KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
DR THOMAS PLIMMER |
Claimant |
|
- and - |
||
GENERAL MEDICAL COUNCIL |
Defendant |
____________________
Peter Mant (instructed by GMC Legal) for the Defendant
Hearing dates: 03 December 2024
____________________
Crown Copyright ©
Mr Justice Calver :
Findings of the Tribunal under challenge
The factual background
The allegations
Miss A
Allegation 1. In or around May 2018 you showed Miss A an unsolicited video of you engaging in sexual intercourse with another woman, whilst at work;
Allegation 2. On one or more occasions between May and August 2018 whilst at work you:
c. approached Miss A with your trousers undone;
d. masturbated in front of Miss A (admitted).
Allegation 4a. In or around February 2019, whilst at work you told Miss A that you had something that would cheer her up before taking her hand, without consent, and putting it on your erect penis over your clothes;
Allegation 7. Between May 2018 and September 2019, you:
a. sent photos and/or videos to Miss A, of you:
i. engaging in sexual intercourse with other women;
ii. masturbating.
Miss B; Miss C and Miss E
Miss B
Allegation 9. On 3 January 2020 you engaged in oral sex with Miss B in your GP surgery during working hours.
Miss C
Allegation 10. In May 2020 you engaged in sexual intercourse with Miss C in your GP surgery during working hours.
Miss E
Allegation 14. You sent Miss E an unsolicited photo of your penis, taken whilst at work, on:
a. 1 February 2021;
b. 11 February 2021.
Miss D and Miss F
"Allegation 15. Between 20 February 2021 and 7 March 2021 in a conversation with Miss D you threatened Miss F saying "if that cunt takes me to the GMC I'll slit her throat. I know where she lives" or words to that effect."
a. The first assessor, Dr Peter Wood, diagnosed the appellant with: (a) CSBD; and (b) Excessive Sexual Drive;
b. The second assessor, Dr Izabela Jurewicz, diagnosed the appellant with: (a) Recurrent depressive disorder, currently in remission; and (b) CSBD.
Grounds of appeal
"1. The Tribunal's findings of fact on allegation 4 was wrong.
2. The Tribunal's findings of fact on allegation 1 was wrong.
3. The Tribunal's findings of fact on allegation 15 was wrong.
4. The Tribunal's determination on impairment and sanction were based on these findings of fact; if grounds 1, 2 or 3 are allowed these determinations cannot stand.
5. Further, and in the alternative, the Tribunal's determination on impairment wrongly considered irrelevant matters.
6. Further, and in the alternative, the Tribunal wrongly determined that all four limbs of Dame Janet Smith's test for impairment in the fifth Shipman Inquiry were engaged.
7. The Tribunal's determination on sanction was based on its findings at the impairment stage; if grounds 5 or 6 are allowed, the determination on sanction cannot stand.
8. Further, and in the alternative, the Tribunal's determination on sanction that the misconduct was fundamentally incompatible with continued registration was wrong and it ought to have imposed an order for suspension."
The legal and statutory framework
"(1) The following decisions are appealable decisions for the purposes of this section, that is to say—
(a) a decision of a Medical Practitioners Tribunal … giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration;
...
(7) On an appeal under this section from a Medical Practitioners Tribunal, the court may—
(a) dismiss the appeal;
(b) allow the appeal and quash the direction or variation appealed against;
(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Medical Practitioners 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."
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession[1].
"25. …….(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;
(2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measure necessary to maintain the standards and reputation of the profession;
(3) The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment;
(4) The court's function is not limited to a review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it."
26. To this list one can also add that the Panel is entitled and bound to consider aspects of the public interest that arise in any case: R (Harry) v GMC [2006] EWHC 2050 (Admin.)."
"… The authorities establish the following propositions:
i) The Panel's decision is correct unless and until the contrary is shown: Siddiqui v. General Medical Council [2015] EWHC 1996 (Admin) , per Hickinbottom J, citing Laws LJ in Subesh v. Secretary of State for the Home Department [2004] EWCA Civ 56 at [44];
ii) The court must have in mind and must give such weight as appropriate in that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: Gosalakkal v. General Medical Council [2015] EWHC 2445 (Admin) ;
iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not;
iv) The questions of primary and secondary facts and the overall value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v. General Medical Council [197], per Auld LJ;
v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577 , [197], per Ward LJ;
vi) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council [2010] EWCA Civ 407 , [47] per Leveson LJ with whom Waller and Dyson LJJ agreed[4];
vii) If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui , paragraph [30](iii).
viii) Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall v. General Medical Council [2010] EWCA Civ 407 , [55]-[56].
ix) A principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani and Raschid v. General Medical Council [2007] EWCA Civ 46 , [19], per Laws LJ."
