QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE PROFESSIONAL STANDARDS AUTHORITY
|- and -
|THE HEALTH AND CARE
(2) BENEDICT DOREE
Nicola Greaney (instructed by Bircham Dyson Bell) for the First Respondent
Paul Reid (instructed by Direct and Public Access) for the Second Respondent
Hearing date: 17 March 2015
Crown Copyright ©
Mrs Justice Lang:
Allegations and findings
"Matter 1 FTP0404026:
1. Drove your car at colleague A
which resulted in colleague A sustaining a soft tissue injury to his right rotor cuff.
2. The matters set out in paragraph 1 amounts to misconduct.
3. By reason of your misconduct your fitness to practise is impaired.
Matter 2 FTP26690:
Whilst registered as a Prosthetist/Orthotist, between 2009 to 2011:
1. You bullied Colleague A in that you:
a. drove in an intimidating manner towards Colleague A, on a number of occasions, while he was cycling;
b. repeatedly stared and/or glared at colleague A;
c. repeatedly stood close to Colleague A which made him uncomfortable;
d. called Colleague A various inappropriate names in front of colleagues and/or public including:
i. Cock sucker;
ii. Steve's bitch;
iii. Bitch; and
e. continued to call Colleague A names even though he had expressed to you that made him uncomfortable;
f. publicly asked Colleague A if his "arse was sore from Steve" or words to that effect;
g. publicly made chicken noises and/or played chicken noises from a mobile phone application at Colleague A;
h. said to Colleague A, "You're a fucking cock sucker and would suck anyone's cock to get on that course" or words to that effect;
i. told Colleague A you had obtained a picture of his wife from a social network website and that you would be keeping that picture in your "wank bank" or words to that effect.
2. You demonstrated inappropriate sexual behaviour towards Physiotherapist B in that you:
a. said to Physiotherapist B: "My wife's called (removed) and she's a dirty slut, you're called (remove), are you a dirty slut?" or words to that effect;
b. ran over to Physiotherapist B whilst she was checking a treadmill, unzipped your trousers, lay on your back on the floor and said, "get on that and ride that baby" or words to that effect, whilst thrusting your pelvis upwards as if simulating sexual intercourse:
c. on one occasion, opened your legs and pointed at your crotch and said to Physiotherapist B to, "suck on that" words to that effect;
d. on another occasion, you pointed at your crotch and said to Physiotherapist B "sit on that" or words to that effect;
e. whenever Physiotherapist B yawned or opened to say something, you would say "Do you want something to fill that mouth" or words to that effect;
f. continued your actions in 2e) even though Physiotherapist B told you to stop;
g. unzipped your trousers, pushed Physiotherapist B's head into your crotch and thrust your pelvis towards Physiotherapist B as if simulating oral sex, on at least 3 occasions;
h. frequently entered the therapy office when Physiotherapist B was alone and massage her shoulders, grab her ponytail and start twirling it around your finger;
i. on one occasion, in front of office administration staff, you came behind Physiotherapist B while she was bent down and gestured behind her in a sexual manner as if simulating sexual intercourse;
j. took a picture of Physiotherapist B who was acting as a model in a hoist sling demonstration and had her legs apart in the hoist sling;
k. mentioned on at least 4 occasions to Physiotherapist B that when you ejaculate, you have blood in your seminal fluid;
l. discussed your daughter's 18th birthday party with Physiotherapist B and another colleague where you commented how pretty and good looking all the girls were and how they were only 17 and 18 and gestured with your hands, mimicking as if you were holding a pair of breasts.
3. Your actions in paragraphs 1i, 2a to 2l were sexually motivated.
4. The matters described in paragraphs 1a to 1i, 2a to 2l and 3 constitute misconduct.
5. By reason of that misconduct your fitness to practise is impaired."
Case FTP04026: paragraphs 1 and 3.
