Council for the Regulation of Healthcare Professionals v General Medical Council & Anor [2004] EWHC 944 (Admin)

Case No CO/634/2004[2004] EWHC 944 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 30 April 2004
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE LEVESON
Between
COUNCIL FOR THE REGULATION OF HEALTHCARE PROFESSIONALSAppellant(1) GENERAL MEDICAL COUNCILRespondents(2) DR. OLAGBALEKAN SOLANKERespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Fenella Morris (instructed by TLT Solicitors, Bristol) for Council for the Regulation of Healthcare ProfessionalsRoger Henderson QC and Jemima Stratford (instructed by Field Fisher Waterhouse) for General Medical CouncilAndrew Kennedy (instructed by Dundas & Wilson, London) for Dr Solanke
Judgment
[1]On 15 December 2003, a Professional Conduct Committee (“PCC”) of the General Medical Council (“GMC”) determined that Dr. Olagbalekan Solanke was guilty of serious professional misconduct in relation both to his involvement in a sexual relationship with Ms X, a patient, and to his alteration of his birth certificate and curriculum vitae so as to reduce his apparent age. Bearing in mind that he had already been suspended from general practice for some six months, the PCC ordered that he be suspended from the Medical Register for a period of three months.[2]Pursuant to section 29 of the National Health Service Reform and Health Care Professions Act 2002 (“the 2002 Act”), the Council for the Regulation of Healthcare Professionals (“CRHP”) appeal against that sentence on the grounds that it was unduly lenient. On 5 April, I heard the appeal and, at the conclusion of the argument, dismissed it. Bearing in mind the issues of principle that had been argued, however, I reserved my reasons which I now provide. I deal first with the matters of general application and only thereafter do I turn to the facts of this case.

The Statutory Framework

[3]The functions and powers of the CRHP established by the 2002 Act are described in my judgment in Council for the Regulation of Healthcare Professionals v. General Medical Council and Ruscillo [2004] EWHC 527 (Admin) and in the judgment of Collins J in Council for the Regulation of Healthcare Professionals v. Nursing and Midwifery Council and Truscott [2004] EWHC 585 (Admin). In short, the relevant general functions include the promotion of the interests of the patients and other members of the public in relation to bodies such as the GMC, promotion of best practice and the formulation of and encouragement to conform with principles relating to good professional self-regulation (see section 25(2) of the 2002 Act). In that regard, section 26(1) confers general powers to do “anything that may be necessary or expedient for the purposes of, or in connection with, the performance of its functions”. Examples in the following subsection include investigating the performance and practices of a regulatory body and recommending changes.[4]The CRHP has no power to intervene during the course of any particular disciplinary investigation or while proceedings are ongoing. Thereafter, however, section 29 of the 2002 Act provides that, in relation to certain decisions of a disciplinary panel, the CRHP can step in. Thus, section 29(4) provides: “If the Council considers that -(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of any such finding), or as to any penalty imposed, or both, or(b) a relevant decision falling within subsection (2) should not have been made, and that it is desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court.” (a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of any such finding), or as to any penalty imposed, or both, or (b) a relevant decision falling within subsection (2) should not have been made,[5]“A relevant decision falling within subsection (1)” includes, in relation to medical practitioners, a direction that his or her name be erased from the register, that registration be suspended for a period not exceeding twelve months and that registration shall be conditional on compliance with specified directions for a period not exceeding three years (see section 29(1)(c) of the 2002 Act and section 36 of the Medical Act 1983). “A relevant decision falling within subsection (2)” includes a decision not to take any disciplinary measure: the true meaning and extent of this provision was the subject matter of the decision in Ruscillo.[6]In this case, “the relevant court” identified by section 29(4) is the High Court. If the case is so referred, section 29(7) provides that the case is to be treated by the Court as an appeal by the CRHP against the relevant decision (even though it was not a party to the proceedings resulting in the relevant decision). Section 29(8) goes on identify the powers of the Court in these terms:
“The court may – (a) dismiss the appeal; (b) allow the appeal and quash the relevant decision; (c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned; (d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court, and may make such order as to costs … as it thinks fit.” and may make such order as to costs … as it thinks fit.”
[7]Although the CRHP and the GMC differ as to the appropriate test to be adopted when considering whether to exercise the power conferred by section 29(8) of the 2002 Act in cases referred to the Court by the CRHP on the basis that a decision has been unduly lenient, both refer to and adopt the approach prescribed by CPR 52.11(3) which is in these terms:
“The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
The use of the word ‘wrong’ in the CPR, however, says nothing about the test to be applied to determine that issue. To do that, it is necessary to go back to the enabling legislation.

The Test in ‘unduly lenient’ Cases

[8]It is contended by Miss Fenella Morris, on behalf of the CRHP, that it has the responsibility of determining whether it considers, firstly, that a decision has been “unduly lenient” and, secondly, that an appeal is “desirable for the protection of members of the public” and that once it is so satisfied, the Court is empowered to dismiss or allow the appeal, to substitute its own decision or remit the case back without reference either to undue lenience or the protection of the public. The Court must be satisfied only that the decision is wrong (or unjust because of serious procedural or other irregularity), taking a broad approach having regard to the importance of protection of patients and the public. In particular, Miss Morris argues that to construe the terms of the 2002 Act as requiring the Court to be satisfied that a decision was unduly lenient would be to undermine the intention of Parliament to leave that decision solely to the CRHP which has its own specialist expertise in matters both of health care and professional conduct.[9]On behalf of the GMC, Mr Roger Henderson Q.C. contends that in the exercise of its appellate function, the Court should allow a generous margin of discretion to the tribunal below. In those circumstances, for a decision to be appealably wrong, it must almost always be unduly lenient (the exception being a rare case of the type to which I will refer below) and that to be unduly lenient, it is not enough for a determination to be less restrictive of professional practice or less severe than the Court would itself have decided at first instance. Rather, it must be ‘undue’ i.e. more than is capable of being justified in a broad but longstop power of review: this last expression is taken from my judgment in Ruscillo (see paragraph 35).[10]The concept of appeal in the case of undue lenience comes from the criminal jurisdiction and it is of value, as Mr Henderson and Mr Andrew Kennedy on behalf of Dr Solanke submit, to consider the way in which that statutory power is expressed and the manner in which it has been interpreted. Thus, section 36(1) of the Criminal