"First as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable... in Gupta v General Medical Council [2002] 1 WLR 1691, Lord Rodger put the matter this way (at [10]…):
"In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position."
"In summary:
(i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Pt 52. A court will allow an appeal under CPR Pt 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 Pt 52 that decisions are 'clearly wrong': see Raschid's case at para 21 and Meadow's case at paras 125–128.
(iii) The court will correct material errors of fact and of law: see Raschid's case at para 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) [2003] 1 WLR 577, paras 15–17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325, para 46, and Southall's case at para 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 Pt 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 Raschid's case at para 16; and Khan v General Pharmaceutical Council [2017] 1 WLR 169, para 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 General Medical Council and Southall [2005] EWHC 579 (Admin) at [11], and Khan's case at para 36[5]. As Lord Millett observed in Ghosh v General Medical Council [2001] 1 WLR 1915, para 34, the appellate court 'will accord an appropriate measure of respect to the judgment of 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."
"v. The appellate court must conduct an analysis as to whether the sanction imposed was wrong; that is, whether it was appropriate and necessary in the public interest or excessive and disproportionate;
vi. In the latter event, the appellate court should substitute some other penalty or remit the case to the Tribunal for reconsideration."
"In relation to an appeal against sanction, it is well-established that whilst considerable respect should be paid to the sentencing decision of the Disciplinary Tribunal, the Court would interfere when satisfied that the sanction imposed was "clearly inappropriate": Salsbury v Law Society [2008] EWCA Civ 1285; [2009] 1 WLR 1286 per Jackson LJ at para 30".
"The first stage is to assess the seriousness of the misconduct. The second stage is to keep in mind the purpose for which sanctions are imposed by such a tribunal. The third stage is to choose a sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question."
"Misconduct involving personal integrity that impacts on the reputation of the profession is harder to remediate than poor clinical performance: Yeong v General Medical Council [2009] EWHC 1923, [50]; General Medical Council v Patel [2018] EWHC 171 (Admin) at [64]; In such cases, personal mitigation should be given limited weight, as the reputation of the profession is more important than the fortunes of an individual member: Bolton v Law Society [1994] 1 WLR 512 at 519; General Medical Council v Stone [2017] EWHC 2534 (Admin) at [34], supra, [47]."
54. The paradigm case in relation to solicitors is Bolton and, in particular, the judgment of Sir Thomas Bingham MR at p518C:
"Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust…"
55. The Master of the Rolls continued at p 519H:
"The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.
Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. 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 a part of the price.
56. The Privy Council has, on two occasions, subsequently adopted the words of the Master of the Rolls in Bolton when considering sanction cases in respect of doctors who had been guilty of serious professional misconduct.
57. In Gupta v General Medical Council [2002] 1 WLR 1691, Lord Rodger referred [21] to Lord Bingham's judgment in Bolton as "set(ting) out the general approach which has to be adopted". A little later in Patel v The General Medical Council, Privy Council Appeal No. 48 of 2002, Lord Steyn said:
"Their Lordships consider that the Professional Conduct Committee was right to be guided by the judgment in Bolton v Law Society…It is true that in that case misconduct of a solicitor was at stake. But the approach there outlined applies to all professional men. There can be no lower standard applied to doctors: Gupta v General Medical Council…For all professional persons including doctors a finding of dishonesty lies at the top end in the spectrum of gravity of misconduct…"
58. Finally, as recently as this year in General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin), [2018] 4 WLT 44; Ouseley J said in a sanctions case in relation to clinical negligence:
10…contrary to a suggestion from Mr Larkin QC for Dr Bawa-Garba, [that] the comments of Sir Thomas Bingham MR in Bolton apply to doctors as much as to solicitors".
59. In my judgment not only do the Bolton principles apply equally to doctors as solicitors, but the same principles and approach apply equally to both sanctions and restoration…
60. … the approach is likely to be different (and may be completely different) in clinical error/negligence cases as opposed to those cases in which the offending behaviour is central to the function of the applicant as a doctor, such as in cases of dishonesty or sexual misconduct."
"Sexual misconduct
149 This encompasses a wide range of conduct from criminal convictions for sexual assault and sexual abuse of children (including child sex abuse materials) to sexual misconduct with patients, colleagues, patients' relatives or others…
150 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."
"1 Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy, and act with integrity and within the law'
'36 You must treat colleagues fairly and with respect.'
'37 You must be aware of how your behaviour may influence others within and outside the team'
'65 You must make sure that your conduct justifies your patients' trust in you and the public's trust in the profession."
Submissions of Dr Plimmer
Was the Tribunal's approach to the evidence flawed?
a. Miss A refused to accept that the IMS messages revealed sexual related comments and sought to suggest that the messages, "particularly those which undermined her account, should be interpreted literally."
b. Miss A originally denied in evidence on Day 2 having been in contact with another witness, Miss D, but on Day 4 conceded that she had been.
