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The Judicial Committee of the Privy Council Decisions |
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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Dare v. General Medical Council (GMC) [2002] UKPC 54 (16 October 2002) URL: http://www.bailii.org/uk/cases/UKPC/2002/54.html Cite as: [2002] UKPC 54 |
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Dare v. General Medical Council (GMC) [2002] UKPC 54 (16 October 2002)
ADVANCE COPY
Privy Council Appeal No. 19 of 2002
Dr. Christopher Dare Appellant
v.
The General Medical Council Respondent
FROM
THE PROFESSIONAL CONDUCT COMMITTEE
OF THE GENERAL MEDICAL COUNCIL
---------------
REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL, OF THE
11th July 2002, Delivered the 16th October 2002
------------------
Present at the hearing:-
Lord Steyn
Lord Scott of Foscote
Sir Philip Otton
[Delivered by Sir Philip Otton]
------------------
Background
“That, being registered under the Medical Act,
1. At the material times you were employed by the Institute of Psychiatry, London;
2.a. Between March 1996 and October 1998, you provided Miss A with medical care and thereby established a doctor/patient relationship with her,
b. During this period you formed, and sought to maintain, an improper relationship with Miss A;
3.a. During the period described in head 2a above, you identified several of your other patients to Miss A and disclosed their condition to her,
b. You thereby breached their confidentiality;”
“Dr Dare: The Committee have carefully considered the evidence presented to them and have made the following findings on the facts:
Head 1 has been admitted and found proved.
Head 2 has been admitted and found proved in its entirety.
Head 3(a) has been amended so as to read, ‘During the period described in Head 2(a) above, you identified Miss C, another patient, and disclosed Miss C’s condition to Miss A’. Head 3(a) as amended has been admitted and found proved. Head 3(a) in relation to Miss B has not been found proved.
[Further allegations under head 3 were found not proved].
“Dr Dare: At the material times you were employed by the Institute of Psychiatry, London. Between March 1996 and October 1998, you provided Miss A with medical care and thereby established a doctor/patient relationship with her. You formed and sought to maintain an improper relationship with Miss A over a substantial period of time during which sexual intercourse took place on one occasion, on 8 May 1998.
The GMC publication Good Medical Practice (October 1995 at paragraph 17 and July 1998 at paragraph 22) makes it clear that you must not abuse your patients’ trust and you must not use your position to establish improper relationships with patients.
Any evidence of improper and sexual behaviour by a doctor towards patients during the course of professional work is a matter of grave concern to this Committee. It is of even greater concern when the therapy involved was, as in this case, particularly intense and long term. Patients in therapy are extremely vulnerable regardless of their professional standing. You accept that you, a very senior member of your profession, initiated the sexual contact with an adult patient whom you agreed in evidence was ‘functioning as a child’. In this case, you failed to take action to stop the inappropriate behaviour that you displayed to Miss A over a period of time. The Committee consider this abhorrent given the particular kind of safety and trust that patients in therapy must expect.
As an experienced psychiatrist, identifying and managing the feelings between you and your patients is part of your training. You accept that you should have known how to manage this case, in particular the feelings of transference which arose, without taking advantage of Miss A when she was in a dependent state. You should have sought advice from a colleague and ceased treating Miss A, but you did not. Your judgment in the management of Miss A was seriously at fault because, as you admit, you failed to recognise the danger signs. You have recognised all of this now as you gave your evidence to this Committee.
Your appalling conduct was a disgraceful abuse of the trust your patient placed in you; it also seriously undermines the trust which the public places in the profession as a whole and in psychiatrists, particularly those practising psychoanalysis and psychotherapy.
The facts admitted by you represent a serious breach of trust. Such behaviour by doctors cannot be tolerated. You have already admitted that your behaviour is serious professional misconduct, in clear breach of the standards set out in Good Medical Practice, and the Committee concur with your acknowledgement that you are guilty of serious professional misconduct.
