Case No: CO/11086/2010 Neutral Citation Number: [2012] EWHC 464 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S

BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/03/2012 Before: THE HONOURABLE MR JUSTICE STADLEN --------------------Between: Dr Robin Edward Lawrence - and The General Medical Council --------------------(Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7404 1424 Official Shorthand Writers to the Court) --------------------Ms Christina Lambert QC (instructed by Eastwoods Solicitors) for the Claimant Ms Catherine Callaghan (instructed by General Medical Council Legal) for the Defendant Hearing dates: 08/11/11 11/11/11 --------------------Claimant Defendant

Judgment

THE HONOURABLE MR JUSTICE STADLEN: 1. Dr Lawrence is a consultant psychiatrist practising from 96 Harley Street in London. In September 2010 a Fitness to Practise Panel (the FTPP) of the General Medical Council (the GMC) conducted a hearing into allegations that, in the course of his psychiatric and psychotherapeutic treatment of Patient B, a married woman in her late thirties/early forties, between December 2005 and June 2007 Dr Lawrence acted in various ways which were said to have been inappropriate, not in the best interests of his patient and an abuse of his professional position. The most serious allegations were that he attempted to pursue an emotional relationship with Patient B, encouraged her to believe that he wanted to pursue an emotional relationship with her, revealed to her sexual fantasies he had about her, told her she was attractive, spoke of meeting her socially and told her personal information about himself. It was alleged that his conduct was sexually motivated. It was also alleged that Dr. Lawrence should have heeded the advice of his supervisors to stop treating Patient B and, further, that when Patient B fell pregnant in the summer of 2006 and was considering a termination of pregnancy, he should have referred her to someone else for counselling. Following a three week hearing the FTPP made a series of adverse findings of fact against Dr Lawrence, although not all the allegations were found proved. It found that his fitness to practise was impaired and by way of sanction directed that his name be erased from the Medical Register. This is an appeal by Dr Lawrence under section 40 of the Medical Act 1983 against (a) certain procedural decisions made by the FTPP, (b) some of the FTPPs factual findings, (c) the FTPPs finding that Dr Lawrences fitness to practise is impaired and (d) the FTPPs sanction of erasure. In view of the volume of material and complexity of issues raised in the appeals against (a) and (b), it was agreed at the hearing in front of me that those appeals should be argued and determined before consideration of the appeals against (c) and (d).

2.

3.

The allegations 4. The allegations against Dr Lawrence were set out in a Notice of Hearing dated 6 August 2010 .They were as follows: That being registered under the Medical Act 1983, 1. 2. You were at all times a consultant psychiatrist; a. Between December 2005 and June 2007 Patient B was your private patient and you were responsible for her psychiatric care, b. During those sessions, i. you revealed sexual fantasies you had about Patient B to Patient B,

ii. you told Patient B personal information about yourself, iii. you told Patient B that she was attractive, iv. you spoke of meeting Patient B socially, v. you attempted to pursue an emotional relationship with Patient B, vi. you encouraged Patient B to believe that you wanted to pursue an emotional relationship with her, c You continued with such sessions, i. after you had become emotionally involved with Patient B, ii. even though your supervisors had advised you to stop treating her, d. i in September 2006 Patient B had a termination, ii. you did not refer Patient B to another therapist for counselling about whether to undergo a termination; 3. In or around June 2007, when Patient B asked you for a referral to another therapist, you tried to persuade her to continue therapy with you; 4. Your acts and omissions as set out above at paragraphs 2.b.i. to vi., 2.c.i. and ii., 2.d. and/or 3. above were, a. inappropriate, b. not in the best interests of your patient, and/or, c. an abuse of your professional position; 5. Your acts and omissions as set out above at paragraphs 2.b.i., 2.b.iii to vi., 2.c.i. and ii., and/or 3. above were sexually motivated; And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.

5.

At the outset of the hearing Mr Booth who appeared for Dr Lawrence admitted on his behalf the allegations in paragraphs 1, 2.a., 2.b.ii., 2.b.iii., 2.c.ii., 2.d.i. and 2.d.ii. Thus he admitted telling Patient B personal information about himself and telling her that she was attractive, that he continued treating her even though his supervisors had advised him to stop doing so and that he did not refer Patient B to another therapist for counselling about whether to undergo a termination. It was not admitted and indeed was denied that any of those acts and omissions was inappropriate, not in the

best interests of his patient, an abuse of his professional position or sexually motivated as alleged in paragraphs 4 and 5. Indeed Dr Lawrence denied any sexual motivation and denied that he attempted to pursue an emotional relationship with Patient B or that he encouraged her to believe that he wanted to pursue such a relationship.

Factual Background 6. Patient B was referred to Dr Lawrence by Mr Guy Thorpe-Beeston, a consultant obstetrician and gynaecologist in December 2005 after she had suffered a miscarriage in traumatic circumstances. Dr Lawrence first saw her on 30 December 2005. He treated her with medication for her depression and one to one psychotherapy. He also recommended her for group therapy sessions which she attended on a regular basis. Those group sessions were facilitated by a combination of Sue Sutcliffe, Dr Lawrence and, in the early days, Kay Dowd. Ms Sutcliffe and Ms Dowd were colleagues of Dr Lawrence who practised at 96 Harley Street. At some point in 2006 it is common ground that Patient B became aware that she was becoming attracted to Dr Lawrence. He asked her about it and she revealed her attraction to him. It is also common ground that, as described by Dr Kennedy, the GMCs expert, this is a well recognised and not uncommon phenomenon in psychotherapy known as erotic transference. In early July 2006 Patient B discovered that she was pregnant. She was ambivalent about whether or not to go through with the pregnancy. She revealed her ambivalence in both group therapy sessions and one to one sessions with Dr Lawrence. She did not ask to be referred elsewhere. She rejected Dr Lawrences suggestion that she might want to see Sue Sutcliffe instead of him. However Dr Lawrence did not tell Patient B that he would no longer be able to see her for one to one sessions and he did not refer her to another therapist for counselling about whether to undergo a termination. On 6 September 2006 Patient B underwent a termination of pregnancy performed by Mr Thorpe-Beeston, Dr Lawrence, in his capacity as Patient Bs psychiatrist, having previously signed what is known as the pink form to state that in his opinion the procedure was clinically indicated. On 11 September 2006 Patient B sent Dr Lawrence an email. This email was discovered by Dr Lawrence only after the hearing was well under way and Patient B had already given evidence. He relied on it as corroborating his evidence that he had not, as alleged by Patient B, reciprocated her expressions of attraction to him but had rather sought to make her realise that there was no realistic possibility of a relationship between them. Patient B was recalled to answer questions about the email. Throughout the time that Dr Lawrence was treating Patient B, he participated in a peer supervision group at 96 Harley Street which included Ms Sutcliffe and Ms Dowd as core members. He presented Patient Bs case in supervision on a regular basis. His supervisors expressed concern for his vulnerability in the light of the reported persistence of Patient Bs erotic transference and her reported unwillingness to recognise it as such and they therefore advised him that he should stop treating her. Dr

7.

8.

9.

10.