Ground of appeal 1: Allegation 4a
(1) The questions of primary and secondary facts and the overall value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers;
(2) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible;
(3) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable (but not practically impossible).
(1) The incident took place at a point in time when the sexual relationship between Miss A and Dr Plimmer had ended and there was a noticeable change in tone in the way that they communicated with each other in the IMS messages [126];
(2) Miss A's domestic situation had worsened to the point that she had left the family home. She was having counselling sessions with a Women's Aid worker and was being assisted through the Multi Agency Risk Assessment Conference ("MARAC") [127];
(3) Miss A said in her statement that:
"I tried to leave my husband on 28 January 2019 and I had to live in someone's garage 40 miles from home. It was a very distressing and difficult time. I was a complete mess at that point. I was sat behind reception waiting to speak to my line manager, and Dr Plimmer came down to get some prescriptions and asked me how I was. I very clearly wasn't in a good place, so he put his arm around my shoulder and led me down the corridor into his room. He turned around and lent against his desk and asked if I was ok. I said that I wasn't and that I had left my husband and he was probably going to kill me. Dr Plimmer said my husband was a psycho and that he had something that would cheer me up. He stepped forwards towards me, took my hand and put it on his erect penis over his clothes." (emphasis added) [126]
(4) Miss A confirmed this account in her oral evidence [127].
(5) The Tribunal considered earlier accounts that Miss A had given in her interviews. In particular it referred to an interview with the Surgery dated 30 September 2019 in which she said that she left home "Feb/March [2019]". She went on:
"I came to the reception desk and asked K where you were. She said you were with patients. I sat in reception and I was very closed and had a hoody on. TP walked out into reception and wasn't expecting to see me. He said oh hello, he said are you ok. I just turned around. I'd disclosed to him I wanted to die, and I just thought not today of all days. He came over and I was on a chair and gave me a hug and I remember having glimmer of a smile as he went on tip toes. In front of everyone he looked caring. I just wanted to say don't touch me but trying not to draw attention. I said I was going to come down to see Jo D and he said come and have a chat and put his arm around me and led me to his room. He said you know your husband is a psycho, I said it doesn't make any easier. I'm trying to remember the conversation. I was saying what was the point of anything, he said oh but your free now. I said no my whole life imploded, he said not helped either. As I turned to walk out, he came behind me to put his hands up my top so I moved his hands out, and as I turned around he said what about this, grabbed my hand and put that on his penis and said "oh that's something worth living for" then was laughing. He then led me out of his room." [128]
(6) Dr Plimmer accepted that from 17 December 2018 he knew that Miss A had a counsellor from Women's Aid and believed that she was a domestic abuse victim [130].
(7) Whilst disputing the allegation, Dr Plimmer admitted in his statement that he saw Miss A in reception and noted she was low and upset. He hugged her in a friendly capacity and gave her a kiss on the cheek. He motioned for them to go into his room which they did [131].
(8) The Tribunal considered the IMS messages. It referred to the change in tone from December 2018 and to the fact that the messages show that Miss A was upset, for example on 28 January 2019 she asks why Dr Plimmer had not responded to one of her messages.
"The Tribunal noted that Dr Plimmer denied putting her hand on his penis (over clothes) but concluded that it was more likely than not that he did. Bearing in mind the state of their relationship at this time, the Tribunal considered it unlikely that, after hugging and kissing her, he ushered her to his room in order to just be a friend. He knew that she was emotionally attached to him and was used to having encounters with her of a sexual nature, in private and in his room. She described that this movement took her by surprise and that she did not consent to it. The Tribunal decided that on the balance of probabilities Dr Plimmer had not taken any steps to ascertain consent, and that it was not reasonable for him to have believed that she would have consented at that time because she was unhappy, upset and waiting to see her manager."
"So, I had gone in was waiting in the corridor for her, very distressed, my car packed full of stuff, left my family home, left my children. And he called me into his room, on the basis of, I don't know, being a friend. And then when I was in his room, had taken my hand put that on his groin and then taken out his penis, and said 'this will make you feel better'. Funnily enough it didn't. So, I left the room then and thought that I need to not work at Abbeymeads so much. I tried to speak to Jo Dolby at that point, as I was a little bit distressed, but she thought that I had lots going on. Obviously, I probably looked a mess with everything, so said that we would kind of discuss that at another time. (emphasis added)."
Q Can I – looking at those messages, do you think that your suggestion it happened on 28 January is incorrect in terms of the date?
A Yes, I may have got the date incorrect which of the many times I tried to leave.
