forward afresh. Dr Yeong should be given a chance to redeem himself, and there is no better avenue than to allow him to avail his skills to those in need, and to make a difference to their lives."

24. In his third report Dr Khean said

"As mentioned in my previous report dated 9^th May 2008, many additional favourable prognostic factors continue to lead me to opine the Dr Yeong will not re-offend. These factors include: (1) Dr Yeong's remorse and continued reminders of his mistake when he thinks of his wife and children; (2) His continued supervision and mentoring by Dr Robert Forman and the excellent record for the now fairly considerable time he has spent with Dr Forman; (3) His commitment to continued counselling with his pastor and his strengthened personal spiritual relationship; (4) His commitment and compliance to continued follow-up and monitoring by myself; (5) his commitment to improve as a person and doctor as evidence by his initiative attending the recent course on medical ethics; (6) Much improved inter-personal relationship with his wife and improved self-awareness and understanding in both his case and his wife's; and (7) The strong support, commitment and moral guidance given to Dr Yeong by his parents-in-law (his father-in-law, a practicing doctor, and his mother-in-law, a lawyer) throughout this difficult time.

I continue to be of the opinion that Dr Yeong does not pose a risk to patients in his capacity practicing as an obstetrician and gynaecologist. In fact, given all the factors above, I would rate that a boundary transgression would be more likely in a group of doctors selected at random than in Dr Yeong's case."

25. The evidence of Dr Forman and the two nurses was that Dr Yeong behaved entirely properly with female patients and had improved his note-taking. Dr Forman's evidence was to the effect that Dr Yeong was a warm and empathic doctor who was popular with patients.
26. In its first decision, on 8 January 2009, the FTPP determined that Dr Yeong's fitness to practise was impaired. The FTPP made the following points;

"The Panel has taken account of the evidence relating to the circumstances in which you embarked upon a prolonged sexual relationship with a patient. It has not heard from Madam GN. On your account, the relationship began after she had come to you as a patient. It did not commence immediately but only after you had seen her socially. Subsequently, you undertook to make regular financial payments to Madam GN and the sums involved over the duration of your relationship were significant.

The Singapore Disciplinary Committee, although it did not hear evidence from Madam GN, as a consequence of your guilty plea, found that she was not vulnerable and concluded that she was the dominant partner in the relationship. However, it is not her behaviour which this Panel must focus upon. The question for this Panel to address relates to whether you departed from the standards of conduct and behaviour which are expected of medical practitioners. You conceded that the standards of conduct which apply to doctors in Singapore are the same as those which apply to doctors in the UK. You accepted, following questioning from a member of the Panel, that once the relationship with Madam GN had become sexual you did not consider terminating your relationship as her doctor, although the Panel has noted that it is submitted on your behalf that you made a number of unsuccessful attempts to end the relationship with her. The Panel has also had due regard to the information which suggests that your personality made it difficult for you to refuse Madam GN. The Panel has contrasted that with the duty of a doctor to ensure that the proper doctor patient relationship is maintained.

You accepted that, following a conversation with Madam GN, you accessed the medical records of Madam TCH (who was not your patient) at her request and divulged confidential information about her to Madam GN. You further accepted that Madam GN might have seen the name of Madam LM on medical records that were in your room at the clinic when Madam GN visited, although you maintained you did not discuss Madam LM with Madam GN.

The Panel noted that it was only under cross examination in this hearing that you conceded that your actions in tampering with medical records and in failing to maintain proper medical records had the potential to compromise Madam GN's care. You conceded that you had let her down.

'Good Medical Practice' sets out the duties and responsibilities of a doctor. It states that "you must not allow your personal relationships to undermine the trust which patients place in you. In particular, you must not use your professional position to establish or pursue a sexual or improper emotional relationship with a patient or somebody close to them." 'Good Medical Practice' also states that "patients must be able to trust doctors with their lives and wellbeing…In particular as a doctor you must respect patients' dignity…" and "…avoid abusing your position as a doctor". 'Good Medical Practice' also makes clear that doctors must be honest and trustworthy, must respect patients' dignity and privacy, respect and protect confidential information and must avoid abusing their position as a doctor. It states that "Serious or persistent failures to meet the standards in this booklet may put your registration as risk."

