Michael Kern v General Osteopathic Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Martin Spencer |
| Judgment Date | 09 April 2019 |
| Neutral Citation | [2019] EWHC 1111 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 April 2019 |
| Docket Number | No. CO/4811/2018 |
[2019] EWHC 1111 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Martin Spencer
No. CO/4811/2018
Mr M. Paul (instructed by William Graham Law) appeared on behalf of the Appellant.
Mr A. Faux (instructed by the General Osteopathic Council) appeared on behalf of the Respondent.
In this appeal the appellant, Michael Kern, appeals against the determination of the professional conduct committee of the General Osteopathic Council, whereby it decided that the appellant should be struck off the register for unacceptable professional conduct in relation to a patient referred to in the proceedings before the PCC, and again in this appeal, as “Patient A”.
The facts of this matter are that the appellant, born on 31 May 1956 and now aged 62, was first registered with the respondent council on 8 May 2000. As well as teaching and writing on craniosacral therapy (CST) he practises as an osteopath from his home in North London. In 1989 he co-founded the Craniosacral Therapy Education Trust which offers training, introductory seminars and advanced seminars in biodynamic CST.
The victim, Patient A, was studying CST in London and sought treatment from the appellant, not because she felt she had health issues which required CST, but because she was curious about the appellant's techniques from an educational perspective. She first saw the appellant as a patient on 30 March 2006. There were some 10 to 12 sessions until the end of August 2006. In these sessions there was no impropriety at all and the relationship remained appropriate. However, at the end of August 2006, things changed.
The appellant was teaching a workshop in Switzerland and Patient A decided to enrol on the workshop. She described how on the first day she offered the appellant a shiatsu massage because he appeared to her to be tired and this took place in a small therapy room in the vicinity of the conference room. In return, the appellant offered Patient A some CST and, after this had finished, he then invited her to come back with him to his room. There sexual contact took place, but not full penetrative sex, with mutual masturbation and, on the part of the appellant, ejaculation. This continued for the rest of the workshop and, thereafter, after their return to London, after each of the further CST sessions. Patient A described the appellant putting his hands under her clothes and touching her on her breasts and in her genital area. She said that after each session of treatment there would be sexual contact for about ten minutes. However, on no occasion was there penetrative sex.
The relationship came to an end in the summer of 2007 when sexual contact following the treatment sessions ceased and Patient A last saw the appellant on 19 September 2007. Before that, on 10 August 2007, Patient A sent the appellant an email in which she said she was feeling really depressed and was trying to “differentiate what is about you and what is about me.” She said she realised that as a client she had been feeling not just angry and disappointed with the appellant, but also sad since the previous summer, presumably a reference to what had started in Switzerland. In reply, on 11 August 2007, the appellant confessed to feeling disappointed with himself saying:
“I am truly and deeply sorry for losing clear boundaries with you and will do anything I can to support you to move through your feelings around this.”
In reply, Patient A said that she had been made confused by the loss of boundaries and was having difficulty seeing things clearly.
There was some further email contact between the appellant and Patient A during 2008. For example, Patient A recommended the appellant to a friend of hers whose baby needed treatment and the appellant sent Patient A an email from Russia, where he was at the time, thanking her. However, in the November 2008 there was further more substantive contact. There are emails from late November and early December 2008 when there was a suggestion of meeting up for tea or lunch, but an arrangement to meet on 16 December 2008 was cancelled by Patient A on 10 December 2008.
In early November 2008, Patient A said that the appellant had telephoned her quite late in the evening and, after exchanging pleasantries, said that he had separated from his partner and invited her to come over to his house. In her statement she said:
“I said ‘no’ as I felt as if he wanted to use me without considering the impact of his actions. I was shocked that he had no awareness of what he had done to me, which made me worry that he could do it to other patients.”
It was alleged before the PCC that this had been an attempt by the appellant to re-establish an improper personal relationship with Patient A, it being suggested that the appellant's intention had been to resume his sexual relationship with Patient A.
In November 2017 Patient A made her complaint to the General Osteopathic Council. In her complaint, she described how she had decided to leave London in 2017 and told her friend about the experience with the appellant and as she felt it was “something I had not sorted out in my life”. Having talked it through, she felt she should do something about it, because she believed she was still affected by what had happened and, therefore, decided to bring the complaint.
The appellant, in his witness statement dated 12 April 2018, accepted that he had behaved inappropriately. He said:
“The basic issue is that I inappropriately engaged in a personal and sexual relationship with Patient A in 2006/2007 during a time that I was still treating her. I agree with her that it should not have happened and I have been deeply regretful ever since. I also acknowledge her statement that she ‘felt that part of me enjoyed the experience and also felt responsible for the experience’ as all interactions were consensual. However, I also understand that it was my responsibility as her practitioner to be the guardian of professional boundaries which I failed to keep.”
The appellant drew attention to the fact that he had admitted his “transgression” in his email of August 2007 and had offered her a sincere apology. He explained what had happened in November 2008 as follows:
“I was actually wanting to make contact with her to find out how she was doing as I felt a mixture of concern, guilt and loneliness. I did not wish to ‘use her’ and, whilst her version of the situation is understandable, I am sorry that my somewhat confused motivation was misinterpreted. When after a few emails she informed me that she did not wish to meet up or speak, I did not contact her again.”
The allegations before the PCC were as follows:
“You, Michael Kern, are guilty of unacceptable professional conduct contrary to s.20(1)(a) of the Osteopaths Act 1993 in that:
(1) Between 30 March 2006 and 8 August 2007 Patient A attended several treatment sessions with you.
(2) During one or more sessions referred to in para.1 above, you groomed Patient A by (a) asking her if she wanted to be held or words to that effect, and (b) putting your arms around Patient A when she disclosed that her father had committed suicide.
(3) From 27 August to 1 September 2006, and subsequent to the establishment of a practitioner/patient relationship, you pursued and conducted a sexual relationship with Patient A; namely, when Patient A attended a workshop in Switzerland run by you, you invited Patient A to your room on several occasions and you and Patient A engaged in sexual activity.
(4) From September 2006 until the summer of 2007, Patient A attended sessions with you at which you and Patient A engaged in sexual activity.
(5) On 23rd February 2007 you invited Patient A to your house where you and Patient A engaged in sexual activity.
(6) In early November 2008 you attempted to re-establish an improper personal relationship with Patient A by asking Patient A if she would like to come over to your house or words to that effect.
(7) Your actions as described in para.2, 3, 4, 5, and 6 above were (a) not clinically justified, (b) not in Patient A's best interests, (c) a transgression of professional and sexual boundaries, (d) an abuse of your professional position.”
Allegations 1, 3, 4, 5 and 7, in so far as 7 related to allegations 1, 3, 4, and 5, were admitted by the appellant. He denied allegations 2 and 6. Allegation 2, the allegation of grooming, was found not proved by the PCC, but allegation 6 was found proved. In so deciding, the PCC stated at para.28 of their determination:
“The committee considered that the context to the invitation to come to the registrant's house contained in this phone call was significant. The registrant and Patient A had not communicated for some time. The last time he had invited her to his house (in February 2007) they had had sex. Indeed, most...
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