Lawrence explained to them why he felt that it would be preferable for him to continue treating Patient B and his supervisors accepted that reasoning. 11. On a date which was not found as a fact by the FTPP but was sometime between December 2006 and April 2007 Patient B raised with Dr Lawrence the fact that she had done a Google search on him and had found media reports of his previous involvement with the GMC in relation to his having had sex with a patient. It was not disputed by Dr Lawrence that in January 2000 he was found guilty of serious professional misconduct by a Professional Conduct Committee (PCC) of the GMC. The PCC found that he pursued an emotional and sexual relationship with a vulnerable female patient and on three separate occasions had sexual intercourse with her at her home. This was found to have been a gross abuse of trust. The PCC also expressed concern about Dr Lawrences failure to maintain any or any adequate records of his large number of consultations with the patient from December 1996 to April 1998, having seen only one piece of paper which recorded two consultations. As a result Dr Lawrences registration was suspended for twelve months. In April 2001 the suspension was extended for a further period of twelve months. The PCC on that occasion expressed serious concern at evidence that Dr Lawrences breach of trust had been a calculated and deliberate course of conduct in respect of a vulnerable patient. However it also heard that he accepted the gravity of what he had done and expressed remorse together with an assurance that he had come to terms with what he saw to be the flaws in his personality that led to that behaviour. It expressed itself as impressed by the measures he intended to put in place if restored to the register but decided, in the light of his previous calculated and serious breaches of professional standards and their concerns, to extend the period of suspension for a further twelve months both to mark the seriousness of his original behaviour and to give him time to provide evidence to convince the PCC that he was in a position to give an appropriate psychiatric service to his patients and that the circumstances giving rise to his previous behaviour could not recur in the future. In April 2002 following a further hearing the PCC was satisfied that Dr Lawrence now had insight into the reasons why his previous conduct had resulted in his appearance before the PCC in January 2000 and April 2001 and noted his remorse and the significant steps he had taken to work on his educational and development needs including seeking the advice and guidance of expert colleagues and peers. It also noted that he had taken steps to establish a formal and professional approach to note taking and record keeping. It was satisfied that there was no indication that he posed a continued risk to the public in resuming unrestricted practice and therefore decided that it would be unnecessary to make any further direction concerning his registration. Accordingly the suspension of his registration ended in May 2002. In testimony before the FTPP Patient B said that she raised the matter with Dr Lawrence who denied the conduct which had led to his suspension. Patient B went abroad for around two months between February and April 2007. She continued to see Dr Lawrence for treatment and therapy sessions on her return until 25 June 2007 when she left a one-to-one session with Dr Lawrence and did not return. At that session Patient B sought clarification from Dr Lawrence about his feelings. She said that Dr Lawrence told her that it was appropriate that they continue to work together but that they both had to accept that nothing could happen between them at

12.

13.

14. 15.

the end of her therapy. In the course of that discussion Dr Lawrence revealed to Patient B details about his personal life including about his divorce, his sole care of his four children and his new partner. On 27 June 2007 Dr Lawrence sent a letter referring Patient B whom he described as being extremely angry with him to Maggie Chapman, a psychotherapist. 16. On 2 July 2007 Patient B went to see her GP Dr Peter King-Lewis and complained to him about allegedly inappropriate behaviour on the part of Dr Lawrence, saying that there had been suggestions of meeting for a drink outside appointments and having sexual fantasies about each other during her sessions with Dr Lawrence. Dr KingLewis referred Patient B to Dr Jeanie Speirs, a consultant psychiatrist. Dr Speirs saw Patient B on 3 July 2007 and agreed with the GPs suggestion of referring her to Suzi Barnett, a psychotherapist and counsellor. Dr Speirs diagnosed Patient B with a clinical depressive illness of moderate severity but found no evidence of psychosis or a personality disorder. Patient B saw Suzi Barnett for 37 one hour sessions from 5 July 2007 until 12 September 2008. One of the matters they worked on together was her relationship with Dr Lawrence, Patient B describing her feelings about him and his conduct towards her in detail. In the course of those sessions Ms Barnett used hypnosis, but according to her not when discussing Dr Lawrence. On 25 September 2008, shortly before leaving London for Australia with her husband, Patient B wrote a letter of complaint to the GMC about Dr Lawrences alleged treatment of her.

The Fitness to Practise Hearing 17. The Fitness to Practise hearing lasted 15 days sitting from 6 24 September 2010. On the first day of the hearing the FTPP determined an application by the GMC which was opposed by Dr Lawrence to hear the evidence of Patient B via video link from Australia. The FTPP ruled in favour of the video link. Patient B duly gave evidence via video link from Australia over two long mornings on 7 and 8 September 2010. The FTPP then heard oral evidence from Suzie Barnett and ruled in the face of another contested application that it should have regard to the typed, noncontemporaneous and non-chronological notes made by Ms Barnett after she had reread and then destroyed her manuscript original notes. A witness statement from Dr Speirs was read to the FTPP as agreed evidence. The GMCs last witness was Dr Rodger Kennedy, an expert consultant psychiatrist. At the conclusion of the GMCs case counsel for Dr Lawrence made a submission pursuant to Rule 17(2)(g) of the General Medical Council (Fitness to Practise) Rules 2004 (The 2004 Rules ) that insufficient evidence had been adduced to find certain matters proved in relation to the inappropriateness of Dr Lawrence continuing to treat Patient B after he had received certain advice from his supervisors and his failure to refer her to someone else for counselling in the face of her pregnancy and contemplation of termination. The application failed save in one respect, namely that the FTPP found that there was insufficient evidence to find paragraph 4(a) of the allegations proved in respect of paragraph 2(c)(ii). That is to say the FTPP found that there was insufficient evidence to find that the fact, which Dr Lawrence admitted, that he continued with his psychotherapeutic sessions with Patient B even though his supervisors had advised him to stop treating her was inappropriate. The FTPP held on this point: However, he also told the Panel that it would be wrong to stop treating a

18.

patient unless the patient was psychotic. That was not the case with Patient B. In the light of Dr Kennedys evidence that it was not unreasonable for Dr Lawrence not to follow the advice of his supervisors and to continue treating Patient B, the Panel has concluded that the evidence does not demonstrate this conduct was inappropriate. The FTPP nevertheless left open the possibility that to have continued treating Patient B in the face of that advice was not in her best interests and/or was an abuse of Dr Lawrences professional position. 19. Dr Lawrence gave oral evidence before the FTPP, as did on his behalf Ms Sutcliffe, Ms Dowd, Ms Chapman and two consultant psychiatrists, Dr Francesca Denman and Dr Adrienne Reveley, both of whom gave expert evidence. Evidence in relation to matters relevant to the termination of Patient Bs pregnancy was heard in private session. On 21 September 2010 having taken almost three days to consider the facts, the FTPP gave its determination on the facts in a 14 page public written Determination and a two page private written Determination which dealt with matters concerning Patient Bs consideration of a termination of pregnancy. The Determination was almost entirely adverse to Dr Lawrence. It found most of the heads of charge proved. The FTPP found that Dr Lawrence did not attempt to pursue an emotional relationship with Patient B and did not try to persuade her to continue therapy with him in June 2007 when she asked him for a referral to another therapist. It did however find that he encouraged Patient B to believe that he wanted to pursue an emotional relationship with her. It further found that he had told her of a sexual fantasy which he had about her, that he spoke of meeting her socially and that he continued with his psychotherapeutic sessions with Patient B after he had become emotionally involved with her. The FTPP went on to find that the essential factual matters found proved were sexually motivated and in most respects inappropriate, not in Patient Bs best interests and an abuse of his professional position. In making these findings the FTPP accepted the testimony of Patient B and rejected that of Dr Lawrence in several critical respects. In particular there were some allegations in which it was common ground between them that something was said by Dr Lawrence but there was a dispute as to the words used and the tenor of what was said, intended and understood. Thus in relation to the allegation about revealing sexual fantasies Patient B said that in around September 2006 Dr Lawrence told her that he had sexual fantasies about her in which he would come and visit her once or twice a year wherever she was living in the world and that her husband would be aware of the arrangement. Challenged in cross examination over whether Dr Lawrence had used the words sexual fantasy, about which it was put to her that she was absolutely mistaken, Patient B said that she was absolutely clear on that detail. She remembered it quite clearly. Dr Lawrence accepted that he did refer to the scenario that he would follow Patient B wherever in the world she was and her husband would know, albeit there was a difference between him and Patient B as to when it was said. However he denied having said to Patient B that it was a sexual fantasy of his. His explanation for having referred to Patient Bs husband knowing of the arrangement was that it was said deliberately to show Patient B the preposterousness of the suggestion that there could be any acting out of the fantasy which he said Patient B had admitted to him of the two of them having a sexual relationship. He said it was designed to demonstrate to her the impossibility of such a relationship and that the inclusion of the reference to

20.

21.

