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
		07/02/2012

Mr Justice Wyn Williams:

Introduction

1. The Appellant is a music therapist. Between September 1997 and July 2008 she was employed at the Royal Welsh College of Music and Drama. Upon her appointment on 1 September 1997 the Appellant was the co-ordinator for music therapy. On 1 September 2006 her job title became programme leader – music therapy.
2. In 2009 the Respondent received an anonymous complaint about the Appellant's conduct during the course of her work at the college. An investigation ensued. On 30 March 2010 the Respondent served upon the Appellant a notice of allegation which alleged that the Appellant's fitness to practise was impaired on account of misconduct and/or lack of competence. A number of allegations of misconduct and/or lack of competence were made and they all related to the Appellant's period of employment at the college. On 4 February 2011 an amended notice of allegation was served which also contained detailed particulars of alleged misconduct and/or lack of competence relating to the Appellant's employment at the college.
3. On various dates between 12 April 2011 and 24 May 2011 a Panel of the Conduct and Competence Committee of the Respondent (hereinafter referred to as the Committee) heard the allegations made against the Appellant. At the conclusion of the hearing the Committee found many allegations of misconduct and/or lack of competence proved; it also found that the Appellant's fitness to practise was impaired. As a consequence of such findings the Committee imposed the following sanction:-

"The registrar is directed to annotate the HPC register to show that for a period of three years from the date that this order takes effect (the Operative Date), you, Dr Alison Levinge, must comply with the following conditions of practice:

1. Undergo clinical supervision by an HPC register Arts Therapist (within the music Mode) who is to submit a report confirming:-

a) Your practice conforms to HPC Standards of Proficiency for Arts, Therapists and Standards of Conduct, Performance and Ethics. This report to be submitted to the HPC every nine months from the Operative Date.

2. You, Dr Levinge, must notify the HPC within 42 days of the Operative Date of this order, the name and other details of the Clinical Supervisor who will be furnished with a copy of this order.

3. You must cease acting as a Clinical Supervisor to any therapist or trainee.

4. You must confine your practice to

a) The assessment and treatment of patients

b) Academic research

c) Academic publishing

d) Guest lecturing."

4. The Committee's findings and reasons in support are to be found in a notice of decision made on 24 May 2011 (hereinafter referred to as "the decision").
5. In these proceedings the Appellant appeals against the decision of the Committee. She relies upon no less than 16 grounds of appeal. In summary, the Appellant asserts that the Committee was wrong to conclude that she had committed acts of misconduct and/or displayed a lack of competence and it was wrong to conclude that her fitness to practise was impaired at the time it made its decision. Alternatively, the Appellant alleges that if her fitness to practise was impaired the sanction imposed by the Committee was "punitive, disproportionate and clearly wrong in all the circumstances".

The legal framework

6. The Respondent exists by virtue of the Health Professions Order 2001. Its principal functions are to establish standards of education, training, conduct and performance for members of the relevant professions and to ensure the maintenance of those standards (see Article 3 of the Order). Pursuant to Article 5, the Respondent has established and maintained a register of members of the relevant professions; the relevant professions include arts therapists which, in turn, of course, include music therapists.
7. Part V of the 2001 Order sets out the Respondent's functions in respect of fitness to practise. Article 27(b)(i) of the Order specifies that the Conduct and Competence Committee of the Respondent shall consider any allegation referred to it to the effect that a registrant's fitness to practise is impaired by reason of misconduct or lack of competence.
8. If the Committee finds that a registrant's fitness to practise is impaired its powers are those contained within Article 29. The relevant parts of that Article are in the following terms:-

"(3) If, having considered an allegation, the …..Committee….. concludes that is well-founded, it shall proceed in accordance with the remaining provisions of this Article.

(4) The Committee –

a) refer the matter to screeners for mediation or itself undertake mediation, or

b) decide that it is not appropriate to take any further action.

(5) Where a case does not fall within paragraph 4, the Committee shall –

a) make an order directing the registrar to strike the person concerned off the register (a "striking-off order");

b) make an order directing the registrar to suspend the registration of the person concerned for a specified period which shall not exceed one year (a "suspension order");

c) make an order imposing conditions with which the person concerned must comply for a specified period which shall not exceed three years (a "conditions of practice order"); or

d) caution the person concerned and make an order directing the registrar to annotate the register accordingly for a specified period which shall not be less than one year and not more than five years (a "caution order")."

9. Article 29(9) provides for a right of appeal against any order made under Article 29(5). The appeal lies to this court. Article 38(3) provides that this court may dismiss the appeal, allow the appeal and quash the decision, substitute for the original decision any other decision that could have been made by the Committee or remit the case back to the Committee.
10. An appeal to this court is governed by CPR Part 52.11. CPR Part 52.11(3) provides that an appeal court will allow an appeal only where the decision of the lower court or tribunal was wrong or unjust because of serious procedural or other irregularities.
11. I was provided with a bundle of authorities which, in the main, concerned appeals from decisions of the Fitness to Practise Panel of the General Medical Council. There is no suggestion, however, that the approach of this court to an appeal from the Respondent's Committee should be different, in any way, from its approach to an appeal from the Fitness to Practise Panel of the General Medical Council.
12. The following principles are uncontroversial. First, this court should not interfere with a decision of a disciplinary committee of a professional body unless persuaded that its finding concerning misconduct and/or fitness to practise is wrong. Similarly, the court should interfere with the sanction imposed following a finding that fitness to practise is impaired only if satisfied that it is wrong. Second, in making an assessment about whether or not a decision is wrong the court must have in mind and give such weight as appropriate in the circumstances to the following factors: i) the fact that the body from whom the appeal lies is a specialist tribunal whose understanding of what the particular profession expects of its members in matters of practice deserves respect; ii) the fact that the first instance tribunal has had the benefit, which the court normally does not, of hearing and seeing all the relevant witnesses; iii) the fact that questions of primary and secondary facts and the overall value judgment to be made by a tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.
13. In Southall v General Medical Council [2010] EWCA Civ 407 one of the issues considered by the Court of Appeal was the obligation placed upon the Fitness to Practise Committee of the GMC to give reasons for its decision. This issue is considered in paragraphs 49 to 63 of the judgment of Leveson LJ. During the course of those paragraphs the Learned Judge considered the decisions in Selvanathan v General Medical Council [2000] 59 BMRL 96; Gupta v General Medical Council [2002] 1 WLR 1691; English v Emery Reinbold & Strick [2002] 1 WLR 2409 and Phipps v General Medical Council [2006] EWCA Civ 397. He then expressed himself in this way:-

"55. For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate Tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it would be obvious whose evidence has been rejected and why…..

