Regulatory Briefing: Professional Standards Authority for Health and Social Care v General Medical Council and Onyekpe [2023] EWHC 2391 (Admin)
Professional Standards Authority for Health and Social Care v General Medical Council and Onyekpe [2023] EWHC 2391 (Admin) – A failure to adequately consider evidence of patient vulnerability.
By Jade Bucklow
March 2024
This case involved a challenge to the decision-making of the General Medical Council [GMC] in formulating charges before the Medical Practitioners Tribunal Service [MPTS]: principally on the issue of patient vulnerability in the context of a sexual contact between a doctor and that patient.
The facts
Dr O admitted in a hearing before the MPTS allegations that he had engaged in a brief sexual relationship with Patient A, which began shortly after he treated her in his capacity as a doctor in an A&E department in June 2020. Further, Dr O accepted before the MPTS that his fitness to practise was impaired as a result. The MPTS imposed a sanction of six months suspension, a decision that was appealed by the Professional Standards Authority [PSA].
The allegations before the MPTS primarily concerned Dr O’s improper emotional and sexual relationship with Patient A between June and July 2020. There were additional allegations regarding inappropriate WhatsApp messages and the giving of medical advice via WhatsApp.
The allegations originally referred to the MPTS by the Case Examiners had included allegations that Patient A was vulnerable, and that Dr O knew or ought to have known this. The Case Examiners had relied on the statement of Patient A which included an account about her mental vulnerability. Prior to the final hearing the GMC decided that Patient A would not be called to give evidence due to discrepancies in her account, and the GMC would rely on the written material only. The GMC also abandoned allegations relating to Patient A’s vulnerability.
The appeal
The PSA appealed the decision of the MPTS in respect of sanction and advanced three grounds of appeal.
The first ground of appeal was that the decision was wrong and/or unjust because of a serious procedural irregularity in that the charges against the doctor did not adequately reflect the seriousness of his misconduct. The particular criticism was the absence of an allegation regarding Patient A’s vulnerability.
The second ground was that the sanction of 6 months suspension was unduly lenient and insufficient for the protection of the public.
The third ground was that the reasoning given by the MPTS for it’s decision on sanction was inadequate.
The GMC opposed the appeal, but did not waive privilege into their decision to abandon the allegations of vulnerability at the MPTS. It was submitted on behalf of the GMC that the formulating of allegations involved the exercise of judgement as to whether there was a realistic prospect of finding the allegation proven. On behalf of the GMC it was said “in this case, it was a decision that was ultimately made in the knowledge that Patient A would not be called to give evidence and factual findings would have to be made based on written evidence only, together with any evidence from the Registrant.”
The PSA succeed on the first ground, and there was no expressed conclusion on Grounds two and three.
Having reviewed the medical notes and the WhatsApp messages exchanged, Mr Justice Linden found the evidential threshold of a realistic prospect had been plainly crossed:
“It is difficult to see how consideration of the medical notes and the subsequent WhatsApp exchanges….did not lead to the conclusion by the GMC that there was at least a realistic prospect of establishing that Patient A had given Dr O information which strongly suggested that she had significant disability, that there were or may be some mental health issues, that she may have a history of abuse and neglect, that she was feeling particularly isolated and lonely and that, as a result, she was more susceptible to sexual advances than is inherent in the doctor/patient relationship.”
Mr Justice Linden set out a number of factors that were relevant when considering the nature of the patient’s vulnerability and the impact of evidence of vulnerability.
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Firstly, it was recognised that a degree of vulnerability is likely to be present in all doctor/ patient relationships.
Secondly, the MPTS’s consideration of the seriousness of a doctor’s misconduct should examine evidence that goes to the culpability of the practitioner, and the harm their conduct has caused. Evidence about what the doctor knew or ought to have known, or believed about the patient’s vulnerability will be directly relevant to the degree of culpability. Further, irrespective of the doctor’s understanding, the fact a patient is particularly vulnerable may indicate that they are harmed to a greater degree by the doctor’s conduct than would otherwise be the case.
Thirdly, in a sexual misconduct case evidence about vulnerability may impact considerations as to whether there was predatory behaviour by the doctor, the likelihood of repetition, and whether there was consent.
In his judgment, Mr Justice Linden found that the decision making by the GMC and the MPTS in this case was “fundamentally flawed”, as it had not given adequate consideration to the evidence of what Patient A told Dr O about her circumstances. In particular he identified that there was a failure to adequately consider:
“(a) whether she (Patient A) was vulnerable for the purposes of the Sanctions Guidance and, if so, the degree of her vulnerability, and
(b) what Dr O knew or ought to have known about these matters and what influence this had on his actions”
Mr Justice Linden determined that the approach of the GMC to the evidence of Patient A’s vulnerability and the failure to allege that Patient A was vulnerable meant that these questions were not raised for the MPTS to consider and were not fully litigated and considered in the context of the whole evidential picture.
Commentary
After a decade of dealing with cases of this nature as both a Case Examiner and as Counsel, it is clear the impact of patient or service user vulnerability on the overall degree of harm suffered because of a breach of professional boundaries cannot be underestimated. The harm isn’t necessarily greater in cases that are sexually motivated. Complainants often report a significant impact on their mental health with resultant diagnoses of PTSD, anxiety and/or depression. They report difficulty trusting other professionals and engaging with care services going forward, even when they are dependent on those services.
A patient may not recognise their own vulnerabilities, but patient vulnerability should be apparent to any doctor taking or considering a proper patient history. In this case, Mr Justice Linden was careful not to make any findings about whether Patient A was vulnerable, or whether Dr O perceived her to be. However, we know that on the face of her records there were clear indicators of vulnerability. The patient had a diagnosis of fibromyalgia – a chronic condition often triggered by an event that causes significant psychological and physical stress. Chronic pain often co-exists with anxiety and depression. It is socially isolating. Within her WhatsApp messages, Patient A disclosed personal circumstances that indicated vulnerability and loneliness.
This case is a helpful reminder that at the Case Examiner stage, and in the drafting of allegations to be put before the MPTS, where there is a realistic prospect of establishing that a patient is vulnerable, it should be included in the allegations for determination by the MPTS.
On a procedural note, any decision to withdraw an allegation that has been referred by Case Examiners to an MPTS hearing can be referred back to the Case Examiners by the Registrar for consideration under Rule 28. It is not clear from the judgment whether any referral back to the Case Examiners under Rule 28 was made in this case.
Vulnerability is an issue that is directly relevant to the question of impairment, and the severity of the sanction required to meet the overarching objective (set out in s1 of The Medical Act 1983). It is an issue that should be properly explored by Counsel in the examination of witnesses and in any submissions on impairment and sanction.
Where there is an improper emotional or sexual relationship with a vulnerable patient and the doctor knew or ought to have known that patient was vulnerable, the sanction required is often one of erasure.
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