Levett v The Health And Care Professions Council ("The HCPC") [2014] EWHC 994 (Admin)

[2014] EWHC 994 (Admin)Case No CO/17200/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/04/2014
Before
MR JUSTICE HADDON-CAVE
Between
Gillian LevettAppellantThe Health and Care Professions Council (“the HCPC”)Respondent
Neil Garnham QC, Isabel McArdle (instructed by Berrymans Lace Mawer) for AppellantJenni Richards QC (instructed by Bircham Dyson Bell LLP) for RespondentHearing Hearing dates: 25 th& 26 th March 2014
JudgmentMR JUSTICE HADDON-CAVE:INTRODUCTION
[1]The Registrant, Gillian Levett, a chartered psychologist, appeals the decision of the Health and Care Professionals Council (“the HCPC”) Conduct and Competence Committee (“the Panel”) dated 1st November 2013, whereby her fitness to practise was found impaired and the Panel directed that her name be struck off the HCPC register of practitioner psychologists. The Panel also imposed an interim suspension order on the Registrant for 18 months, to cover any appeal notice period or appeal period.[2]The Registrant brings this appeal pursuant to Article 38 of the Health and Social Work Professions Order 2002/254 in relation to the Panel’s findings of fact, findings on misconduct and the sanctions imposed.[3]A complaint was laid against the Registrant in mid-2010. Fitness to practise proceedings were then commenced by the HCPC against the Registrant. Hearings were held before the Panel in September, October and November 2013. The hearing lasted 9 days. The Panel comprised Mr Derek Adrian-Harris (Chair), Ms Wendy Yeadon (Lay Member) and Mrs Sue Rhead (Registrant Member). The Panel found proved three main factual allegations:(1) The Registrant conducted an inappropriate relationship with Miss A, a patient, and failed to maintain proper professional boundaries between November 2007 and July 2009.(2) The Registrant breached the confidentiality of Miss A by revealing personal information about her that was given to the Registrant in confidence to KK.(3) The Registrant conducted inappropriate relationships with former patients, KK and GA.[4]The Panel’s Decision was published on 1st November 2013.[5]An anonymity order applies to this Judgment as it did in relation to the previous hearings.

THE FACTS

[6]The Registrant is an Associate Fellow of the British Psychological Society. She undertook her clinical training at London Teaching Hospitals between 1977 and 1982. She has been in private practice since 1987. She has never previously been the subject of a formal complaint.[7]On 10th October 2006, Miss A attended an ‘assessment’ appointment with the Registrant at the Registrant’s clinic. On 9th November 2006, Miss A attended a second assessment appointment with the Registrant and her father was present. On 12th January 2007, Miss A’s clinical assessment file was closed. On 15th January 2007, the Appellant sent a letter to Miss A’s consultant paediatrician, Dr Ian Hay, informing him of the outcome.[8]On 2nd November 2007, almost exactly a year later, Miss A arrived unexpectedly at the Appellant’s clinic in need of help. The Registrant made immediate arrangements to assist Miss A with accommodation. Between 4th and 14th November 2007, Miss A spent most days and nights staying at the home of the Registrant’s secretary, AB, in Rochester. AB was a former patient of the Registrant. On 8th November 2007, a meeting took place at the Registrant’s clinic between Miss A, Miss A’s mother and the Registrant. For the next 18 months, the Registrant continued to see Miss A in circumstances which the Panel found amounted to an ‘inappropriate relationship’. There is no suggestion that the Respondent’s motivation was other than benign. The Panel concluded, however, that the relationship ‘crossed the line’ and was professionally inappropriate and misguided.[9]On 18th February 2008, Miss A’s father made a complaint to the British Psychological Society (“BPS”). On 25th July 2008, BPS found that no professional relationship existed as at November 2007 between Miss A and the Appellant, and that there was no evidence of an inappropriate relationship between the Appellant and Miss A.[10]On 4th March 2009, Miss A attended A&E following an overdose. On 30th June 2010, the HCPC received a complaint about the Appellant.