22.

her husband was designed to emphasise the impossibility. He said that that part of the scenario was designed to follow Patient Bs fantasy to its logical conclusion. 23. There was a separate incident in which Dr Lawrence accepted that he said to Patient B at least you dont want to have sex in the office. According to Dr Lawrence this was said in response to Patient Bs suggestion that they meet in a hotel and was a clumsy attempt to show her the impossibility of them having a sexual relationship. Patient B accepted that Dr Lawrences remark about having sex in the office was an attempt by him to present to her the logistical difficulties which would be involved in them having an affair and that he described it as inappropriate. She also accepted that he was referring to difficulties not only of a practical nature but in the relationship itself. The office floor was probably the only place where they could go where they would not be seen by other people. In its Determination the panel accepted Patient Bs evidence that Dr Lawrence told her of a sexual fantasy he had about her that in the future he would visit her one or two times a year anywhere that she was in the world that they would have sex and that her husband would know about the relationship. The FTPP said that it considered implausible Dr Lawrences explanation of the element where Patient Bs husband would be aware of the sexual relationship as demonstrating the impracticality of him having a sexual relationship with Patient B. The FTPP made no findings of fact in relation to Dr Lawrences comment about having sex in the office. It did, however, find that one of the ways in which he encouraged Patient B to believe that he wanted to pursue an emotional relationship with her was by behaving towards her in a flirtatious manner. It is not clear whether the FTPP intended to include within its finding of flirtatious behaviour Dr Lawrences remark about not having sex in the office. As to that remark, Patient B said that she had acknowledged that she had sexual thoughts about Dr Lawrence. She had in May 2006 asked him how she would know if her motivation for going to therapy was right and what if she was thinking about things that were inappropriate. She said he replied with a very big smile on his face are you having erotic thoughts about me? She said that she replied that she was and in answer to a question whether she felt shy about telling him that she said that she did. At the next session she apologised for what she had said to which she said that Dr Lawrence responded that her thoughts were very welcome. Patient B said he brought her back to that discussion despite her trying to move it on several times. She said she was uncomfortable discussing it with him. In September 2006 Patient B said that they were talking about the difficulties that their situation would present. Dr Lawrence was saying that logistically there would be problems about where they could meet. She said that she thought he was trying to present her with the difficulties that that situation would pose but said with quite a big grin on his face that it would not be appropriate for them to have sex in his office. She said that she thought that that remark was made by Dr Lawrence in the context of him trying to show that it was inappropriate to be conducting a relationship like that and presenting the logistical difficulties of how such a relationship could pan out for example that it would present difficulties of where they could meet. The difficulties were associated with practicalities but also with the very nature of the relationship itself. Because of the nature of the relationship it was obviously one where they could not be seen out together. Hence the reference she thought to probably the only place

24.

25.

26.

where they could go where they would be unseen by any other people would be in his office and a comment about it being inappropriate to have sex in his office. 27. Patient B said he said it kind of jokingly but that there was a smile on his face as he was saying it. She accepted that they had several quite difficult conversations when Dr Lawrence tried to indicate the difficulties of such a situation. However she denied that he talked about the unreality of her thinking. She said she felt that he played games with her, where sometimes he would hide behind his professional mask and at other times he would reveal things so that her perception was that he was struggling between his personal feelings and his professional obligation. She recalled a couple of quite difficult conversations where she was probably trying to say that she thought they could overcome any such obstacles and Dr Lawrence was presenting the obstacles that such a relationship would pose. She did not recall him saying that could never happen. She did not recall initiating the idea of booking a hotel room and turning up under assumed names for a sexual relationship with him but accepted that she might have done. She denied that it was in response to that suggestion that Dr Lawrence laughingly said at least you dont want to have sex in the consulting room. That was not what he said. His remark that it would not be appropriate for them to have sex in his room she said was when they were talking about the difficulties of where they would meet. She said she was quite clear on that. For his part Dr Lawrence said that the remark occurred in the context of his attempting to enable Patient B to understand that her erotic transference, that is to say her feelings of attraction towards him, was a normal phenomenon. He said something like How do you see this going on? Where do you see this going? and was shocked by her response which was well we could book a hotel room in assumed names and find out whether we get on as well together physically as we do emotionally. His response was to say at least you dont want to have sex on the floor on the consulting room. He was shocked. It was a spontaneous response but meant to convey the impossibility of her suggestion and to diffuse the situation. He needed to let her know that the suggestion was preposterous and impossible and inappropriate. The complicated thing was to say it in a way which was not to do with her being unattractive or not desirable because that was her belief system. So it had to be impossible because it was impossible and not because she was not desirable. He acknowledged that it was a clumsy intervention as was his remark So are you suggesting that I could come and visit you where you are in the world and your husband would know about it and we would have a sexual relationship? He said both statements challenged her perception that those ideas were anything other than fantasies. In relation to the allegation, admitted by Dr Lawrence, that he told Patient B that she was attractive (2(b) (iii)) there was a marked difference between the testimony of Patient B and Dr Lawrence. Patient B said that by the end of the first twelve weeks of therapy by March 2006 she felt that Dr Lawrence was a little bit flirtatious. He would compliment her, said that she was attractive and if she had been away for a session or two said that he missed her. In March and April 2006 she felt that there was a growing level of flirtatiousness on both their parts. Dr Lawrence would have very meaningful looks, making eye contact for much longer than was probably necessary in the context of their discussions. She did not recall that he said anything inappropriate but picked up a tone in the sessions. There was an undercurrent in the room.

28.

29.

30.

By May 2006 Patient B said she was conscious of having inappropriate feelings about Dr Lawrence. It was in that context that he asked her if she was having erotic thoughts about him. At the next session he told her that her thoughts were very welcome. When he brought her back to the subject she said that she recalled very clearly that Dr Lawrence stared out of the window for quite a long time with a very thoughtful look on his face and then said that he did not want to add fuel to the fire but that he was aware of growing attraction to her. After quite a long time he said another time, another place. She said that he told her that he had revealed those feelings toward her because he did not want her to feel that she was alone in her thoughts. She said that that exchange was not part of the therapeutic process but something wholly different. She saw it as something quite personal from him as a person as opposed to him as a doctor. He said that he was attracted to Patient B. Between May 2006 when that comment was made and July 2006 Patient B said that she did not recall any specific inappropriate comments but that there was a strong flirtatious and sexual undertone to the sessions. Quite early on probably in around March 2006 Patient B said that in the context of the frustrations she was having she jokingly said that maybe she should have an affair. She said that Dr Lawrence responded that she was very attractive and that she could go along to Starbucks and have a coffee and strike up a conversation with someone and that it would probably be very easy for her to do so if she wanted to. She said that Dr Lawrence told her that he thought that she was an attractive woman a couple of times. She could not remember how many but would say probably two to three times he mentioned that she was attractive or that he found her attractive. In one session she said that he told her that she reminded him of the first woman he fell in love with. At one point Patient B accepted that what Dr Lawrence was saying to her in relation to her attractiveness and the ease with which she could go and form a relationship was possibly to boost her self esteem. However she also said that she had a clear recollection of the session when Dr Lawrence looked out of the window said he did not want to add fuel to the fire but was aware of a growing attraction towards her: another time another place. She also said that in May 2007, in response to a text message from her complaining that he had not responded to text messages asking if she could arrange another appointment, Dr Lawrence rang her, apologised for not contacting her and said that the reason was because all he could think of was ringing her up to ask her out for a drink. When she told Dr Lawrence in April 2007, before receiving documents from the GMC about his prior suspension, that she had discovered, by googling the GMC website, about his previous history, Patient B said that they discussed it. After they discussed it she said that her concern was whether this meant that everything he had said to her in the past was not true and she specifically asked him if that was the way he acted with other female patients. She said that Dr Lawrence assured her that it was not, that he was innocent in the previous case and that his interaction with her was not typical of his interaction with other female patients. She said that she accepted that since he was behaving the way he had with her what right did she have to have an opinion on how he might have acted with other patients. In June 2007 Patient B said that Dr Lawrence was giving very mixed messages. His reference to having wanted to ask her out for a drink from her perspective was Dr Lawrence clearly indicating that he was interested in her and still wished to see her at

31.

32.

33.

