Dr. Leonard Mark Marinovich v The General Medical Council
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 24 June 2002 |
| Neutral Citation | [2002] UKPC 36 |
| Docket Number | Appeal No. 100 of 2001 |
| Court | Privy Council |
| Date | 24 June 2002 |
[2002] UKPC 36
Present at the hearing:-
Lord Hope of Craighead
Sir Christopher Slade
Sir Philip Otton
Privy Council
On 30 November 2001 the Professional Conduct Committee of the General Medical Council found that the appellant, Dr Leonard Marinovich, had been guilty of serious professional misconduct and directed that his name be erased from the register. An order had been previously made for his interim suspension by the Interim Orders Committee. In place of that order, which was revoked, the Committee made an order that his registration be suspended with immediate effect. He has now appealed against that determination to their Lordships' Board.
The appellant trained and qualified as a physician both in the United Kingdom and in Australia, where he practised for many years as a psychiatrist. For 25 years he was senior psychiatrist at the Royal Women's Hospital in Melbourne. Latterly he was in practice as a psychiatrist in Darwin. In October 1999 he leftAustralia and came to live in this country. On 22 October 1999 he reactivated his registration here as a medical practitioner. In November 1999 he took up a post as a locum consultant psychiatrist in general psychiatry at Durham General Hospital. From November 2000 to March 2001, when his employment was terminated, he held a similar post at a hospital in Worthing.
On 14 October 1999, prior to his departure from Australia, the appellant was found guilty of unprofessional conduct by the Medical Board of the Northern Territory. The Board held that on several occasions he had provided inappropriate treatment to a female psychiatric patient by way of massages and that on one of these occasions he had had sexual intercourse with her. A fine was imposed on him in respect of the inappropriate massages and his registration in Australia was cancelled in respect of the act of sexual intercourse.
The events which had given rise to these findings were brought to the attention of the Preliminary Proceedings Committee of the General Medical Council when his registration in this country was reactivated. On 2 March 2000 the Preliminary Proceedings Committee determined that a charge should be formulated against him in respect of the same matters. A charge in the following terms was referred for inquiry to the Professional Conduct Committee:
"1. At all times you were a registered medical practitioner practising from consulting rooms at Unit 1, Tiwi Medical Centre, Darwin, Northern Territory, Australia;
2. From July 1995 and at all material times [Mrs A] was your patient and under your care as her psychiatrist;
3. On 25 October 1996 you gave a body massage to [Mrs A]
(a)Whilst giving the body massage you stated, inter alia, that [Mrs A] had beautiful skin and was lovely to massage,
(b)The giving of the body massage on 25 October 1996 was (i) inappropriate, (ii) contrary to the best interest of your patient, (iii) an abuse of your professional position;
4. On 20 November 1996 you gave a body massage to [Mrs A]
(a)During the body massage you touched [Mrs A's] (i) breasts, (ii) tops of her inner thighs
(b)Whilst giving the body massage you stated, inter alia, that [Mrs A] had beautiful skin and was lovely to massage
(c)The giving of the body massage on 20 November 1996 was (i) inappropriate, (ii) contrary to the best interest of your patient, (iii) an abuse of your professional position;
5. On 27 November 1996 you gave a body massage to [Mrs A]
(a)During the body massage you (i) touched [Mrs A's] breasts, (ii) touched [Mrs A's] vagina, (iii) touched [Mrs A's] clitoris, (iv) kissed her
(b)Whilst giving the body massage you stated, inter alia that (i) you were going to give her a 'special massage' for her birthday, (ii) you were warming her up for [A]
(c)The giving of the body massage on 27 November 1996 was (i) inappropriate, (ii) contrary to the best interest of your patient, (iii) an abuse of your professional position;
6. After the body massage was conducted on 27 November 1996 you had sexual intercourse with [Mrs A];
7. Having sexual intercourse on 27 November 1996 was (i) inappropriate, (ii) contrary to the best interest of your patient, (iii) an abuse of your professional position;
And that in relation to the facts alleged you have been guilty of serious professional misconduct."