THE ALLEGATIONS AND FINDINGS

[11]The HCPC made the following allegations against the Registrant:
“Allegations: Whilst registered as a Practitioner Psychologist, you, between November 2007 and July 2009: Whilst registered as a Practitioner Psychologist, you, between November 2007 and July 2009: 1. Conducted an inappropriate relationship with Miss A, a patient and failed to maintain appropriate boundaries. In particular you: (a) Had frequent and regular contact with Miss A by telephone and over Skype thorough the course of your relationship; (b) In November 2007, you commenced treating Miss A as a patient but you: i) Did not charge Miss A or seek payment from anyone on her behalf; ii) Did not agree terms or a contract for the treatment; iii) On a number of occasions, treated her outside of normal clinic hours; iv) On a number of occasions, treated at your home in Hove; (c) Regularly socialised with Miss A, for example by taking her out for dinner, to the cinema and to the theatre; (d) Bought gifts for Miss A; (e) Arranged for food vouchers to be given to Miss A; (f) Introduced Miss A to your friends, NS and LS (g) Arranged for ND and LS to: i) Buy Miss A a laptop to assist her with school work; ii) Assist with paying for Miss A’s school fees; (h) Suggested ND and LS adopt Miss A; (i) Suggested Miss A change her name so that she was no longer associated with her parents; (j) Discouraged Miss A from having contact with her family; (k) Threatened that Miss A should not discuss your relationship with her parents or brother and that if she did, you would be forced to stop helping her; (l) Invited Miss A to stay with you at your home in Hove over several weekends in 2009; (m) Suggested you become Miss A’s legal guardian; (n) Offered to take Miss A on holiday to Berlin; 2. Conducted inappropriate relationship with several of your patients or former patients in that you: (a) Employed KK to work on the refurbishment of your home in Hove; (b) Employed GA to work on the refurbishment of your home in Hove; (c) Socialised with KK on a number of occasions; (d) Arranged for BF to repair Miss A’s laptop; (e) Arranged for BF to employ Miss A in his shop; 3. Breached the confidentiality of Miss A by revealing personal information about her that was given to you in confidence to: (a) Your patients or former patients, KK, GA and BF; and (b) Your friends, ND and LS; 4. Breached the confidentiality of your patients or former patients, KK, BF and GA, by telling Miss A personal information about them which they gave to you in confidence and in the course of your professional relationship with them; 5. The matters outlined at paragraphs 1-4 above constitute misconduct and/or a lack of competence; and 6. By reason of that misconduct and/or lack of competence, your fitness to practise is impaired.”

Whilst registered as a Practitioner Psychologist, you, between November 2007 and July 2009:

[12]The Panel found and held as follows:
“Facts Proved: 1(a), 1(b)ii, 1(b)iii, 1(b)iv, 1(c), 1(d), 1(e), 1(f), 1(h), 2(a), 2(b), 2(c); 3(a) as to KK Facts not proved: 1(b)i, 1(g)I, 1(g)ii, 1(i), 1(j), 1(k), 1(l), 1(m), 1(n), 2(d), 2(e); 3(a) as to GA and BF; 3(b), 4 Grounds: Misconduct found”
Fitness to Practise Impaired: Yes Sanction: Strike off” Grounds: Misconduct found” Fitness to Practise Impaired: Yes Sanction: Strike off”

THE LAW

[13]The approach to an appeal from a decision of the HCPC by a Registrant Psychologist can be summarised as follows:(1) By virtue of PD52D paragraph 19.1(1)(d), appeals under Article 38 of the Health Professions Order 2001 are appeals to which CPR Part 52, PD 22.3,applies. An appeal is, therefore, by way of “re-hearing.” (CPR Part 52, PD 22.3).(2) The Court has the power (a) to dismiss the appeal, (b) to allow the appeal and quash the decision appealed against, (c) to substitute for the decision appealed against any other decision which could have been made by the Panel, or (d) to remit the case to the Panel to dispose of the case in accordance with the directions of the Court.(3) The Court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the lower tribunal (CPR Part 52.11).[14]The general principles applicable to an appeal against a decision of a professional disciplinary committee of this sort can be summarised as follows:(1) The Court will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the health care profession expects of its members in matters of medical practice deserves respect;(2) The Court will have regard to the fact that the tribunal has had the advantage of hearing the evidence from live witnesses;(3) The Court should accordingly be slow to interfere with decisions on matters of fact taken by the first instance body;(4) Findings of primary fact of the first instance body, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;(5) Where what is concerned is a matter of judgement and evaluation of evidence which relates to areas outside the immediate focus of interest and professional experience of the body, the Court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be “wrong” or procedurally unfair. (See the helpful summary of the authorities by Langstaff J in Bhatt v GDC [2011] EWHC 783 (Admin), in particular at para. [9]; and in particular see Meadow v. GMC [2007] QB 462 and Southall v. GMC [2010] EWHC 407).[15]The general principles applicable to the obligation of a professional disciplinary panel to give reasons are as follows:(1) In general there is no obligation upon the panel to give reasons for its decisions;(2) In a straightforward case where there is a simple conflict of factual evidence there is no need to set out reasons because it will be obvious from a statement of findings, when read with the nature and the contents of the evidence, why the panel has decided what it has;(3) But that in a more complex case there is a need to give reasons, which may be short and summary, but should still be adequate so that the losing party may understand why he or she has lost. (see HHJ Stephen Davies’ summary in Nwogobo v. GMC [2012] EWHC 2666 (Admin) of Leveson LJ in Southall v. GMC [2011] EWHC 407).[16]As regards the approach to a challenge to the sanction imposed, Bingham MR in Bolton v Law Society[1994] 1WLR 512 endorsed the following statement of principle in relation to appeals from disciplinary tribunals (pages 516 F-H):
"It would require a very strong case to interfere with sentence in such a case because the disciplinary committee are the best possible people for weighing the seriousness of the professional misconduct"
[17]There was the usual philosophical debate between Counsel as to the difference between a “review” and a “re-hearing” in circumstances where the appellate court does not have the benefit of hearing the witnesses or exploring every aspect of the evidence below; but there was little difference, in practice, between Counsel as to the correct legal approach in this well-worn arena.