34.

the end of the therapy. Given the similarities of how he acted during his sessions with the previous person she began to have doubts that what he was saying to her was real and genuine. She raised those doubts with him at a very difficult session which ended very badly in June 2007. 35. On about 30 June 2007 she went to see Dr Lawrence and specifically asked him where all this was going and what he wanted at the end of the therapy because she did not know what was going on in his head. She said that Dr Lawrence said that despite suspecting his own motives for continuing to see her and despite the fact that his supervisor had advised him not to see her he thought that they could continue to work together but that they both had to move on and accept that nothing could happen at the end of her therapy. Patient B said that she asked Dr Lawrence why he had led her on the way he had. At that point she said that he took her hand, which was the first physical contact they had ever had, and said that she deserved someone more than what he could give her. He said that his life was not his own. He was trapped in a cage and he then went on to describe his personal situation. Patient B accepted that Dr Lawrences remark in relation to her attractiveness and the ease with which she could go to Starbucks and form a relationship was possibly to boost her self esteem. However she maintained in cross examination that she had a clear recollection of the session in which Dr Lawrences exact words were I do not wish to add fuel to the fire, but I am aware of a growing attraction to you. Pause. Another time another place. She was absolutely clear that Dr Lawrence said that he was aware of a growing attraction towards her and did not recollect him saying that the way he felt had nothing to do with it, it was the way she felt that mattered. In July 2006 when she discovered that she was pregnant, after she said flippantly that it was quite ironic that a few weeks ago she had been saying that she would like to have an affair and yet here she was several weeks later discussing being pregnant, Patient B said that she had said I know which of the two I would rather be discussing. To that she said Dr Lawrence replied Maybe when this is all finished. After the session he walked her to the reception area to make another appointment. Having checked the waiting room to see that nobody was in it, he came back out and said that he would like to visit her at the end of her therapy after a suitable period of time and said that this could not be about her yearning anymore and that he was now part of it. She said that she indicated that she would like that. She said that she took his reference to yearnings to mean clearly that Dr Lawrence wanted to see her for a sexual relationship at the end of therapy. Patient B accepted that on occasions Dr Lawrence pointed out the difficulty in their having a sexual relationship but in subsequent sessions would say something that was quite contrary to what he had previously said, which indicated to her that he was struggling between his professional responsibilities, when he would talk about transference and that sadly she would be over him by the end of her therapy, but then in subsequent sessions would say things like I have sexual fantasies about you where I come to visit you. She then accepted that he had only once referred to his having sexual fantasies about her but said that on that occasion he referred to his having sexual fantasies plural about her. For his part Dr Lawrence denied telling Patient B that he was aware of a growing attraction to her. He said that he would certainly have said that he was aware of her

36.

37.

38.

39.

growing attraction towards him and have said that he did not want to add fuel to the fire but he did not say another time another place. He said that after she had confessed to having erotic thoughts about him and apologised and tried to move on, he had tried to bring her back to the topic because it was important that she should not feel shame for experiencing in the therapy something which had dominated her life Dr Lawrence denied ever having used the phrase I have a sexual fantasy about you or my sexual fantasy is 40. Dr Lawrence denied saying Maybe when this has all finished, denied the incident in which he was alleged to have checked the waiting room and said that he would like to visit Patient B at the end of her therapy and that this could not be about her yearnings anymore and that he was now part of it. He denied telling Patient B in July 2006 that he wanted to see her at the end of her therapy and denied using the word sadly when saying that she would be over him by the end of her therapy. He also denied having told Patient B that he suspected his own motives for continuing to see her and that he had said that they both had to move on as distinct from her having to move on. His position was that he had not been leading Patient B on. As to Patient Bs suggesting that he told her that she deserved someone more than what he could give, Dr Lawrence said that he did say things along those lines. However he thought that she misconstrued what he was saying. He had been saying for many weeks that she needed to direct her desire to an object which was available, that directing her desire toward an unavailable object was definitely bound to be disastrous and that he would probably have used the word deserve. As to the Starbucks comment, Dr Lawrence said that he might use a similar comment now. The comment did not involve him personally, did not hint at his feeling and was a way in which the person could imagine that they could be perceived as attractive. He accepted that when Patient B disclosed her erotic feelings for him in May 2006 he described them as welcome, although he did not think he used the word very. He said that any feelings she brought into the therapy rooms were welcome. He accepted that it might be a little dangerous for him to have said that but it was a dangerous job and it is also dangerous to shame patients. He denied encouraging Patient B to believe something which was not true. Asked why he did not give her an answer that made it clear that what she was describing was a symptom of transference, Dr Lawrence said that he did talk to Patient B at length about the fact that her feelings were transference feelings. His use of the expression not wishing to add fuel to the fire was designed to say: I dont want to encourage your emotion but let us explore and listen to your emotion and look at it. He denied that his remarks at that session were calculated to give Patient B the impression that her erotic thoughts were reciprocated in some way. He accepted that if he had smiled when saying those things that would undoubtedly give an impression of encouragement but said that he did not think that he did smile and was not encouraging her. In short Patient B was adamant that Dr Lawrence flirted with her, said that he found her attractive, that he had yearnings for her, that she reminded him of his first love that he had a sexual fantasy about her and that he would like to pursue a relationship with her after the end of her therapy. Dr Lawrence denied all that. He accepted that after she revealed her erotic feelings towards him, he sought to encourage her to discuss those feelings, but only in a professional therapeutic context for the purpose of making her realise that they were an expression of erotic transference and helping her

41.

42.

to understand the feelings which she had had throughout her life which were entirely unrelated to him. He denied saying that he found her attractive, that he had yearnings for her, that she reminded him of his first love, that he encouraged her to think that he wanted a sexual relationship after the end of the therapy. While he accepted that he told her that she was attractive he insisted that this was said in a purely therapeutic context for the purpose of trying to increase her self esteem which she estimated to be low. 43. The FTPP broadly accepted Patient Bs account and rejected Dr Lawrences account. In its Determination it said that it accepted Patient Bs evidence that Dr Lawrence told her that she was attractive on two or three occasions and also that he told her that he found her attractive from the first session. It considered that the repetition of those remarks was inappropriate and that to say that he found her attractive went beyond acceptable professional boundaries. It found that his having told Patient B that she was attractive was inappropriate, not in Patient Bs best interests and an abuse of his professional position. Similarly it found the allegation that Dr Lawrence encouraged Patient B to believe that he wanted to pursue an emotional relationship with her (paragraph 2(b) (vi)) and that he spoke of meeting her socially (paragraph 2(b) (iv)) proved. The FTPP accepted Patient Bs evidence that Dr Lawrence said that he had thought about asking her out for a drink and that when the therapy was over he would like to see her after a suitable interval had elapsed. It found that although he did not actually pursue an emotional relationship with Patient B he did encourage her to believe in the possibility in having such a relationship. He did that by amongst other things telling her that she was attractive, behaving towards her in a flirtatious manner, telling her that when this was all over he would like to meet her and by divulging his fantasy that he would visit her anywhere in the world and have sex with her. The FTPP found that his pattern of encouragement led Patient B to believe that he wanted to pursue an emotional relationship with her. The FTPP found that both the fact that Dr Lawrence spoke of meeting Patient B socially (paragraph 2(b) (iv)) and the fact that he encouraged her to believe that he wanted to pursue an emotional relationship with her (paragraph 2(b) (vi)) were inappropriate, not in the best interests of Patient B and an abuse of Dr Lawrences professional position. It considered that Dr Lawrences conduct under these headings clearly crossed acceptable professional boundaries and would be likely to increase Patient Bs emotional attachment to him. The FTPP found proved the allegation in paragraph 2(c)(i) that Dr Lawrence continued with the psychotherapy sessions after he had become emotionally involved with Patient B. It made a distinction between a normal caring professional therapeutic relationship and an emotional relationship. It considered that Dr Lawrence became over involved with Patient B. It found that his encouragement, leading her to believe that he wanted an emotional relationship, his disclosure of information to her about his family and personal relationships, that he told her that she reminded him of his first love all indicated an inappropriate and unprofessional level of emotional involvement. It noted the text message he sent her on 15 July 2006 while he was on holiday which included information about his children and his whereabouts. It referred to Dr Lawrences evidence that he imparted personal information in order to help Patient B therapeutically but considered that it was more likely to be a

44.

45.