Case FTP26690: paragraphs 1c, 1d, 1e, 1h, 1i, 2a, 2b, 2c, 2d, 2e, 2f, 2g, 2i, 2k, 2l, 3 (in part).
"(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both
and that it would be desirable for the protection of members of the public for the Council to take action under this section."
""73. What are the criteria to be applied by the Court when deciding whether a relevant decision was "wrong"? The task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct that gives rise to the right or duty to impose a penalty and, where they do, to impose the penalty that is appropriate, having regard to the safety of the public and the reputation of the profession. The role of the Court when a case is referred is to consider whether the disciplinary tribunal has properly performed its task so as to reach a correct decision as to the imposition of penalty. Is that different from the role of the Council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached had due regard for the safety of the public and the reputation of the profession."
"75. The reference to having regard to double jeopardy when considering whether a sentence is unduly lenient is not, as we have already indicated, really apposite where the primary concern is the for the protection of the public. More apposite is this passage in . Attorney General's Reference (No. 4 of 1989) (1990) 90 Cr App. R. 266:
"The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased with all the anxiety that this naturally gives rise to merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well-placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.""
"76. We consider that the test of whether a penalty is unduly lenient in the context of section 29 is whether it is one which a disciplinary tribunal, having regard to the relevant facts and to the object of disciplinary proceedings, could reasonably have imposed "
"77. In any particular case under section 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public."
"78. Where all material evidence has been placed before the disciplinary tribunal and it has given due regard to the relevant factors, the Council and the Court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. Where, however, there has been a failure of process, or evidence is taken into account on appeal that was not placed before the disciplinary tribunal, the decision reached by that tribunal will inevitably need to be reassessed.""
The Authority's grounds
a) The Council drafted allegations 1(f), 2(h) and 2(j) in a manner which was not supported by the evidence and so they were found not proven. Alternatively, the Council should have applied to amend these allegations or the CCC should have made the amendments on its own initiative.
b) The sanction was perverse and manifestly inappropriate. In reaching its decision, the CCC had failed to have proper regard to the relevant factors, gave disproportionate weight to factors of limited relevance, and erred in its application of the 'Indicative Sanctions Policy' ("ISP").
c) The CCC failed to provide adequate reasons for its decision.
Ground (a): the drafting of the allegations
"Towards the end of 2009, Benedict Doree began calling me names in public. He would make sexually explicit comments and would call me names such as "cock sucker", "Steve's bitch", referring to Stephen McMeechan, or "bitch". Benedict Doree would call me these names in front of a number of my colleagues. I recall that Benedict Doree called me names in front of [4 colleagues named]. Benedict Doree would also publicly ask me if my "arse was sore from Stephen". This occurred on a daily basis. It was humiliating to be called these things in public ." (emphasis added)
"Ben also started to frequent the therapy office more regularly, where I was usually alone as my colleague was on long term sick leave. This was approximately from March 2010. He would come into the room for no particular reason and walk up behind me and begin to massage my shoulders. I would tense up as I did not like Ben touching me and felt incredibly intimidated and was very uncomfortable as he is very big in stature. He would also grab my ponytail and start twirling it around his finger, stroking it." (emphasis added).
"On another occasion I was in manual handling with approximately another 15 colleagues. I was asked by a fellow physiotherapist colleague who was teaching the session if I would be a model and would be hoisted for demonstration purposes. Whilst being hoisted, I was off the ground with obviously my legs apart in the hoist sling. Ben began taking photographs on his mobile phone of me in this position to which I became very upset and categorically asked him to stop and delete them. He was laughing and I turned to Mr McMeechan and asked "Are you going to let him do this?" Ben just laughed but everyone present could see I was visibly upset. Once the session had finished, Ben came to me outside the room and stated he had deleted the photographs and grabbed and kissed the top of my head saying "I was only kidding chuckles". He could see I was visibly upset." (emphasis added)
Ground (b) - perversity/flawed decision-making
a) Is the sanction an appropriate exercise of the panel's power?