THE GROUNDS OF APPEAL

[18]The Registrant raised eight Grounds of Appeal which can be summarised as follows:(1) The Panel’s finding that the Registrant had breached patient confidentiality in relation to Miss A was wrong and irrational.(2) The Panel’s finding that Miss A was “a patient” of the Registrant was wrong and irrational.(3) It follows from (2) that it was not open to the Panel to find that the Registrant had an inappropriate clinician-patient relationship with Miss A.(4) The Panel’s finding that the Registrant had an inappropriate relationship with former patients, KK and GA, was wrong and irrational.(5) The Panel’s finding that Miss A was a credible witness was wrong.(6) There was serious procedural irregularity at the hearing because the Registrant was unable to hear Miss A’s evidence, which was given from behind a screen.(7) The Panel erred in concluding that some of its findings of fact were capable of amounting to misconduct.(8) The sanction imposed was disproportionate.[19]I turn to consider each of the Grounds and Counsel’s respective arguments. ANALYSIS Ground (1): The Panel’s finding that the Registrant had breached patient confidentiality in relation to Miss A was wrong and irrational.

ANALYSIS

[20]The Panel found Allegation 3 proved in relation to KK only, i.e. that the Registrant breached the confidentiality of Miss A by revealing personal information about her to another former patient, KK, which had been given to the Registrant by Miss A in confidence. The Panel also rejected the inference that the breach could be categorised only as a “minor” breach.[21]Mr Neil Garnham QC, Counsel for the Registrant, submitted that this finding cannot stand. He submitted that the Panel based its finding on a letter from KK to Miss A dated 11th December 2007, but paid no regard to the fact that KK’s letter was clearly a reply to a manuscript letter of Miss A to her in which she had not only thanked KK for unsolicited Christmas presents which she had kindly sent her having learned of her plight, but she also volunteered a number of personal details about herself, including her OCD and depression and her parental and family problems. In my judgment, it is clear that the Panel did not take Miss A’s important letter into account, not least because the Panel found erroneously that Miss A had suffered from the same condition as KK (i.e. OCD) when in fact KK had suffered from another quite different condition (i.e. PTSD).[22]Ms Jenni Richards QC, Counsel for the HCPC, submitted that even if the Panel failed to have regard to Miss A’s manuscript letter to KK, the Panel could, nevertheless, have properly inferred from the background to the case that the Registrant was the person who had imparted the confidential information to KK about Miss A’s condition and parental and family problems. I can see no proper basis for any such inference. In my judgment, the only proper inference is that the confidential information about Miss A’s condition and parental and family problems which form the substance of the Panel’s finding under Allegation 3 came from Miss A herself when she wrote the thank you letter to KK cited above.[23]For these reasons, I uphold Ground (1) of the appeal. Ground (2): The Panel’s finding that Miss A was “a patient” of the Registrant was wrong and irrational.[24]The Panel found Allegation 1 proved, namely that the Appellant had “conducted an inappropriate relationship with Miss A, a patientand failed to maintain appropriate boundaries” with Miss A during the period November 2007-July 2009.[25]Mr Garnham QC challenged the finding that Miss A was “a patient” of the Registrant during the relevant period, i.e. November 2007 to July 2009, on three main bases. First, he submitted that the Panel failed to direct themselves as to what the proper test was for determining whether there was a ‘clinician-patient’ relationship. Second, the Panel failed to give adequate reasons for their decision. Third, he submitted that the evidence as a whole did not support the Panel’s finding. In my judgment, none of these complaints stands up to analysis.

Reasons and rationality challenge

[26]In my view, the approach of the Panel to the question of whether or not Miss A was “a patient” of the Registrant at the material time was reasonable and rational and the reasons the Panel gave for its finding on this allegation adequate. The Panel listed six reasons why it found ‘Particular 1 stem’ proved:
“Particular 1 stem: The Panel found that Miss A was a “patient” of Ms Levett for the following reasons: (1) a lay person would define the nature of Miss A’s relationship with the Registrant as a patient, in the Panel’s opinion; (2) Ms Levett corresponded to other professionals about Miss A on her professional notepaper in her capacity as a Clinical Psychologist and she couched her letters in clinical terms. (3) Ms Levett used information from her clinical notes in 2006 on Miss A in letters to other clinicians; (4) Ms Levett raised an invoice to Miss A’s mother on 20 November 2007 for a one day formal clinical session on 8 November 2007 with Miss A and her mother; (5) The email from L to Miss A dated 8 September 2008, copying Ms Levett, which referred to the “sessions” that Miss A was having with Ms Levett; (6) Miss A was adamant that she was a patient of Ms Levett and was being treated by her. In the Panel’s view, to a disinterested bystander looking in on that, it would be a reasonable conclusion to draw that Miss A was Ms Levett’s patient.”
[27]In my judgment, the Panel’s above six succinct reasons represent a reasonably cogent explanation for their finding. The reader could be in no doubt as to the basis of the decision.[28]The question whether or not someone is “a patient” is prosaic rather than sophisticated. It does not turn on fine definitions. The answer depends on the factual evidence, i.e. how the actors said to be in a ‘clinician-patient’ relationship conducted themselves and the view taken by the fact-finding tribunal of the documentary and witness evidence as a whole.[29]There is no suggestion that the HCPC Panel convened in the present case (see above) was inexperienced or not perfectly well able to recognise a ‘clinician-patient’ relationship when they saw one. The definition test of “a patient” proffered by Mr Garnham QC, namely “a person receiving clinical treatment”, merely states the obvious. There was no need for the Panel to state the obvious. Their task was to spot the elephant rather than spend time trying to describe it.

