QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| GENERAL MEDICAL COUNCIL
|- and –
|DR ROBERT STONE
Angus Moon QC and Claire Watson (instructed by MDDUS) for the Respondent
Hearing date: 6th October 2017
Crown Copyright ©
MR JUSTICE JAY:
Essential Factual Background
"49. The tribunal finds that an ordinary informed member of the public would consider the production of these letters, in the circumstances, to be deceitful and dishonest. This would be the case even though the contents of the letters are true and accurate. The recipients of these letters would not have accepted them as valid if they knew of your relationship with Patient A because the nature of your relationship with her undermines your independence and the reliability of their contents. You were well aware that you were involved in an affair with Patient A at the time and were actively concealing this from your family and partners. The tribunal determined that if you had reflected even for a moment at that time, you would have realised that your actions were dishonest and it is unlikely that you would have written the letters.
51. The tribunal finds that you knew you were making a misrepresentation of your position in providing these letters but you justified your actions by stating that you were writing them solely from a GP perspective and not a personal one. The tribunal finds that it is unlikely that you could wholly separate the two and so considers that your justification was self-deceiving."
"He has engaged in an inappropriate sexual relationship with a patient. Whilst on the face of it, it appears that the relationship with Patient A was sexually motivated I am of the opinion that there is an alternative explanation based in his character pathology and personal circumstances for these behaviours. In my view the combination of the above factors created a perfect storm in which he was confused by his own feelings and behaviours to a degree which interfered with and overrode his professional judgement. She represented aspects of his mother – dominating and demanding but with a more obvious vulnerability which he responded to in the hope of rescuing her from her unhappy situation. His psychological needs become predominant and caused internal conflict with his professional ethical code. He was not able to sufficiently prioritise his patient's needs over his own. I do not think that his behaviour was sexually predatory.
He is suffering from [REDACTED]. This is the main source of vulnerability and risk. The features in relation to the allegations are his social inhibition, non-assertiveness, being overly accommodating self-sacrificing and self-deprecating which created a propensity to become involved with a troublesome relationship which could only be self-destructive and damaging to the patient."
"The behaviour following on from whatever is going on in his mind. I am suggesting that in these perfect storms the drives are so strong that normal judgement, sane judgement, professional judgement, is easily overridden to an extent, and this relates to what I was saying early on, that it is almost impossible to put oneself in that position because it is qualitatively different state of mind, one that we, for the reason which you are asking the question, find ourselves – it is incredibly difficult to get one's head round what it is like to be in a state of mind to be driven to do something that another part of your mind, the sane part of your mind, tells you is going to be a disaster.
I think what I suggested earlier on is that the perfect storm had already begun by the time sex occurs; that actually there is a moment, as I said earlier, and I can only place it – I cannot tell you exactly when that moment was but I suspect that moment right at the beginning when she leans forward and strokes his arm is the beginning of the storm and there is virtually no way back from that point on. There are lots of points from a rational point of view that we would all say "Of course there were points that you should not have done this"; what I am saying is the psychological drivers are sufficiently strong to override all those judgements. To come to your other point, that the rest of my report falls away, what I said to you I think a few moments ago is that it does not fall away. These are not mutually exclusive ideas. What I am saying is that the psychological driver for me, my understanding, is the prime driver.
What I am saying about will is it gets overridden by the unconscious processes of drivers that drove Dr Stone at that moment. But to answer the other part of your question, no, of course not everyone with [REDACTED] gets into this sort of scrape. It is a rare event. Rare events are of themselves unpredictable. That is why you have to look at what is going on in their lives, and what I am not privy to in preparing this report is what was going on in the patient's mind and therefore getting a rounder view of what the interaction was that propelled this forward, but that would be another key factor in the process."
"9. The tribunal found you to be a thoughtful and genuine witness. You gave an honest account of your experience, for which you have shown considerable remorse. You did not seek to blame, or partially blame, anyone other than yourself for your actions.
10. You told the tribunal that you were desperately sad for what you had done and that you could do nothing to repair the damage. You described the situation as sordid and despicable.
11. You told the tribunal that you had found it particularly difficult to understand and empathise with Patients A's attachment to you and some of her feelings but that you had made progress with this. You also said that you continued to find issues of unequal power in relationships difficult.
12. You told the tribunal that with the support of your family you were now optimistic for the future and that you would like to return to practice, should the opportunity be given."
"28. The tribunal determined that, by acting dishonestly, you failed to abide by one of the most fundamental tenets of the medical profession.
29. The tribunal finds that your pursuance of the sexual relationship with Patient A and your dishonesty breaches numerous fundamental tenets of GMP and amounts to serious misconduct."
"33. The tribunal considered that you have not yet developed a fully integrated view of events that incorporates all the personal, social and circumstantial factors that led to them. In particular, the tribunal considered that you remain limited in your understanding of the impact your behaviour has on others including Patient A. In addition, issues of power imbalance in relationships continue to trouble you.
