The rules of natural justice precluded members of specialist tribunals, including experts, from giving evidence to themselves which the parties had no opportunity to challenge. A Fitness to Practise Panel of the General Medical Council had erred in relying upon expertise which it did not possess.

In Blog, General litigation by AAHLeave a Comment

ROBIN EDWARD LAWRENCE v GENERAL MEDICAL COUNCIL (2012) EWHC 464 (Admin) ~ BD (Admin) (Stadlen J) 02/03/2012

The appellant psychiatrist (L) appealed against certain procedural decisions and factual findings of the Fitness to Practise Panel of the respondent General Medical Council.

The Panel had made findings of misconduct by L, in respect of a patient (B). B had experienced erotic transference and alleged that L had acted inappropriately in several ways, including continuing to treat her after becoming emotionally involved with her; telling her she was attractive; and revealing sexual fantasies about her. He claimed that one aspect of B’s erotic transference was an inaccurate fantasy that he reciprocated her feelings.

The Panel did not accept that and reasoned that from its own expertise, a woman with low self-esteem was unlikely to fantasise that she was attractive to another without encouragement. It also found that erotic transference alone would be unlikely to cause B to believe that L reciprocated her feelings. B had moved to Australia and the Panel allowed her to give evidence by video link, finding that she was a vulnerable witness.

L argued that:

1) B should not have been allowed to give evidence by video link;

2) the issue of whether a woman with low self-esteem was likely to fantasise that she was attractive to another without encouragement had not been raised at the hearing and the Panel had relied on expertise which it did not have;

3) the conclusion that erotic transference alone was unlikely to cause B to believe that L reciprocated her feelings was unsupported by expert evidence;

4) the Panel had plainly been wrong to find the allegations against L proved.

HELD:

1) It had not been wrong or irrational to find that there would be no unfair prejudice to L if B gave her evidence by video link. The conditions in both r.36(1)(b) and r.36(1)(e) were satisfied. There was compelling psychiatric evidence that B had a major depressive episode in partial remission, but that if she gave evidence at the hearing, there was a real prospect of a relapse, which would affect the quality of her evidence. It would defeat the purpose of r.36 if the Panel did not have power to allow a witness to give testimony by video link in such circumstances. The Panel had also been properly satisfied that it would be able to make observations on body language and demeanour,

2) It had not been open to the Panel to conclude that a woman with low self-esteem would be unlikely to fantasise that she was attractive to another without giving L notice of the issue and an opportunity to adduce evidence or make submissions on it. Its failure to do so was a material procedural irregularity . That error was compounded by the fact that although the Panel considered that it had relevant expertise, it did not. Its conclusion purported to derive from the expertise of the psychiatrist chairman, who was not a psychotherapy expert.

In the absence of evidence, the conclusion was not one which any lay tribunal would have been entitled to reach. The rules of natural justice precluded members of specialist tribunals, including experts, from giving evidence to themselves which the parties had no opportunity to challenge,

3) The only legitimate basis for the statement that erotic transference alone was unlikely to cause B to believe that L reciprocated her feelings would have been expert evidence, which the Panel had been under a duty to assess. However, in critical respects, it was not clear what findings the Panel had made or why it had made them. The degree of detail needed to satisfy the requirement to give reasons was fact-sensitive, but particular rigour was likely to be necessary when dealing with expert evidence,. The interests of justice required that the findings of misconduct be quashed

4) Aside from the above errors, the evidence, as a whole, did not justify a conclusion that the Panel’s findings of misconduct were plainly wrong. However, the Panel had made insufficient reference to various issues and given inadequate reasons. Those flaws contributed to the conclusion that its findings of misconduct should be quashed.

Appeal allowed in part

Leave a Comment