Gillian Levett v The Health and Care Professions Council ("the HCPC")
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 04 April 2014 |
| Neutral Citation | [2014] EWHC 994 (Admin) |
| Date | 04 April 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/17200/2013 |
[2014] EWHC 994 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Haddon-Cave
Case No: CO/17200/2013
Neil Garnham QC, Isabel McArdle (instructed by Berrymans Lace Mawer) for the Appellant
Jenni Richards QC (instructed by Bircham Dyson Bell LLP) for the Respondent
Hearing dates: 25 th & 26 th March 2014
INTRODUCTION
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 1 st 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.
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.
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.
The Panel's Decision was published on 1 st November 2013.
An anonymity order applies to this Judgment as it did in relation to the previous hearings.
THE FACTS
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.
On 10 th October 2006, Miss A attended an 'assessment' appointment with the Registrant at the Registrant's clinic. On 9 th November 2006, Miss A attended a second assessment appointment with the Registrant and her father was present. On 12 th January 2007, Miss A's clinical assessment file was closed. On 15 th January 2007, the Appellant sent a letter to Miss A's consultant paediatrician, Dr Ian Hay, informing him of the outcome.
On 2 nd 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 4 th and 14 th 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 8 th 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.
On 18 th February 2008, Miss A's father made a complaint to the British Psychological Society ("BPS"). On 25 th 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.
On 4 th March 2009, Miss A attended A&E following an overdose. On 30 th June 2010, the HCPC received a complaint about the Appellant.
THE ALLEGATIONS AND FINDINGS
The HCPC made the following allegations against the Registrant:
"Allegations:
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."
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"
THE LAW
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).
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...
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