"82. On the morning of 28th January 2019, A told me via Instant Messenger that she had left her husband and was currently staying with a friend. I recall seeing A sitting behind the reception desk at work when I went to collect some prescriptions. I remember asking A if she wanted to have a chat and I motioned for us to go into my room, which we did. I recall asking her how she was, and I can remember that she seemed low and upset; her voice was quiet and sombre in tone. I remember that A told me that she had voluntarily left her husband and that she was staying at her friend's house. She also said that she was upset as she had let her NMC registration expire so she would be suspended from work. I do not recall at any point A saying that her husband was going to kill her. I then remember hugging her and giving her a friendly kiss on the cheek and asking her if there was anything that I could do to cheer her up, in a purely friendly capacity. I categorically deny, as alleged in her Witness Statement that I took her hand and put it on my erect penis. This is a complete fabrication of events. I note from review of the Instant Messenger messages on 28th January 2019 that we exchanged a number of messages and there was no mention of any incident of this sort.
83.A and I intermittently continued, as stated above, to have sexual contact in 2019…"
Ground of Appeal 2: Allegation 1
(1) This happened at the very start of the relationship between Miss A and Dr Plimmer. The issue for the Tribunal was whether the showing of the video was unsolicited.
(2) Whilst there were some inconsistencies in her account regarding the wording used by Dr Plimmer and the room in which the video was shown, Miss A gave broadly consistent accounts of this incident in interviews and in her evidence to the Tribunal.
(3) Dr Plimmer gave evidence that a specific conversation had taken place between them and that the video was not unsolicited. He described a very transactional discussion with Miss A to obtain her consent. There were some inconsistencies regarding the words Dr Plimmer said he used.
(4) The first IMS message that appeared to start the sexual innuendo style messages was from Miss A on 29 March 2018. After that date the messages became more flirtatious and sexual. By 31 May the idea of showing sexual videos had taken hold.
(5) As the messages progressed, Miss A and Dr Plimmer used the word "lunch" to connote a sexual act and "menu" to connote a list of sexual videos or sexual photographs to look at.
(6) On 29 May 2018 Dr Plimmer asked about a course that Miss A had been on, which corroborates her evidence that she was preparing a presentation for a university course at that time.
(7) Dr Plimmer's account of the transactional way that he obtained consent to show the video was not credible. On the balance of probabilities the first video was unsolicited and this paved the way for videos being shown to Miss A in the future.
(8) Dr Plimmer admitted sending unsolicited photographs of his penis to Miss E shortly after meeting her on a dating app. The circumstances were similar and probative. It showed he had a propensity to send unsolicited sexual material when commencing a relationship with a woman.
a. At line 1197 on 30/5/18 Miss A encourages him to share sexual photos/videos "…the least you can do is share what was on the menu." At line 1198 Dr Plimmer replies "Haha, sharing is carin and i even take pictures and videos of the menus sometimes (with the bakery's consent of course)". Mr. Day submitted that this "strongly suggests that this message was sent before Dr Plimmer showed Miss A a sexual video as he is here introducing that he does take videos of sexual activity".
b. At line 1203 on 30/5/18 Miss A encourages him to take a sexually explicit picture "Off to the bakery ? i recommend pound cake. take a picture if you can." Mr. Day said that Miss A's evidence that this might have been a genuine request for a picture of a cake would be laughable if it did not reflect the serious issue that she was willing to mislead the Tribunal.
c. At line 1288 on 31/5/18 Miss A mentions that she "might pop in to see a menu if im hungry." Mr. Day submitted that the Tribunal must have found this to be a reference to Miss A indicating, without invitation, that she might enter Dr Plimmer's room to look at a sexual image/video.
d. At line 1321 – 1323 on 1/6/18 Miss A thanks Dr Plimmer for the earlier help to which he replies, "Blood test help or video of menu help?" to which Miss A replies "both to differing degrees nice to get some positive feedback". Mr. Day submits that this is clearly a reference to the fact that Dr Plimmer had shown her a sexual video and is the first such message which demonstrates a video had been shown.
Ground of Appeal 3: Allegation 15
(1) Dr Plimmer had been in a relationship with Miss D and had moved into her home. He had a previous relationship with Miss F and Miss F had contacted Miss D in February 2021 when she had seen Miss D and Dr Plimmer together on a website. Miss F told Miss D that she had recently been in a relationship with Dr Plimmer.
(2) Miss D in her witness statement described what Dr Plimmer had said[7]:
'One evening, I asked Dr Plimmer what he would do if he had to go to the GMC again. He said [of Miss F] "if that cunt takes me to the GMC I'll slit her throat. I know where she lives". I immediately texted asking her if she lives alone because I believed Dr Plimmer was capable of killing her. She said yes. I then later told her what Dr Plimmer had said.'