34. The tribunal has taken into account all the psychological, social and personal factors that contributed to your behaviour. It is, however, mindful that you made a series of conscious and moral choices to behave in this way with a vulnerable patient over a prolonged period and in doing so disregarded fundamental tenets in GMP.
35. The tribunal notes that you did not seek to dissuade the tribunal from making a finding of impairment which is a further indicative of the developing insight you have shown.
36. The tribunal has also been mindful of the interest of Patient A, especially as she cannot make her wishes known. She was an extremely vulnerable woman who has stated that she felt 'emotionally traumatised' by these events.
37. Furthermore, the tribunal finds that your misconduct was so serious that members of the public and medical profession would find it deplorable. By your actions you have brought the medical profession into disrepute. The tribunal finds that a finding of impairment is necessary to maintain proper professional standards and conduct for members of the profession and to promote and maintain public confidence in the profession."
"17. Patient A was known by you to be particularly vulnerable. During this time you treated her for the very conditions that made her vulnerable. You were her trusted GP and you engaged in a personal and sexual relationship with her for over two years."
(1) The MPT accepted Dr Hook's evidence as to the doctor's disorder interacting with a number of social and personal factors to create a "perfect storm". The MPT described these factors as "very powerful in determining your behaviour". The MPT also accepted that the doctor's behaviour was not sexually predatory. In short:"20. The tribunal considers that your actions involved a choice. The choice that you made was the wrong one and this involved a vulnerable patient. It does however consider that your [REDACTED] and the psychological, personal and social factors that were at play at the start and during this affair meant you were less able to resist acting in this way. The tribunal considers that you were not predatory. You in fact wanted to help and care for Patient A and having made the wrong choice you were very confused by your different professional and personal responsibilities."
(2) The doctor has fully acknowledged his wrongdoing and has fully accepted responsibility for it.
(3) The doctor has shown genuine and profound remorse and shame.
(4) The doctor has gained significant insight and has taken many steps to remediate "the factors which have caused this to occur".
(5) The testimonial evidence is persuasive in that it demonstrates that the doctor is of previous good character, is trusted by many, and there has been no repetition.
(6) There is a public interest in permitting a competent doctor to continue in practice for the public good.
"38. The tribunal considered this does mitigate your misconduct to a sufficient degree and that it is able to conclude that your behaviour falls short of being fundamentally incompatible with continued registration."
"40. The tribunal gave separate consideration to the issues of dishonesty. The tribunal found that your dishonesty was inextricably bound up with your personal and sexual relationship with Patient A and the inevitable conflict of that dual relationship. The tribunal concluded that as your dishonest misconduct does not stand alone the same mitigating factors apply."
"41. The tribunal is satisfied that a period of suspension is sufficient to maintain public confidence and trust in the profession. It has determined that the maximum period of 12 months is appropriate to send a message to the profession and the public and allow you the time to undertake the recommended psychotherapy.
42. The tribunal has determined that your suspension will be subject to a review hearing, which will be held towards the end of your suspension period. The tribunal suggests that the review tribunal may be assisted by:
- Further report from a psychotherapist
- Reports from any other treatment you may receive
- Self-reflective log
- Evidence of CPD
- Appraisal documents
- Any other documents you feel may be relevant at the time.
43. The tribunal has determined not to erase your name from the medical register. It considers that this would be a disproportionate response. There are significant mitigating factors in this case, which have been outlined above, in particular the abnormal state of mind you were in during time of misconduct and the special circumstances around it."
The Sanctions Guidance
The Legal Framework
"(1) This section applies to any of the following decisions by a Medical Practitioners Tribunal—
(a) a decision under section 35D giving—
(i) a direction for suspension, including a direction extending a period of suspension;
(d) a decision not to give a direction under section 35D;
(2) A decision to which this section applies is referred to below as a "relevant decision".
(3) The [GMC] may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—
(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the medical profession; and
(c) to maintain proper professional standards and conduct for members of that profession.
(6) On an appeal under this section, the court may—
(a) dismiss the appeal;
(b) allow the appeal and quash the relevant decision;
(c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or
(d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit."
"As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council  QB 462; Fatnani and Raschid v General Medical Council  1 WLR 1460; and Southall v General Medical Council  2 FLR 1550) as appropriately modified, can be applied to section 40A appeals.
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note)  1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd  1 WLR 1325 at paragraph 46, and Southall at paragraph 47).
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).
v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council  1 WLR 169, at paragraph 36.
vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall  Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC  1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".
vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.
viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56)."
"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 -, - and . He also affirmed that, as decided by the Privy Council in Ghosh v General Medical Council  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: -. 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."
The GMC's Grounds
The Doctor's Defence
Discussion and Conclusions
About This Guidance
1. This document provides guidance to tribunals on imposing sanctions on a doctor's registration, including why a tribunal should impose sanctions and what factors it should consider. It provides a crucial link between two key regulatory roles: setting standards for the medical profession, and taking action when a doctor's fitness to practise is called into question because they have not met the standards.
