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
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	REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL, OF THE 
	11th July 2002, Delivered the 16th October 2002
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	Present at the hearing:-
			Lord Steyn
			Lord Scott of Foscote
			Sir Philip Otton
   [Delivered by Sir Philip Otton]
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1. 	At the conclusion of the hearing on 11th July 2002 their Lordships agreed humbly to advise Her Majesty that the appeal ought to be dismissed with costs and they would give their reasons later.  This they now do.  

2. 	The appellant, Christopher Dare, appeals from a direction of the Professional Conduct Committee of the respondent Council on 15 February 2002 that his name should be erased from the Medical Register, in consequence of the proof of certain of the facts set out in the Notice of Inquiry and a determination that in relation to those facts he was guilty of serious professional misconduct.  

Background
3. 	At the material time the appellant was a consultant psychiatrist at the Institute of Psychiatry in London.  He was a specialist in the field of the psychiatry and psychotherapy of eating disorders.  He is now 64 years old.

4. 	Miss A (the complainant) was a senior registrar psychiatrist at a London teaching hospital.  She is now a consultant psychiatrist. In about 1992 she began receiving psycho analytical therapy (psychotherapy) because of problems she was having establishing personal relationships.  This therapy continued until 1996 when her therapist suddenly died.  Miss A developed a strong grief reaction and to help her deal with her profound sense of bereavement she was advised to commence therapy.  She was referred to the appellant.

5. 	The appellant’s treatment began in March 1996 and was helpful. After about six months she had come to terms with her sense of bereavement.  She was not psychiatrically ill but she continued to receive treatment.  She consulted him approximately three times per week.  During the sessions she would lie on a couch and the Appellant would sit behind her.  After a while the relationship changed.  In March 1998 he leant over and kissed her, asserting that his behaviour was acceptable and that she should trust him.  Matters progressed and he would lie down with her and ask her to remove her upper clothing.  In evidence she asserted that in one session the appellant dropped his trousers and asked Miss A to touch his penis.  

6. 	In early May 1998 he arrived at her home.  Miss A found him in her bedroom removing his clothes, he insisted that she do the same and that sex with him would help her feelings towards men.  She consented to sexual intercourse.  Thereafter Miss A declined sexual activity but they continued to meet and correspond by e-mail.  By this time the complainant was depressed and sought independent advice.  The professional relationship came to an end.  In September 1999 he wrote her a letter of apology expressing his shame and self-loathing for what had occurred.

7. 	On 26 February 2001 the Interim Orders Committee considered the matter and subjected the appellant’s registration to conditions which included a restriction that he should not treat female patients.  The Committee reviewed the conditions in July 2001, October 2001 and January 2002.  On each occasion it confirmed and did not vary the conditions.
8. 	On 14 February 2002, the appellant appeared before the Professional Conduct Committee.  The charge set out in the Notice of Inquiry was as follows:
“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;”

9. 	At the outset, his counsel stated that Heads of Charge 1, 2a and 2b were admitted.  He told the Committee that the appellant would not be submitting that those admitted facts did not amount to serious professional misconduct.  Both the complainant and the appellant gave evidence in camera.

10. 	The Chairman announced the results of the Committee’s deliberations as follows.
“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].
11. 	The Committee then moved to consider whether on the facts proved and admitted the extent to which those facts indicated serious professional misconduct.  The appellant again gave evidence and called witnesses.

12. 	Having deliberated in private the Chairman announced the determination of the Committee:
“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
13. 	Mr David Morris on behalf of the appellant submitted that in all the circumstances of the case the appellant’s erasure was not necessary either for the protection of the public or for the maintenance of public confidence in the profession.  It was excessive and disproportionate.