56. When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact "namely, did Dr Southall use the words set out in the charge?" the true picture is far more complex. First, underlying the case for Dr Southall was the acceptance that Mrs M might perfectly justifiably have perceived herself as accused of murder with the result that the analysis of contemporaneous material some 8 years later is of real importance: that the evidence which touched upon this conversation took over 5 days is testament to that complexity. Furthermore it cannot be said that the contemporaneous material was all one way. Dr Caulfield's note (and, indeed, the evidence) supported the case that it was (or at least could have been) Mrs M's perception alone. Ms..... note (accepted by Mrs M as one hundred percent accurate so far as it went) did not support the accusation and her evidence was that if those words had been said, she would have recorded them. I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues were essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the Panel.

57. Perhaps because of the nature of the case, the Panel did, of course, provide a few sentences of reasons but, in my judgment, they were simply inadequate and did not start to do justice to the case."

Clearly, there will be cases, those which are properly described as exceptional on account of their complexity, in which the disciplinary committee is obliged to provide adequate reasoning to justify its essential findings and its decision.

14. It is also worth noting that a finding of misconduct should not and does not necessarily lead to the conclusion that fitness to practise is impaired. As Silber LJ observed in Cohen v General Medical Council [2008] EWHC 581 (Admin):-

"62….in my view, at stage 2 when fitness to practise is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider in the light of all the other relevant factors known to them, whether by reason of the doctor's misconduct, his or her fitness to practise had been impaired……

63. I must stress that the fact that the stage 2 is separate from stage 1 [the stage at which a determination is made as to whether misconduct has occurred] shows that it was not intended that every case of misconduct found at stage 1 must automatically mean that the practitioner's fitness to practise is impaired.

64. There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired. Indeed the Rules have been drafted on the basis that once the Panel has found misconduct, it has to consider as a separate and discrete exercise whether the practitioner's fitness to practise has been impaired….."

15. Finally I should identify the principles which are relevant when this court is called upon to review any sanction which is imposed by a body such as the Committee. The leading case is Raschid v General Medical Council [2007] 1 WLR 1460 and my task is to apply the passages set out below from the judgment of Laws LJ (with which Chadwick LJ and Sir Peter Gibson agreed).

"14. As I have said the question we must address is: what is the proper reach of the High Court's discretion on an appeal under section 40 of the Medical Act 1983 to vary a sentence imposed on a doctor…

15….

16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1 April 2003…As it seems to me there are in particular two strands in the relevant learning before 1 April 2003. One differentiates the function of the panel or committee in imposing sanctions from that of a court retributive punishment. The other emphasises the special expertise of the panel or committee to make the required judgment.

17. The first of the strands may be gleaned from the Privy Council decision in Gupta v General Medical Council [2002] 1 WLR 1691, para 21, in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:

"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less affect on the exercise of this kind of jurisdiction. And he observed that it could never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p. 519: 'The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.' Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.

18. The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This, as it seems to me, engages the second strand to which I have referred. In Marinovich v General Medical Council [2002] UKPC 36 Lord Hope of Craighead, giving the judgment of the Board, said:

"28….in the Appellant's case the effect of the committee's order is that his erasure for life. But it has been said many times that the Professional Conduct Committee is the best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.

29. That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their Lordships are satisfied that there are no such grounds. This was a case of such a grave nature that a finding that the Appellant was unfit to practise was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the Appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case, while undoubtedly severe, was wrong or unjustified."

19…..As it seems to me the fact that a principle purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel…..

20. These strands and the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."

The case against the Appellant as presented to the Committee

16. The case against the Appellant was set out in the amended notice of allegation served in February 2011. That notice alleged that in the course of the Appellant's employment between September 1997 and July 2008 she acted or failed to act in a number of ways which constituted misconduct on her part and/or demonstrated a lack of competence. Eight specific allegations were made (allegations 1 to 8) which were said by allegation 9 to constitute misconduct and/or show a lack of competence and which also demonstrated that the Appellant's fitness to practise was impaired (allegation 10).
17. Allegation 1 asserted that "the Appellant had utilised psychodynamic therapeutic techniques inappropriately in a higher education setting (outside of a controlled therapeutic setting)". This assertion was supported by nine separate particulars - (a) to (i). Each particular asserted acts or omissions on the part of the Appellant. For reasons which will become apparent it is unnecessary to set out the terms of each of those particulars.
18. Allegation 2 asserted that the Appellant had undermined external personal therapists engaged in personal therapy in relation to three named students – referred to both in the notice of allegation and in this judgment as JM, DW and JG. This allegation was supported by two particulars – (a) and (b). Particular (a) specified that the Appellant had advised students to transfer to other therapists and particular (b) specified that she had contradicted the therapeutic conclusions agreed between the students and their personal therapists.
19. Allegation 3 asserted that the Appellant had refused to acknowledge concerns and criticisms directed at her personally and the course which concerns had been presented to her both by individual students and by student representatives.
20. Allegation 4 was that the Appellant had discussed personal information about individual students in group sessions described as "clinical supervision groups". There were four supporting particulars. It was alleged that the Appellant had engaged in this conduct in relation to JM, JG and DW.
21. Allegations 5 to 8, inclusive, were that the Appellant had presented subjective judgments and partial information about the personal history of students as if they were objective assessments of those students (allegation 5); ignored the practice-based observational evidence of other tutors/placement supervisors regarding the performance of particular students on their clinical placements (allegation 6); singled out particular students for negative assessment based solely on personal opinion, namely students JM, DW, JG and SW (allegation 7); and refused to review or amend her opinions as students developed their skills and understanding (allegation 8).

The Committee's findings

22. The Committee found allegation 1 proved. It did not find that each supporting particular was proved but it did find that particulars (a), (d), (e), (f), (h) and (i) were proved. The Committee found allegations 2 and 3 proved. It found one of the particulars of allegation 4 proved - 4(d). It also found allegations 5 to 7 proved. Allegation 8 was dismissed.
23. The Committee characterised its findings in respect of allegations 1(d), 1(e), 1(g), 1(i), 2, 3, 4(d), 5 and 7 as misconduct. It characterised its findings in relation to allegations 1(a), 1(f) and 6 as lack of competence.