2. When serious concerns have been raised about a doctor, the case may be referred to the MPTS for a hearing. Medical practitioners tribunals use this guidance to make sure they take a consistent approach when deciding: a) whether to issue a warning when a doctor's fitness to practise is not impaired b) what sanction to impose, if any, when a doctor's fitness to practise is impaired.
3. This guidance makes sure that the parties are aware from the outset of the approach that the tribunal will take to imposing sanctions. The tribunal should use its own judgement to make decisions, but must base its decisions on the standards of good practice established in Good medical practice and on the advice given in this guidance.
Taking a Proportionate Approach to Imposing Sanctions
20. In deciding what sanction, if any, to impose the tribunal should consider the sanctions available, starting with the least restrictive. It should also have regard to the principle of proportionality, weighing the interests of the public against those of the doctor (this will usually be an impact on the doctor's career, e.g. a short suspension for a doctor in training may significantly disrupt the progression of their career due to the nature of training contracts.
24. The tribunal needs to consider and balance any mitigating factors presented by the doctor against the central aim of sanctions (see paragraphs 14–16). The tribunal is less able to take mitigating factors into account when the concern is about patient safety, or is of a more serious nature, than if the concern is about public confidence in the profession.
Circumstances Surrounding the Event
51. Aggravating factors that are likely to lead the tribunal to consider taking more serious action include:
d) abuse of professional position (see paragraphs 136–142), particularly where this involves: i) predatory behaviour (see paragraphs 141–142) ii) vulnerable patients (see paragraphs 139–140);
e) sexual misconduct (see paragraphs 143–144) …
61. The tribunal's written decision is known as the determination. It must give clear and cogent reasons (including mitigating and aggravating factors that influenced its decision) for imposing a particular sanction. It must show that it started by considering the least restrictive option, working upwards to the most appropriate and proportionate sanction. This is particularly important where the sanction is lower, or higher, than that suggested by this guidance and/or where it differs from those submitted by the parties. In addition, the determination should include a separate explanation as to why the sanction should last for a particular period.
85. Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention.
86 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (i.e. for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession).
87 Suspension may be appropriate, for example, where there may have been acknowledgement of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated. The tribunal may wish to see evidence that the doctor has taken steps to mitigate their actions (see paragraphs 24–45).
101. The tribunal may erase a doctor from the medical register in any case – except one that relates solely to the doctor's health and/or knowledge of English – where this is the only means of protecting the public.
102 Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor.
103 Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive).
a) A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor.
b) A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety.
c) Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients (see further guidance below at paragraphs 123–126 regarding failure to provide an acceptable level of treatment or care).
d) Abuse of position/trust (see Good medical practice, paragraph 65: 'You must make sure that your conduct justifies your patients' trust in you and the public's trust in the profession').
e) Violation of a patient's rights/exploiting vulnerable people (see Good medical practice, paragraph 27 on children and young people, paragraph 54 regarding expressing personal beliefs and paragraph 70 regarding information about services).
h) Dishonesty, especially where persistent and/or covered up (see guidance below at paragraphs 114–122).
i) Putting their own interests before those of their patients (see Good Medical Practice paragraph 1: – 'Make the care of [your] patients [your] first concern' and paragraphs 77–80 regarding conflicts of interest).
Cases that Indicate More Serious Action is Likely to be Required
Abuse of professional position
136. Trust is the foundation of the doctor-patient partnership. Doctors' duties are set out in paragraph 53 of Good medical practice and in the explanatory guidance documents Maintaining a professional boundary between you and your patient and Ending your professional relationship with a patient.
137. Doctors must not use their professional position to pursue a sexual or improper emotional relationship with a patient or someone close to them.
139. Where a patient is particularly vulnerable, there is an even greater duty on the doctor to safeguard the patient. Some patients are likely to be more vulnerable than others because of certain characteristics or circumstances, such as: a) presence of mental health issues …
140. Using their professional position to pursue a sexual or improper emotional relationship with a vulnerable patient is an aggravating factor that increases the gravity of the concern and is likely to require more serious action against a doctor.
142. More serious action, such as erasure, is likely to be appropriate where a doctor has abused their professional position and their conduct involves predatory behaviour or a vulnerable patient, or constitutes a criminal offence.
143. This encompasses a wide range of conduct from criminal convictions for sexual assault and sexual abuse of children (including child pornography) to sexual misconduct with patients, colleagues, patients' relatives or others. See further guidance on sex offenders and child pornography at paragraphs 145–153.
144. Sexual misconduct seriously undermines public trust in the profession. The misconduct is particularly serious where there is an abuse of the special position of trust a doctor occupies, or where a doctor has been required to register as a sex offender. More serious action, such as erasure, is likely to be appropriate in such cases.