Both editions of 'Confidentiality: Protecting and Providing Information' indicate that doctors hold information about patients which is private and sensitive and that confidential information will not be given to others unless the patient consents or you can justify the disclosure; and patients have a right to expect that information about them will be held in confidence by their doctors. Confidentiality is central to trust between doctors and patients. The guidance also makes clear that, when a doctor is responsible for personal information about a patient, the doctor has a duty to make sure that the information is effectively protected against improper disclosure at all times.

'Indicative Sanctions Guidance' makes clear that occasional one off mistakes are unlikely in themselves to indicate a fitness to practise problem but that serious or persistent failures to meet the standards of 'Good Medical Practice' may put a doctor's registration at risk.

Paragraph 11 (S1-2) states that:

'Neither the Act nor the Rules define what is meant by impaired fitness to practice but for the reasons explained below, it is clear that the GMC's role in relation to fitness to practice is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practice either with restrictions on registration or at all.'

Paragraph 13 (S1-3) states:

'…in addition to the protection of the public, the public interest includes, amongst other things:

a. Protection of patients

b. Maintenance of public confidence in the profession

c. Declaring and upholding proper standards of conduct and behaviour.'

The guidance further states at paragraphs 53, 54 and 55 (S3-13) that :

"53. To practise safely, doctors must be competent in what they do. They must establish and maintain effective relationships with patients, respect patients' autonomy and act responsibly and appropriately if they or a colleague fall ill and their performance suffers.

54. But these attributes, while essential, are not enough. Doctors have a respected position in society and their work gives them privileged access to patients, some of whom may be very vulnerable. A doctor whose conduct has shown that he cannot justify the trust placed in him should not continue in unrestricted practice while that remains the case.

55. In short, the public is entitled to expect that their doctor is fit to practise, and follows the GMC's principles of good practice described in Good Medical Practice…"

Paragraph 58 (S3-15) indicates that:

"A question of impaired fitness to practise is likely to arise if…the doctor's behaviour was such that public confidence in doctors generally might be undermined if the GMC did not take action."

The Panel has been referred to the case of Cohen [2008] EWHC 581 (Admin). It considers that this case is distinguishable from the case of Cohen. Whilst the conduct which is the subject of these proceedings has not been repeated, the Panel is of the opinion that this is not conduct which is easily remediable.

The Panel finds that the passage of time since your misconduct occurred and the absence of evidence that you have repeated the misconduct found proved does not dilute, or downgrade, the seriousness with which it views your departure from the standards required of registered medical practitioners. You conducted a sexual relationship with a patient over a prolonged period of time; you failed to maintain patient confidentiality; and you failed to adhere to the standards expected in terms of record keeping. Your failures are widespread and serious.

The Panel has noted the evidence that you are clinically competent, and that you are valued and respected by your patients and professional colleagues. You have a degree of insight into your wrong doing but the Panel is still concerned that this may not be fully developed. You continue to receive counselling from a psychiatrist and from a minister of religion. You have reflected upon what happened and have modified the way in which you interact with patients to ensure that the proper doctor patient boundaries are now always maintained. You undertook a course in Medical Ethics in London between 15- 19^th September 2008.

However, the Panel has also considered whether there is a risk that you might repeat the behaviour which led to this hearing. It has had regard to the nature of your medical practice; and your personal circumstances. It has considered carefully the testimonial and other evidence which described you as, among other things, warm and empathic. Taking all those factors into account, the Panel considers that there may still be a risk that you could be tempted to repeat your misconduct.

In reaching its decision on impairment the Panel noted that in the case of Cohen, Silber J indicated that:

'the task for the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor's misconduct his or her fitness to practise has been impaired.'

The Panel has therefore had due regard to its duty to act in the public interest, protecting patients, maintaining public confidence in the profession and in declaring and upholding proper standards of conduct and behaviour.

The Panel also noted the observations in the judgment of Auld LJ in the Court of Appeal in GMC v Meadow [2006] EWCA Civ 1390 (Admin), to the effect that the standard of seriousness of a doctor's conduct is the same as it was when the test was "serious professional misconduct" and that, in order to form a view as to the fitness of a person to practise today, it must take account of the way in which the person has acted or failed to act in the past; and that the misconduct 'must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute, and it must be serious'. As to seriousness, Collins J in Nandi v General Medical Council [2004] EWHC (Admin), emphasised, at paragraph 31 of his judgment, the need to give it proper weight, observing that in other contexts it has been referred to as "conduct which would be regarded as deplorable by fellow practitioners."