The grounds of appeal

24. The Appellant asserts that the Committee was wrong to find any of the allegations against her proved. Grounds of appeal 1 to 8 relate to Allegation 1 and the particulars which support it. Grounds 9 to 14 relate to Allegations 2 to 7 respectively. Ground 15 is concerned with the allegation that the Appellant's fitness to practice is impaired; ground 16 relates to the sanction imposed. I propose to deal with each aspect in turn.

Allegation 1 (Grounds of Appeal 1 to 8)

25. The Committee began its consideration of allegation 1 as follows:-

"In respect of particular 1 each sub-particular has three distinct elements comprising: Stage 1 an alleged act or omission by Dr Levinge, Stage 2 utilising psychodynamic therapeutic techniques in relation to Stage 1, and Stage 3 that what she did was inappropriate in a higher education setting (outside a controlled therapeutic setting)."

Mr Butler accepts that this approach to determining whether or not allegation 1 (or any part of it) was proved was correct.

26. The Committee next turned its attention to the meaning to be attached to the phrase "psychodynamic therapeutic techniques." It concluded:-

"The panel accepts the definition provided by Mr Butler that: "psychodynamic therapy is a general name for therapeutic approaches which try to get the patient to bring to the surface their true feelings so that they can experience them and understand them".

The panel has accepted a commonsense definition of the word 'techniques' namely; "the means used to achieve ones purpose".

Neither in his skeleton argument nor in his oral submissions did Mr Butler suggest that the meaning which the Committee attributed the phrase "psychodynamic therapeutic techniques" was erroneous.

27. It was common ground before me and, no doubt, before the Committee, that music therapists commonly deploy psychodynamic therapeutic techniques in a clinical setting i.e. when a therapist is treating a patient. Equally clearly, it was a necessary part of the course of which the Appellant was the leader that students should be taught to apply psychodynamic therapeutic techniques. The thrust of the complaint made against the Appellant was that, in effect, she had treated students, on occasions, as if they were her patients; rather than restricting herself to teaching students about psychodynamic therapeutic techniques she had practised such techniques upon them.
28. The Appellant denied vehemently that she had behaved in this fashion. The thrust of her case was that she had never crossed the line between teaching therapeutic techniques to students and practising such techniques upon them. She relied upon expert evidence from Ms Ann Sloboda, the Head of Music Therapy at the Guildhall School of Music and Drama in support of that contention.
29. As the Committee's decision demonstrates the Committee faithfully applied the three-stage approach identified in paragraph 25 above in its consideration of particulars (a) to (i) of allegation 1. As I have recorded above the Committee found the allegation proved in respect of allegation 1(a), 1(d), 1(e), 1(f), 1(h) and 1(i).
30. Mr Butler submits that each of the findings of the Committee in relation to allegation 1 is fatally flawed because the Committee, effectively, ignored the evidence which the Appellant adduced in support of her case on allegation 1. In particular, Mr Butler drew attention to the fact that the Committee appears to have ignored the evidence of Ms Sloboda and, effectively, ignored the evidence of those members of staff who supported the Appellant's case and in particular the evidence of Mr Wiltshire.
31. The Committee dealt with the supporting evidence adduced by the Appellant in the following paragraph of its decision:-

"Dr Levinge's witnesses provided a more limited view of the issues in particular, Ms Sloboda had never visited the college, Ms Flowers had involvement with the Course but not its day-to-day running and therefore viewed the final product but not the process by which this was achieved. Mr Pullin had not first-hand knowledge of the issues or the individuals concerned although he did assist the panel with evidence of Dr Levinge's response to those issues. Mr Wiltsher was sincere and willing to help the panel but from the perspective of someone in his first academic post and his only other academic experience was as a student."

