General Medical Council v Stone  EWHC 2534 (Admin)
The GMC successfully appealed a suspension order imposed against a General Practitioner for engaging in a sexual relationship with a vulnerable patient and allegations of dishonesty in relation to providing supportive letters on behalf of the patient for asset lending and benefit claims. Jay J quashed the sanction imposed by the MPT and substituted the order for a direction to erase the Doctor from the register.
This case focuses upon the issue of defence expert evidence given at impairment/sanction stage and highlights the particular caution a panel will need to exercise in determining what weight that evidence is to be afforded when balanced against the overarching objective of protecting the public.
Patient A had a history of depression, suicidal ideation with attempts on her own life, alcohol abuse/dependency and relationship difficulties. She was at all relevant times under the care of the Registrant GP who was aware of her vulnerabilities. The relationship took place for approximately 2 years 9 months between 2011 and 2014. The Registrant admitted visiting the patient's home to engage in sexual activity; that he sent text messages of a sexual and personal nature; that on one occasion the patient had stayed at his house to pursue their sexual relationship; that on numerous occasions he had engaged in sexual activity with the patient in the GP practice and that on numerous occasions during their relationship he had clinically treated the patient.
The Registrant disputed he had been dishonest in relation to failing to disclose his sexual relationship with the patient whilst providing letters for her; the panel found these matters proved on the basis that the recipients of the letters would not have accepted them as valid had they known of the relationship and that the Registrant actively concealed his affair from his family and partners.
At stage 2 of proceedings the Registrant called evidence from Doctor John Hook, a medical Consultant Psychotherapist, who concluded that the Registrant was suffering from an [undisclosed] disorder; that his actions had not been sexually predatory and that the relationship took place in what was described as a "perfect storm" in which the Registrant was said to be "confused by his own feelings and behaviours to a degree which interfered with and overrode his professional judgement".
The MPT accepted and endorsed the metaphor of the "perfect storm" and found that the Registrant was highly unlikely to repeat his behaviour.
A sanction of 12 months suspension with a review was imposed.
The GMC successfully appealed the determination on the following three grounds:
- The MPT had either misconstrued or failed to consider the Sanctions Guidance which led to a failure to adequately consider the need to maintain public confidence and proper professional standards and conduct.
- The MPT placed disproportionate weight on the evidence of Doctor Hook.
- The MPT failed to give appropriate weight to the issue of dishonesty and merely incorporated this issue within the wider consequences of the sexual misconduct.
Jay J determined that in relation to the Sanctions Guidance there was no indication that the MPT had considered the seriousness of the case and "instead there is merely a generalised assertion that erasure would be a disproportionate sanction and that the doctor's conduct was not incompatible with his continued registration" – this led to a failure to adequately protect the public by not giving sufficient weight to the second and third limbs of the overarching objective.
Paragraph 58 of the judgment confirms that:
" . . . considerable caution is required in this sort of case … personal mitigation carries far less weight than it might in the domain of criminal law, because all three elements of the tripartite public interest are always in play."
Jay J concluded that the MPT had placed more than "modest weight" upon Doctor Hook's evidence and stated that their assessment that the Registrant's behaviour could be explained by the interaction of his medical disorder and social and personal factors at the time was "deeply questionable" and that a deterministic model of human motivation and behaviour does not apply in a regulatory context.
At paragraphs 60 - 61 Jay J states:
"Confronted with expert evidence of this nature, the MPT should in my opinion have drawn a distinction between the doctor's moral and professional responsibilities and duties, and factors which an expert in mental health would take into account in reaching a diagnosis. There is some link between these two aspects, but in the circumstances of the present case it could only have been modest…..
The wider public interest is not upheld by tribunals accepting expert evidence of this nature, and applying a 'plausible and psychologically coherent narrative' to the issues under scrutiny."
The appeal was successful and the Registrant was erased from the register
A panel will necessarily need to exercise caution and diligence when receiving defence expert evidence at impairment/sanction stage and be mindful not to attach excessive weight to that evidence in evaluating the 3-fold issues of public protection namely:
- To protect, promote and maintain the health, safety and wellbeing of the public;
- To maintain public confidence in the profession and
- To promote and maintain proper professional standards and conduct.
In coming to his determination, Jay J at paragraph 34 considered the case of General Medical Council v Jagjivan  EWHC 1247 (Admin) (see Blake Morgan's summary dated 19 July 2017) and in particular noted that matters of personal mitigation are likely to carry considerably less weight in regulatory than criminal proceedings. He states "In this regard, I prefer to follow this authority rather than …paragraph 24 of the Sanctions Guidance, to the extent that the latter suggests that more weight may be given to personal mitigation if the concern is about public confidence in the profession."
Whilst each case turns on its own facts, this determination is a useful authority - in the absence of any guidance issued by regulators - as to the approach to be taken to defence expert medical evidence called at impairment/sanction stage.