The Panel entertained no doubt that the past conduct which has been admitted and found proved here does amount to misconduct. You breached many of the fundamental tenets of "Good Medical Practice". Your misconduct is linked to the practice of medicine. Your misconduct brings the profession into disrepute and is serious.

For all the reasons set out above, exercising its independent judgment, the Panel has determined that you past misconduct is such that your fitness to practise is impaired by reason of that misconduct…"

27. In its separate decision in relation to sanction, issued on the 9 January 2009, the FTPP imposed a sanction of 12 months suspension from registration and required the position to be reviewed at the end of that time. The FTPP's ruling on sanction included the following:

"The Panel's task has been to decide whether it is necessary to make an order in respect of your registration and if so what order. The Panel is conscious that the issue of sanction is a matter for its independent judgment and that it is not bound by the decisions of the Singaporean Medical Council's Disciplinary Committee, although it has been invited to consider the issue of parity between regulatory bodies. It notes that the Singaporean Medical Council's Disciplinary Committee directed that your registration be suspended for a period of 24 months. It further notes that Mr Kellar conceded on your behalf, as a matter of fact, that you have not ceased working as a doctor for any period as a result of that suspension…

The Panel has had regard to the protection of the public interest, which includes the protection of patients, the maintenance of public confidence in the profession and the need to declare and uphold proper standards of professional conduct and behaviour. The Panel has also applied the principle of proportionality. It has taken into account the mitigation put forward on your behalf. It notes that there is no information to suggest that you have repeated the behaviour which has brought your registration into question. It has given appropriate weight to the testimonials which have been submitted. The Panel has also noted the information about your private circumstances at the times in question ...

In considering Mr Kellar's submission regarding the conditions imposed by the Interim Orders Panel, this Panel notes that an Interim order addresses the issue of a "possible impairment" of a doctor's fitness to practice which poses a real risk to members of the public or which may adversely affect the public interest or the doctor's own interests. The test applied by this Panel is very different. The Interim Orders Panel does not make a finding of fact or of impairment. This Panel has already found that your fitness to practice is impaired. Its decision on sanction must address the need to protect the public interest which includes the protection of patients, the maintenance of public confidence in the profession and the need to declare and uphold standards of professional behaviour and conduct in the light of that finding. Additionally, the Panel was told by Ms Bruce that the Interim Orders Panel is offered guidance which suggests that an interim order for suspension is rarely justifiable in the public interest alone. The Panel notes that the protection of patients is not a predominant feature in your case…

The Panel's determination on impairment made clear that it did not consider that the most serious elements of your misconduct were easily remediable. In your case there is no evidence of general clinical incompetence nor of any shortcomings in your practice which require to be remedied…

The Panel finds that the significant aspects of this case are your misconduct in participating in a sexual relationship with a patient over a prolonged period; and in disclosing to that patient confidential information relating to the medical records of a third person to which you only had access as a consequence of your position as a doctor. Even though the patient was said to have been the dominant partner in the consensual sexual relationship, and was found by the Singapore Medical Council Disciplinary Committee not to have been "vulnerable", it was your duty and responsibility to maintain the proper doctor- patient relationship. Your disclosure of confidential information relating to a third party was a flagrant breach of confidence and trust. Your other failures, namely in record keeping, are also serious but, in isolation, are perhaps less important in determining the nature of the sanction to impose. Accordingly, the question of your potential for responding positively to retraining and supervision is not adequate, workable or measurable. A period of conditional registration would not be sufficient to mark the Panel's disapproval of your misconduct or to maintain public confidence in the profession. Patients and the wider public are entitled to expect that they can trust their doctors to act appropriately at all times…

The Panel has given appropriate weight to the positive testimonial evidence of which has been presented relating to your work both in Singapore and the UK. It has noted it has not received any evidence to suggest that there has been any repeat of the misconduct which led to this hearing. It notes that the Singapore Medical Council Disciplinary Committee concluded that there was no evidence of previous wrong doing, that your practice of medicine was exemplary and that you were aware of the seriousness of your misconduct. You have expressed remorse for the damage caused to the reputation of the profession. The Panel judges that the risk of you repeating your misconduct is not significant, as referred to in the Indicative Sanctions Guidance S1-14.