Justice Act 1988 provides:

“If it appears to the Attorney General – (a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; … he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may – (i) quash any sentence passed on him in the proceeding; and (ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him.”
[11]Thus, the essential language is the same. “If the Council considers” is no different from “If it appears to the Attorney General”. The requirement that “a decision has been unduly lenient” is the same as “the sentencing … has been unduly lenient” albeit that in relation to the 2002 Act there is the additional requirement that it must also be considered desirable for the protection of the public. Finally, the power that “the Council may refer the case to the relevant court” is the same as that given to the Attorney General who also “may … refer the case to [the Court of Appeal]”. Admittedly, the Attorney General needs the leave of the Court of Appeal but that requirement, on its own, cannot alter the way in which the Court exercises its power to change any sentence referred to it.[12]What then is the approach of the Court in the criminal sphere? In Attorney General’s Reference (No 4 of 1989) (1990) 90 Cr. App. Rep. 266, the Lord Chief

Justice explained the correct approach to the section in these terms:

“The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased – with all the anxiety that this naturally gives rise to – merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well-placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.”
[13]Not all of this citation is relevant to decisions in this field. Thus, one of the purposes of punishing crime is retributive whereas in this jurisdiction the primary concern is the protection of the public. In Bolton v. The Law Society [1994] 1 WLR 512, Sir Thomas Bingham MR (as he then was) pointed out that, since a professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. In Gupta v. General Medical Council [2001] UKPC 61, [2002] 1 WLR 1691, the Privy Council considered that a similar approach fell to be applied in relation to medical practitioners. Further, the Indicative Sanctions Guidance for the PCC provided by the GMC (“the Guidance”) specifically provides (at paragraph 9):
“The purpose of the sanctions is not to be punitive, but to protect the public interest, although they may have a punitive effect.”
What is highly material, however, is that the Court was quite clear that the power to increase only arose if the Court considered the sentence unduly lenient; it was not only the Attorney General who was concerned with that test.[14]Miss Morris argues that there is a clear distinction between the criminal and disciplinary jurisdictions because criminal sentencing is concerned with punishment and disciplinary sanction with protection of the public. As I have just accepted, I agree that there is a very real difference between the two, but that difference is not to the point in relation to the proper construction of this provision. The context in which undue lenience must be considered may be different for criminal cases (concerned with retribution, deterrence and rehabilitation) and disciplinary cases (concerned with the protection of the public and the reputation of the profession) but the relevant question remains the same, namely, whether, having regard to the purposes of the particular sanction being imposed (whether criminal or disciplinary), this particular sanction is outside the range of sanctions which the sentencing tribunal, applying its mind to all the factors relevant to its jurisdiction, could reasonably consider appropriate.[15]In the circumstances, I reject the submission that the court is not required to consider whether a decision is unduly lenient. Furthermore, in my judgment, ‘wrong’ in CPR 52.11 itself means more than ‘less than the Court would impose’. It means outside the range of sanctions that the relevant disciplinary panel, applying its mind to all the factors relevant to its jurisdiction, could reasonably consider appropriate. As the Lord Chief Justice made clear in Attorney General’s Reference (No 4 of 1989), sentencing (in any jurisdiction and whatever the criteria against which a sentence is being passed) is an art and not a science. Different people might, perfectly legitimately, take a different view about the same conduct; provided that it is not outside the range of appropriate sanctions, it cannot be said to be ‘wrong’. The fact that I might impose a graver sanction (or, conversely, a more lenient sanction) does not mean that the sanction originally imposed is, in any sense, necessarily wrong. This is precisely the point made in the context of criminal appeals in Attorney General’s Reference (No 132 of 2001) [2003] 1 Cr. App. Rep. (S) 41 by Potter LJ at para. 24 in these terms:
“[T]here is a line to be drawn … between the leniency of a sentence in any given case and a sentence which is ‘unduly’ lenient. … The purpose of the system of Attorney-General’s References in particular cases seems to us to be the avoidance of gross error, the allaying of widespread concern at what may appear to be an unduly lenient sentence, and the preservation of public confidence in cases where a judge appears to have departed by a substantial extent from the norms of sentencing generally applied by the court in cases of a particular type.”
[16]The foregoing is sufficient to identify the test that, on my construction of section 29 of the 2002 Act, the Court must apply in this, and any, case which the CRHP refers on the grounds that the decision has been unduly lenient. In that regard, although, in deference to the arguments advanced by Miss Morris, I have considered the matter from first principles, I entirely endorse the conclusion of Collins J in Council for the Regulation of Healthcare Professionals v. Nursing and Midwifery Council and Truscott (above) shortly expressed in these terms:
“10. … I see no reason to doubt that the true construction of s.29 requires that the Court will only allow the appeal if satisfied that undue leniency and desirability for the protection of the public is made out. If undue leniency is established, it will only be in the rarest of cases that a different view to that of the CRHP is likely to be appropriate in respect of desirability. 11. I see no reason not to apply mutatis mutandis the same test as the Court of Appeal applies in deciding whether a sentence in a criminal case is unduly lenient.”
[17]I return to the possibility of the rare case to which I referred in paragraph 9 above. As Mr Henderson notes, Collins J contemplates the rare possibility where undue lenienceis established but the desirability of public protection is not. He suggests the example of a person who because of grave ill-health or disability has no prospect of continuing in professional healthcare practice and who in an excess of mercy is not erased e.g. so that he/she can die or retire as a professional person. For my part, I would prefer to leave such circumstances to be considered should they arise. He further submits, however, that a converse possibility may arise namely that the Court was not satisfied that a sentence was unduly lenient but was satisfied that it was wrong e.g. that a less onerous condition which could be imposed upon a practitioner could be expected to or would achieve greater protection. He seeks to reserve the position of the GMC in relation to such a case. Again, this possibility is, for present purposes, theoretical but I find it difficult to envisage such a situation. Put simply, I cannot imagine greater protection from a less onerous condition. In any event, however, if the decision is not unduly lenient, it does not appear to me that it is open the Court to interfere in the exercise of its jurisdiction under section 29 of the 2002 Act (although it may be that the practitioner could appeal under section 40 of the Medical Act 1983).