(3) Miss D gave evidence to the Tribunal about this allegation. She confirmed what he had said. She accepted that the term might have been a figure of speech. She also agreed that she had not informed Miss F immediately.
(4) Miss D had sent a WhatsApp message to Miss F on 7 March 2021 at 15:22 in the 'Cheaters Club' WhatsApp group, to warn her of Dr Plimmer's alleged threat and stated:
'I need to tell you something. He told me if the gmc do anything to him, he will slit your throat and he knows where you live.'
(5) Miss F said that she received the WhatsApp message from Miss D on 7 March 2021 and that she thought it not to be an empty threat and that she was concerned for her own safety. She contacted the police.
(6) The Tribunal noted that Dr Plimmer accepted that he had said some of the words. He did not accept that he said that he knew where Miss F lived, because he did not. He explained in his statement:
'In the heat of the moment, I did say that I "could slit her throat". I did not say that I 'would' or 'will' slit her throat, and I did not mention where Miss F lived, as it had been months since I had seen her, and I no longer, to the best of my knowledge, had her address'.
"Where the court below is considering reaching a conclusion on a case theory, or basis of facts or a version of events, not based on the oral or documentary evidence before it and not put forward by either party, it must give the parties a reasonable opportunity to address that basis before reaching such a conclusion; and not to do so amounts to procedural unfairness: Dutta §§34 to 36".
"226. In or around 2 February 2021 Miss D found out about me having dated Miss F and that I had had sex with her. As stated above, in February 2021 Miss D decided to look for a puppy; she used a website called PetsAtHome and posted a picture of us without my consent. Miss F messaged Miss D and said she had recently had a relationship with me. Miss D telephoned me to ask me about this. Initially I could not remember or recognise the name, but after having been shown a picture of Miss F I recalled that I had seen her around 3 times and that we had had sex. I told Miss D this but explained that Miss F and I were not in a relationship.
227. As stated above, Miss D says that she asked me what I would do if I had to go to the GMC again. As stated above, Miss D says that I said if Miss F took me to the GMC, that I would slit her throat and I knew where she lived. In the heat of the moment, I did say that I "could slit her throat". I did not say that I would, and I did not mention where Miss F lived, as it had been months since I had seen her, and I no longer, to the best of my knowledge, had her address."
"Miss F messaged me on 20 February 2021 after having found out I had lied to her and told me that she was going to report me to the GMC. I apologised to her for my behaviour."
Ground of Appeal 4
Impairment: Ground of Appeal 5 and Ground of Appeal 6
"the Medical Practitioners Tribunal shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner's fitness to practise is impaired."
"(2) A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of—
(a) misconduct…
(d) adverse physical or mental health…"
(a) Impairment on grounds of misconduct
"Whilst there is no statutory definition of impairment, the Tribunal is assisted by the guidance provided by Dame Janet Smith in the Fifth Shipman Report, as adopted by the High Court in CHRE v NMC & Grant [2011] EWHC 927 (Admin) ('Grant'). Dame Smith sets out some features that are likely to be present when impairment is found. These are where a doctor has in the past or is liable in the future to:
a. act so as to put a patient or patients at unwarranted risk of harm.
b. bring the medical profession into disrepute.
c. breach one of the fundamental tenets of the medical profession;
and/or
d. have acted dishonestly and or is liable to do so in the future".
(1) that his conduct amounts to misconduct [22];
(2) a finding of impairment is necessary in order to mark that conduct in order to declare and uphold proper standards and to declare and uphold public confidence in the profession and the regulator [22][9].
(3) misconduct and impairment, looking at the case as a whole [38].
"The Tribunal must also determine whether the need to uphold professional standards and maintain public confidence would be undermined if a finding of impairment were not found. The case of Grant makes it clear that protecting the public and upholding proper standards and public confidence in the profession is a fundamental consideration. In the case of Cheatle v GMC [2009] EWHC 645 (admin) it was stated that a doctor's behaviour at a particular time maybe 'so egregious' that, looking forward, a Tribunal may be persuaded that a doctor is not fit to practise. It is crucial that the Tribunal is mindful at all times of the overarching objective set out in s1 of the Medical Act 1983 which requires the Tribunal to:
a. Protect, promote, and maintain the health, safety and well-being of the public,
b. Promote and maintain public confidence in the medical profession, and
c. Promote and maintain proper professional standards and conduct for members of that profession."
Bold, black type = allegation denied but found proved;
Red type = findings found proved which are appealed against;
Green type = allegation admitted.