In all the circumstances, the Panel is satisfied that the public interest can be served and the reputation of the profession can be maintained by suspending your registration for a period of twelve months, which is the maximum period which this Panel can impose. In deciding upon the period of suspension the Panel has had regard to the public interest and the need to send a strong message to the public and profession at large that your misconduct, which you have accepted was abhorrent and disgraceful and which the Panel finds has brought the profession into disrepute, cannot be tolerated. The Panel notes that the 'Indicative Sanctions Guidance' confirms that sanctions are not meant to be punitive but may have that effect. Suspending your registration for the maximum period conveys the Panel's disapproval of your failure to act at all times in accordance with the requirements of 'Good Medical Practice'…"

The Grounds of Challenge

The Decision on Impairment of Fitness to Practise

Ground 1: the FTPP gave inadequate reasons to explain why it did not accept the expert opinion of Dr Khean

28. The first ground of challenge relied upon by Mr Kellar, who appeared for Dr Yeong, in relation to the FTPP's decision on impairment of fitness to practise, is that the Panel failed to deal properly, or at all, with Dr Khean's expert psychiatric evidence.
29. I am satisfied, from reading the FTPP's impairment decision of 8 January 2009 and its sanction decision of 9 January 2009, that the Panel had read and taken into account Dr Khean's evidence.
30. Miss Grey for the GMC submitted that there was no inconsistency between the Panel's finding that Dr Yeong did continue to present a risk to patients and the expert evidence of Dr Khean. In that regard, she pointed to a further statement of the FTPP in its sanction decision indicating that there was no significant risk posed by Dr Yeong. Miss Grey referred to the assessment in Dr Khean's first report that the risk of Dr Yeong breaching proper boundaries between himself and his patients in future was "extremely low", and submitted that Dr Khean thereby accepted that there was some risk, albeit low, of this occuring.
31. I reject this submission. In my view, there is a clear difference between the assessment of the Panel in its impairment decision that Dr Yeong continued to represent a significant risk to patients and the thrust of the evidence given on his behalf by Dr Khean, which overall was to the effect that Dr Yeong presented no significant risk to his patients. In all his reports, and perhaps with still greater emphasis in his second and third reports, Dr Khean gave his opinion that Dr Yeong represented no heightened risk of improper behaviour in future with his patients. On the other hand, the Panel, in its impairment decision, plainly considered that Dr Yeong did present a heightened risk of improper conduct in relation to his patients in future, and that was treated by the Panel as a relevant consideration weighing in favour of the decision which it took on impairment.
32. I find the observation of the FTPP in its sanction decision that Dr Yeong posed no significant risk to his patients somewhat difficult to reconcile with the Panel's reasoning in its impairment decision that he did pose such a risk. However, reading the two decisions together, I think that it is tolerably clear that the FTPP considered that Dr Yeong did pose a material or significant risk to his patients, albeit that the risk was not very great and that by far the most important consideration in the view of the Panel (as appears from both its impairment decision and its sanction decision) was the need to uphold clear public standards of conduct so as to foster public confidence in the medical profession.
33. Having determined that Dr Yeong did pose a significant risk to patients, the FTPP clearly decided not to accept in full the evidence that Dr Khean gave in his reports. The question then arises whether the Panel's reasoning in dealing with the question of risk posed by Dr Yeong and the expert evidence from Dr Khean adduced by Dr Yeong on that issue was adequate.
34. The basic approach in law to the question of the adequacy of reasons where a tribunal rejects the evidence of an expert witness was common ground. A coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, meaning simply that the tribunal should provide an explanation as to why it has rejected that opinion: cf English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [20]; Phipps v General Medical Council [2006] EWCA Civ 397.
35. Mr Kellar submitted that Dr Khean's evidence was central to Dr Yeong's case on both impairment and sanction in relation to Dr Yeong's degree of insight into his own behaviour and weaknesses, the effectiveness of steps taken by him to meet those weaknesses and as regards to the overall risk of recurrence of any similar incident involving transgressing the proper boundaries between doctor and patient in the future. He pointed out that Dr Khean's evidence had plainly been treated as important and weighty by the SMC. He also pointed out that at the hearing before the FTPP, Dr Khean's evidence was not subject to significant criticism by counsel for the GMC, nor was opposing expert psychiatric evidence put forward. In all the circumstances, therefore, Mr Kellar submitted that if the FTPP decided to depart from the assessment of Dr Khean, it should have addressed his evidence in detail and given reasons why it did not accept it.
