Fitness to Practise Panel decision flawed.22/03/2012
The case concerned a Consultant Psychiatrist who underwent fitness to practise proceedings in 2010 in respect of allegations of inappropriate behaviour towards his Patient ( a married woman in her late 30’s early 40’s undergoing psychotherapeutic and psychiatric treatment). He had been said to have acted in various ways which were not in her best interests and in abuse of his professional position. The most serious of the allegations concerned the fact that he had attempted to pursue an emotional relationship, had revealed his sexual fantasies about her, spoke of meeting socially, told her how attractive he found her and told her personal information about himself. All of this was said to have been sexually motivated.
The GMC at the Fitness to Practise hearing applied to adduce the evidence of the Patient’s testimony by means of a live video link from Australia where she was living at the time of the hearing and this was successful despite contest by the doctor.
During the course of the evidence, it was agreed between the parties that the Patient suffered from erotic transference which meant that at some time during her therapy she had developed sexual and erotic feelings towards the doctor which were not based on genuine feelings about his qualities but involved the projection on to him by the patient of internal feelings. Over the course of the proceedings, the FTPP made a series of adverse findings against the doctor and in particular that “ from its own experience the (FTPP) reasoned that a woman with low self-esteem unless encouraged would be unlikely to fantasise that she was attractive to another and secondly the Panel considered what impact erotic transference might have had on the Patient’s perception of events which according to expert evidence, could have been from the Patient’s previous experience”.
The Panel determined that the doctor’s fitness to practise was impaired and ordered that his name be erased from the GMC register.
The doctor appealed on the basis firstly that the witness could not and should not have been categorised as a vulnerable witness by reason of a mental disorder when her depression was in fact in remission at the time and that the Panel had erred in concluding that it could admit the evidence of the patient by video link under its inherent jurisdiction to admit evidence where there was a clear statutory framework governing the same. He also argued that the Panel should not have relied upon its own expertise as regards the finding in respect of the Patient’s self esteem and it had reached a conclusion on an issue which had not been raised by either of the parties at the hearing and the doctor had been deprived of the opportunity of calling evidence upon that or making submissions. He further argued that in respect of the finding as regards the Patient’s perception of events he argued that the Panel’s decision as against the weight of the expert evidence. In short the Panel had erred in one or both of these findings such that it affected and tainted the FTPP’s factual findings and they were to be regarded as unsafe.
The appeal court agreed and the case was remitted for a fresh hearing before a new Fitness to Practise panel.
The important aspect of this Judgment is that it reinforced the fundamental principle underlying Fitness to practise proceedings in that a court can only make findings of fact in respect of matters which the parties have been afforded a fair opportunity to adduce evidence or to make submissions as appropriate.
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