Lessons to be learnt from a failure to properly evaluate evidence of vulnerability: Professional Standards Authority for Health and Social Care v General Medical Council  EWHC 2391 (Admin)
The PSA appealed against the decision of the MPTS to impose a sanction of six months suspension on Dr Onyekpe (“Dr O”) following a hearing at which he had admitted that he had a sexual relationship with a patient (“Patient A”). The relationship had taken place over a period of two months and began after he had treated her in his capacity as a locum registrar at an A&E department.
The primary ground of appeal was that the decision of the MPT was wrong because the charges against Dr O did not include an allegation that he knew or ought to have known that Patient A was vulnerable or likely to be vulnerable, and that consequently the full gravamen of his misconduct was not considered at the MPT.
Outline of the Facts
Patient A attended an A&E department with a spinal complaint that included severe back pain. Prior to leaving the hospital, Patient A gave Dr O her mobile phone number. He subsequently contacted her by WhatsApp. They then had extensive WhatsApp communications that rapidly turned to sexual matters and culminated in them meeting and engaging in a short-lived sexual relationship.
A short time later Patient A made a complaint of rape to the police. In interview Dr O admitted consensual sexual activity. Criminal charges were not brought.
The police notified the GMC who then conducted their own investigation.
The matter was referred to the case examiners who referred it on to the MPT. Amongst the charges referred by the Case Examiners was an allegation against Dr O that at all material times Patient A was vulnerable and he knew that she was. In referring the vulnerability charges the Case Examiners referenced a statement from Patient A in which she detailed mental health problems and said she felt she was intoxicated on medication when they had sex. They noted that Dr O in his written response denied the vulnerability allegations and denied having been made aware by Patient A of any mental health problems. Importantly, when making the referral, the Case Examiners did not consider Dr O’s medical notes of his consultation with Patient A, in which he had recorded “anxiety”. Additionally, they did not consider what Patient A had told him in her WhatsApp messages, having been directed (somewhat bizarrely) by the GMC that the messages were not relied upon for the purposes of the vulnerability allegation, but only for the allegations of sexual and professional inappropriateness.
By the time of the MPT hearing the GMC had taken a decision that Patient A would not be called as a witness due to discrepancies in her account, and that they would rely upon the written material only. They had further decided to drop the vulnerability charges.
The Hearing before the MPT
The materials before the MPT included the medical notes made by Dr O in relation to Patient A and a transcript of the WhatsApp exchanges between them which had been provided to the GMC by the police.
Dr O admitted the charges he faced at the hearing and no oral evidence was given in Part 1. An admission was agreed that “Patient A was not being called by the GMC because she could not be put forward as a witness of truth.”
He also admitted impairment.
Dr O gave evidence at the sanction stage. Consistent with the fact that the GMC was not making any allegation that Patient A was vulnerable, it was not put to him that she was vulnerable, nor was he cross-examined on the entry he made in her notes or what she had said to him during the WhatsApp communications. However, the Chair of the MPT did ask him some questions about her vulnerability and Dr O confirmed that he knew from the consultation that she had suffered back pain for some time, was divorced with two children and, additionally from her messages, that she felt stressed and unsafe as a consequence of the marriage breakdown. He confirmed that he did not consider that she was vulnerable when he saw her at the A&E consultation. At no point was he challenged on the basis that, in the light of the WhatsApp messages, it must have appeared to him that she was.
At no stage during closing submissions did the Tribunal and the parties discuss the question whether the issue of the actual or apparent vulnerability of Patient A should be considered by the Tribunal as an allegation.
It was argued on behalf of the PSA that there was clear evidence to support allegations that Patient A was vulnerable and that Dr O knew or ought to have known this. In the circumstances the GMC should have drafted charges that raised both the issue of her vulnerability and his perception of her vulnerability. It was further argued that as the GMC had not done this, the MPT, having recognised the issue of vulnerability, should have ensured that it was fully ventilated and considered.
On behalf of the GMC, it was submitted that the formulation of allegations inevitably involved the exercise of judgment and the GMC’s decision not to include allegations relating to vulnerability was reasonable. It was further argued that the MPT had adequately considered the issue, and their reaction to it had been reasonable. Notably the GMC did not waive privilege into its decision to drop the vulnerability allegations.
Mr Justice Linden reviewed the caselaw on “under charging/prosecuting” (including the leading case of R (Council for the Regulation of Healthcare Professionals) v (1) GMC (2) Ruscillo  1 WLR 717). He noted that where undercharging had been found to be a serious procedural irregularity it was because the effect of the failure was that the full gravity of the case was not brought to the attention of the Tribunal.
The court identified matters to be assessed in identifying the nature and relevance of vulnerability in a case.
Firstly, the Court recognised that a degree of vulnerability was likely to be present in all doctor/patient relationships and that the reference in the GMC’s guidance document was to “particularly” vulnerable. The court identified that if vulnerability is to be regarded as an aggravating feature of misconduct, the extent to which it is aggravated will depend upon the circumstances of the case.
Secondly, the Court said that where an MPT is considering the seriousness of misconduct it must examine the evidence of culpability and harm. What a doctor knew or ought to have known, or believed, about the degree of vulnerability of the patient at the relevant time will be directly relevant to the degree of culpability. Additionally, whatever the level of the doctor’s understanding, if a patient is particularly vulnerable it may mean that they are harmed to a greater degree by the misconduct than would otherwise be the case.
Thirdly, in a sexual misconduct case evidence about vulnerability may impact on other considerations such as whether there was predatory behaviour by a doctor, the likelihood of repetition and consent.
The court reviewed the contents of the medical notes and the WhatsApp exchanges, and concluded that it was difficult to see how it …
“… did not lead to the conclusion by the GMC that there was at a least a realistic prospect of establishing that Patient A had given Dr O information which strongly suggested that she had significant physical disability, that there were or may be some mental health issues, that she may have a history of abuse and neglect, that she was feeling particularly isolated and lonely, and that, as a result she was more susceptible to sexual advances than is inherent in the doctor/patient relationship.”
The court further considered that as the evidence was available to Dr O in documentary form at the time, “there was clearly a case that he must have perceived that she was vulnerable, or ought to have.”.
The court noted that the Case Examiners had proceeded on the erroneous basis that the only evidence of vulnerability was what Patient A said in her statement to the GMC and had not considered the contents of the medical notes and WhatsApp messages. Although privilege was not waived, the Court inferred that the same error must have been made by the GMC in abandoning the vulnerability allegations prior to the hearing following on from its decision not to rely upon Patient A as a witness.
The court concluded that the GMC should have included the further allegations in the charges, that as a result of its errors of approach and wrong decisions the issues in relation to Patient A’s vulnerability were never properly before the MPT, and that this constituted a serious procedural error that made the decision of the MPT unjust. It remitted the matter to a freshly constituted hearing.
The judgement’s obvious relevance is in the guidance it offers to the approach to be adopted in identifying and evaluating the relevance of evidence about vulnerability.
From a practice point, the case involved a relatively embarrassing miss by the GMC. It seems likely to result at a general level in a more cautious approach to the abandonment of allegations that have been referred by the Case Examiners to the MPT. I think we are also likely to see an increase in the inclusion of vulnerability allegations in cases involving sexual misconduct.