36. In my judgment, there is considerable force in this criticism of the reasoning of the FTPP. I consider that in light of the standards laid down in English v Emery Reimbold & Strick Ltd and Phipps it was incumbent on the Panel to refer explicitly to the opinion of Dr Khean and in that context give its reasons why it did not accept or propose to act upon his opinion. Miss Grey accepted that, if she failed in the submission set out at para. [30] above (as she has done), the reasoning of the FTPP in this regard could be criticised as deficient.
37. However, Miss Grey submitted in the alternative that even on the basis that the FTPP's reasons in its impairment decision in relation to Dr Khean's evidence should have been more explicit, nonetheless the appeal on this ground should be dismissed on the basis that the Panel was entitled to draw on its own experience and judgment and was not obliged to accept the assessment of Dr Khean; the Panel had in fact, in substance, given reasons for its own view where that view differed from Dr Khean's; and, having regard to the reasons the FTPP had given for its decision, there was no realistic basis on which there could be any expectation or possibility that if the impairment decision were quashed and the matter remitted to the FTPP that it would arrive at any different conclusion on the question of impairment. In my view, each of these points is made out by the GMC.
38. First, so far as concerns the FTPP's assessment of Dr Khean's evidence, I consider that the FTPP was well entitled to draw upon its own experience and judgment in forming a view whether Dr Yeong presented a present risk to his patients. Dr Khean's evidence was to the effect that Dr Yeong did not suffer from any psychological disorder which underlay his misconduct. In light of that assessment, Dr Khean's expression of opinion as to the risk posed by Dr Yeong carried little weight attributable to any special expertise on the part of Dr Khean. The question of the possibility of a recurrence of such misconduct by Dr Yeong was a matter of the ordinary assessment of likely human behaviour, in relation to which a psychiatrist's expertise confers no special privileged insight. The assessment of risk of any particular form of future behaviour is the sort of task which courts and tribunals regularly perform without needing to refer to expert psychiatric evidence.
39. Secondly, in my view the reasons given by the FTPP in its impairment decision regarding the risk posed by Dr Yeong (referring to "the nature of [his] medical practice", his "personal circumstances" and his "warm and empathic" character) were sufficient to indicate to Dr Yeong in the circumstances of his case why the Panel considered that Dr Yeong did still pose a risk of future misconduct. His practice involved dealing with women who might be in a vulnerable emotional state. His "personal circumstances" was a clear reference to the fact that he was living in the United Kingdom apart from his wife and children. Reference had been made in the evidence heard by the FTPP to Dr Yeong's warm and empathic character, and the Panel was entitled to take that into account (and properly referred to this factor in its reasons), since a doctor with such a character might find that a patient had an emotional response to him and so be drawn into a situation where he might be tempted to engage in misconduct.
40. Finally, reading both the FTPP's decisions together, it is clear that the Panel's assessment of the risk posed by Dr Yeong was that it was low - albeit still of some significance on the question of impairment (and the Panel had good reasons for so assessing it which it did properly explain) – and that, far more importantly, the Panel's view was that the general public interest in clearly marking proper standards of behaviour for doctors in respect of relationships with their patients so as to uphold public confidence in the medical profession was by far the weightiest factor pointing in favour of the finding of impairment of fitness to practise and the sanction which was imposed. This feature of the decisions gives rise to another ground of challenge (Ground 4), which is considered below. However, so far as concerns the reasons challenge, it is my view that the failure of the FTPP to refer in clear terms to Dr Khean's evidence and then to explain its own reasons in the context of explaining why it did not accept his evidence was comparatively trivial. I am satisfied it is clear that the Panel would have come to the same decision on both impairment of fitness to practise and sanction if it had adjusted its statements of its reasons to refer specifically to Dr Khean's evidence and to explain why the Panel did not accept it.
41. For these reasons, I do not consider that the impairment decision itself was "wrong", in the sense in which that term is used in CPR Part 52, on the basis of Dr Yeong's reasons challenge. There is no good basis for the decision being quashed and remitted to the FTPP on this ground.