32. In my judgment it was wholly wrong for the Committee to dismiss Ms Sloboda's evidence, as apparently it did, simply on the basis that she had never visited the college. Ms Sloboda was, on any view, an expert witness with considerable relevant experience. She had provided a written report which supported the Appellant's case in respect of allegation 1 and she had provided full and detailed written answers to detailed questions put to her before the hearing before the Committee took place. In my judgment there was no justification whatsoever for dismissing her evidence simply on the basis that she had not visited the college.
33. The issue of whether or not the Appellant had strayed over the line between teaching psychodynamic therapeutic techniques and practising the same on her students was, in my judgment, a difficult issue to resolve. It was, of course, permissible for the Committee to attach weight to the views of the students who gave evidence and upon whom such techniques had allegedly been practised. As is clear from the decision of the Committee in relation to particulars (a) to (i) it did just that. Further, it was incumbent upon the Committee to scrutinise carefully the evidence which the Appellant gave in relation to allegation 1. There is no reason to suppose that the Committee failed in that duty. Unless, however, it was permissible for the Committee to regard Ms Sloboda's evidence as wholly irrelevant to allegation 1 her evidence about it could not be dismissed simply on the basis that she had not visited the college. A visit to the college would not and could not have made her evidence about allegation 1 any more or less cogent.
34. It seems to me that Ms Richards QC recognised as much during her oral submissions. She sought to persuade me that, properly analysed, the evidence of Ms Sloboda was, indeed, irrelevant to allegation 1. She points out that Ms Sloboda was not familiar with the actual evidence given by JM and others in support of allegation 1 since she was not present during their evidence and she did not read the transcripts thereof. It may also be that she had not read the witness statements made by JM and other students although, in my judgment, there is room for debate about that and in any event she had read written complaints made by the students in advance of their witness statements which were very similar.
35. However much of the available written material Ms Sloboda had read before she wrote her report, I am not persuaded that her written evidence was wholly irrelevant to the issues raised in allegation 1. By way of example, Ms Sloboda wrote that there was nothing within the written statements of the students who complained about the Appellant to support the allegation that the Appellant was going beyond the role of a tutor/supervisor. She also wrote that the Appellant's approach was consistent with that used widely in psychodynamic supervision, within music therapy training. (see bundle C page 1079). In answering questions about her report Ms Sloboda, essentially, held to that view and provided significant information to justify it.
36. I have scrutinised the transcripts of her oral evidence with care. It does not seem to me that this view was ever challenged in cross-examination. Indeed, it is noteworthy that neither counsel for the Respondent not any member of the Committee sought to challenge Ms Sloboda's basic thesis which was that the Appellant's teaching techniques were an acceptable means of bringing home to students the psychodynamic therapeutic techniques about which they needed to learn.
37. I have reached the clear conclusion that Ms Sloboda gave evidence to the Committee in relation to allegation 1 which was capable of giving significant support to the Appellant's case. In those circumstances it was incumbent upon the Committee to explain why it was that Ms Sloboda's evidence was not accepted. If, as appears to be the case, her evidence was rejected simply on the basis that she had not visited the college the Committee fell into significant error.
38. That said, it is clear that the Committee did analyse and make findings of fact about the various particulars upon which allegation 1 was founded. The Committee's conclusions on those particulars which it found proved were not necessarily wrong. It is at least possible that Ms Sloboda's evidence, when considered properly, would not deflect a properly directed Committee from the conclusion that the particulars to allegation 1 which the Committee found proved were justifiably proved. I am not in a position to make a judgment about that. I cannot do that simply by reference to the various transcripts and written statements. Accordingly, I have reached the conclusion that if it is necessary for allegation 1 to be resolved there is no alternative but to remit the allegation to the Committee for re-hearing.
39. In reaching this conclusion I have, of course, paid close attention to the decision of the Court of Appeal in Southall. I appreciate that it is often unnecessary for a disciplinary tribunal to do more than set out the facts which it has found proved safe in the knowledge that this will be sufficient to demonstrate to the parties the evidence which has been accepted or rejected and why. However, I regard the issues relating to allegation 1 as being far from straightforward issues of fact. Allegation 1 demanded that there be a careful appraisal of the Appellant's teaching techniques and, just as importantly, an appraisal of whether those techniques were acceptable judged by reputable professional standards. Ms Sloboda's evidence was important to both aspects of the appraisal. In such circumstances I have no doubt that it was necessary for the Committee to explain why it was that it rejected her evidence. This was the sort of case as it related to allegation 1 properly to be regarded as exceptional in accordance with the principles laid down in Southall.
40. In reality, of course, the Committee did explain why it rejected her evidence. It follows that the error of the Committee was not that it failed to provide reasoning for the rejection of Ms Sloboda's evidence but rather that its rejection of her evidence was based upon reasoning which was plainly wrong.
41. In the light of my clear conclusions relating to Ms Sloboda's evidence no useful purpose would be served by me analysing whether or not the Committee paid proper attention to other aspects of the evidence adduced on behalf of the Appellant in relation to allegation 1.
42. I have also given careful consideration to whether this judgment should deal with the individual criticisms which Mr Butler advances in respect of those particulars of allegation 1 which the Committee found proved. After some thought I have decided against such a course. The reasons why will become apparent as this judgment unfolds.

Allegation 2 (Ground of Appeal 9)

43. The finding of the Committee in respect of this allegation was as follows:-

"Dr Levinge undermined external personal therapists engaged in personal therapy of students JM and JG by advising students to transfer to other therapists (particular 2(a)) and Dr Levinge undermined external personal therapists engaged in personal therapy of students JM and JG by contradicting the therapeutic conclusions agreed by those therapists with their clients; specifically by indicating to the students that their levels of anxiety were higher than those identified by their therapists (particular 2(b)). Dr Levinge stated that she did not know the therapist in question and she was merely checking (as the course required she should) that this practitioner was sufficiently psychodynamic therapeutic aware to be able to support the student properly. Dr Levinge suggested a change of therapist and an increase in the frequency of sessions and raised questions with JG as to whether the therapist was addressing all the issues which needed to be addressed. This undermined the therapist as shown by the written evidence of HB. There is also evidence from JM that Dr Levinge questioned whether her therapist was sufficiently psychodynamic therapeutic orientated and from JG that Dr Levinge disagreed with her therapist."

44. Contrary to the assertion in the grounds of appeal it seems to me to be clear that there was evidence before the Committee to support allegation 2 in both aspects in which it was particularised. Ms Richards QC referred me to the transcript of the closing submissions which were made to the Committee by the solicitor for the Respondent. In relation to allegation 2 the relevant transcript is to be found at Trial Bundle D page 2005D to 2006H. I was also referred to relevant parts of both the oral and written evidence to demonstrate that the solicitor for the Respondent had summarised the evidence accurately in her closing submissions. On the basis of this material I have no doubt that there was evidence before the Committee which, if accepted, justified the Committee's conclusion in respect of allegation 2.
45. Given that evidence existed which was capable of justifying the allegation, the Appellant bears the formidable hurdle of persuading me that the Committee was wrong to accept that evidence. I use the phrase "formidable hurdle" deliberately. The Committee began the section of its decision which set out its findings of fact by stating unequivocally that the evidence given by former students was credible. In respect of JG her evidence was also "corroborated by contemporaneous notes." While the notes referred to were or included notes made by JG and such notes, in a strict legal sense, may not have amounted to corroboration, nonetheless they were obviously properly to be taken into account when assessing JG's credibility. It is stating the obvious to say that this court is bound to be very slow to interfere with the assessment of the credibility of witnesses which the tribunal below has heard and evaluated.
46. The provenance of allegation 2 essentially depended upon whether the Committee believed what was being said in evidence by JM, DW and JG. There is simply no basis upon which it would be proper for me to conclude that the Committee wrongly accepted the evidence of those witnesses. Essentially there was a conflict of factual evidence between the former students on the one hand and the Appellant on the other. There is nothing in the material before me which suggests that the Committee wrongly preferred the evidence of the former students as compared with that given by the Appellant.
47. Mr Butler complains, in effect, that the Committee's findings of fact in relation to allegation 2 were inadequate. I do not accept that submission. The Committee found, in terms, that both particulars specified in support of allegation 2 were proved. In relation to a comparatively straightforward factual dispute that was sufficient. He also complains that DW did not give evidence. That is true but hearsay evidence is admissible in principle before the Committee subject to any argument specific to the evidence in question to the effect that it ought to be excluded and, as I understand it, Mr Butler did not object at any stage to the Committee receiving and relying upon hearsay evidence.
48. In his skeleton argument and to some extent in his oral submissions Mr. Butler complains that the Committee did not provide reasons for rejecting evidence which, submits, Mr. Butler, supported the Appellant's case. His skeleton argument identifies the evidence in question. The difficulty with Mr Butler's submission is that the evidence upon which he relies shows no more than that there were obviously some occasions when the Appellant did not engage in the sort of conduct found by the Committee to be objectionable. The evidence was not capable of proving that there were no occasions when the Appellant engaged in the sort of conduct which the Committee found occurred on some occasions.