Having reached this finding, the Committee gave a great deal of consideration as to the action they should take in relation to your registration. The Committee have considered the testimonials presented on your behalf and have further considered the oral evidence from your former colleagues and your daughter. You are clearly of national and international standing in your field of the psychiatry of eating disorders and have written extensively in this area. You have taken great care to apologise to Miss A and have actively sought to avoid causing her any more distress. The Committee have noted your insight into your behaviour. You admitted all the facts that have been found proved at the outset of this inquiry. You have taken steps to investigate the reasons for your misconduct.
Your treating psychiatrist, Dr Bird, is of the view that ‘the risks of any repetition of such behaviour from now on are very small’. The Committee have noted also evidence from your General Practitioner, Dr Tegner, that states, ‘… I believe that with continued support, Dr Dare will make a recovery from his present condition, and in this context I think that his mental health status would be such that he would be able to continue to remain in practice, given appropriate support and supervision”. Dr Tegner, however, gives no indication whether he believes that there is or is not a risk of these events occurring again.
In considering the sanction that it is appropriate for the Committee to impose to protect patients, the Committee have borne in mind the learned Legal Assessor’s direction to consider the decision in Bijl v The General Medical Council delivered on 2 October 2001 at the Privy Council where Lord Hoffmann said, ‘The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent or useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment. The Committee recognises that any sanction must also be proportionate to the offence’.
The Committee would wish to distinguish the facts in your case with that of Bijl where the sanction of erasure was considered disproportionate where there was no risk of the error of judgment occurring again. In your case the Committee consider that despite the opinion of your treating psychiatrist that the ‘risks of any repetition of such behaviour are very small’, this does not satisfy the test in Bijl that there should be no risk.
Given the gravity of these events, it was clear that a reprimand would not be sufficient. The Committee carefully considered the imposition of conditions but concluded that they could not be sure that the public could be adequately protected from any potential danger arising from what they considered to be a gross departure from the standard of care to be expected of doctors. In addition, the Committee are of the view that the public interest requires it to be made absolutely clear that this particular misconduct of a sexual nature that you have committed is abhorrent and unacceptable in the medical profession. The Committee cannot be sure that your behaviour would not happen again even if the mot stringent conditions were applied and followed. In their deliberations, the Committee took careful note of the opinion of Professor Russell that the work in which you wished to be involved, which he described as ‘clinical science’, requires clinical practice rather than just pure research. The two in his view were inseparable.
The Committee also considered suspending your registration but concluded that a period of suspension would not be an appropriate sanction in all the circumstances.
The learned Legal Assessor also drew attention to the decision of Gupta v The General Medical Council delivered on 21 December 2001 at the Privy Council in which Lord Rodger of Earlsferry stated, “It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517H-519E where his Lordship set out the general approach that has to be adopted. In particular, he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations that would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And, he observed, it can never be an objection to an order of suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. The Master of the Rolls concluded at 519E, “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 part of the price”.’
Having taken all these matters into consideration, the Committee have therefore concluded that, in the interests of protecting members of the public and maintaining confidence in the medical profession, the only appropriate sanction would be to direct that your name be erased from the Register.
The effect of the foregoing direction is that unless you appeal, your name will be erased from the Medical Register 28 days from today.
The Order imposed by the Interim Orders Committee on 26 February 2001 reviewed in February 2001, July 2001, October 2001 and January 2002 is to continue until the direction imposed by this Committee is effective and on that date, the Interim Order will then be revoked. That concludes this case”.
The Appeal
“Cannot be sure that your behaviour would not happen again even if the most stringent conditions were applied and followed.”
In so expressing itself the Committee effectively found there was a significant risk of repetition. Such a finding was wrong in the light of the opinion of Dr Bird (the treating psychiatrist) that the risks of any repetition of such behaviour were “very small”, particularly in the light of the appellant’s immediate and persisting genuine remorse. There was a number of personal underlying causative factors which were unlikely to re-occur. In the meanwhile he had learned to recognise and discuss, both in therapy and with family friends and colleagues, inappropriate sexual impulses and the self-deception they may cause. Counsel also drew our attention to opinions expressed by Mr Jenkins, a psycho-therapeutic colleague, Mr Bhairo, the appellant’s treating psycho-therapist and Professor Russell an eminent psychiatrist.
Conclusion