[18]Before leaving the discussion of the parallels between the criminal jurisdiction to appeal unduly lenient sentences and the jurisdiction conferred by section 29 of the 2002 Act, I ought to add a word about the concept of double jeopardy. In the case of an Attorney General’s reference, this requires a deduction from the notionally appropriate sentence to allow for the fact that the offender falls to be re-sentenced for his offending; it is of particular significance in cases where a non-custodial sentence was initially passed or where the offender has been released from a sentence then deemed unduly lenient and, as a result of the appeal, is being placed in or returned to custody. Given that the primary focus of disciplinary sanctions is the protection of the public rather than punishment (see paragraph 13 above), it is unclear to me what room remains for double jeopardy. If a decision is unduly lenient and it is desirable for the protection of the public that there should be an appeal, to adjust the direction to one which is less than appropriate in the circumstances simply because of double jeopardy does not, in my view, reflect that primary purpose.[19]I appreciate that in Truscott, Collins J did refer (at paragraph 29) to “an element of double jeopardy of which account must be taken” but he also went on to add:
“It is of less importance in the context of s.29 of the 2002 Act because the emphasis is on the protection of the public rather than punishment of the individual concerned.”
Even “less importance” may put the relevance of the concept too high. It is difficult to see how allowance could be made if the only proper decision could have been erasure; similarly, conditions necessary for the protection of the public are no less necessary if they are imposed on appeal against an unduly lenient decision rather than by the PCC initially.[20]Miss Morris advanced another argument in support of her contention as to the test to be applied by the Court. She pointed to the approach applied initially by the Privy Council but latterly by this Court to appeals brought by medical practitioners from decisions of the PCC (where she suggests that the test is less stringent) and argued that there would be something inherently odd in legislation that provided for an appeal to be determined according to a different test depending upon the body or individual who brought the appeal.[21]In support of this submission, Miss Morris referred to Ghosh v. General Medical Council [2001] 1 WLR 1915, [2001] UKPC 29, in which Lord Millett made it clear that any defect in the ECHR requirements of independence and impartiality was remedied by the jurisdiction of the Judicial Committee. He went on (at paragraph 34): “It is true that the Board’s powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against sentence. But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past. In Evans v General Medical Council (unreported) 19 November 1984 the Board said: ‘The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee… The committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.’ For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee’s judgment more than is warranted by the circumstances. The council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration.” ‘The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee… The committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.’[22]I have cited extensively from this speech because it does not seem to me that, on analysis, it justifies the argument that the test in relation to an appeal would, in fact, be different depending on whether the appeal is mounted against an excessive sentence or one that is said to be unduly lenient. True, Lord Millett does not use the epithet ‘manifestly’ to qualify the excessive nature of the sentence (in contrast to the test ‘wrong in principle or manifestly excessive’ operated by the Court of Appeal Criminal Division: see Regina v Newsome and Browne [1970] 2 QB 711 per Widgery LJ at 717). In reality, however, taken as a whole, there is no difference. Giving appropriate respect to the judgment of the disciplinary committee, a decision that a sentence is “appropriate and necessary” or “excessive and disproportionate” is applying the same balancing exercise as asking whether it is within the bounds of the legitimate discretion of the committee or outside those bounds. If it is not outside the range of appropriate sanctions, it cannot be said to be excessive and disproportionate.[23]Exactly the same applies in relation to the formulation that has been used in this Court. In Abu-Romia v. General Medical Council [2003] EWHC 2514 (Admin), Wall J, as he then was, observed (at paragraph 58) that he could “only intervene if the penalty … is disproportionate to the misconduct”. He went on:
“If the Committee has taken all relevant factors into account and reached a conclusion which is within a reasonable range of penalties, I cannot interfere.”
In my judgment, again, that applies the same test that I have sought to identify: within the range of appropriate sanctions, even if more or less than that which the Court might have imposed, the sentence should not be altered; only if it is outside that range by being too high or too low may the Court interfere, in the former case, on an appeal by the practitioner and, in the latter, on a reference by the CRHP.[24]Neither do I read the formulation of Newman J in R. (on the application of Dr Abrahaem) v. General Medical Council [2004] EWHC 279 (Admin) to suggest a different emphasis. He put the matter (at paragraph 6) in this way:
“The position is now more accurately stated as requiring appropriate respect to be given to the opinion of the professional tribunal. It is likely that the degree of deference will be higher in technical cases where, for example, a knowledge of procedures and medical practices which are in issue, are more within the sphere of expertise of the professional body than the position which can arise in other cases (one might say as this), where the underlying substance of the allegations which the appellant faced, and which he admitted, involve issues of dishonesty and dishonesty in the broadest sense.”
In my view, Newman J was saying no more than that in cases determined on technical grounds, it will be more difficult because of their expertise to say that the PCC have exceeded the bounds within which the range of an appropriate decision lies. That is not to say that in technical cases the PCC may not still exceed such bounds or, that in those cases that do not involve such expertise, there does not remain a range of appropriate decisions with which it will be wrong to interfere. Neither is this approach a development from the time when the jurisdiction was exercised by the Privy Council: see Roylance v. General Medical Council (No. 2) [2000] 1 AC 311 per Lord Clyde at 330H.[25]Finally, I ought to add that this approach is identical to that taken in appeals to increase the penalty for civil contempt of court where, although the legislation does not refer to ‘undue lenience’ again, the approach is to equate the power to that of the Court of Appeal Criminal Division in such cases: see Neil v. Ryan [1999] FCR 241 at 243-3 per Judge LJ applied in Lomas v. Parle [2004] 1 All ER 1173, [2003] EWCA Civ 1804.