Documentary and witness evidence

[30]Mr Garnham QC submitted that the documentary and witness evidence pointed away from there being a ‘clinician-patient’ relationship between the Registrant and Miss A. I disagree. In my view, the evidence, taken as a whole, points strongly the other way. One can well understand why the Panel came to the view that they did on this central issue and held that Miss A was “a patient” of the Registrant between November 2007 and July 2009. The following points are pertinent.[31]First, it is common ground that the genesis of the relationship was professional. When Miss A first saw the Registrant in October and November 2006, it was with a view to Miss A being taken on as “a patient” when Miss A was sent to her for assessment. Thus, their relationship began as a ‘clinician-patient’ relationship. The issue is whether this changed when Miss A turned up at the Registrant’s clinic unannounced a year later in November 2007.[32]Second, there is a raft of correspondence from November 2007 onwards, which Ms Richards QC helpfully pointed to, which is redolent of the Registrant acting at all material times in a clinical role qua Miss A, albeit that the Registrant was also providing practical and charitable help to her at the same time. It is necessary to quote from only a few of these letters in order to get a flavour of the import of this correspondence. On 12th November 2007, the Registrant wrote to Kensington and Chelsea Council Housing Department stating “It may be helpful for you to have…my up to date assessment of her risk and opinion”. On 4th November 2007, the Registrant’s secretary contacted Miss A and said that the Registrant had asked her to arrange for Miss A “to see her at the clinic next week”. On 7th October 2008, the Registrant wrote to Miss A’s GP stating “I would be pleased to liaise with the Parkside clinic and to continue to offer her outpatient cognitive behaviour therapy and/or supported psychotherapy.” Mr Garnham QC pointed to other correspondence which he said painted a different picture, for instance, a letter from the Registrant to Miss A’s father dated 23rd November 2007 stating “your daughter is not in treatment with me” and a letter from the Registrant to the Registrar in Psychotherapy at Parkside Clinic stating “I was unable to provide treatment for her myself…”. However, in my judgment, the direction of travel of the correspondence is fairly consistently one way, namely that at all material times Miss A was being treated as “a patient” by the Registrant, who, moreover, regarded her as such. It is important to read the Panel’s decision against the background of these documents.[33]Third, on 8th November 2007, a meeting took place at the Registrant’s clinic between the Registrant, Miss A and Miss A’s mother. Mr Garnham QC argued that in arranging and attending this meeting the Registrant was not acting in her professional capacity but merely as a ‘facilitator’. This hardly squares, however, with the fact that the Registrant subsequently invoiced Miss A’s mother in the sum of £1,057 for what the invoice described as a “clinical appointment”. It is not surprising, therefore, that the Panel placed particular reliance on this feature of the evidence.[34]Fourth, it is clear that Miss A regarded herself as a patient of the Registrant. Miss A’s evidence was that she attended bi-weekly appointments with the Registrant inthe initial part of the relevant period, and later weekly appointments, which she was allocated when someone cancelled. On 8th September 2008, Miss A e-mailed to N and L stating “I am still seeing Gillian for treatment too and we have a diet plan etc.” Mr Garnham QC pointed to the fact that on 25th March 2008, Miss A is recorded as telling her GP that she “…has not seen private psychotherapist for along (sic) time”. She explained in cross-examination, however, that she said this to protect the Registrant. This makes sense in view, for instance, of the entry on 8th February 2008 which records her as explaining to her GP that her counselling with a private psychologist had stopped because “her father made a complaint”.[35]Fifth, Mr Garnham QC placed reliance on the earlier finding of the BPS in July 2008. This followed a complaint about the Registrant from Miss A’s father regarding the events of November 2007. The BPS held that “no professional relationship existed”. He accepted, however, that the Panel was entitled to form its own view about the relationship. The Panel took cognisance of the BPS decision but pointed out that it was looking at a much longer period of conduct. It also had far more evidence available to it than the BPS. The fact that the Panel came to a different view from that of the BPS is, in my view, quite understandable and is not open to challenge.[36]Sixth, Mr Garnham QC’s reliance on the expert evidence of Professor Pilgrim and Dr Blumenthal is misplaced. So too is Mr Garnham QC’s suggestion that the Panel were wrong to ‘ignore’ their evidence. There is nothing in these points. Ms Richards QC demonstrated from the transcript that it was agreed at the hearing that the Panel would decide the factual allegations first on the basis of the factual evidence and only then turn to the other questions of impairment and sanction taking into account the expert evidence, as necessary.[37]Seventh, the fact that some of the indicia of a formal ‘clinician-patient’ relationship were not present, such as patient notes or a file or a formal contract, does not mean that a ‘clinician-patient’ relationship did not in fact exist. It is the substance of the relationship which matters, not merely the form.[38]Eighth, the fact that Miss A was absent abroad for periods does not mean that she stopped being the Registrant’s patient.[39]For the above reasons, I reject Mr Garnham QC’s points and Ground (2) of the Appeal. Ground (3): It follows from (2) that it was not open to the Panel to find that the Registrant had an inappropriate ‘clinician-patient’ relationship with Miss A.[40]It was common ground between Counsel that the Registrant’s third ground of challenge stands or falls with the second ground. Mr Garnham QC realistically did not seek to suggest that, if a ‘clinician-patient’ relationship did exist between the Registrant and Miss A, it was not open to the Panel to find on the evidence that the relationship was one which was inappropriate in all the circumstances.[41]Accordingly, I reject Ground (3) of the Appeal. Ground (4): The Panel’s finding that the Registrant had an inappropriate relationship with former patients, KK and GA, was wrong and irrational.[42]The Panel found that the Registrant’s relationship with two former patients, GA and KK, was inappropriate since she had got them to perform renovation work on her property and had socialised with KK on a number of occasions. The Panel said: “These employments arose from boundary transgressions when KK and GA were patients of Ms Levett, were told by her of the property in Hove she was having renovated, and were latterly involved in that renovation”.[43]Mr Garnham QC submitted that there was no proper basis for the Panel’s conclusion because, as the Panel itself noted, the relevant professional guidance did not prohibit employing former patients and there was no financial impropriety involved.[44]This issue, however, was pre-eminently a matter of judgment for the specialist disciplinary panel and the Court should not interfere absent a patent error or failure to take account of material evidence. There was no discernable error or omission. The Panel pointed out the central mischief of boundary transgressions such as this, namely that there “could be a power imbalance between a psychologist and a former patient”. There was nothing irrational about the Panel’s decision on this point. Furthermore, context is everything. As Ms Richards QC pointed out, there is a difference between a large organisation employing a former patient and a sole practitioner doing the same.