Allegation 3 (Ground of Appeal 10)

49. The Committee appears to have based its conclusion in relation to this allegation upon hearsay evidence, specifically, the evidence of Mr Jeremy Ward and Ms Melinda Drowley. At the material time Mr Ward was Director of Music at the College and Ms Drowley was its Vice Principal (Academic). In 2008 Ms Drowley asked Mr Ward to investigate complaints which JM and DW had made against the Appellant. It was during the course of discussions between Mr Ward and JM and DW that information was provided to Mr Ward which, if accurate, substantiated allegation 3.
50. The Committee's finding in respect of allegation 3 was as follows:-

"MD [Ms Drowley] gave evidence that it was difficult to get Dr Levinge to focus on criticisms raised by students and she was "preoccupied with interpreting the significance of the act of complaining rather than addressing the substance of the complaint". The Panel finds that Dr Levinge pathologised the act of complaining, as stated by MD. The Panel accepts the evidence of JW that students stated to him that any complaints were put down to the student "projecting" and concerns or criticisms were turned back onto the student because the student was "projecting something back". Also anyone who agreed with Dr Levinge was wrong and made to feel they had a problem. JM was informed that "her projections were massive" and she was projecting anger onto the Course."

51. As Ms Richards QC points out allegation 3 was also supported by direct evidence adduced before the Committee. That evidence was summarised in the closing submissions of the solicitor (see Trial Bundle D pages 2007A to 2009B). That summary shows that the Committee received oral evidence which was capable of supporting allegation 3.
52. The main thrust of Mr Butler's criticism of the Committee in relation to allegation 3 is that it did not base its conclusion upon direct evidence from students but rather upon hearsay evidence from Mr Ward and opinion evidence on the part of Ms Drowley.
53. Mr Butler accepts that he did not seek to exclude the evidence given by Ms Drowley or Mr Ward in relation to this allegation. Indeed, as I have said, in principle, hearsay evidence is admissible before the Committee albeit there may be grounds for objecting to specific hearsay evidence. Accordingly, I am not persuaded that the Committee fell into error by founding its conclusion upon allegation 3 by reference to hearsay evidence.
54. Mr Butler also complains that the Committee failed to provide reasons for rejecting evidence which tended to support the Appellant's case. As with allegation 2, the evidence in question is identified in Mr Butler's skeleton argument. The difficulty which Mr Butler faces, however, is identical to the difficulty which I identified in paragraph 48 above. The evidence relied upon by Mr Butler does not prove that the Appellant never engaged in the conduct alleged in allegation 3.

Allegation 4 (Ground of Appeal 11)

55. Allegation 4 was supported by 4 particulars. The Committee found that allegations 4(a) to (c) were not proved. The Committee dealt with allegation (d) as follows:-

"Dr Levinge openly discussed personal information about student JG's difficulty in working effectively with men in a clinical supervision group. JG gave evidence that her personal information was discussed by Dr Levinge. This allegation is proved because the Panel accepts JG's evidence that she was humiliated, felt powerless and was mocked by Dr Levinge. JG gave evidence that having survived abuse, she felt "very vulnerable" and she felt "constantly pushed back into" being a victim and felt "very diminished"."

56. Self-evidently the Committee relied upon the evidence of JG in reaching its conclusion. However, in his skeleton argument Mr Butler submits that JG never suggested in her evidence that the Appellant had discussed personal information about her in supervision groups albeit he appears to accept that in her witness statement JG said "On occasions in group session Dr Levinge would make comments about my inability to work effectively with men."
57. I have reviewed paragraph 38 of JG's witness statement with care. It seems to me to be clear that this paragraph, read as a whole, supports a complaint that Dr Levinge did raise the issue of JG's inability to work effectively with men in group sessions and this was an aspect of Dr Levinge's behaviour which caused JG to feel humiliated. In her witness statement, too, JG said that she considered that such comments were "highly inappropriate".
58. I do not accept Mr Butler's submission that there was no evidence before the Committee to justify its conclusion in relation to allegation 4(d). Further, finding as it did, that JG was a credible witness there is no basis upon which I can categorise the Committee's decision to accept her evidence as wrong in any way.
59. Mr Butler also complains that the Committee failed to provide any reasons for finding the allegation proved. In my judgment there was no duty upon the Committee to provide reasons for finding this allegation proved other than the obvious one, namely that they believed JG. As it happens the Committee reasoned that because it accepted that JG harboured feelings of humiliation etc. that supported her contention that there had been inappropriate discussion of personal information relating to her working effectively with men. There is nothing wrong in a Tribunal charged with determining facts to take into account an alleged victim's reaction to alleged inappropriate behaviour when judging whether that behaviour had occurred. In my judgment there is no basis for concluding that the Committee was not entitled to find allegation 4(d) proved.

Allegation 5 (Ground of Appeal 12)

60. It is worth recalling the precise terms of this allegation. Allegation 5 was that:-

"[The Appellant] presented subjective judgments and partial information about students' personal history as objective assessments of those students."

61. In relation to this allegation the Committee found:-

"The Panel finds that there was stereotyping by Dr Levinge in stating in effect that: (according to AMcG) no mothers have ever passed the course (according to JG), nurses are too medically focused, (according to ME) highly qualified academic students focus on thinking rather than feeling, of some students; she also presented subjective judgments and partial information about students' personal history as objective assessments of those students. This particular is proved."

62. Mr Butler makes two submissions about this aspect of the case. First, he submits that the Committee failed to make any findings of fact to support the allegation that the Appellant had presented subjective judgments and partial information about students' personal history as objective assessments of those students. Second, he submits that although the findings of fact made by the Committee might, legitimately, justify a conclusion of stereotyping that was not the thrust of the allegation which the Appellant faced. Certainly, he submits, the Committee did not explain why the fact that the Appellant engaged in stereotyping justified the conclusion that she had presented subjective judgments and partial information about students' personal history as objective assessments of those students.
63. In her skeleton argument Ms Richards QC draws attention to the way in which the Respondent presented its case in relation to allegation 5 particularly in the closing submissions of its solicitor. The submissions are comparatively short and are worth quoting in full:-

"When you turn to particular 5 you will need to review the totality of the evidence that has been placed before you to find examples where Dr Levinge has presented subjective judgments and partial information about students' personal histories, objective assessments of those students. Some of the clearest examples, the Council says, are found within the evidence in respect of [JG] where it was, Dr Levinge says, her medical perspective that prevented her from being able to approach her work as a therapist and [JG] again and her experience of sexual abuse influencing her conduct with all of her clients and her ability to relate to men. [ME] and her academic perspective hindering her ability to fall in touch with her feelings and emotions. [JM] and her medical history of anxiety, therefore assuming that she continued to be a highly anxious student on the course. The perception of Ms [AMcG] that she was a mother and the comment that was made at the outset of the studies to [AMcG] that "no mother has ever passed this course". There is clear evidence in respect of these particular students when you work through their witness statements, through the evidence that they have given to you in the course of this hearing, that they were perceived in terms of their personal histories.