46.

demonstration of his wish to encourage her ongoing interest in him and to gratify his own needs. 47. The FTPP found that the allegation in paragraph 2(b) (v) that Dr Lawrence attempted to pursue an emotional relationship with Patient B had not been proved. It found that he did not attempt to have such a relationship with Patient B. Rather, being aware of his attraction to him, he welcomed the admiration that she had for him and exploited it for his own gratification. The FTPPs rejection of Dr Lawrences testimony and acceptance of that of Patient B is also to be found in its findings as to the alleged motives and consequences of the conduct which it found proved or which Dr Lawrence had admitted. Thus in finding that Dr Lawrences revelation to Patient B of sexual fantasies he had about her was an abuse of his professional position, it declared itself satisfied that he revealed his sexual fantasies about Patient B for his own reasons and self gratification. In finding that conduct to be not in the best interests of his patient the FTPP judged that it caused Patient B to feel confused. In finding that Dr Lawrence telling Patient B personal information about himself was inappropriate, the FTPP noted the expert evidence of Dr Kennedy and Dr Denman that there may be occasions when it is appropriate for a therapist to reveal personal information to a patient, for example in response to a direct question. However it found that it was inappropriate and unnecessary for Patient Bs therapy/treatment for him to tell her that she reminded him of his first love and that he wished he had slept with more women, both factual allegations which Dr Lawrence had denied. In finding that conduct to be an abuse of his professional position the FTPP considered that, in the light of Patient Bs vulnerability, any disclosure by Dr Lawrence of such personal information fuelled her emotional attachment to him and encouraged her to be sympathetic and supportive to him and as such was not in her best interests. In finding that Dr Lawrences continuation of his sessions with Patient B after he had become emotionally involved with her was inappropriate and not in her best interests the FTPP took account of the expert evidence that it is not usual practise to stop seeing a patient who is experiencing erotic transference and that it is more beneficial to the patient to work through the experience. However it noted that Dr Kennedy told the FTPP that whereas it would have been appropriate to continue therapy if the allegations against Dr Lawrence were untrue, if they were true it could be evidence that he became obsessed with his patient and would not let go. The FTPP considered that Dr Lawrence should have recognised his emotional involvement with Patient B and should have realised that it was not in her best interests to continue sessions and should not have continued with them. It was of course Dr Lawrences testimony that he did indeed seek to work with Patient B through the experience of her erotic transference and that he never became emotionally involved with her. In finding that the fact alleged in paragraph 2(c) (ii) and admitted by Dr Lawrence that he continued with the sessions even though his supervisors had advise him to stop treating Patient B was not in her best interests and was an abuse of his professional position, the FTPP stated that it did not accept Dr Lawrences testimony that he made full and proper disclosure to the supervision group of the content of his sessions with Patient B. It noted that Ms Dowd told the FTPP that she expressed her concern about his continuing professional relationship with Patient B on a number of occasions and

48.

49.

50.

51.

that Ms Sutcliffe also confirmed that the supervision group advised him to stop treating the patient. The FTPP considered that given his emotional involvement with her and his encouragement of her interest it was not in Patient Bs best interests and was an abuse of his professional position to continue treating her. 52. In deciding that the admitted fact, alleged in paragraph 2(d) (ii), that Dr Lawrence did not refer Patient B to another therapist for counselling about whether to undergo a termination was inappropriate and not in the best interest of his patient, the FTPP noted that Patient B was socially isolated with no friends or family other than her husband with whom she could talk about her pregnancy and a possible termination. Its judgment was that his ability to counsel her was compromised by his own emotional involvement with her. It found further that he should have been aware that her feelings for him could have impaired her ability to rationally think through her decision. Although Dr Kennedy considered that counselling in the group sessions was enough, the FTPP recorded that his answer was predicated on the allegations against Dr Lawrence not being true. It therefore concluded that he should have referred Patient B to an independent professional such as her GP. However the FTPP did not find proved the allegation in paragraph 4(c) that Dr Lawrences failure to refer Patient B to another therapist for counselling about whether to undergo a termination was an abuse of his professional position. It concluded that he did not prevent Patient B from seeking independent counselling or advice and, although he should have taken positive steps to facilitate Patient B obtaining further counselling about it, the FTPP did not consider that by failing to do so he was thereby abusing his professional position. The FTPP found that all the conduct alleged and found proved and/or admitted in paragraphs 2(b)(i)-(iv), and (vi) and paragraph 2(c)(i) and (ii) was sexually motivated as alleged in paragraph 5. In doing so it stated that it interpreted sexually motivated in a broad sense which included achieving gratification of sexual feelings. It accepted Mr Booths submission that, had he wished to pursue a physical sexual relationship with Patient B, Dr Lawrence had ample opportunity. There was no suggestion from Patient B that during his therapy he pursued a physical sexual relationship with her. The FTPP said that it was careful not to use its knowledge of his previous suspension as evidence proving the facts. However, in reaching conclusions on the balance of probabilities, it stated that it took the view that the previous allegation found proved against Dr Lawrence in 2000 made it less improbable that he might have sought to pursue an emotional or sexual relationship with Patient B. The FTPP stated that it considered that Dr Lawrences behaviour towards Patient B was intended to encourage her feelings for him and that his conduct was motivated by his wish to gratify his sexual feelings. In finding the allegation of sexual motivation proved in relation to the revelation to Patient B of Dr Lawrences sexual fantasies about her, the FTPP noted the evidence of Dr Kennedy and Dr Denman that there would be no situation in which it would be appropriate for a psychotherapist to reveal his own sexual feelings towards the patient. In its Determination the FTPP said that it considered carefully the credibility of the two main witnesses, Dr Lawrence and Patient B. It preferred the evidence of Patient B over that of Dr Lawrence, finding her a good witness whose evidence was clear considered and balanced and generally consistent. By contrast it found Dr Lawrences evidence generally unreliable, concluding that he gave implausible and

53.

54.

unconvincing explanations for his conduct and that the way in which he gave his evidence was unsatisfactory, giving the appearance of being evasive and not providing a true explanation of the reasons for his conduct. 55. The FTPP went on to hear evidence and submissions on the issue of impairment and determined on 22 September 2010 that the facts found proved amounted to serious misconduct and that Dr Lawrences fitness to practise was impaired by reason of that misconduct. Further evidence and submissions were then heard on the issue of sanction and on 24 September 2010 the FTPP determined that Dr Lawrences name should be erased from the Medical Register. It then suspended Dr Lawrences registration forthwith pending the direction of erasure taking effect 28 days after 24 September 2010 or following the disposal of any appeal. It is convenient to deal first with Dr Lawrences two remaining procedural challenges. (At the oral hearing of the appeal the challenge based on allegedly inappropriate conduct by the Legal Assessor to the FTPP was abandoned).

56.

The decision to admit Patient Bs evidence by means of video link 57. The GMC applied to the FTPP for permission to adduce Patient Bs testimony by means of a live video link from Australia, where she was living at the time of the hearing. The application, which was contested by Dr Lawrence, was successful. Dr Lawrence appeals against the decision of the FTPP. The FTPP hearing was governed by the General Medical Council (Fitness to Practise) Rules 2004 (the 2004 Rules). Rule 34 provides so far as material: (1) Subject to paragraph (2) the Committee or a Panel may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law. (2) Where evidence would not be admissible in criminal proceedings in England, the Committee or Panel shall not admit such evidence unless, on the advice of the legal assessor, they are satisfied that their duty of making due enquiry into the case before them makes its admission desirable. 60. Rule 36 provides so far as material: (1) In proceedings before the Committee or a Panel, the following may, if the quality of their evidence is likely to be adversely affected as a result, be treated as a vulnerable witness - (b) Any witness with a mental disorder within the meaning of the Mental Health Act 1983 (e) Any witness, where the allegation against the practitioner is of a sexual nature and the witness was the alleged victim;

58. 59.