The Indicative Sanctions Guidance

[26]The CRHP seeks the assistance of the Court as to whether it and the decision of the Court as to lenience must be taken within the framework provided by the Guidance (to which I referred in paragraph 13 above). In that regard, the CRHP also expresses concern that the guidance does not adequately address issues of fitness to practice and protection of the public in every case, especially after return to practice following suspension.[27]In order to deal with this request, it is necessary to explain its origin and function. Suffice to say that the Guidance has been developed by the GMC following analysis of past cases. It makes it clear that members of the PCC are “obliged to exercise their own judgement in making decisions … but within a framework set out by the GMC” and is said to be a “living document” to be updated and revised as the need arises. As I have made clear, it describes the purpose of sanctions as being “to protect the public interest” which includes:
“(a) the protection of members of the public; (b) the maintenance of public confidence in the profession; (c) declaring and upholding proper standards of conduct …”
It goes on to advise:
“In deciding what sanctions to impose the Committee should apply the principle of proportionality, weighing the interests of the public … against those of the practitioner.”
[28]Having required the relevant PCC to consider the propriety of specific options in ascending order (reprimand, conditional registration, suspension and erasure), it then outlines each, identifying the philosophy behind them as well as some broad criteria as to their use. In the context of erasure from the register, the Guidance identifies that there are some examples of misconduct where the Privy Council has upheld decisions to erase a doctor despite strong mitigation, the three most serious being sexual misconduct, dishonesty and failing to provide an acceptable level of treatment/care but it is careful to add (at paragraph 26) that: “Whether erasure is appropriate in cases of this kind will depend on the particular facts of each case and other relevant factors”.[29]I can deal with the concerns expressed by the CRHP quite shortly. I entirely agree with Mr Henderson that neither the PCC nor the Court is bound to reach its decision within the framework of the Guidance. It is clearly and so stated to be indicative only; it is not legally binding on the PCC, let alone the CRHP or the Court. Having said that, I further agree with Mr Henderson that, together with the body of relevant case law, the Guidance assists the PCC to reach consistent decisions while at the same time taking account of the particular circumstances of each case. Such consistency is in the interests of the public, doctors and the GMC alike. In that regard, I also endorse the observations of Newman J in Abrahaem (above) that the description of the purpose of sanctions and the public interest reveals “great clarity and accuracy” (see paragraph 7) and that the section of the Guidance dealing with suspension, with which I am also concerned in this case, consists of “very useful guidelines” which form “a framework which enables any tribunal, including [the] court, to focus its attention on the relevant issues” (see paragraph 36).[30]Neither do I consider that it is the function of the Court to intervene in the formulation of modifications to the Guidance although its decisions will doubtless inform the GMC in relation to areas that may require re-consideration. The CRHP, on the other hand, is in an admirable position to take part in the process of revising this ‘living instrument’. Section 26(2)(c) of the 2002 Act specifically permits the CRHP to recommend to a regulatory body changes to the way in which it performs any of its functions. Its regulatory experience, across the range of health care professionals, will doubtless be of great value in the process of reconsidering guidelines to ensure that the right decisions are taken in relation to misconduct of differing gravity in a consistent fashion both in different cases within the medical profession and across different health care professionals.[31]With that rather lengthy analysis, I turn to the merits of the appeal regarding the suspension of Dr Solanke.