Normal type = allegation not proved
-------------------------------------------------------------------------------
*1 [May 2018 Dr Plimmer showed Miss A video of his having sex with another woman];
*2c [May-August 2018 Dr Plimmer approached A at work with trousers undone (despite Plimmer denial) but Miss A not uncomfortable];
*2d [Dr Plimmer admission – May - August 2018 he masturbated in front of Miss A at work with her consent];
3a [May 2018- September 2019 penetration of Miss A with penis at work but with consent so not proven];
3b [one act of penetration of Miss A with cucumber at work but with consent, so not proved];
*4a [February 2019Dr Plimmer putting Miss A's hand on his penis over his clothes];
5c [September 2019 - futurama suicide booths – comment made to Miss A but not malicious – proved on that basis]; [not serious misconduct]
6a – Dr Plimmer knew Miss A vulnerable after 17.12.18 so proved in respect of allegations 4a and 5c];
*7ai – Between May 2018 and September 2019 admission: Dr Plimmer sent video to Miss A of him engaging in sex with another woman; [only serious misconduct after 17.12.18]
*7aii - May 2018 - September 2019 admission: Dr Plimmer sent video to Miss A of him masturbating over a woman; [only serious misconduct after 17.12.18]
7aiii – May 2018 - September 2019 admission: Dr Plimmer sent a photo of him with head in a noose; [not serious misconduct]
8a [Dr Plimmer's actions in para 7aii carried out knowing A was vulnerable, sending video of his masturbating over a woman];
*9 – 3.1.2020: Dr Plimmer engaged in oral sex with Ms B in GP surgery during working hours;
*10. – May 2020: Dr Plimmer engaged in sex with Ms C in GP surgery during working hours;
12a – February 2021 – during a conversation with Ms D snatched a phone from her hand. [not serious misconduct]
*14a – Dr Plimmer sent Miss E unsolicited photo of his penis taken whilst at work on 1.2.21;
*14b – Dr Plimmer sent Miss E unsolicited photo of his penis taken whilst at work on 11.2.21;
*15 [ Dr Plimmer threatens to slit throat of Miss F if she goes to GMC and says he knows where she lives;
16 [actions in paras 1, 2c, 4a sexually motivated]; admitted that actions in 2d, 7a, 9, 10, 14a and 14b also all sexually motivated
"The Tribunal considered the seriousness of the misconduct. There is a pattern of sexually motivated behaviour that took place over almost three years involving a number of women. The Tribunal decided that this behaviour taken both separately and together brings the medical profession in disrepute and breaches fundamental tenets of the medical profession.
The Tribunal considered its overarching objective. It determined that Dr Plimmer's misconduct could undermine the public's confidence in the medical profession and is below the proper professional standards and conduct expected of members of the profession.
The Tribunal decided that Dr Plimmer's misconduct is so serious that public confidence in the medical profession would be undermined if a finding of impairment were not made."
(emphasis added)
"imposing conditions on Dr Plimmer's registration would not sufficiently mark the seriousness of the misconduct in this case. Conditions would not be appropriate as they would not be sufficient to maintain public confidence in the profession and uphold proper professional standards."
"erasure in this case is necessary in order to maintain public confidence in the medical profession, and to uphold proper professional standards and conduct for members of the profession."
"76. The Tribunal secondly considered the occasion when Dr Plimmer sent the photos/videos after 17 December 2018. From this time onwards, the Tribunal decided that Dr Plimmer knew that Miss A was vulnerable. At this time, he knew that she was escaping from an abusive domestic relationship and was seeing a Women's Aid counsellor. Dr Plimmer accepted that he knew that she 'most likely a domestic violence victim', and the Tribunal noted that she continued in this vulnerable state during this period of time when she moved back into the marital home to care for her husband.
77. Again, the Tribunal acknowledged and considered Mr Day's submission that it cannot be the case that a professional should end a sexual relationship if they subsequently discover that the other party to the relationship is vulnerable. However, Dr Plimmer had explained that the relationship with Miss A was a transactional one, not a romantic one. He was aware that she was struggling to cope with their relationship during this period of time, as evidenced by the IMS messages. The Tribunal decided that treating Miss A in this way was morally culpable, as Dr Plimmer had witnessed her distress on an earlier occasion yet continued the sexually motivated and inappropriate conduct. The Tribunal determined that continuing in this way breached GMP, in that it was a serious failure to treat colleagues with respect."
"There can be no hard and fast rule either that regulation under the [Solicitors'] Handbook may never be directed to the regulated person's private life, or that any/every aspect of her private life is liable to scrutiny. But Principle 2[11] or Principle 6[12] may reach into private life only when conduct that is part of a person's private life realistically touches on her practise of the profession (Principle 2) or the standing of the profession (Principle 6). Any such conduct must be qualitatively relevant. It must, in a way that is demonstrably relevant, engage one or other of the standards of behaviour which are set out in or necessarily implicit from the Handbook. In this way, the required fair balance is properly struck between the right to respect to private life and the public interest in the regulation of the solicitor's profession..."