Dr Levinge presented those views of their personal histories as the truth and refused to consider any alternative way of thinking about them. Again, this conduct, the students say, left them feeling powerless and as though their efforts and achievements would not be recognised because once Dr Levinge formed a view then there was no way to change it."

64. I have no doubt that Mr Richards QC is correct when she submits that there was ample evidence before the Committee to justify the Committee's finding that the Appellant told AMcG that no mothers had ever passed the course; that she told JG that nurses were too medically focused and that she had said to ME that highly qualified academic students focused on thinking rather than feeling. Given the way in which the case in relation to allegation 5 was presented before the Committee it was also permissible, in my judgment, for the Committee to conclude that such statements did amount to presenting subjective judgments about the students' personal history as if they were objective assessments. Although I am left with something of a sense of unease in respect of this allegation, I am not satisfied that the Committee was not entitled to find the allegation proved.

Allegation 6 (Ground of Appeal 13)

65. The Committee found:-

"Dr Levinge ignored the practice-based observational evidence of other tutors/placement supervisors, regarding the performance of particular students on their clinical placements. The Panel finds this particular proved because the evidence of the former students and Dr Levinge herself shows that the placements supervisors' views were no acknowledged by Dr Levinge. The Panel accepts the evidence of AMcG that the video evidence from placements was only lightly considered by Dr Levinge and the supervisors' feedback reports were not discussed with the students."

66. In her submissions Ms Richards QC drew attention to the following sequence of questions and answers during the course of the Appellant's evidence. The questioner was Ms Woddis, a member of the Committee and an art therapist.

"Q….you said several times, and I agree, that the training institution has a duty of care to the clients' patients. This is in fact the secondary duty of care, is it not, the primary duty exists with the professional actually who has responsibility for that client and yet you seem to limit the placement supervisor's role to a very managerial one, timekeeping, attendance and so on. In what sense are they supervisors and in what sense are they party to the clinical…..

A. Yes, there is quite a lot of different placements which students go on and of course they do experience different ways of being managed and different contexts. It's very clearly set out that the manager is responsible, they are responsible to that manager whilst on site and the manager is clinically responsible in the sense that whatever happens with a patient, the concerns with the patient must be brought by the student to them initially, if there are any, but in terms of actually clinically supervising, we felt it was important the students had the supervision on site from music therapists as that was what they were going to be developing as and therefore the perceptions and the understanding of the work would be from a music therapy perspective.

Q. Would you agree with me that part of the training situation is to prepare trainees for the field itself and how institutions work and how perhaps in the university situation they may get a more rarefied idea of practice than they do if they're really getting their feet wet on placement which all of that implies? It seems to me that there is a real danger of a defensive split and even the placement supervisor becoming quite idealised in this process if they do not have that experience of really perceiving their work as part of the work of the institution.

A. Sure and I understand that and I think there were occasions when that split occurred, and one of the ways in which we tried to address that was to try and have regular meetings with the staff that were the personal managers of each student. I mean the students did have to be very much as part of the institution as they could be, so we very much encouraged them to go to any meetings that were possible to do with their clients or even not to do with their clients and to become part of the institution to understand how it worked. We did ask the managers to write quite a detailed report on each student about how they were within the setting, so we did include that.

Q. But without having sight of the video material?

A. Yes, yes. My experience when I was a student was that there was equally the potential for conflict or differences of opinion or splits in the work when we had hands-on supervision from our placement supervisors and that you could actually get into a situation where students would say, "Well, hang on, my placement manager said this", so even with the other way round that could occur. I think in some ways our idea partly was to have a very consistent approach to the thinking of the work and I think in some ways, particularly some of the students who found that difficult would sort of use what the managers said if it was very positive and so on to try and sort of address the fact that, "Well, you didn't understand my work" and I think that was something about the splitting that we had to suggest, "Well, hang on, let's think about that". I think it could have happened either way and that was certainly my experience.

Q. Was there a situation or meeting where the placements supervisors could meet each other?

A. Yes that would be on site in the college. We would always invite them to college to talk about the different placements, to talk about the student to have a feedback session for themselves."

Following this exchange another member of the Committee, Ms Summers, the lay person, took up the same line of questioning.

"Q. Can I ask one question picking up on that sort of area my colleague has been asking about? The placement supervisors were providing a report on the managerial aspects really?

A. And professional issues.

Q. Indeed, yes, so can I clarify how the students' work on placement was actually assessed, who was doing the assessment and how?

A. That's why it was brought back to the clinical supervision.

Q. The assessment was done in the supervision?

A. Well not in the supervision, but their work was assessed in terms of ….I mean there would be reports written about how they were working with their clients and then also the vivas were in part to do with that so that in the halfway viva and in the last final viva they would do a presentation of their work and that was assessed then as well and that would be by a music therapist.

Q. What you saw of their work on placement in the supervision sections, several of the students have made reference to the fact that you saw only a short part of the video, just a few minutes, did you at any point view the entirety of the video?

A. No, not necessarily, and actually that isn't always necessary. I think in therapeutic work a lot of very important information sort of significance happens within the first few minutes of sessions, but equally they were allowed to bring particular moments if they had issues or concerns or worries that had occurred within the session."