The Facts

[32]Since October 2000, Ms X had been treated for depression with fluoxetine. She first saw Dr Solanke at the GP practice at which he was working as a GP Registrar in Drumnadrochit near Inverness in relation to this condition on 7 February 2002; she also consulted him on a further occasion. Some time thereafter an emotional and sexual relationship developed. Ms X’s medical records revealed that she consulted Dr Solanke at the end of February 2002 when Dr Solanke recorded a plan to “continue medication”, on 8 March 2002 when he prescribed her contraceptives, on 7 and 13 May 2002 when he treated her for a urinary tract infection, and on 5 July 2002 when he prescribed her further medication for her depression.[33]In October 2002, “some months” after the relationship had come to an end, the matter came to light when Ms X told Dr Kirkwood, another GP whom she consulted when she was a temporary resident in Crieff. Dr Solanke admitted the relationship and its impropriety as soon as it was put to him. As far as the GMC was concerned, it was not known who had initiated the relationship; Ms X had declined to involve herself in the disciplinary process.[34]After the relationship with Ms X had been reported and Dr Solanke was under investigation, in May 2003, he disclosed other wrongdoing. He admitted that he had altered his birth certificate and falsified his curriculum vitae (by altering the dates of his school attendance) to reduce his age by some 6 years. He was suspended by the practice at which he was then employed.[35]The upshot was that Dr Solanke faced a charge of serious professional misconduct before a PCC formulated as follows: “That, being registered under the Medical Act, 1.a. At the material times you were employed as a General Practitioner Registrar at the Drumnadrochit Medical Practice;b. a female patient, Ms X, was registered on the practice list;c. Ms X had a history of depression since 2000 and initially presented to you at some time in or around 2002 with low mood and poor self esteem;d. you subsequently became involved in a sexual relationship with Ms X;e. your actions in this regard were:(i) inappropriate,(ii) not in the best interests of your patient,(iii) an exploitation of your professional relationship,(iv) an abuse of the doctor-patient relationship,(v) likely to bring the medical profession into disrepute; 2.

(i) inaccurate, (ii) dishonest, (iii) designed to mislead:

[36]At the PCC, held on 15 December 2003, Dr Solanke admitted each of the individual factual allegations and also admitted that he was guilty of serious professional misconduct. Counsel for the GMC outlined the facts broadly as set out above and referred to the Indicative Sanctions Guidance. So much for the case advanced by the GMC.[37]Dr Solanke then elected to give evidence. He could not be required to do so but, given that he was anxious to acknowledge fault and demonstrate that his behaviour would not be repeated, it is not surprising that he did; indeed, I would expect practitioners anxious to establish such mitigation almost invariably to submit themselves to questioning by the GMC and the PCC. In any event, he said that at the time of the relationship he was separated from his wife and that she had denied him access to their children. He explained that the relationship with Ms X lasted around six months. When asked how it began, he said that “it was mutual” and that it ended “mutually”. He said that he knew the relationship was wrong and that he had undertaken counselling subsequently.[38]As to the birth certificate and curriculum vitae, Dr Solanke made it clear that he had himself disclosed the falsification to his trainer at the GP practice where he was employed. He said that he did so because of the complaint concerning the relationship with Ms X and wanted to “come clean”. He said that he had falsified the documents because he had had difficulty obtaining employment as a doctor in 1994 and believed that his age was against him. He said that he knew it was wrong to falsify the documents. He went on to add that he would not repeat his conduct again. He had not worked for six months as a result of his suspension consequent upon his disclosure of the falsification of the documents.[39]It is important to note that Dr Solanke was not asked by counsel instructed by the GMC and neither did the PCC enquire when, where or how the relationship with Ms X had commenced. In particular, it was not, therefore, known whether it had commenced or taken place during a consultation or only elsewhere. No questions were asked about Dr Solanke’s behaviour towards Ms X during consultations. I shall return to this feature of the case which I consider a serious failing.[40]In addition to Dr Solanke, Dr Irvine, a General Practitioner who had been Dr Solanke’s trainer, gave evidence as to his practice as a doctor. He was likeable, pleasant and friendly with the practice. She made it clear that had it not been for these matters, there would have been no qualms with him. This picture was also confirmed in a number of testimonials. There was also a report from a Counsellor whom he had consulted in February 2003; she spoke of his strong feeling of remorse and shame in relation to both matters as well as his “great relief that he has been honest and above board in acknowledging what he has done”. Counsel submitted on his behalf that it was not necessary to impose the ultimate sanction of erasure which, given his age of 52, would effectively mean that he would never return to medicine; he suggested that a period of suspension would be appropriate.[41]It then fell to the PCC to determine what direction to give. After consideration, it decided that Dr Solanke was guilty of serious professional misconduct and suspended him from practice for three months, giving the following reasons for its decision:
“The Committee take a serious view of the charges, all of which have been admitted and therefore found proved against you. The Committee take account of the fact that there have been no previous proceedings brought against you by the GMC in relation to your fitness to practise. The Committee note your frank admissions that you were wrong to have entered into a relationship with a patient and also to have altered your curriculum vitae. They believe that you would not repeat this behaviour and have taken on board the fact that you are remorseful and have readily admitted these misdemeanours. They have also taken into account the fact that at the time of these events you were in a distressed state yourself due to unfortunate circumstances in your personal life. They have considered the submissions made on your behalf, from professional colleagues, which indicate that you are a competent doctor and that you are well regarded by colleagues and patients. In these circumstances the Committee accept that these were incidents which they do not feel would reoccur in the future. …. We have taken into account the fact that as a consequence of your suspension from the general practice in which you were employed you have not worked for six months.”
[42]In order to allow 28 days to appeal, the order of suspension did not come into effect until 13 January 2004 (although Dr Solanke apparently remained suspended from his employment); it thus expired on 13 April 2004.