(2) Subject to the advice of the Legal Assessor, and upon hearing representations from the parties, the Committee or Panel may adopt such measures as it considers desirable to enable it to receive evidence from a vulnerable witness. (3) Measures adopted by the committee or Panel may include, but shall not be limited to (a) Use of video links; (d) Use of screens or such other measures as the Committee or Panel consider necessary in the circumstances, in order to prevent (i) the identity of the witness being revealed to the press or general public; or (ii) access to the witness by the practitioner; 61. Patient B wrote her letter of complaint to the GMC regarding Dr Lawrence on 25 September 2008. She left London for Australia on 1 October 2008. On 22 August 2009 Patient B in an email to the GMC asked if she would be required to provide evidence at the hearing which was then scheduled for 15 March 2010 and if so what form it would be i.e. whether a written statement would be sufficient. On 26 August 2009 the GMC replied by email stating that it was understood that Patient B was now living in Australia so that the GMC would propose to try and arrange a video link for her to give her evidence from a location near her in Australia. There was no reference in this email to Patient B being a vulnerable witness. That suggestion was made for the first time by the GMC to Dr Lawrences solicitors on 9 September 2009 when it was asserted that that entitled her to give her evidence by video link. On 22 September 2009 Dr Lawrences solicitors objected to the proposal that she should give her evidence by video link and did not accept that she might be a vulnerable witness. On 22 February 2010 having discovered that the hearing had been postponed Patient B emailed the GMC stating that her strong preference remained to give her evidence by video link. However she added she did not wish Dr Lawrence not to be held accountable for his behaviour as a result of a technicality. Thus if at the end of the day the only way the hearing could continue would be if she provided evidence in the UK she said she was willing to do that. The GMCs application was supported by a letter dated 19 August 2010 from Dr Virginia McAndrew, a consultant psychiatrist practising in Australia. She expressed the opinion that the family disruption involved in Patient B giving evidence in London, which would involve travelling without her husband and leaving her young child at home in Australia, was likely to be a significant source of stress for Patient B. In the UK she did not have suitable personal or emotional connections to support her during the time away from her family while she gave evidence. She considered that for Patient B to travel to the UK to give evidence was very likely to have an adverse effect on the quality of her evidence. Separately she expressed the opinion that whilst her current mental health was more robust than it had been six months previously, the degree of autonomic arousal and potential distress which giving evidence face to face in Dr Lawrences presence might cause Patient B were likely negatively to impact on

62.

63.

her ability to focus and to present her evidence clearly. She also thought it possible that such a confrontation might have a detrimental effect on her current mental health. She recommended that Patient B should not be required to present her evidence face to face in Dr Lawrences presence. 64. Witness B in a witness statement dated 31 August 2010 said that she wished to give evidence via video link from Australia. She said that the prospect of giving evidence for the hearing was very stressful not only because of the nature of the hearing but because it brought back memories of some very difficult and sad times for her and she anticipated feeling vulnerable during the hearing. That was particularly so if she was required to discuss the termination she had while under Dr Lawrences care. She said that she did not have family or close friends in the UK who were aware of the case and who would be able to provide support for her if she had to travel to the UK to give evidence in person. She would have to stay on her own in a hotel which would add to her feeling of isolation. By contrast if she were to give evidence via video link from Australia she would have her husband and close friends around her who knew about Dr Lawrences alleged behaviour during her treatment and the impact she said that it had had on her. They would be able to offer her emotional and practical support during and after the hearing. She also had professional care in Australia which she could access as necessary to support her during the hearing. She was concerned that travelling to the UK to give evidence in person would make a difficult task even more difficult. It would place extra stress on her during a time when she would be feeling very vulnerable and she was concerned that she would find it difficult to cope on her own. Providing evidence by video link would enable her to focus on her testimony without the stress of recovering from a very long flight or worrying about the impact her absence would have on her family. She added that it was her sons sixth birthday during the period scheduled for the hearing and she did not want to be away from home on his birthday. The fallout from her treatment from Dr Lawrence had had a significant impact not only on her but also on her husband and son and she did not wish to add to that by being away on her sons birthday and causing him distress. Dr Lawrence relied on a letter dated 26 August 2010 to the GMC by Dr Reveley, one of the consultant psychiatrists who gave expert evidence on his behalf at the hearing. In Response to Patient Bs statement and Dr McAndrews letter Dr Reveley said that she understood that it would not be necessary for Patient B to meet Dr Lawrence face to face if she gave evidence in person because she could be shielded in some way. She said she had considered whether Patient B was unable to give evidence in person because of any psychiatric condition. However it appeared from medical notes which she had seen that Patient B was currently mentally well and therefore in her opinion in the normal course of events would be able to give evidence in person. In her opinion there was no reason from a purely psychiatric standpoint why Patient B should not travel to the UK to give evidence. She had considerable sympathy with Patient Bs difficulties in relation to her work and family commitments. However in her experience video evidence was seldom as satisfactory as a face to face interview and Patient Bs personal comfort had to be set against the gravity of her allegations and the potential repercussions for Dr Lawrence whose livelihood and career were at stake. In response to Dr Reveleys letter Dr McAndrew wrote a further letter to the GMC dated 4 September 2010 emphasising that her principal concern about Patient B being

65.

66.

required to travel was the absence of social and emotional support which she would have. She said that when she first met Patient B on 5 May 2010 she formed the opinion based on her clinical examination and Patient Bs history and notes that she had a Major Depressive Episode (DSM IV) in Partial Remission. She understood that Patient B had had a relapse of her depression some months before, associated with the anticipation of the GMC hearing being scheduled for March 2010. Professor Olio who had treated her earlier had increased her medication and organised for her to have psychological therapy to assist with that. That management plan in combination with the deferral of the GMC hearing preceded Patient Bs psychiatric improvements. At their next meeting on 15 August 2010 Patient B denied being depressed and appeared clinically non-depressed. Dr McAndrew considered her Major Depressive Episode to be in Remission. However she conveyed significant affective anxiety when asked to expand on the upcoming GMC hearing process. Given her history of Major Depressive Disorder and of relapse in anticipation of this particular stressor, Dr McAndrew said that she considered Patient B to be vulnerable to relapse in the context of giving evidence to the GMC hearing. 67. At the hearing of the application Mr Booth on behalf of Dr Lawrence submitted that there are inherent difficulties associated with the use of a video link to examine a witness, including time delays and reduced ability to read body language. He submitted that these difficulties would unfairly prejudice Dr Lawrence and that Patient B was willing to travel to the UK to give evidence. In its Determination allowing the GMCs application the FTPP said that it was made firstly under Rule 36(1)(b) and (e) of the Rules and secondly under what it described as the panels inherent jurisdiction to manage the way in which it receives evidence, consistent with section 51 of the Criminal Justice Act 2003. Section 51 provides that a witness other than the defendant may, if the court so directs, give evidence through a live link in certain criminal proceedings including a trial on indictment. A direction may not be given unless the court is satisfied that it is in the interests of the efficient or effective administration of justice for the person concerned to give evidence in the proceedings through a live link. In deciding whether to give a direction under section 51 the court must consider all the circumstances of the case including in particular the availability of the witness, the need for the witness to attend in person, the importance of the witnesss evidence to the proceedings, the view of the witness, the suitability of the facilities at the place where the witness would give evidence through a live link and whether a direction might tend to inhibit any part of the proceedings from effectively testing the witnesss evidence. The FTPP accepted the Legal Assessors advice that it did have inherent jurisdiction to manage the receipt of evidence by video link. It said that it next considered whether head of charge 5 (that Dr Lawrences acts and omissions alleged in paragraphs 2(b)(i), 2(b)(iii)-(vi), 2(c)(i) and (ii) and/or (iii) were sexually motivated) is of a sexual nature. It did not explicitly answer that question. It did however conclude that the head of charge 2(b)(i), namely that Dr Lawrence revealed sexual fantasies which he had about Patient B to Patient B, is essentially of a sexual nature albeit that the alleged behaviour is emotional rather than physical in character. It further found at that stage that heads of charge 2(b)(iii)-(vi) might in their context be of a sexual nature but that matter would be resolved by the evidence. In the circumstances it found that Patient B met the criteria under Rule 36(1)(e).

68.

69.

70.

The FTPP next considered the mental health of Patient B. It referred to the letters from Dr McAndrew and Dr Reveley and noted that the mental disorder was described as currently in remission. However it accepted that the stresses involved for the patient in giving evidence in the UK increased the risk of a relapse of that disorder. The FTPP said that it was satisfied that Patient B met the criteria under Rule 36(1)(b). The FTPP said that in considering the quality of evidence that it might receive and in balancing the interests of Dr Lawrence with that of the witness, its view was that if Patient B were to travel to the UK to give evidence she would deprived of the emotional support of her family and her home life and would experience a period of separation form her young child. She would also be likely to experience anxiety in giving evidence. It concluded that that would be likely to adversely affect the quality of evidence she could give and would also result in an increased risk in relapse of her mental illness. From its own experience of video testimony the FTPP stated that it was satisfied that it was able to make observations on body language and demeanour. It did not consider time pauses, slowing of the pace of cross-examination or potential difficulties with documentation to be significant factors. It stated that it took account of paragraph 43 of the speech of Lord Slynn in Polanski v Conde Nast Publications Ltd [2005] 1 WLR 637 in which he stated: It seems to me however that as a starting point it is important to recall that although evidence given in court is still often the best as well as the normal way of giving oral evidence, in view of technological developments, evidence by video link is both an efficient and an effective way of providing oral evidence both in chief and in cross examination. Eady Js experience led him to believe that there is in most cases very little, if any, actual disadvantage or prejudice to either side when that means is adopted and that my experience is that the process of cross examination takes place as naturally and freely as when a witness is present in the court room.. The FTPP stated that if there were to be difficulties with the qualities of the video testimony, which might cause it to give less weight to this evidence, that would tend to weaken the GMCs rather than the doctors case. Accordingly it stated that it considered it desirable to receive Patient Bs evidence via video link. It stated that it also found under what it described as its inherent jurisdiction that receiving evidence via video link could fairly justly and properly dispose of Patient Bs evidence.