[45]For these reasons, I reject Ground (4) of the Appeal. Ground (5): The Panel’s finding that Miss A was a credible witness was wrong.[46]Mr Garnham QC made a forlorn attempt to challenge the Panel’s finding that Miss A was generally “a credible witness who gave her evidence in good faith” and that where her memory was at fault this was due to her extensive travels and the passage of time.[47]The authorities have repeatedly make it clear that it is an uphill struggle to persuade appellate courts to overturn findings as to the credibility of witnesses by tribunals that have the advantage of seeing and hearing the witnesses live. Miss A was extensively cross-examined by Ms Fenella Morris QC (who appeared for the Registrant below) over no less than three days. It is clear from the transcript that Miss A was clearly doing her best at all times to assist the Panel and was unshaken in cross-examination.Mr Garnham QC was not able to point to anything which would begin to undermine the judgment of the Panel in relation to Miss A’s evidence. It is clear that the Panel had a forensic basis for concluding that Miss A’s evidence was given “in good faith” and was “reliable”.[48]It is noteworthy, as Ms Richards QC points out, that whilst the Panel said that the Registrant also gave her evidence “in good faith”, it did not go on to find her evidence “credible”. This omission is striking. The Panel also commented that the Registrant’s witnesses were definitely “more partisan”. The Panel clearly did not find the Registrant a credible witness, or someone who was objective about her situation and her actions and rejected much of her evidence and explanation as to what went on.[49]For these reasons, I reject Ground (5) of the Appeal. Ground (6): There was serious procedural irregularity at the hearing because the Registrant was unable to hear Miss A’s evidence, which was given from behind a screen.[50]The Registrant contended that a ‘serious’ procedural irregularity had occurred at the hearing before the Panel because the Registrant was unable to hear Miss A’s evidence, which was given from behind a screen. The Registrant said that she and her Counsel ‘repeatedly’complained at the time but the problem was not properly rectified and she was, thereby, significantly disadvantaged in mounting her defence.[51]In my judgment, there is little or no substance in this point. In the first place, I am not satisfied that there was any serious audibility problem at the hearing. The evidence suggests that nobody else present had any real difficulty hearing Miss A’s evidence. Secondly, it is not right to say that the Registrant and her Counsel complained “repeatedly” about the audibility of Miss A’s evidence. Miss A was asked to keep her voice up a couple of times on Day 1 of the hearing and there was mention by the Registrant’s counsel, Ms Fenella Morris QC, at the end of Day 2 that the Registrant had had difficulty hearing Miss A that morning. Third, the Registrant was represented throughout the hearing by experienced leading counsel, Ms Fenella Morris QC, and a partner of Berryman Lace Mawers, Mr Ben Parks. At no stage, however, did the Registrant’s legal team apply for an adjournment or formally complain that the hearing was unfair because of an audibility problem. Fourth, Ms Morris QC conducted a very detailed and lengthy cross-examination of Miss A which does not appear to have been inhibited by lack of instructions from her client. Fifth, there is no evidence of any actual prejudice suffered as a result of any difficulties the Registrant may have had hearing Miss A’s evidence. Mr Garnham QC was unable to point to any.[52]For these reasons, I reject Ground (6) of the appeal. Ground (7): The Panel erred in concluding that some of its findings of fact were capable of amounting to misconduct.[53]Mr Garnham QC accepted that the majority of the matters found proved by the Panel were capable of amounting to misconduct. He challenged, however, two findings of the Panel which he submitted were not capable of amounting to misconduct, namely(a) treatment outside normal clinic hours and(b) treatment at the Appellant’s home.[54]As Ms Richards QC pointed out, however, the Panel were not assessing whether individual acts or episodes viewed in isolation amounted to misconduct, but looking at the overall picture and seeing if an inappropriate relationship existed between the Registrant and this patient. The fact that there is no blanket prohibition against out of hours treatment or home visits is not to point. There was overwhelming evidence to demonstrate that the relationship which the Registrant fostered and maintained with Miss A was professionally inappropriate.[55]For these reasons, I reject Ground (7) of the appeal. Ground (8): The sanction imposed was disproportionate.[56]The Panel directed that the Registrant’s name be struck off the HCPC register of practitioner psychologists and imposed an interim suspension order on the Registrant for 18 months, to cover any appeal notice period or appeal period.[57]Mr Garnham QC, again realistically, did not make a stand-alone challenge to the sanction imposed by the Panel. He accepted that, if all the Panel’s findings on the allegations were upheld, the Panel’s decision to strike off the Registrant was not open to sensible challenge. He argued, however, that the sanction could not stand if any of the Registrant’s challenges to the allegations succeeded.[58]Mr Garnham QC submitted that, in the event that the Court held(a) that Allegations 1 and 2 were properly found proved by the Panel but(b) the Panel should not have found Allegation 3 made out, the appropriate sanction would be the imposition of a moderate suspension order, beginning on 1 November 2013 and expiring at the date of the decision of the Court on this Appeal. He submitted that Allegation 1 related to acts of kindness or ‘over-friendliness’ without any suggestion of motivation other than to act in Miss A’s best interests, in a highly unusual situation unlikely to recur (i.e. a young woman turning up unannounced and seeking urgent practical help), in the absence of financial or sexual impropriety. He further submitted that Allegation 2 related only to former patients with whom there could be no ‘dual’ relationship. In these circumstances, he submitted a suspension or striking-off order would be manifestly disproportionate.[59]I have dismissed all the Registrant’s challenges to the Panel’s findings on the allegations bar one, namely the Panel’s finding that Registrant had breached patient confidentiality in relation to Miss A was wrong and irrational (see Ground (1) above). In these circumstances, the Court has two options. First, the option of remitting the matter to the Panel for reconsideration of sanction in the light of the Court’s finding that Allegation 3 is not made out. Second, the Court is at liberty - since the appeal hearing is by way of rehearing - to conduct its own independent review of sanction. Ms Richards QC said on instructions that the HCPC is neutral on the question of whether the Court should remit or not.[60]The Court should only remit a case to a tribunal for re-consideration if it is appropriate to do so, i.e. if it is satisfied that there is a real possibility of the Tribunal coming to a different conclusion on sanction on the different facts found. The Court should not remit if there is no point in doing so. Further, in circumstances such as the present, it is appropriate for the Court to carry out its own review in order to decide what sanction might, in any event, be justified. I turn to analyse the question of sanction below.