67. As I understand it, Ms Richards QC relies upon this series of questions and answers as demonstrating that the Appellant ignored the practice-based observational evidence of placement supervisors.
68. Mr Butler does not accept that the Appellant, herself, gave evidence which justified the conclusion that allegation 6 was proved. Certainly, he submits that the passages set out above do not support the Committee's conclusion.
69. I agree with Mr Butler's submission. I cannot read the Appellant's evidence as set out above as justifying the conclusion that the Appellant ignored practice-based observational evidence of placement supervisors.
70. That, of course, is not the end of the matter. The Committee relied upon the evidence of former students, in particular AMcG. The solicitor for the Respondent summarised this evidence in her closing submissions as follows:-

"Particular 6 concerns the observational evidence of other tutors, placement supervisors. There is a common theme, you may think, when you look through the totality of the student complaints that the view Dr Levinge took of particular students was totally at odds from the feedback that the students were receiving from either their placement supervisors or their tutors. [JM] makes reference to this. [AMcG] makes reference to this. In the written document ME, or MB makes reference to this.

Dr Levinge is, of course, entitled to take a different view from the tutors and placement supervisors regarding the way in which the students were presenting. However a common theme in these student complaints is the reasons why there was such disparity in the feedback was never discussed, explored or examined and the students, by the nature of their very complaints and the words that they used, had clearly not understood what the relevance of their tutors' and supervisors' feedback was if it was as irrelevant as Dr Levinge would have you believe. The impact of this was to leave the students again feeling at a loss as to what they were expected to do to improve their performance on the course. Importantly, in respect of this allegation may I just remind you that you are not required to determine whether Dr Levinge had any power to influence the external examiners. Some of the students had made reference to that in their original letters of complaint but this does not form part of the factual particulars that you need to find proved to find this particular proved."

71. Assuming, as I do, that the solicitor for the Respondent accurately summarised the evidence available to support allegation 6, I am satisfied that it did not justify the conclusion that the Appellant ignored practice-based observational evidence of other tutors/placement supervisors. It may be that the evidence available showed that the Appellant did not always attach much weight to practice-based observational evidence of others; however, I simply do not see how it was open to the Committee to conclude that the Appellant had ignored such evidence. I agree with the submission of Mr Butler that it is not permissible to equate a failure to discuss feedback from other tutors or placement supervisors with a student with the conclusion that the Appellant simply ignored their views.
72. In my judgment there was no evidence upon which a properly directed Committee could find allegation 6 was proved. Accordingly, the Committee erred in law when it concluded that allegation 6 was proved.

Allegation 7 (Ground of Appeal 14)

73. At first blush this allegation is strange. I say that since, on the face of it, an allegation that an academic has negatively assessed particular students upon the basis of her own personal opinion seems a strange allegation of misconduct. What is wrong, one might ask rhetorically, about an academic basing an opinion of a student, whether a positive opinion or a negative opinion, upon her own personal opinion of that student?
74. In her closing submissions before the Committee, the solicitor for the Respondent addressed this issue as follows:-

"You will need to look at the totality again of each student's evidence to ask yourselves whether there is sufficient evidence in this regard to find the particulars proven to be more likely than not that she has singled out particular students for negative assessment. Not because they deserve it and not because she was giving constructive feedback, but because in her personal opinion of the student once she had formed an opinion of them she did not budge from it. [JM] was quite clear when she gave evidence. She said there was a particular type of student that Dr Levinge did not like: someone who challenged her, who was confident. You may think having heard from two of those students who did feel singled out by her, JG and JM, that they indeed fit that personality type. JG and ME say that Dr Levinge struggled with students that she perceived adhered to a medical or academic perspective rather than immersing themselves within the therapeutic framework. They too say that she did not budge from the view she formed of them and when they sought to raise it with her she was not willing to discuss it.

The weight of the evidence, the Counsel says, supports that not only those students named in the particular but a number of other students on this course experienced the feeling of being singled out and never been able to say or do anything right in the eyes of Dr Levinge once she had formed a view.

In response, and in some ways this is the very nub of the case, Dr Levinge asks you to accept that this was a demanding course and that some students simply struggled to cope with it. She says that any criticism that she had of students was always done with a view to helping that student become ready to practice. Dr Levinge says it is also no surprise that the students who have complained are those who have failed the course and say that they are seeking to lay blame on her rather than take responsibility for their own shortcomings.

Against that, and having considered the evidence, the Counsel says that does not hold weight. Student concerns are validly held and the Counsel says she did single out particular students without proper grounds for doing so. There has been some suggestion made to a number of student witnesses that it was simply their perception and therefore cannot be relied on to prove the allegations. Well, of course it cannot be because of the very nature of her conduct is bullying and that does not lend itself to hard evidence.

You can accept the evidence, the testimony of these witnesses if you find them to be credible and reliable witnesses telling you an account of what they experienced and what they saw happen to other students on that course. In so doing you will be assured, no doubt, by the calibre of the students making the complaint. These are educated individuals, they are mature students and they have high degree of musicianship to be eligible for entry on this course. They are moderate in their criticism. They are fair to Dr Levinge where it is appropriate to be so. I think it is JG who goes so far as to talk about Dr Levinge being a highly respected individual within the clinical context. They are not all failures. [JM], [ME], [JG] and [AMcG] all went on to become successful music therapists. Interestingly in [JM's] case she says to you that she passed the course having presented the same material she did a year earlier and failed. She says that the difference that she could point to in her success was her confidence to present that material now and the registrant had left the course."

The Committee found as follows:-

"Dr Levinge singled out students for negative assessment based solely upon her personal opinion. The Panel finds this particular is proved by the evidence of JS who states that SW was picked on. JW stated that JM and DW were similarly treated by Dr Levinge. JM said in evidence that there was an "inequality in the way that students were treated" by her. JW in his investigation of JM's complaint noted difficulty in obtaining developmental feedback "in direct contrast to other students who had approached Dr Levinge and were readily provided with feedback". ME gave evidence that students were treated differently. JS gave evidence about certain other students being singled out in a way that became uncomfortable to watch. JG stated that "I often felt so nervous about the likelihood that I could be "attacked" by Dr Levinge in these group sessions that I was twice physically sick before the sessions commenced and often shook on the occasions when I had to present my work" and further stated "Dr Levinge bullied students until they essentially broke down and became resigned to her way of thinking. In our group sessions Dr Levinge would systematically work through the students she had issues with and would pick on them until they broke down."