Ground 2: the FTPP gave inadequate reasons and was in error in relation to its decision in respect of the risk of recurrence of the misconduct

42. I have already dealt above with the reasoning of the FTPP on the question of risk of recurrence of the misconduct. In my judgment, the Panel was entitled to reach the view that it did in relation to the risk of recurrence and the reasons that it gave to explain its own view (as opposed to explaining distinctly why it did not accept the assessment of Dr Khean) were proper and adequate in the circumstances.
43. Nor can it be said that the FTPP was "wrong", or fell into error, in its assessment of the evidence. The Panel had had the benefit of hearing a range of evidence, of seeing the witnesses called by Dr Yeong and of seeing Dr Yeong himself give evidence. It was entitled to emphasise the features of the case which it did. I can detect no error of law in the Panel's approach. In my judgment, therefore, this ground of challenge fails.

Ground 3: The FTPP failed to deal adequately in its reasons concerning and was in error in assessing Dr Yeong's insight into his own behaviour.

44. Mr Kellar submitted that Dr Yeong had given detailed evidence to the FTPP about his improved level of self-awareness and insight into the reasons why he had improperly crossed the boundary of proper behaviour for a medical practitioner in relation to GN. He also gave evidence about his improved attitude towards keeping notes and the latter point, in particular, was corroborated by Dr Forman and the two nurses who gave evidence. Mr Kellar submitted that the reasons given by the Panel for concluding that Dr Yeong still lacked a degree of insight into his behaviour ("You have a degree of insight into your wrong doing but the Panel is still concerned that this may not be fully developed") were inadequate. He suggested that the fact that Dr Yeong had admitted his guilt to the charges before the SMC indicated that he accepted his responsibility for what had happened and recognised the gravity of what he had done.
45. On this issue Miss Grey pointed to the earlier part of the impairment decision in which the FTPP found that it was only in cross examination at the hearing before it that Dr Yeong had first acknowledged that his actions had had an impact upon the treatment of GN. That was in contrast to the statement which had been made on Dr Yeong's behalf to the SMC set out at para. [12] above, in which he claimed that his conduct had had no impact in jeopardising the standard of care provided to GN. It was only when taxed with that statement in his cross-examination that Dr Yeong had accepted that the earlier statement was wrong. Miss Grey also pointed out that the Panel had had the benefit of hearing Dr Yeong's detailed evidence and therefore was in a good position to assess from his answers, demeanour and so forth, the level of insight into his behaviour which he demonstrated.
46. In the light of the way in which Dr Yeong's position emerged, first, before the SMC and then in cross-examination before the FTPP, I consider that the Panel's observation referred to in para. [44] above was justified on the evidence. I also consider that the Panel's impairment decision, read as a whole, provided an adequate explanation for its conclusions as to the limited degree of insight that Dr Yeong had demonstrated in relation to his behaviour. Accordingly, I dismiss this ground of challenge.

Ground 4: the FTPP applied an incorrect test of impairment of fitness to practise