Analysis of sanction

[61]I have read and considered(i) the submissions made by Ms Fenella Morris QC for the Appellant on sanction before the Panel,(ii) the Registrar’s testimonial bundle,(iii) the Indicative Sanctions Policy of the HCPC,(iv) the BPS Code of Ethics and Conduct, and(v) the Division of Clinical Psychology Professional Practice Guidelines 1995.[62]I have also considered carefully Mr Garnham QC and Miss McArdle’s further written submissions on sanction. They point out that ‘dual’ relationships with patients were not prohibited per se under the BPS Code and Division Guidelines which governed the ethics of the psychological profession at the relevant time. Only sexual or romantic relationships were prohibited (and only for two years under the latter). Paragraph 4.2(1) of the BPS Code only required that psychologists should “Remain aware of the problems that may result from dual or multiple relationships” and paragraph 2.1.3 of the Division Guidelines simply highlighted “Particular risks” in dual relationships. Dual relationships with patients were not therefore prohibited per se.[63]In my view, a close reading of the Panel’s decision is also necessary. The Panel approached the question of sanction in an entirely orthodox way. Having found the facts and allegations proved, the Panel turned to consider its decision on “Grounds”, “Impairment” and “Sanction” sequentially. I turn to consider each of these aspects of the Panel’s decision and analysis.