75. As I have acknowledged the phraseology of the allegation is somewhat strange. When the allegation is understood in the light of the evidence given and the findings of fact made, however, I accept that Ms Richards QC is correct when she submits that there was very powerful evidence in support of the allegation that particular students were singled out and that in effect the Appellant would not be deflected from an adverse view of a student once it had been formed. Undoubtedly, the allegation could have been phrased more appropriately but I have no reason to doubt that the Appellant understood, fully, the thrust of what was being asserted and that, to repeat, there was ample evidence to justify the conclusion reached by the Committee.
76. In respect of this allegation Mr Butler complained about a failure to make appropriate findings of fact. I do not consider that submission can be sustained in the light of the findings made by the Committee as recorded above. He also complained that the Committee failed to provide reasons for rejecting the evidence of a particular witness, a Ms Uenishi. I have reviewed that lady's witness statement but, in my judgment, it cannot amount, either alone or in combination with the Appellant's own evidence, to a complete rebuttal of allegation 7. Further, it was not incumbent upon the Committee to give a reasoned explanation as to why allegation 7 was proved notwithstanding the evidence of Ms Uenishi. Essentially, the allegation was proved because the Committee accepted as accurate the evidence it summarised in its decision.

Fitness to Practice (Ground of Appeal 15)

77. The Committee concluded that the Appellant's fitness to practise was impaired. Mr Butler sought to impugn that decision on the basis that the misconduct proved occurred at a time which was between 3 and 11 years prior to the hearing before the Committee and related solely to aspects of the Appellant's conduct and/or competence in an educational setting. None of the complaints or matters found proved related to the Appellant as a clinician. Given that the issue of fitness to practise has to be judged at the time when the Committee makes its decision Mr Butler submits that it was wrong of the Committee to decide that the Appellant's fitness to practise was impaired based as it was on historical misconduct and incompetence in a very particular setting which was never likely to be repeated.
78. I accept that the misconduct and incompetence alleged occurred only in the context of the Appellant as a teacher. I also accept that at the time of the hearing before the Committee the Appellant had no intention of engaging in teaching at a higher education institution save, perhaps, for delivering lectures on an ad hoc basis. Nonetheless, absent intervention by the Committee, there was nothing to prevent the Appellant from engaging in teaching.
79. On the basis of the Committee's findings in relation to the allegations of misconduct, in particular, I have no doubt that Ms Richards QC is correct when she submits that it was plainly open to the Committee to conclude that the Appellant's fitness to practise was impaired. I am not persuaded that any proper basis exists for impugning the judgment of the Committee.
80. I have reached that conclusion notwithstanding that the Committee appears to have found that aspects of the Appellant's conduct impacted not just upon JG but upon two patients (G and K) with whom JG had been in contact. At the very least, in my judgment, such a finding was surprising given the material shown to me. I do not propose, however, to dwell upon that issue for this reason. I am confident that a properly directed Committee would conclude that the Appellant's fitness to practise was impaired by reason of those allegations of misconduct which, on any view, the Committee was entitled to find proved. I refer to allegations 2, 3, 4(d), 5 and 7. I have little doubt that any properly directed Committee would find that the Appellant's fitness to practise was impaired on the basis of those proved allegations of misconduct.
81. This last conclusion has the following consequences. First, the fact that the Committee may have erred in concluding that the Appellant's conduct impacted adversely upon G and K does not mean that its decision upon fitness to practise need be remitted. Further, it means that the Committee's findings in relation to allegation 1 are not crucial to the issue of fitness to practise. To repeat, I am satisfied that a properly directed Committee would conclude that the Appellant's fitness to practise is impaired even if it also concluded that no aspect of allegation 1 was proved.

Sanction (Ground of Appeal 16)

82. The sanction imposed by the Committee is set out at paragraph 3 above. Mr Butler does not submit that it was inappropriate to impose practice conditions as the appropriate sanction. He does, however, submit that it was disproportionate to include among the conditions the requirement that for a period of 3 years the Appellant should undergo clinical supervision by an arts therapist registered by the Respondent who had the obligation to provide a report to the Respondent at intervals of nine months to confirm that the Appellant's practice conformed to relevant standards.
83. Not surprisingly, Mr Butler points out that there has never been any criticism of the Appellant as a clinician. Why then, he asks rhetorically, is it reasonable and proportionate and necessary for the protection of the public to impose a condition relating to the Appellant's clinical practice?
84. No explanation for this condition, in particular, is to be found in the reasoning in the decision. The decision correctly identifies the purpose of imposing sanctions; it correctly recognises the weight which is to be attached to the protection of the public and the public interest. It records, too, that a sanction should be imposed with the aim of ensuring that the public retains confidence in the relevant profession. In no part of the decision, however, is there an explanation of why the condition which Mr Butler impugns was thought appropriate.
85. I appreciate that this court is normally very slow to interfere with the judgment of a disciplinary committee on the issue of the appropriate sanction. Nonetheless, I find myself driven to the view that the imposition of the condition relating to clinical practice was, on the facts of this case, unreasonable and disproportionate. There are two reasons for this conclusion. First, the condition had a direct impact upon the Appellant as a clinician and, to repeat, in a long and distinguished career as a practising therapist there had never been a complaint upon about the Appellant's conduct towards her patients. Second the condition imposed upon the Appellant a financial burden the extent of which was never investigated.
86. My view as to the sanction imposed assumes that the Committee was justified in finding aspects of allegation 1 proved. Obviously, if allegation 1 were to be reinvestigated and found not to be proved (or found proved on a lesser basis than that found by the Committee) that would reinforce my view that the condition requiring clinical supervision of the Appellant was unreasonable and disproportionate.

Conclusion

87. The Committee's findings in relation to allegation 1 are flawed because the Committee's reason for rejecting expert evidence adduced by the Appellant in respect of this allegation was untenable. That said the Committee was entitled to find that allegations 2, 3, 4(d), 5 and 7 were proved and that the Appellant's acts or omissions as particularised therein amounted to misconduct. On the basis of those findings a reasonably directed Committee would, inevitably, conclude that the Applicant's fitness to practise was impaired. In those circumstances I can discern no useful purpose in remitting this case to the Committee or a newly constituted Committee to determine the issues encompassed by allegation 1. However, if a different view is taken by the Respondent I will hear further short submissions at the handing down of this judgment. My view on remission is, however, reinforced by my view about the appropriate sanction. Whether or not allegation 1 is proved either at all or to the extent found by the Committee I regard the requirement that the Appellant should submit to supervision in her clinical practice to be disproportionate and unreasonable.
88. Following consideration of my judgment in draft the parties agreed a form of order to give effect to its terms. I am grateful to the parties and their lawyers for their constructive approach to my judgment.