47. Mr Kellar's criticism of the FTPP's impairment decision under this head was that the Panel failed properly to consider whether Dr Yeong had taken adequate remedial action in relation to his earlier misconduct and so did not properly consider whether his current fitness to practise was impaired. Mr Kellar submitted that Dr Yeong's own evidence that he had taken steps to address his behaviour so as to minimise the risk of misconduct with a patient in future was corroborated by the evidence of Dr Forman and the two nurses. He pointed out, correctly, that a FTPP may fall into error if it fails to take account of the significance of remedial action by a doctor at the second stage of its consideration (i.e. in relation to the impairment to practise issue) and only has regard to it at the third stage (i.e. in relation to consideration of sanction): see Cohen, Meadow and Azzam.
48. Against this, Miss Grey submitted that each of Cohen, Meadow and Azzam was concerned with misconduct by a doctor in the form of clinical errors and incompetence. In relation to such types of misconduct, the question of remedial action taken by the doctor to address his areas of weakness may be highly relevant to the question whether his fitness to practise is currently (i.e. at the time of consideration by a FTPP) impaired; but Miss Grey submitted that the position in relation to the principal misconduct by Dr Yeong in the present case (i.e. improperly crossing the patient/doctor boundary by entering into a sexual relationship with a patient) is very different. Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence.
49. I accept Miss Grey's submission that the types of cases which were considered in Cohen, Meadow and Azzam fall to be distinguished from the present case on the basis she puts forward. Two points should then be made.
50. First, in my judgment, the overarching function of the GMC as set out in s. 1(1A) of the Act informs the meaning of impairment of fitness to practise by reason of misconduct in s. 35C(2), so that under s. 35C(2) and s. 35D the FTPP (acting on behalf of the GMC) is entitled to have regard to the public interest in the form of maintaining public confidence in the medical profession generally and in the individual medical practitioner when determining whether particular misconduct on the part of that medical practitioner qualifies as misconduct which currently impairs the fitness to practise of that practitioner. Where a medical practitioner violates such a fundamental rule governing the doctor/patient relationship as the rule prohibiting a doctor from engaging in a sexual relationship with a patient, his fitness to practise may be impaired if the public is left with the impression that no steps have been taken by the GMC to bring forcibly to his attention the profound unacceptability of his behaviour and the importance of the rule he has violated. The public may then, as a result of his misconduct and the absence of any regulatory action taken in respect of it, not have the confidence in engaging with him which is the necessary foundation of the doctor/patient relationship. The public's confidence in engaging with him and with other medical practitioners may be undermined if there is a sense that such misconduct may be engaged in with impunity.
51. Secondly, where a FTPP considers that fitness to practise is impaired for such reasons, and that a firm declaration of professional standards so as to promote public confidence in that medical practitioner and the profession generally is required, the efforts made by the practitioner to address his problems and to reduce the risk of recurrence of such misconduct in the future may be of far less significance than in other cases, such as those involving clinical errors or incompetence. In the former type of case, the fact that the medical practitioner in question has taken remedial action in relation to his own attitudes and behaviour will not meet the basis of justification on which the FTPP considers that a finding of impairment of fitness to practise should be made. This view is also supported to some degree by the judgment of McCombe J in Azzam at [51] (distinguishing the case before him, which involved clinical errors, in respect of which evidence of remedial steps and improvement was relevant, from a case involving "a rape or misconduct of that kind", in relation to which – by implication – such evidence might be less significant).
52. Miss Grey submitted that the reasons given by the FTPP in the present case were primarily based upon the Panel's view that this was a case that called out for a finding of impairment of fitness to practise so as to re-affirm the proper professional standards of behaviour in respect of relations between medical practitioners and patients and that, therefore, its reasoning that remedial action taken by Dr Yeong did not adequately address that concern could not be faulted. I accept that submission. In my view, this was the very point being made by the Panel when it stated that the case of Cohen was distinguishable and said: "Whilst the conduct which is the subject of these proceedings has not been repeated, the Panel is of the opinion that this is not conduct which is easily remediable."
53. In so far as the Panel also relied upon the degree of risk posed by Dr Yeong to his patients, I do not consider that there is any error disclosed in the positive reasons given by the Panel for its view: see para. [39] above.
54. The FTPP ascribed no significant weight to the further aspect of Dr Yeong's misconduct (i.e. in relation to his note-taking), in respect of which he clearly had taken proper steps to improve his professional practice.
55. Mr Kellar also submitted that the FTPP's reference in its reasons to the importance of declaring and re-affirming standards was misplaced, because the SMC by imposing its own sanction had already fulfilled that declaratory function. I do not accept that submission. In my view, the GMC and the FTPP were entitled to treat the declaration and re-affirmation of the standards applicable to those practising in the United Kingdom as a matter with which they were properly concerned.