"Sexual misconduct
149 This encompasses a wide range of conduct from criminal convictions for sexual assault and sexual abuse of children (including child sex abuse materials) to sexual misconduct with patients, colleagues, patients' relatives or others…
150 Sexual misconduct seriously undermines public trust in the profession…"
(b) Impairment on grounds of adverse mental health
"17: On 30 May 2022, you were medically examined by Dr G who diagnosed you as suffering from a medical condition, the nature of which is set out in Schedule 3[13].
18. On 31 May 2022, you were medically examined by Dr H who diagnosed you as suffering from a medical condition, the nature of which is set out in Schedule 4."
"Notably, the misconduct starts from May 2018, yet Dr Plimmer only sought help after a complaint had been made to the Trust and the GMC in February and March 2021. The Tribunal is concerned that Dr Plimmer knew what he was doing was wrong. He explained this by describing 'selfish compulsive behaviours, stronger than the will to resist.' However, he also described being able to manage some boundaries, such as the doctor/patient relationship which seems to conflict with this explanation. The Tribunal found this difficult to reconcile with the evidence he gave about compulsive behaviours."
Sanction: Grounds of Appeal 7 and 8
"7. The Tribunal's determination on sanction was based on its findings at the impairment stage; if grounds 5 or 6 are allowed, the determination on sanction cannot stand.
8. Further, and in the alternative, the Tribunal's determination on sanction that the misconduct was fundamentally incompatible with continued registration was wrong and it ought to have imposed an order for suspension."
(1) It started by observing that the sanction was a matter for it, exercising its own judgment [24];
(2) It took into account the Sanction Guidance, which meant considering the least restrictive sanction first and moving through the options in ascending severity [25];
(3) It reminded itself that the purpose of a sanction is not punitive but to protect patients and the wider public interest [26];
(4) It stated that the sanction must be appropriate and proportionate. The reputation of the profession as a whole is more important than the fortunes of any individual member [26];
(5) It noted that Dr Plimmer's fitness to practice is currently impaired due both to his misconduct and health. It follows that the full range of sanctions in the Sanctions Guidance apply [27];
(6) It recognised that even if there is a strong link between the misconduct and the health problems, the Tribunal must nevertheless address the misconduct to ensure that public confidence is maintained: Crabbie v GMC [2002] 1 WLR 310 and Sreenath v GMC [2002] UKPC 56 [28];
(7) It took into account Dr Plimmer's good character [29];
(8) It also took account of, and first bore in mind the overarching objective of the GMC set out in section 1 of the Medical Act 1983 to (a) protect, promote, and maintain the health, safety, and well-being of the public; (b) promote and maintain public confidence in the medical profession, and (c) promote and maintain proper professional standards and conduct for members of that profession [30];
(9) It then took account of the aggravating features of the case by reference to paragraphs 50-59 of the Sanctions Guidance [34]-[38], followed by the mitigating factors by reference to paragraphs 25(a)-(e) of the Sanctions Guidance [39]-[44].
(10) It then referred to the aggravating and mitigating factors specific to the circumstances of the case ([45]-[48]), before moving through the sanction options in ascending order of severity in the light of its factual findings [49]-[66] and then finally concluding that erasure was necessary in Dr Plimmer's case to maintain public confidence in the profession ([64]).
(1) The Tribunal's reference (at [40]) to the lies which Dr Plimmer told in his private life were referred to by the Tribunal in the context of mitigation, namely that he expressed remorse and shame for the lies (which he did) and his misconduct. This was a point in his favour in mitigation.
(2) The Tribunal's reference to the number of women affected by Dr Plimmer's conduct in [47] was it taking account of the fact that the sexual misconduct was not a one-off but rather a course of conduct; it had taken place repeatedly over a three year period with four different women. There is nothing in this criticism.
(3) The Tribunal stated at [61] that "it accepted that" the risk to patient safety was low. In other words, that did not form part of its reasoning for the justification of the sanction of erasure, which rather was based upon bringing the profession into disrepute by undermining the confidence in the profession (at [64]). There is nothing in this criticism.
(4) The Tribunal's reference in [64] to the fact that "it could not be guaranteed that [Dr Plimmer] would not do so again" (that is, bring the profession into disrepute) was not inappropriate and the Tribunal did, contrary to [105] of Mr Day's skeleton argument, make a determination of the likelihood of a risk of relapse. The Tribunal had already found in [143] of its Determination on Impairment that "there remains a considerable risk of repetition of his misconduct." It was agreed that Dr Plimmer's conditions are "lifelong and chronic" and so the "Tribunal remains concerned about the risk of repetition" (ibid, [142]). This is why it stated in [64] of its Determination on Sanction that "given the nature of his chronic health condition, it could not be guaranteed that he would not do so again in the future." The Tribunal was not imposing an "impossible condition" that unless relapse could be guaranteed not to occur, then it rendered Dr Plimmer liable to erasure. It is clear what the Tribunal was saying, namely that there was a real risk that Dr Plimmer would repeat his sexual misconduct in the future.