The Argument on Appeal

[43]The CRHP submit that, in the light of the facts admitted and found to be true, there is a real risk that Dr Solanke could, in the future, cause actual or, at least, potential harm which the PCC did not adequately take into account. In relation to sexual misconduct, that risk took the form of inappropriate sexual relationships with female patients especially those who are vulnerable by reason of mental disorder. The CRHP identified particular concern that Dr Solanke did not seek advice or assistance when he found himself in difficulties and argued that mitigation that reflected his personal circumstances was not unusual but, rather, typical of the pressures that health professionals will often experience but which they must not allow to affect their professional conduct. Miss Morris pointed to the possibility that Dr Solanke may experience such personal difficulties again.[44]In relation to the falsification of documents, the real risk was that Dr Solanke could cause actual or potential harm to those who had to rely on documents that he prepared. The particular concern in relation to this risk was that Dr Solanke had been willing to compromise his professional standards when under pressure, that he did so for personal gain and that he may again be subject to such pressure, for instance, because he is currently seeking re-employment.[45]To underline the gravity of Dr Solanke’s position, Miss Morris referred to the Guidance; as I have said, this identifies sexual misconduct and dishonesty, with specific reference to falsification of a curriculum vitae, as two of the most serious types of misconduct which may require erasure. It also provides that the public interest includes not only the specific risk to individual patients from doctors’ misconduct, but also the maintenance of public confidence in the profession. In this regard, it is important that women are not deterred from seeking medical assistance because of a lack of confidence in doctors arising out of sexual misconduct such as Dr Solanke’s.[46]Taking all these features into account, the CRHP argue that the PCC could and should have dealt with the matter, at the very least, by holding a resumed hearing before Dr Solanke’s return to practice, by recommending action that should be taken before Dr Solanke’s return to practice and by the imposition of conditions on Dr Solanke’s practice. Conditions might include the requirement that he have a chaperone for female patients. Miss Morris submitted that the issue was not simply whether Dr Solanke’s should have been erased from the medical register but, rather, whether the powers of the PCC should have been used in some more complex and focussed manner.[47]Mr Henderson accepted that the decision could be characterised as ‘at the lenient end of the spectrum’ but argued that it was not appropriate simply to look at the labels (sexual misconduct and dishonesty) but, rather, to go to the particular facts of the misconduct. He made the point that the decision of the PCC depended on their assessment of the continuing risk which Dr Solanke posed, itself informed by their view as to his credibility as a witness (which issue was for the PCC: see per Wall J in Abu-Romia v. General Medical Council [2003] EWHC 2515 (Admin) at paragraph 53).[48]Without conceding that the penalty was lenient, Mr Kennedy advanced a similar argument. He submitted that there was no sufficient evidence before the PCC to justify the concern about repetition. In relation to the sexual misconduct, the PCC was satisfied that Dr Solanke had, indeed, appreciated the gravity of his conduct (underlined by his having undergone a period of counselling) and was truly remorseful. He made the point that in the absence of his admissions, given that Ms X was unwilling to assist, there would have been no admissible evidence against him. As to the dishonesty in the curriculum vitae, Dr Solanke had volunteered the information at an early stage.[49]At the core of the case is the assessment by the PCC of Dr Solanke’s attitude and approach to what he had done. In that regard, as I have intimated, they were not assisted by the failure to investigate the circumstances in which his relationship with Ms X developed. In relation to the sexual misconduct, these circumstances might well have been the best (or, at least, a good) indicator of risk of recurrence and the need for further protection of the public.[50]This point is exemplified by reference to the decision of the Privy Council in Dare v. General Medical Council [2002] UKPC 54. Miss Morris relies on the outcome of the case in which the erasure of a consultant psychiatrist was upheld based on his admitted relationship with a patient (who was also a doctor). The true picture, however, emerges from the detail. This patient started psychotherapy with a therapist because she was having problems establishing personal relationships. After that therapist died, she received treatment from Dr Dare, some three times a week. After two years, he initiated sexual intimacy during his consultations; this continued over several months (and included one incident of intercourse when he went to her home). Significantly, however, the PCC described the therapy as “particularly intense and long term” and the patients undertaking it as “extremely vulnerable”; Dr Dare conceded that this patient was “functioning as a child”. Although his psychiatrist described the risk of repetition as “very small”, the PCC were not prepared to conclude that there was no risk. Thus the detail colours the true nature of the abuse of trust and clearly refers to aggravating features which, on any showing, are absent from this case. Miss Morris, however, argues that an investigation of the detail could have revealed, at least, some similar features.[51]The fact that Ms X was not prepared to assist the investigation is not a feature to be taken in Dr Solanke’s favour; it is neutral. Neither does it absolve the GMC as prosecutor or the PCC as the determining tribunal of their respective responsibilities to ensure that the true picture is exposed as fully as it can be. Further, although I accept that if the case was remitted back to the PCC, there would be no absolute obligation on Dr Solanke to give evidence a second time, in my view, in order to demonstrate his true remorse at that hearing (and obtain the appropriate credit), he would, again, have to explain himself personally. The ultimate question for me is whether, inadequate though the evidence was, there was sufficient to justify the PCC reaching the conclusion that it did and insufficient lack of investigation to justify the inference that because of an unduly lenient decision, the public have been inadequately protected.[52]I start by returning to the Guidance. It deals with the need for proportionality and, as I have indicated, analyses the range of sanctions, namely, reprimand, conditional registration, suspension and erasure. As to suspension (which can be for up to 12 months) it explains: “Suspension can be used to send out a signal to the doctor, the profession and public about what is regarded as unacceptable behaviour. Suspension from the register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the period of suspension. It is likely to be appropriate for misconduct that is serious, but not so serious as to justify erasure (for example there may have been acknowledgement of fault and where the committee is satisfied that the behaviour or incident is unlikely to be repeated)”.[53]The guidance goes further and recommends that, in the event of suspension, the PCC must decide whether to direct a resumed hearing before the end of the suspension. It continues:
“In some cases it may be self evident that following the period of suspension, there will be no value in seeing the doctor again. However in most cases where a period of suspension is imposed, the Committee may need to be reassured that the doctor has a continuing commitment to practise as a doctor; has fully appreciated the gravity of the offence; has not re-offended and has maintained his or her skills and knowledge.”
[54]This approach (which appears to me to be entirely appropriate and sensible) was specifically applied in this case. The PCC not only had their view of Dr Solanke, formed while he gave evidence, but it also had the opinion of the Counsellor to which I have referred above. The dishonesty covered only Dr Solanke’s date of birth and none of his qualifications or other experience. As to the sexual misconduct, although more detail would have been desirable, I do not feel able to conclude that the PCC was not entitled to reach the conclusions that there had been full acknowledgement of fault and that the behaviour was unlikely to be repeated with the result that suspension was the appropriate direction to make; I consider that Dare was a very different case. Even taking into account the six months de facto suspension, the term of three months may well have been at the lenient end of the spectrum but, given that the maximum suspension is 12 months and that some allowance was appropriate for the absence from work following the admissions of dishonesty, it cannot be said that the 3 months ordered was unduly lenient. As he had undertaken counselling (about which no adverse comment was made) there was no need for a resumed hearing; in particular, there was no concern expressed that he required on going assistance.[55]Has the lack of further enquiry by the GMC or the PCC created any risk to the public that could have been assuaged by the imposition of conditions so that failure to impose such conditions can be considered unduly lenient? There was no challenge to Dr Solanke’s medical competence which called for re-training and the only condition canvassed before me was the possible requirement of a chaperone for female patients. A decision as to this was tied into the assessment of Dr Solanke’s true reaction and the likelihood of repetition. On the basis of the assessment made by the PCC about Dr Solanke, and given the additional evidence from the counsellor and five other medical practitioners with whom Dr Solanke had come into contact about his behaviour and his reaction, I have come to the conclusion that, although not as informed as it might or indeed should have been, the decision of the PCC cannot be characterised in this regard as unduly lenient within the meaning that I have ascribed to that term.

