Suspension or erasure? High Court rules in professional misconduct case (General Medical Council v Stone)

Grace Forbes contributes to Lexis Nexis’ ‘Corporate Crime Analysis’

Corporate Crime analysis: What criteria should guide a regulatory tribunal in deciding the penalty for serious
professional misconduct by a GP? Grace Forbes, barrister at 2 Hare Court Chambers, points out that the High
Court’s decision in General Medical Council v Stone is a sharp reminder that the public interest must be the
bottom line of regulatory proceedings.

Original news:

General Medical Council v Stone [2017] EWHC 2534, [2017] All ER (D) 92 (Oct)
The Medical Practitioners Tribunal (MPT) had failed to properly consider the objective features of the case, had given
excessive weight to a psychotherapist’s evidence and had not said that the respondent doctor’s dishonesty had added to
the seriousness of this case. Accordingly, the Administrative Court quashed its decision to suspend the respondent’s
registration for 12 months and held that the respondent had to be erased.

What was this case about in 100 words?

Dr. Stone had had a lengthy sexual and personal relationship with a vulnerable patient, whilst acting as her GP.

Charges of professional misconduct were found proved.

The Medical Practitioners Tribunal (‘MPT’) found current impairment and suspended the doctor for 12 months.

Upholding the GMC’s appeal, the High Court quashed the MPT’s decision on sanction and substituted the suspension with erasure.

The Court found that the MPT had:

• paid insufficient regard to the Sanctions Guidance
• placed disproportionate weight on psychotherapeutic expert evidence at the expense of public interest considerations
• failed to give appropriate weight to the issue of dishonesty

What were the key issues raised in the case?

The case raised the following key issues:

• Deference on appeal: the principles governing the relationship between an appellate court and a regulatory tribunal, and the proper approach to intervention.
• The Sanctions Guidance: the status of such guidance in regulatory decision making.
• Mitigation: the proper approach to and weight of mitigation in regulatory proceedings.
• Expert evidence: the appropriate weight to afford to mitigating mental health evidence, particularly in relation to public interest considerations.
• Public protection: the preeminence of public interest and public protection considerations in regulatory proceedings.

What did the court decide, and how helpful is the judgment in clarifying the law in this area?

A. Appeals and Deference

The Court agreed it would “not have the professional expertise” of the tribunal of fact in regulatory proceedings, whose determinations should be approached “with diffidence”.

However the Court also warned that “appropriate…respect” should not lead to “more [deference] than is warranted”.

It confirmed interference will be more justified in areas which the Court is very familiar with, such as sexual misconduct or dishonesty.

In a carefully balanced decision, the Court emphasised that “the degree of deference…must depend on the context and the nature of the issues under scrutiny”. It concluded “deference is on a spectrum” and warned against attempting “a precise formulation”.

However, ultimately the decision is an example of high-level intervention as a tribunal’s decision to suspend was replaced with a sanction of erasure.

B. Sanctions Guidance and Fullness of Reasoning

The decision also upheld the significance of the Sanctions Guidance. The Court noted that whilst this guidance does not have the “normative status” of sentencing guidelines, it “must be considered” at every stage.

This point took on significance in relation to the sufficiency of the MPT’s reasoning. The Court agreed a determination “does not have to cover every point”, but noted much would depend on the “intrinsic merit and quality” of any point not mentioned.

Eloquently put: “the more salient that it is or appears to be, the stronger the force of any submission that express reference should have been made to it”.

 In this case, the Court was critical of the apparent lack of engagement with parts of the Sanctions Guidance which were “so obviously apposite”. This contributed to the biting conclusion that there was “no indication that the MPT grappled with the seriousness of this case”.

C. Mitigation, Expert Evidence and Public Protection

The MPT had heard extensive evidence from Medical Consultant Psychotherapist, Dr. Hook. The MPT had accepted Dr. Hook’s evidence that Dr. Stone’s “character pathology” had interacted with social and personal factors to create a “perfect storm” leading to the misconduct.

The GMC had not disputed the diagnosis but argued the evidence had been given undue weight. The Court agreed.

The Court found the link between the “perfect storm” and the misconduct “deeply questionable”. Beyond this, the Court also commented on the appropriate weight of such evidence in regulatory proceedings:

“the MPT gave excessive weight to Dr. Hook’s evidence in evaluating the tripartite public interest. Put another way, 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 decision gives renewed energy to the familiar mantra that personal mitigation carries “far less weight” in the disciplinary context than the criminal domain. The Court noted that this was in part “because all three elements of the tripartite public interest are always in play”.

What is the significance of this case? What are the practical and/or wider implications?

 In one sense, the decision does not seek to break new ground. A degree of deference to an expert tribunal, the preeminence of public protection and the lesser weight of mitigation are all familiar totems of regulatory proceedings.

Furthermore, the Court is careful to take a balanced and even-handed approach throughout. It eschews a one-size-fits all approach at every turn. The decision concludes by settling on erasure “with some regret”, noting that Dr. Stone “is clearly a decent man who has learned from his errors”.

In another sense the decision can be fairly described as highly interventionist. In parts it is highly critical of both the reasoning and conclusions of a specialized MPT panel. Furthermore, even in light of the serious sexual misconduct and the relevant Sanctions Guidance, it is significant that the Court opted for erasure against a background of heavy personal mitigation, remorse, admissions, remediation and an accepted low risk of repetition.

The significance of the decision then is perhaps not in the principles it applies, but in the weight it affords to them.

It is sharp reminder that the public interest must be the bottom line of regulatory proceedings.

What should practitioners take away from this judgment – especially in terms of advising clients?

Defence practitioners will no doubt find this decision sobering. A few core principles emerge:

• Mitigation remains important but it will not be given the same weight as it would in criminal proceedings. Even when supported by robust evidence, it may not prevent erasure or strike-off in cases of serious misconduct.
• Public interest considerations are at the heart of the decision on sanction. Even where there has been remediation and there is a low risk of repetition, serious misconduct risks erasure.
• Even though tribunals will take a “bottom-up” approach to sanction, they must carefully consider the sanction above that which they have considered sufficient. Tribunals must fully justify their decision to impose a lesser sanction with regard to the Sanctions Guidance and all mitigating and aggravating factors.
• A tribunal’s decision on sanction may not be the final word for a practitioner facing disciplinary proceedings. Courts have shown they will intervene where they think it is justified.

Grace Forbes