The Sanction Decision

Ground 1: the sanction was excessive or disproportionate

56. Dr Yeong's first challenge to the sanction decision of the FTPP was that the sanction of 12 months suspension was excessive and disproportionate in all circumstances. Mr Kellar submitted that the Panel should have imposed instead the lesser sanction of registration subject to various conditions under s. 35D(2)(c) of the Act. He also compared the present case with that in Bevan v General Medical Council [2005] EWHC 174 (Admin) and submitted that Bevan showed that the sanction imposed by the FTPP in the present case was excessively harsh.
57. Bevan concerned a case of a doctor engaging in a sexual relationship with a patient who, unlike GN, was found to have been vulnerable (see [7], [41]-[43] and 74). It was decided under the Act before it was amended. In the particular circumstances of that case, Collins J quashed the decision of the Professional Conduct Committee of the GMC for various procedural reasons and then considered the question of sanction afresh himself. Whereas the Committee had imposed a sanction of erasure from the list of registered medical practitioners, Collins J substituted his own view that the appropriate sanction was suspension for 12 months. Mr Kellar submitted that comparing Bevan's case with Dr Yeong's case, there were no similar aggravating features and therefore the sanction of suspension for 12 months imposed by the FTPP in Dr Yeong's case was excessive.
58. I do not accept this submission. The FTPP was entitled to conclude that Dr Yeong's case was one in which the question of remedial steps and compliance with improved practising standards for the future was of less importance than the imposition of a sanction which would convey a clear public statement of the importance with which the fundamental standard of professional conduct in relation to relationships between medical practitioners and patients is to be regarded. In Bevan, Collins J affirmed the importance of that standard of behaviour: see [19]-[20], [26]-[28] and [30]. He also affirmed that, as decided by the Privy Council in Ghosh v General Medical Council [2001] 1 WLR 1915 at 1923, the court should accord an appropriate measure of respect to the judgment of the Committee (now, the FTPP) and held that the court should only intervene if persuaded that the penalty imposed was outside the range of what could be regarded as reasonable, having regard to the principle that the sanction should be one which is appropriate and necessary in the public interest: [24]-[25]. This is an approach which allows to the FTPP a margin of judgment to decide on sanction, even if a court might not itself have chosen to impose such sanction.
59. In my judgment, the sanction imposed by the FTPP in the present case was well within the margin of judgment available to the FTPP. I do not find it possible to say that the sanction imposed was wrong. Although there were mitigating features in Dr Yeong's case, there were also aggravating features (in particular, the period of time over which he engaged in the relationship with GN). The FTPP took all these points into consideration, and was entitled to reach the conclusion it did as to the appropriate sanction to be imposed. The fact that Collins J in Bevan chose to impose the same sanction in what could be regarded as a more serious case in some respects does not show that the FTPP has erred, or exceeded its margin of judgment, in the present case.
60. Mr Kellar also pointed out that in March 2008 the GMC's Interim Orders Panel had considered Dr Yeong's case but had not thought it necessary to suspend him pending the full consideration of his case by the FTPP. Mr Kellar submitted that this decision showed that registration subject to conditions was workable and that it would provide sufficient protection for the public.
61. I do not accept this. The difficulty with this submission is that the role of the Interim Orders Panel at the interim hearing stage is very different from the role of the FTPP at the final hearing. It will not typically be appropriate for the Interim Orders Panel at the interim stage (i.e. before a full hearing on the merits) to impose sanctions on grounds based simply on the importance in the public interest of maintaining clear standards of behaviour, as distinct from dealing with an immediate risk posed by a practitioner in relation to his treatment of patients: see Shiekh v General Medical Council [2007] EWHC 2972 (Admin), [23]-[24] (Davis J). Therefore, the absence of sanction imposed by the Interim Orders Panel does not indicate that the FTPP was wrong to impose the sanction of suspension after the full hearing at the end of the disciplinary process.
62. For these reasons, I dismiss this ground of challenge to the FTPP's sanction decision.

Ground 2: the FTPP acted improperly, to secure parity with the SMC's decision

63. Mr Kellar referred to the case of R (Simgapore Medical Council) v General Medical Council [2006] EWHC 3277 (Admin), in particular at [87], in support of a submission that the FTPP fell into error by referring to the sanction imposed by the SMC and, he said, taking that as a reason why it should impose its own sanction.
64. In my view, however, this submission is not based on a fair reading of the FTPP's decisions. The FTPP explained clearly that it had formed its own views as to the appropriate sanction to impose. It was entitled to refer to the ruling of the SMC (which was, after all, the basis for its own jurisdiction under s. 35C(2)(e) of the Act) and was entitled to have regard to the observations of the SMC emphasising the gravity with which they viewed Dr Yeong's conduct. The SMC's views reflected a common approach to such matters in both Singapore and the United Kingdom, as the SMC itself pointed out. The FTPP did not say that it felt obliged to impose a sanction of suspension in order to achieve some form of parity with the approach of the SMC. On the contrary, it made it very clear that it was forming its own views on the question of sanction and the relevant part of its reasoning did not refer to the decision of the SMC at all. Therefore, I dismiss this ground of challenge also.

Conclusion

65. For the reasons given above I dismiss this appeal.