b) Is it a suitable means of attaining the degree of public protection identified by the panel?
c) Does it take account of the wider public interest issues, such as maintaining public confidence in the profession?
d) Is the least restrictive means of attaining that degree of public protection?
e) Is it proportionate in the strict sense, striking a proper balance between the protection of the public and the rights of the registrant?
a) Mr Doree, now aged 49, has been practising as a student and qualified prosthetist since age 19.
b) Aside from these matters, there have been no other complaints against him, before or since.
c) There were no criticisms of his conduct towards members of the public. The evidence was that he was dedicated and professional in his dealing with patients, and he was well-liked by them. He was a highly-regarded prosthetist. Former patients and colleagues wrote to the CCC to praise his work and his personal dealings with them. He received a positive appraisal in March 2011, and was informed that he was to be promoted to Deputy Branch Manager. The promotion took effect in May 2011.
d) In June 2011, after his dismissal, he joined RSL Steeper as Senior Prosthetist, which involved a lengthy commute from his home in Cleveland to Hull. The Council's interim order required a senior manager from Mr Doree's employer to report every 3 months on "his professional and personal conduct in regards to his working colleagues". These reports, and the evidence from his managers and colleagues to the CCC, stated that Mr Doree's work was exemplary and he was a valued and hardworking employee. He was professional and committed with his patients; he had a good rapport with them and he was caring. There was no inappropriate behaviour towards colleagues; he was courteous and professional towards them. He supervised a young female graduate trainee who described him as helpful and supportive, always willing to give his time and expertise even when busy. There was no suggestion of any inappropriate behaviour towards her.
e) The managers at RSL Steeper provided updating evidence to this Court, in February 2015, praising the quality of his work and care for patients. He has now been promoted to Deputy Manager. According to Vicky Jarvis, National Prosthetic Services Manager, he has "forged good working relationship with his patients and colleagues" and there have been no complaints about him.
f) Mr Laverick, Prosthetic Service Manager, said:"Ben continues to have a positive impact here in Hull, which began when he first came here in June 2011. His work record and conduct continue to be exemplary, and all around him whether staff or patients, speak very highly of him. Ben has been absolutely devastated by the whole tribunal process, which has also taken a toll on his health. He has not taken the sanction lightly as it is for 5 years, a lengthy period, which he has taken very seriously and treats with great respect. He regularly asks to meet with management, NHS staff and others to ensure his conduct remains to the correct standard and does not engage in banter at work. All his colleagues speak highly of him, and as his Manager, I am happy to confirm this."
A caution order must be for a specified period of between one year and five years. Cautions appear on the register but do not restrict a registrant's ability to practise. However, a caution may be taken into account if a further allegation is made against the registrant concerned.
19. A caution order may be the appropriate sanction for slightly more serious cases, where the lapse is isolated or of a minor nature, there is low risk of recurrence, the registrant has shown insight and taken remedial action. A caution order should also be considered in cases where the nature of the allegation (e.g. dishonesty) means that meaningful practice restrictions cannot be imposed but where the risk of repetition is low and thus suspension form practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight and, in that event, conditions of practice or suspension should be considered.
20. At the Panel's discretion, a caution order may be imposed for any period between one and five years. In order to ensure that a fair and consistent approach is adopted, Panels should regard a period of three years as the 'benchmark' for a caution order. However, as panels must consider sanctions in ascending order, the starting point for a caution is one year and a Panel should only impose a caution for a longer period if the facts of the case make it appropriate to do so."
"The decision as to what sanction, if any, should be imposed on a registrant whose fitness to practise has been found to be impaired is properly a matter for the panel which heard the case. Practice Committee Panels operate at 'arm's length' from the Council and it would be inappropriate for the Council to set a fixed 'tariff' of sanctions. This policy is only guidance and Panels must apply it as such. Panels must decide each case on its merits, and that includes deciding what, if any sanction to impose."
"the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel."
Ground (c) - failure to give adequate reasons