Conclusion

[56]It is for the foregoing reasons that I concluded that this appeal should fail but I would not wish it to be thought that I am dismissive of the concern expressed by the CRHP. For the reasons which I have given, the approach of the GMC to the original hearing and that of the PCC is open to legitimate criticism; rather more information should have been available to it. I appreciate, of course, that no doctor in these circumstances need give evidence; expressions of remorse or regret not backed up by a willingness to answer questions about the true extent both of the misconduct and the remorse, however, are unlikely to be very convincing.[57]I must also add a further comment about another criticism ventured by Mr Henderson. He referred to the original anticipation that only extreme or exceptionally grave cases would be the subject of a reference under section 29 of the 2002 Act and observes that six cases concerning the GMC have already been referred in the four month period between mid-November 2003 and mid-March 2004 with other cases being referred by other regulatory bodies. He thus expresses concern about the criteria being applied by the CRHP and the consequent burden of these appeals on the Court and the relevant regulatory bodies. Time will tell whether these concerns are ultimately justified. Suffice to say that I do not criticise the CRHP for its decision to refer this case to the Court. Further, and in any event, I hope that the conclusions reached both as to issues of principle and practice will better inform all those concerned with the disciplinary and regulatory systems involved and so better define the parameters within which discretion falls to be exercised and improve those systems for the benefit of all. - - - - - - - - - - - - - - - - - - - - - MR JUSTICE LEVESON: At the conclusion of this hearing on 5th April 2004, I dismissed this appeal. I now hand down the reasons for that decision which have previously been revealed to the parties. MS STRATFORD: My Lord, the GMC seeks an order that its costs should be paid by the CRHP. The GMC is, of course, the first respondent. The GMC will, I know, take on board the criticisms which your Lordship has made of certain failures which occurred on the part of the GMC as a prosecutor, and the PCC, in this case. The GMC recognises the force and strength of those observations which will be considered in a constructive manner. Nonetheless, the GMC submits that costs should follow the event. The CRHP has failed both in submissions and the legal test, and as to the result in this appeal. The GMC's submissions have largely prevailed. In those circumstances, I submit that the GMC should have an order that its costs are paid by the CRHP. My Lord, just before I sit down, I do not know whether your Lordship has had an opportunity to see the judgment on costs of Collins J in Truscott. I do have copies of that. Collins J was, of course, considering a very similar situation and gave an extemporary but relatively full judgment. MR JUSTICE LEVESON: I have not seen that judgment. MS STRATFORD: May I hand it up? (Handed). MR JUSTICE LEVESON: Certainly. Miss Morris, do I gather that you have not seen it? MS MORRIS: Yes. Originally this morning I was due to appear in another case and only ten minutes ago I arrived. I enquired about whether this judgment existed and was told that it did not so I have not had an opportunity of reading it. I am not going to suggest that we have an adjournment, I can probably just look at it fairly quickly because in any event, my Lord is not bound by what Collins J decided in relation to costs in that case. MS STRATFORD: It is really page 19 onwards, my Lord. Despite the fact my clients were not in that case, Miss Morris's clients were. I did alert her two or three days ago to the fact that this judgment existed. My Lord, at the foot of page 19, Collins J begins his judgment and he notes that he had described the case as a "borderline case" and that it was correct for counsel to bring the appeal. That was at paragraph 28 of his judgment. Going over to page 21, my Lord, if I may, obviously I am happy to read all of it if Miss Morris or your Lordship would require that. MR JUSTICE LEVESON: I do not require it because I am able to read it myself. MS STRATFORD: My Lord, on page 21, about six lines down, Collins J holds that the fact that it was reasonable and correct to bring proceedings does not mean that if they fail there should be no order for costs. He went on to order that the CRHP should pay both the NMC and the nurses' costs. Your Lordship stated at paragraph 7 of your judgment that you do not criticise the CRHP for its decision to refer this case to the court. Your Lordship has not even arguably gone quite as far as Collins J in saying that it was a borderline case. MR JUSTICE LEVESON: The rather more interesting question, Miss Stratford, is whether, assuming you are successful in principle, those costs should carry with them the costs of leading counsel. Of great value, of course, Mr Henderson was, but the Council did not consider it appropriate to instruct leading counsel. MS STRATFORD: My Lord, as far as I am aware where two counsel instructed as opposed to three, normally it would be acceptable for the costs of two counsel to be ordered. In my submission, at this very early stage in the appeals there is considerable value to the court in having the benefit of Mr Henderson's submissions. I put it no higher than that. MR JUSTICE LEVESON: I entirely agree, but that is not quite the point. I do take your submission on board, though, that this is new territory. The courts are in the process of seeking to establish the ground rules of this new jurisdiction and therefore it is not perhaps surprising that