Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  V/3060/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The appeal is allowed.  The decision of the Independent Safeguarding Authority dated 12 April 2011, whereby it included the Appellant in the Adults’ Barred List, is set aside and the case is remitted to the Independent Safeguarding Authority for a new decision to be made by it.

REASONS FOR DECISION

1. It is unnecessary to go into the facts of this case in great detail.  Suffice it to say that the Appellant was a doctor in general practice whose name was erased from the Medical Register after it had been found that his fitness to practise was impaired having regard to an assault on his wife in respect of which he had been cautioned and to affairs he had had with, and his conduct towards, Ms A and Ms C, who were respectively a patient and a member of staff at the practice.  There had also been an allegation that he had had an affair with Ms B, another patient, but she had refused to continue giving evidence during the hearing before the General Medical Council’s fitness to practise panel and it  had not made a finding in respect of her.  The allegation of the affair with Ms B was the most serious of the four matters and has always been denied by the Appellant, whereas he has admitted much of the substance of the allegations in relation to the other matters.

2. On 12 April 2011, the Independent Safeguarding Authority included the Appellant in the adults’ barred list maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006, on the basis not only of matters found proved by the General Medical Council but also that the Appellant had had an affair with Ms B.  The Appellant appeals with my permission, given on the ground that there was a serious dispute of fact.  When granting permission, I also observed that the General Medical Council had to have regard to matters, such as the reputation of the medical profession, that are not relevant to barring under the 2006 Act.

3. The Respondent now supports the appeal and submits that it should be allowed on the papers, to the extent of remitting the case back to it, on the ground that, in reaching its conclusion, it failed to have regard to statutory guidance. 

4. Paragraph 9(3) of Schedule 3 to the 2006 Act provides –

 “(3) IBB must include the person in the adults' barred list if—

(a)  it is satisfied that the person has engaged in relevant conduct, and

(b)  it appears to IBB that it is appropriate to include the person in the list.”

5. Paragraph 10 defines “relevant conduct” –

“10 (1) For the purposes of paragraph 9 relevant conduct is—E+W

(a)  conduct which endangers a vulnerable adult or is likely to endanger a  vulnerable adult;

(b)  conduct which, if repeated against or in relation to a vulnerable adult, could endanger that adult or would be likely to endanger him;

(c)  conduct involving sexual material relating to children (including possession of such material);

(d)  conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to IBB that the conduct is inappropriate;

(e)  conduct of a sexual nature involving a vulnerable adult, if it appears to IBB that the conduct is inappropriate.

  (2) A person's conduct endangers a vulnerable adult if he—

(a)  harms a vulnerable adult,

(b)  causes a vulnerable adult to be harmed,

(c)  puts a vulnerable adult at risk of harm,

(d)  attempts to harm a vulnerable adult, or

(e)  incites another to harm a vulnerable adult.

  (3) …

  (4) …

  (5) …

  (6) For the purposes of sub-paragraph (1)(d) and (e), IBB must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.”

6. There is a very wide definition of “vulnerable adult” in section 59, which includes anyone who “receives any form of health care”.

7. The Respondent did not consider that there was any relevant conduct relating to Ms C.  It is not entirely clear to me whether it regarded the assault on the Appellant’s wife as relevant conduct – presumably within paragraph 10(1)(b) of Schedule 3 – or not but that matter did not play a major part in the reasoning leading to the barring.  The affairs with the patients were, however, regarded as falling within paragraph 10(1)(e) and to justify the barring.

8. Plainly guidance issued for the purpose of paragraph 10(6) was therefore potentially relevant.  The Respondent’s representative does not say in what respect it is now considered that regard was not had to the terms of the guidance but I presume that it was in some substantial respect that at least might have affected the outcome because there would not be much point in conceding the case at this stage if the same decision is inevitably going to be made again, at least in relation to the affair with Ms A.  It may be that my observation as to the Respondent being concerned with different issues from those of concern to the General Medical Council has caused the Respondent to look again at what the guidance says about distinguishing professional misconduct from conduct likely to cause harm.

9. The (unnumbered) paragraph of the guidance to which my attention is drawn states as follows –

“The definition in section 59 means that a wide variety of people in a wide variety of circumstances will come within the definition of a vulnerable adult. Clearly not all conduct of a sexual nature involving ‘vulnerable adults’ as defined in section 59 can be considered inappropriate. The ISA should exercise caution in situations which are, properly speaking, matters of professional misconduct. As an overarching principle, the ISA should consider when, or in which circumstances, conduct of a sexual nature involving a vulnerable adult is such as to demonstrate a risk of harm to vulnerable adults. As indicated above, this is likely to depend upon the context and nature of the behaviour concerned, and the vulnerability of the individual on a case by case basis. Particular care should be taken in cases where dependency upon a professional or other carer is concerned, where there has been any breach of trust, and where the ability of the vulnerable adult to consent is limited. Sexual behaviour by a carer or professional in such circumstances may well constitute inappropriate behaviour.”