71.

72.

73.

In the Grounds of Appeal it was submitted that the FTPP was wrong to determine to receive Patient Bs evidence via video link on the following grounds: a) The fact that she was the sole complainant, that the matters complained of were said to have occurred in one-to-one sessions where nobody else was present and therefore there was likely to be the need to resolve a direct conflict of evidence between Patient B and Dr Lawrence, the fact that the matters complained of were said to have occurred between three years and three months and four years and nine months earlier and the fact that Patient B had undergone 37 sessions of counselling and hypnotism at the

hands of Suzi Barnett between the end of her treatment with Dr Lawrence in June 2007 and the making of any complaint to the GMC in September 2008 were all matters which indicated that a particularly careful assessment of Patient Bs evidence, to include her body language and demeanour, would be required. b) The FTPP failed to take sufficient account of the fact that Patient B was prepared to travel to the UK from Australia to give oral evidence in person. c) It was not open to the FTPP to conclude that Patient B could be categorised as a vulnerable witness pursuant to Rule 36(1)(b) by reason of any mental disorder when her depression was in remission at the time in question. d) It was not open to the FTPP to conclude that Patient B could be categorised as a vulnerable witness pursuant to Rule 36(1)(e) when there was no allegation or suggestion of sexual touching. e) The FTPP erred in concluding that it has an inherent jurisdiction to receive evidence by video link when it is itself a creature of statute alone and where the statutory scheme and the 2004 Rules provide a complete code for its operation. f) The way in which the video link had been arranged in the case, namely that it was treated as a fait accompli by the GMCs lawyers from the outset, was wrong. It was wrong for the video link to have been set up in front of the FTPP on the first morning of the hearing. The FTPP chairman appeared to express some surprise that the application to receive evidence via video link was going to be opposed, notwithstanding the fact that the original time estimate for the hearing had been extended to make allowance for a decision requiring the attendance of Patient B in person. 74. In a skeleton argument for the hearing in front of me Mr Booth on behalf of Dr Lawrence further submitted that the FTPP failed to address itself sufficiently to the test within Rule 36 of whether the quality of Patient Bs evidence was likely to be adversely affected if she were not treated as a vulnerable witness. It was said to be apparent from the disclosed emails that until very shortly before the FTPP hearing commenced the GMC was approaching the mode of receipt of Patient Bs evidence as an issue of logistical convenience rather than an issue involving a truly vulnerable witness. It was submitted that the evidence had been created to fit the terms of Rule 36 rather than this being a case where the complainant had requested special measures at the outset. Furthermore in any case where, as here, the witness was prepared to attend the hearing in person it was submitted that the FTPP should receive the evidence from that witness in person, that being the best mode of evidence available. In oral submissions Ms Lambert QC, who appeared for Dr Lawrence at the appeal hearing in front of me, conceded that Patient B met the criteria in Rule 36(1)(e), namely that the allegation against Dr Lawrence was of a sexual nature and Patient B was the alleged victim. That was in my view a realistic, indeed inevitable concession. Ms Callaghan, who appeared in front of me on behalf of the GMC, was in my judgment right to submit in her skeleton argument that the language of Rule 36(1)(e)

75.

provides no basis for the contention that a complaint of a sexual nature must involve an allegation of sexual touching. The natural and ordinary meaning of sexual is relating to sex. In circumstances where it was alleged that Dr Lawrence disclosed sexual fantasies to Patient B and was sexually motivated in his conduct towards her the allegation was plainly of a sexual nature. 76. Ms Lambert accepted that in the light of her concession that the criteria in Rule 36(1)(e) were satisfied the bar, as she put it, is set high in the sense that Dr Lawrence has to show that the FTPP was irrational in finding that the quality of Patient Bs evidence was likely to be adversely affected as a result of the condition in Rule 36(1)(e) being satisfied or in exercising its discretion under Rule 36(1) to treat her as a vulnerable witness. She submitted that the bar is cleared in both respects. As to the former she submitted that the evidence as to the effect on Patient B of giving evidence in London did not go beyond inconvenience and stress. Any possible adverse effect on the quality of her evidence arising out of the sexual nature of the allegations could be adequately avoided or mitigated by the use of screens at the hearing. The use of screens would avoid the need for Patient B to be face to face with Dr Lawrence while she gave her evidence. The FTPP in its determination had not addressed this point even though it was raised at the hearing, despite the fact that it did mention that Dr McAndrew had said that the anxiety demonstrated by Patient B at the possibility of giving evidence face to face in Dr Lawrences presence might negatively impact on her ability to focus and to present her evidence clearly. The inference was that the FTPP had given inappropriate weight to that evidence. As to the exercise of the FTPPs discretion, Ms Lambert submitted that the FTPP ignored the crucial nature of Patient Bs evidence to the outcome of the hearing. Had that factor been taken into account and accorded the appropriate weight the discretion could only have been exercised against allowing her to give her evidence by video link. In her skeleton argument on behalf of the GMC Ms Callaghan submitted in relation to jurisdiction that the FTPP had merely accepted the advice of the Legal Assessor that under Rule 34 it had a wide discretion as to how, what and in what form evidence was received. The FTPP did not rely on any power outside the Rules. Rule 34 was plainly broad enough to extend to the admission of evidence by video link: it is concerned not merely with the admissibility of evidence but the permissible form of evidence. As to Rule 36(1)(b) Ms Callaghan submitted that Dr Lawrence was wrong to contend that it has no application where the mental disorder of the witness is in remission. A person may have a mental disorder within the meaning of the Mental Health Act 1983 notwithstanding that its symptoms are in remission. The construction contended for by Dr Lawrence would undermine the purpose of Rule 36(1) which is to identify the vulnerable. A person whose mental disorder is in remission and who is at risk of relapse if she gives evidence without special measures (as in this case) is intended to be caught by the Rules. As to the exercise of discretion, Ms Callaghan submitted that it was open to the FTPP to conclude that it was desirable to receive evidence from Patient B via video link, that any difficulties with the quality of the video testimony would cause it to give less, not more weight to Patient Bs evidence and that requiring her to travel to the UK to give evidence would adversely affect the quality of evidence she would give. The

77.

78.

79.

80.

FTPP took into account the matters relied on by Dr Lawrence and in particular his submission that it would be difficult to assess body language and demeanour over a video link. It was entitled to be satisfied on the basis of its own experience of video testimony that it would be able to make observations on body language and demeanour using a video link and in that regard to take account of Lord Slynns observation in Polanski at paragraph 43 that evidence by video link is both an efficient and an effective way of providing oral evidence both in chief and cross examination. The FTPP was entitled to exercise its discretion in favour of receiving evidence by video link. 81. Further the FTPP it was submitted plainly took into account Patient Bs statement in an email to the GMC that she would be willing to come to the UK to give evidence but noted that this was only as a last resort option. It heard more recent evidence from her in a witness statement dated 31 August 2010 that it would cause significant difficulties and stress for her to travel to the UK to give evidence. The FTPP was entitled to give those considerations such weight as it thought appropriate in determining whether to receive evidence by video link. The contention that the GMC treated the success of its application as a fait accompli was irrelevant to the question whether the FTPP disposed of the application fairly. In any event there was no basis for the suggestion that the GMC treated the applications as a fait accompli or that the chairman of the FTPP was surprised that the application was opposed. In oral submissions Ms Callaghan submitted that it is clear from Dr McAndrews second letter to the GMC dated 4 September 2010 that Patient B suffered from depression and that it would undermine the purpose of Rule 36(1) if it excluded from its ambit a person who is in remission who would be made mentally ill if called to give oral testimony. Such a person was intended to be caught by Rule 36(1)(b). Dr McAndrew in her second letter expressly stated that she considered Patient B vulnerable to relapse in the context of giving evidence to the GMC hearing. Patient B had conveyed significant affective anxiety when asked by Dr McAndrew to expand on the upcoming GMC hearing process. Ms Callaghan submitted that the evidence plainly justified the FTPPs conclusion that the quality of Patient Bs evidence was likely to be affected as a result both of the fact that Patient B had a mental disorder and of the allegations against Dr Lawrence being of a sexual nature and Patient B being the alleged victim. Although in her witness statement she had expressed concerns about the prospect of having to meet Dr Lawrence face to face and Dr McAndrew in a letter dated 1 September 2010 to the GMC had recommended that she not be required to present her evidence face to face based on the inflection in her voice and her clear increase in anxiety as she contemplated having him in eyesight whilst giving evidence, neither the concerns expressed by Patient B in her witness statement nor the opinions expressed by Dr McAndrew were confined to the effect on Patient B of giving evidence face to face with Dr Lawrence. Patient B said that she anticipated feeling vulnerable during the hearing and was concerned that she would not have family or close friends in the UK who were aware of the case who would be able to provide support for her if she had to travel to the UK to give evidence in person whereas if she were to give evidence via video link from