affected regulatory bodies such as the GMC take them extremely seriously. MS STRATFORD: My Lord, indeed. Particularly as it has become clear that there is, for the moment anyway, a reasonable volume of these matters coming before the court. It does seem particularly important that as quickly as possible the core legal principles are laid down. In my submission, in the long run that is going to save all parties and the court both time and, of course, costs. So, in my submission, in this case and in these early cases, there is every value in having the best possible representation for the parties. Had the CRHP instructed leading counsel in this case, and any other of these appeals, I do not believe that I would be instructed to question that. MR JUSTICE LEVESON: Right. Thank you. MR POST: My Lord, on behalf of Dr Solanke I seek an order that he recover his costs too. The general rule that costs should follow the event perhaps applies particularly forcefully in circumstances where a respondent has been in no way responsible for the bringing of an appeal. My Lord, it might be said that in some way, like the criticisms made of the GMC, they were responsible, in fact. MR JUSTICE LEVESON: I would not get into that too much if I were you, Mr Post. One could equally say that Dr Solanke and his advisors were somewhat coy with the full details as well. There it is. I am not going into that. MR POST: My Lord, the effect, if no order for costs were to be made, would be that there would be an increase in the penalty to Dr Solanke. MR JUSTICE LEVESON: He is presumably not funded, is he? MR POST: My Lord, he is in part. He has part PSL funding. Yes, so in fact the position is that that would increase by virtue of an unsuccessful appeal. MR JUSTICE LEVESON: We will wait and see what Miss Morris has to say. MS MORRIS: My Lord, my submission is that there should be no order for costs. The reasons are as follows. Firstly, I understand from the judgment that the matter was properly brought. Secondly, all the parties were at great pains to emphasise that they were all concerned with the public interest in the determination of this matter. If that is right, and each party had the public interest at heart, that seems to me -- MR JUSTICE LEVESON: I am not so sure that Mr Kennedy, on behalf of Dr Solanke, was concerned with the public interest. MS MORRIS: I think observations were made of the desirability of doctors who were qualified working. At any rate, it was certainly the submission of the GMC. In those circumstances, if that is the approach of the GMC, and it agrees that at this stage in the litigation of these statutory proceedings, the parties are represented in the matters that are sorted out by the court, then it is arguable that no order for costs is appropriate. MR JUSTICE LEVESON: That was not what Mr Howells submitted in Ruscillo. He said that notwithstanding that this was a novel jurisdiction and required resolution, points had been taken by the GMC against the Council, in respect of which the Council had prevailed entirely and therefore they should be entitled to recover their costs. MS MORRIS: My Lord, that is my next point. What my Lord has said in respect of the GMC means that it has not emerged from these proceedings completely blameless, although it is right to say that none of the observations that my Lord has made amount to something which means that the appeal should be granted. In those circumstances, my Lord, I would say that it is not a straightforward case. As I have already observed, this court is not bound by the approach of Collins J. On the issue of whether costs should be awarded, should I fail in my first submission in respect of two counsel, what I have to say is this. While this court may well have been assisted in all the ways Miss Stratford claimed by the instructed leading counsel -- although the other parties were content with juniors -- it may be appropriate to consider whether the costs of two counsel should be awarded. MR JUSTICE LEVESON: That is likely to arise on an assessment, is it not? If I were to order costs, that is a point that counsel could take before the costs judge. MS MORRIS: My Lord, that is right. I merely raise it because my Lord has already raised the issue. MR JUSTICE LEVESON: I did raise it because I thought it was likely to come up but, thinking about it, it is really for the costs judge. MS MORRIS: My Lord, certainly if this court were to express a view then that would be relevant for the costs judge, but if this court does not express a view, it is no bar to the parties ventilating it. I have no further submissions. MR JUSTICE LEVESON: Thank you very much. MS STRATFORD: My Lord, the only point I would add, as I am reminded by my instructing solicitors, is that the CRHP have now instructed leading counsel in every single one of these other cases. MR JUSTICE LEVESON: I hope that is not simply because they did not prevail in this case. I was much assisted by Miss Morris and I would not want anything to be thought to the contrary. MS STRATFORD: My Lord, I can assure you it occurred before your Lordship's draft judgment. I think it was the immediate aftermath of the first two judgments in Ruscillo and Truscott. MR JUSTICE LEVESON: So be it. Thank you very much. Although there is a measure of force in some of the points made by Miss Morris, the Council have brought this appeal and it seems to me appropriate that they should bear the costs of it not having been successful. There will be an order for costs in favour of both respondents. Thank you very much indeed. I am very grateful to all counsel for their assistance. These cases are novel and require detailed consideration, and I am pleased that I received that help from everybody.

Cited in 2 later judgments