Panel’s Decision on Grounds

[64]The Panel found that the facts found proved amounted to misconduct. In its “Decision on Grounds” the Panel held that(i) the Registrant had conducted a “‘dual’ relationship” with Miss A which “transgressed professional boundaries” over a sustained period,(ii) the relationship was “inappropriate”,(iii) the Registrant’s conduct had “harmed” Miss A and(iv) the Registrant had been “reckless” in a manner which belied her experience. The Panel concluded:
“In the Panel’s judgment, Ms Levett’s behaviour in this case was a serious departure from acceptable practice which fell far below that which a member of the public should expect of a Clinical Psychologist, and brings the profession into disrepute. In the Panel’s opinion, Ms Levett’s actions went far beyond mere negligence. That she was a capable practitioner is clear from her references and testimonials, but such was the level of her departure from acceptable practice that, in the Panel’s view, the facts found proved are so serious as not to amount to a lack of competence. In this case, in the Panel’s judgment, the level of serious professional negligence and Ms Levett’s disregard for the risks and consequences of her acts were such as to place this case firmly within the definition of misconduct. Therefore, the facts found proved amount to misconduct.”
Therefore, the facts found proved amount to misconduct.”[65]It should be noted that the question of breach of confidentiality only received the following passing reference by the Panel in its “Decision on Grounds”:
“The Panel also found that Ms Levett breached patient confidentiality in respect of Miss A.”

Panel’s Decision on Impairment

[66]The Panel’s “Decision on Impairment” represents a damning indictment of the Registrant and her entire attitude to the allegations under investigation. The Panel found(i) the Registrant “had not accepted” responsibility for her behaviour towards Miss A,(ii) there was a “real risk” of repetition,(iii) the Registrant had “very limited insight”,(iv) there was “no evidence” of remorse, regret or remediation but instead an “abrogation of responsibility”,(v) the Registrant was “wholly culpable for her actions”,(vi) the Registrant had shown a “reckless disregard” of risk, and (vii) her “integrity” could no longer be relied on. The flavour and strength of the Panel’s findings on Impairment is best illustrated by the following passages:
“The behaviour demonstrated by the Registrant extended over 18 months and was not an isolated act or omission. In the Panel’s view, Ms Levett is wholly culpable for her actions. In the view of the Panel, the risks were foreseeable and were so obvious that it is incredible that a practitioner of the Registrant’s standing and experience would not have identified these risks. In all, the Panel has determined that the misconduct found proved amounts to a reckless disregard of risk by Ms Levett, an experienced Clinical Psychologist. The Panel’s findings on Misconduct make it clear that, by her actions, Ms Levett breached several of the fundamental aspects of the profession. In the Panel’s judgment, her lack of insight indicates that, at present, her integrity can no longer be relied upon. In addition, although Ms Levett had a long and unblemished career until this matter, in the Panel’s opinion, the level of her misconduct cannot be diminished by this. With respect to the public aspects of impairment, in the Panel’s opinion, such behaviour poses a risk to patients generally. Ms Levett’s lack of insight continues to pose a danger that there might be a repetition of this type of behaviour in the future and there has been nothing before the Panel to reassure it otherwise. In the Panel’s view, this type of misconduct invokes public opprobrium in relation to the actions of the Registrant with her patient, as it places the vulnerable patient, as in this case, in an exposed position. It is the Panel’s view that this misconduct brings the profession into disrepute and undermines public confidence in the profession.”
[67]It should be noted that the matter of breach of confidentiality was not expressly mentioned at all by the Panel in its “Decision on Impairment”.