14. 	He contended that while the Committee were right to observe that patients in therapy are extremely vulnerable regardless of their professional standing and that Miss A’s therapy was particularly intense and long-term.  They nevertheless failed to attach any or any adequate weight to a number of facts.  The appellant’s improper relationship started about 2 years after the complainant had commenced therapy with him and about 18 months after the severe bereavement condition had been effectively treated.  At the time of the appellant’s improper relationship the complainant was neither psychiatrically ill nor suffering from psychological problems.  She was a senior registrar psychiatrist whose continuing in therapy lasted for longer than would be considered necessary for those working outside the mental health sphere.  The purpose of such longer treatment was to gain greater insight into her own psychological makeup so as to allow her to feel better about herself and to provide better treatment for her own patients.  While the relationship lasted over a substantial period of time, there was only one incident of sexual intercourse.  Throughout this period the complainant was able to stand up to Dr Dare and to refuse his inappropriate requests and, despite the emotional damage it was causing her, to continue in post as a senior psychiatric registrar and to maintain her domestic and social life.  Moreover there was no evidence of any lasting psychiatric or psychological injury suffered by the complainant.  In stating that the appellant had agreed in evidence that the complainant had been “functioning as a child”, the Committee failed adequately to take into account that at the time the Appellant, although he accepted that he should have done, did not in fact realise and appreciate Miss A’s actual state of mind.
  
15. 	Counsel also took issue with the reasons the Committee gave for erasure.  The first was the need to protect members of the public.  In particular they said that they:
“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. 

16. 	The second reason for erasure given by the Committee was the need to maintain confidence in the medical profession. Counsel contended that the Committee was nevertheless wrong to conclude that erasure was the only sanction that would maintain public confidence.  There was a widely held view by many of the appellant’s colleagues that, notwithstanding the misconduct, there is a continuing clinical and teaching role for him to perform. Moreover, erasure would, in two respects act against the public interest.  First, before he stopped work the appellant was leading research into establishing on an empirical basis the efficacy of family therapy.  This important ground-breaking work would be incomplete and wasted.  Second, the psychiatric and psycho therapeutic professions would lose an able and experienced clinician and inspiring teacher.

17. 	Their Lordships have considered these well presented submissions with considerable care.  However they are unable to accept the arguments advanced.  In their view, the Committee were entitled to take the view that the appellant had used his position of trust to establish an improper relationship.  Patients in therapy are extremely vulnerable regardless of their professional standing.  Having initiated a relationship with a patient who was “functioning as a child” the appellant failed to stop the behaviour he displayed over a period of time.  As a psychiatrist he should have known how to manage Miss A’s feelings of transference without taking advantage of her in a dependent state.  He should have sought advice, we have no doubt that he should have referred Miss A to another doctor at a time when he had insight into the way that the professional relationship was diminishing and his sexual feelings towards his patient were on the increase. Thus his judgment was seriously at fault in not recognising the danger signs.  Their Lordships have no doubt that behaviour such as this seriously undermines the trust the public place in the profession and in particular in psychiatrists practising psycho-analysis and psycho-therapy.  In their Lordships’ view, the Committee having heard all the evidence were entitled to conclude that they regarded the appellant’s behaviour as “abhorrent”, “appalling … a disgraceful abuse of the trust”. There is no basis upon which their Lordships could reach a contrary conclusion.

18. 	From the terms of their decision it is clear that the Committee did take into account the particular circumstances in which the misconduct occurred, the personal circumstances of both the complainant and the appellant and the consequences that would flow from an order for erasure.  The weight to be attributed to these matters was a matter for the Committee to assess.  Their Lordships see no reason to disturb the Committee’s assessment.

19. 	The Committee explored the possibility of an alternative disposal.  They heard evidence on the type and practicality of the supervision available if conditions were to be placed on the appellant’s registration but concluded that such a course would not adequately protect the public from the risk of future harm.  It was open to them to conclude that in all the circumstances a period of suspension was not an appropriate sanction.

Conclusion
20. 	Their Lordships share the Committee’s view that erasure was the only appropriate sanction in the interests of protecting the public and maintaining confidence in the medical profession.  The Board is satisfied that the order of erasure was neither excessive nor disproportionate.