10. The guidance continues –

“This would be consistent with the premise upon which the ISA‘s barring criteria is developed, where the risk assessment framework will look at future risk of harm. This could mean potential overlap with paragraph 10(1)(a) – ‘conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult’.”

11. Later, the guidance says –

“The Secretary of State considers that sexual conduct by those providing care with those in their charge should generally be seen as unprofessional and inappropriate. In the context of the SVGA, the ISA should consider the context of the relationship, any breach of trust, capability to consent and dependency issues should be considered in assessing whether such behaviour presents a risk of harm.

A person who receives domiciliary care

‘Domiciliary care’ is defined in subsections 54(4) and (5). It relates to care given in the place where someone ordinary lives on account of their age, health or disability, for example, a care worker assisting a disabled person with personal care. Clearly there will be situations where conduct of a sexual nature with a person who receives domiciliary care will be perfectly normal, for example, the person‘s spouse. It seems logical that the focus is actually on the person providing the care. However even here a blanket approach may not work. For example, someone nursing their ill spouse is a person providing domiciliary care within the meaning of the Act. Sexual conduct here is clearly not in scope. What of the position where care is given by a friend, and a sexual relationship ensues? Again, this should not be in scope and the focus should be on professional care. The ISA may consider that it should not look to become overly involved in matters which are properly a question of professional misconduct. The question for the ISA is whether the conduct of a sexual nature has ‘endangered’ the vulnerable adult concerned and whether any risk of harm has been demonstrated. This will depend on the circumstances from one case to the next. For example, a nurse who forms a relationship with a professional athlete recovering from an injury would likely be an issue of professional misconduct only. However a nurse forming a relationship with someone with a mental disability or a particularly vulnerable person with a physical disability and a limited capacity to consent could likely be said to have endangered that person - and therefore be said to have engaged in inappropriate conduct of a sexual nature.

A person receiving ‘any form of health care’

Health care includes treatment, therapy or palliative care of any description. For this reason a very wide range of adults will at some stage, for the purposes of the Act, be a vulnerable adult. For example, an otherwise healthy adult receiving treatment at his or her local NHS surgery for a chest infection would be a vulnerable adult in that context. The same issues apply with someone receiving domiciliary care apply to persons receiving ‘any form of health care’. The question for the ISA is whether the conduct of a sexual nature has ‘endangered’ the vulnerable adult concerned or demonstrated a risk of harm; it should not look to become involved in matters which are solely instances of professional misconduct. For example, a patient having an informed, consensual relationship with a doctor in the doctor‘s surgery may be a matter of misconduct only; however a doctor performing inappropriate examinations on a patient for sexual gratification would have endangered that patient and therefore should be treated as having engaged in inappropriate conduct of a sexual nature.”

12. There may be an issue as to whether some of that guidance runs together the question whether “the conduct is inappropriate” with the question whether “it is appropriate to include the person in the list”, which is not properly within the scope of the guidance, but it is unnecessary to decide whether that is so for the purposes of this case because both questions have to be addressed by the Respondent and the considerations mentioned in the guidance are certainly relevant to the overall decision.  Nor is it necessary to make any other comment on the guidance.  I accept the Respondent’s concession that proper regard was not had to the guidance and that there was therefore an error of law in view of the mandatory terms of paragraph 10(6) of Schedule 3 to the 2006 Act.

13. The Appellant has not replied directly to the Respondent’s support for the appeal.  He has, however, provided further evidence in support of his case that he did not have an affair with Ms B.  Had he not done so, I might not have allowed the appeal at this stage because I have some doubt as to whether having regard to the guidance would have made any difference to the Respondent’s decision in respect of Ms B as long as it maintained that there had been “conduct of a sexual nature” involving her.  She was rather more vulnerable than Ms A.  Remitting the case for the same decision to be made again would merely cause delay, but there now does seem to be more of a possibility that a different decision will be made.  Allowing this appeal will give the Respondent an opportunity to reconsider its finding in relation to Ms B in the light of the further evidence supplied by the Appellant and other evidence it is apparently gathering itself.  If it again includes the Appellant in the adults’ barred list, I anticipate that the Appellant will appeal again, but the issues should have been narrowed and it should be possible to determine the appeal relatively quickly.

Mark Rowland

26 June 2012