Panel’s Decision on Sanction

[68]The Panel’s “Decision on Sanction” occupies three and a half pages of its Decision. The Panel first set out “Mitigating” and “Aggravating” factors. The Panel included in the latter mention of the fact that the Registrant had breached Miss A’s patient confidentiality in a way which would undermine the confidence which Miss A was entitled to have in the Registrant and in the profession. The gravamen of the Panel’s conclusions on the facts can be found in the following passage:
“This involvement by Ms Levett, beyond the treatment that she was providing to her included being involved in suggesting adoption by two of her own friends from the United States of America, writing personal letters to Miss A with terms of endearment and allowing Miss A to stay and be treated in her own home in Hove. The Panel has not received clear and unequivocal evidence from Ms Levett about her thought processes behind these matters. Nevertheless Ms Levett was also treating Miss A, using her skills as a Clinical Psychologist. Therefore, she clearly crossed the boundaries of her professionalism and entered the realms of a personal relationship with Miss A. For a practitioner of the level of skill and experience of Ms Levett, in the Panel’s judgment, this was unacceptable. In the Panel’s view, these were reckless acts that wholly failed to take into account the level of confusion and rejection that such conduct engendered in such a vulnerable patient.”
[69]The Panel then considered the various different levels of sanction available, namely Caution Order, Conditions of Practice Order, Suspension Order and Striking Off Order. It concluded that the highest form of sanction was appropriate in this case. The thrust of the Panel’s reasoning on sanction appears from the following passage:
“The Panel next considered a Suspension Order. In the Panel’s view, for the reasons given, the aggravating factors in this case far outweigh the mitigation factors. Despite the stated value of her services to others in the wider community as expressed by some of her notable and reputable references and testimonials, the Panel does not consider her professional expertise to have been, or to be, unique. The extreme and profound lack of insight displayed by Ms Levett in this hearing and the commensurate clear risk of recurrence in the future is of far more concern to this Panel. The Panel must take into account the protection of the public as its primary criteria, whilst balancing the interests of the Registrant in continuing in her chosen profession. The effect of the evidence of Miss A, together with the profound and continuing lack of insight by the Registrant, especially when giving evidence for the second time in the second stage of this hearing, left the Panel of the view there was a continuing risk to the public. This has caused the Panel to determine that this case must invoke the most serious end of the sanctions available. In the Panel’s judgment the level of support Ms Levett has in her references and testimonials has been negated by her inability to understand the risk and take responsibility for her actions. This Registrant, time and time again has singularly demonstrated by her evidence that she is and has been unable to do that. Therefore, in the Panel’s opinion, Ms Levett continues to pose a significant risk to patients and to the public. As there is a realistic prospect that repetition will occur, the Panel has determined that a Suspension Order is inappropriate and disproportionate to the level of seriousness of the proved issues. In the Panel’s view, this sanction does not sufficiently protect the public. Furthermore, the Panel considers that public confidence in the profession and in the regulatory process would be undermined if a Suspension Order were to be imposed. This is as a result of the serious nature of the allegations which have been considered in depth by this Panel and found proved.”
[70]As Ms Richards QC said, the prime focus of the case and the Panel’s Decision is directed towards the inappropriate ‘dual’ relationship which the Registrant formed with Miss A. I agree. In my judgment, the breach of confidentiality allegation is something of a makeweight in the overall context of the decision on sanction. It is quite clear from a careful reading of the Panel’s Decision as a whole that the breach of confidentiality finding (Allegation 3) represented a relatively insignificant part of the Panel’s overall reasoning on sanction. It is fair to say, as Mr Garnham QC pointed out, that the Panel had earlier refused to categorise the breach of confidentiality as a “minor” breach (see above). However, it is the relative (un)importance of Allegation 3 which matters, i.e. when set against the panoply of the Panel’s findings regarding the Registrant’s conduct in pursuing a wholly inappropriate relationship with Miss A in breach of professional guidelines. No-one reading the Panel’s reasoning could be left in any doubt as to the seriousness of the view taken by the Panel as to the Registrant’s conduct in forming this inappropriate relationship and her remarkable lack of insight and remorse about it. It is also relevant to note that the breach of confidentiality allegation was an isolated incident and of a materially different character to the inappropriate relationship allegation. To that extent, it is severable from the main findings.

Summary on sanction

[71]I have carefully considered the Panel’s reasoning together with the submissions and materials (see above) and concluded that, even if it had not found that the Registrant had breached patient confidentiality, the Panel would almost certainly have come to the same decision on sanction and struck the Registrant off the Register.[72]I have also conducted my own thorough review of the matter (see above) and concluded that the only appropriate sanction in all the circumstances of this case is that the Registrant should be struck off. In my judgment, the persistent breach of professional boundaries by the Registrant was so serious and the lack of insight into the inappropriateness of her own conduct so profound that striking off is the only appropriate and proportionate sanction which both reflects the gravamen of the case and protects the public interest.[73]I, therefore, reject the Registrant’s appeal on sanction (Ground (8)).

Professional boundaries

[74]The Panel stressed the importance of maintaining professional boundaries. In this regard, the evidence of the HCPC’s expert, Dr. Blumenthal, is instructive and valuable. He said this regarding the “power imbalance” that exists in psychologist-patient relationships and why it was import to maintaining clear professional parameters:
“Q. Dr Blumenthal, why does it matter? Let us just leave statistics aside. Why does it matter, in your view? A. It matters because the professional relationship is constructed on the basis of a power imbalance. The patient or client comes to the relationship seeking help and is in a vulnerable position where they are disclosing information, personal information about themselves. The psychologist comes to that relationship in a position of relative power. They do not disclose things about themselves; they are in the position of the helper. There are very strong feelings that are brought to bear in the professional relationship by the client or patient. The psychologist is bestowed with an authority and power that has to be treated very delicately and has to be managed very carefully.”

RESULT

[75]In the result, for the reasons given above, I reject the Registrant’s challenges to the Panel’s decision save in relation to Allegation 3, and I dismiss the appeal.[76]I am grateful to Counsel on both sides, Mr Garnham QC and Ms Isabel McArdle and Ms Richards QC, for their able submissions and assistance.

Cited in 3 later judgments