(5) Contrary to paragraph 106 of Dr Plimmer's skeleton argument, the Tribunal did make clear the relevance of the previous finding of impairment against him. The previous finding of impairment concerned a depressive disorder, see [141] of the Determination on Impairment. That diagnosis was made before CSBD was recognised in 2022. In the present case Dr H also diagnosed Dr Plimmer with "Recurrent depressive disorder, currently in remission", coupled with CSBD (ibid, [119]). The risk of relapse concerned both related conditions. It follows that the previous finding of impairment in 2016 did indeed "evidence the ongoing risk of repetition of misconduct in Dr Plimmer's case" ([36] of the Determination on Sanction).
Conclusion
Note 1 In this case, the Tribunal was particularly concerned with aims (b) and (c) of paragraph 23 above. As it stated in paragraph 64 of its Determination on Sanction dated 30 April 2023, “… erasure is necessary in Dr Plimmer’s case to maintain public confidence in the profession. It determined that Dr Plimmer, through his actions, had brought the profession into disrepute and given the nature of his chronic health condition, it could not be guaranteed that he would not do so again in the future.”
[Back] Note 2 The Court is fully entitled to substitute its own decision for that of the MPT (see Ghosh v GMC [2001] 1 WLR 1915 per Lord Millett at [33]).“It is a re-hearing without hearing again the evidence”: see Foskett J in Fish v General Medical Council [2012] EWHC 1269 (Admin) (para.28). [Back] Note 3 Sastry v General Medical [2021] EWHCA Civ 623 at [98]. An expert Tribunal is afforded a wide margin of discretion and the court will only interfere where the decision of the Tribunal is wrong: see Laws LJ at §18-20 in R(Fatnani) v General Medical Council [2007] EWCA Civ 46.
[Back] Note 4 But this is not to be read as meaning that it is "practically impossible" to challenge them: Byrne v GMC [2021] EWHC 2237 (Admin) at [14], citing R (Dutta) v General Medical Council at [22].
[Back] Note 5 Nichola Davies LJ adopted these observations in Sastry (infra) at [106] and [113].
[Back] Note 6 In paragraph 51 of Dr Plimmer’s skeleton argument it was argued that the Tribunal failed to mention what weight, if any, it gave to Dr Plimmer’s good character. Mr. Day did not pursue this point in his oral submissions. At [29] of its Determination on the Facts, the tribunal referred to the fact that Dr Plimmer was an accomplished liar, albeit of good character. It is plain that it had this fact in mind in assessing the merit of the Allegations and there is nothing in this complaint. [Back] Note 7 The undisputed evidence before the Tribunal had established that on 20 February 2021 Miss F and Miss D exchanged by WhatsApp multiple highly personal messages about Dr Plimmer’s infidelity and lies that he had told them both. The messages included mention of possible GMC referral. Later on 20 February 2021 Miss F sent messages to Dr Plimmer first stating that she was minded to report him to the GMC, then stating that she had reported him to the GMC. [Back] Note 8 Contrary to paragraph 65 of Dr Plimmer’s skeleton argument, the fact that the tribunal recognised in Annex D, paragraph 35 of its Determination that in terms of the caselaw, Miss D was “a witness who may have had a reason to fabricate or exaggerate her evidence” is not inconsistent with the finding that her evidence in respect of this part of the allegation was consistent. Indeed, it demonstrates that the Tribunal considered all relevant features of her evidence, including any potentially negative features, in determining whether or not it could safely rely upon it. That is a judgment which it is for the Tribunal to make. [Back] Note 9 Before this court, Mr. Day confirmed that this meant that “both parties agreed limbs b and c were engaged in this case”. [Back] Note 10 It should be noted that Dr Plimmer recognised that sexual encounters in his workplace was unacceptable and unprofessional and constitutes misconduct: Determination on Impairment at [33]. [Back] Note 11 You must act with integrity. [Back] Note 12 You must behave in a way that maintains the trust the public places in you and in the provision of legal services. [Back] Note 13 The court was not provided with the schedules to the Determination but it is apparent from [117]-[119] of the Tribunal’s Determination on impairment that Dr G diagnosed Compulsive Sexual Behaviour Disorder (“CSBD”) and Excessive Sexual Drive. Dr H diagnosed Recurrent depressive disorder, currently in remission and CSBD. [Back] Note 14 Paragraph 108 of the Sanctions Guidance provides that “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.”
[Back]