On 17 May 2000 the Preliminary Proceedings Committee considered whether it was necessary for the protection of members of the public for it to make an order under section 42(3) of the Medical Act 1983. The appellant was present at that meeting and was represented by counsel. At the conclusion of the proceedings the Committee made the following determination:
"In accordance with section 42 of the Medical Act 1983, as amended, the Preliminary Proceedings Committee has determined that, pending the hearing of your case by theProfessional Conduct Committee, it is necessary for the protection of members of the public and in your interests that your registration should be subject to the following conditions for a period of six months, or until the Professional Conduct Committee has concluded this case, whichever is the earlier.
1. Except in life threatening emergencies
a. You should confine your medical practice to NHS Hospital posts.
b. You should restrict your medical practice to clinical settings.
c. You should undertake all consultations with female patients in the immediate presence of a chaperone who is another medical practitioner registered with the GMC, or a practitioner registered with the United Kingdom Central Council of Nursing, Midwifery and Health Visiting. If any patients object to the presence of the chaperone, you should not proceed with the consultation. You should note the name of the chaperone in the patient's notes.
2. You shall notify all current employers, prospective employers and locum agencies, whether for paid or voluntary employment at the time of the application of the matters which have been referred for inquiry by the GMC's Professional Conduct Committee and of these conditions.
3. You shall notify the Registrar at the GMC of any posts for which you apply at the time of the application, and of any posts which you undertake.
4. You should not use massage as part of your treatment of any patients under any circumstances.
In reaching their decision the Committee have taken account of the serious nature of the allegations which, if proved, demonstrate conduct which poses a serious risk to your patients.
Your registration will become subject to the specified conditions when written notice of the decision is deemed to have been served upon you."
Notification of that determination was deemed to have been served upon the appellant on 19 May 2000. A copy of the notification was sent to his solicitors, and on 22 May 2000 he signed and returned another copy of it as confirmation that he had received the original.
On 3 August 2000 the Medical Act 1983 (Amendment) Order 2000 (SI 2000/1803) was brought into force. It amended the Medical Act 1983 by providing for a new statutory committee of the General Medical Council to be called the Interim Orders Committee. On 24 October 2000 the Interim Orders Committee met to consider whether it was necessary for the protection of members of the public or was otherwise in the public interest or in the appellant's own interests to make an order under section 41A(1) of the Medical Act 1983 as amended. The appellant was present at that meeting but he was not represented. At the conclusion of the proceedings the Chairman announced that the Committee was satisfied, for the same reasons as those which had been given by the Preliminary Proceedings Committee, that it was necessary to impose an order for interim conditions on his registration for a period of 18 months. The conditions which it imposed on his registration were in the same terms as those which had been imposed by the Preliminary Proceedings Committee. Notification of this determination was deemed to have been served on the appellant on 26 October 2000. On 27 October 2000 he signed and returned a copy of the notification as confirmation that he had received the original.
By the time when the appellant's case came before the Professional Conduct Committee on 26 November 2001 for a hearing on the charge relating to the allegations which had been made against him about his conduct in Australia, a notice had been served on him alleging that he had acted in breach of the orders for conditional registration made against him by the Preliminary Proceedings Committee on 17 May 2000 and the Interim Orders Committee on 24 October 2000. It was alleged that he had failed (a) to inform his employers of the existence and true nature of the interim conditions imposed on his registration, (b) to undertake all consultations with female patients in the immediate presence of a chaperone who was another medical practitioner registered with the GMC or a practitioner registered with the United Kingdom CentralCouncil of Nursing Midwifery and Health Visiting and (c) to confine his medical practice to clinical settings.
On 29 November 2001, having heard evidence and submissions during that and the three preceding days, the Professional Conduct Committee made the following findings:
"Heads 1 and 2 of the charge have been admitted and found proved.
The preamble of Head 3 has been admitted and found proved. Head 3a has not been found proved. Heads 3b (i), (ii) and (iii) have been found proved.
The preamble of Head 4 has been admitted and found proved. Heads 4a (i) and (ii) have not been found proved. Head 4b has not been found proved. Head 4c (i), (ii) and (iii) have been found...
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