82.

83.

84.

85.

Australia she would have her husband and close friends around her who knew about Dr Lawrences alleged behaviour and the impact it had had on her. They would be able to offer her emotional and practical support during and after the hearing. She was concerned that travelling to the UK to give evidence in person would make a difficult task even more difficult and place extra stress on her during a time when she would be feeling very vulnerable and she was concerned that she would find it difficult to cope on her own. Providing evidence by video link would enable her to focus on her testimony without the stress of recovering from a very long flight or worrying about the impact her absence would have on her family. 86. Ms Callaghan submitted that it was clear that Dr McAndrew accepted that Patient Bs concerns were genuine. She expressed the opinion as mentioned above that leaving her husband and six year old son behind would be likely to be a significant source of stress for Patient B and that the physical stresses of jet lag and travel fatigue were both factors which could be associated with reduction in mental performance and increase in psychological stress and she considered that for Patient B to travel to the UK to give evidence was very likely to have an adverse effect on the quality of her evidence. The FTPP was entitled and right to accept that evidence as well as the evidence of Patient B. Ms Callaghan relied both on Polanski and on the judgment of Leveson LJ in Southall v General Medical Council [2010] EWCA Civ 407. The central issue in that case was a conflict of evidence as to what had been said at an interview on 27 April 1998 in which it was alleged by the GMC that Dr Southall accused Mr. M of drugging and murdering her ten year old son who had died by hanging nearly two years earlier. Dr Southall admitted that he had probed the circumstances of Mrs Ms son at that interview and accepted that Mrs. M might have perceived that he was accusing her of murder but maintained that he did not in fact do so. He was supported by the evidence of the social worker who was in the case and present at the interview. Having heard evidence from Dr Southall, the social worker and Mrs M and others to whom she spoke in the days that followed recollecting with the aid of notes conversations over eight years earlier the FTPP in that case accepted the evidence of Mrs M and, as found by Leveson LJ, although it did not explicitly say so, must have rejected that of Dr Southall and the social worker. Mrs M gave her evidence to the FTPP, notwithstanding objection from leading counsel on behalf of Dr Southall, over a live link from Australia where it was presumed by Leveson LJ she then lived. Leveson LJ, in a judgment with which the other members of the court agreed, stated that what was in fundamental dispute was Mrs Ms evidence as to precisely what was said to her and the way in which she was treated. Ms Callaghan relied on the fact that the Court of Appeal made no adverse comment on the fact that the FTPP allowed Mrs. M to give her testimony by live video link in a case in which, no less than in this case, the central issue turned on conflicting accounts of what occurred, in respect of which the impression formed by the FTPP of the central witnesses was likely to be of great importance. In this case Ms Callaghan submitted that the FTPP was able to see as much of the demeanour of Patient B as it was of Dr Lawrence. Both of them were seated at a table while giving their testimony. As to that Ms Lambert submitted that if Patient B had given oral testimony at the hearing the FTPP would have been able to see her legs under the table as it could Dr Lawrences.

87.

88.

89.

90.

I have no hesitation in accepting Ms Callaghans submissions on this ground of appeal. I have already expressed the view that Ms Lambert was right to concede that the condition in Rule 36(1)(e) was satisfied in this case. I am also clearly of the view that the condition in Rule 36(1)(b) was satisfied. Dr McAndrew formed the opinion based on her clinical examination and Patient Bs history and notes that when she first met her in May 2010 she had a Major Depressive Episode (DSM IV) in partial remission. It was not challenged by Ms Lambert that a major depressive episode is a mental disorder within the meaning of the Mental Health Act 1983. The fact that it was only in partial remission in May 2010 suggests that as at that time Dr McAndrews opinion was that witness B had a mental disorder in May 2010. Dr McAndrew expressed the opinion, based on her understanding that Patient B had had a relapse of her depression some months earlier associated with the anticipation of the GMC hearing then scheduled for March 2010 coupled with her conveying of significant affective anxiety at their meeting on 15 August 2010, that Patient B was vulnerable to relapse in the context of giving evidence to the GMC hearing. In other words it was Dr McAndrews opinion that if Patient B gave evidence at the GMC hearing there was a real prospect of a relapse to a Major Depressive Episode. Since Rule 36(2) is designed among other things to enable the FTPP to allow a witness with a mental disorder, the quality of whose evidence is likely to be adversely affected as a result of that disorder, to give testimony via a video link, it is in my judgment clear that a witness who the FTPP considers will or is likely to have a mental disorder within the meaning of the Mental Health Act 1983 at the time they are due to give evidence is a witness with a mental disorder within the meaning of the Mental Health Act 1983 within the meaning of Rule 36(1)(b). The Rule is concerned with the effect of mental disorder on the quality of a witnesss evidence. The time at which the quality of evidence is liable to be affected by any mental disorder on the part of the witness is the time at which the witness gives his or her evidence. It would in my judgment not only be contrary to but defeat the purpose of the Rule 36 if the FTPP were not to have the power to allow a witness to give testimony by video link in circumstances where a mental disorder which was in remission at the time an application to use a video link was made would, on the evidence before the FTPP at the time of the application, be likely to return at the time of and by reason of the witness being required to give evidence at the hearing such that it would adversely affect the quality of their evidence. Further and in any event it appears from Dr McAndrews opinion that Patient B was still suffering from depression in August 2010, it being only in partial as distinct from complete remission. Nor do I consider that the FTPP was irrational to conclude that the quality of Patient Bs evidence was likely to be adversely affected as a result of her mental disorder and the sexual nature of the allegation against Dr Lawrence in respect of which she was the alleged victim. It is clear that in reaching that conclusion the FTPP did not rely on the evidence of Patient B and the opinion expressed by Dr McAndrew as to the effect on Patient Bs evidence of giving it face to face with Dr Lawrence. It explicitly concluded that the quality of her evidence would be likely to be adversely affected by the anxiety she would be likely to experience in giving evidence if she were to travel to the UK to do so since she would be deprived of the emotional support of her family and home life and would experience a period of separation from her young child.

91.

92.

93.

It is in my view clear that the evidence went considerably further than mere inconvenience. Nor in my view is it realistic to criticise the FTPP for failing to conclude that any possible adverse effect on the quality of Patient Bs evidence arising out of the sexual nature of the allegations could have been adequately avoided or mitigated by the use of screens at the hearing. That is to confuse the evidence as to the anticipated effect on Patient Bs evidence of giving evidence face to face with Dr Lawrence and the evidence as to the anticipated effect on the quality of her evidence of dealing with sexual allegations without the emotional support of her husband and friends in the UK where she would have no equivalent emotional support. As to the FTPPs reference to its inherent jurisdiction to manage the receipt of evidence by video link, it was not in my view thereby intending to suggest that it had any power outside the 2004 Rules or that it was purporting to rely on any such power. It is in my view apparent that the FTPP was exercising the discretion conferred on it by Rule 36(1). That is apparent from the sequential way in which it considered first whether the criteria in Rule 36(1)(b) and (e) or either of them were satisfied, secondly whether the quality of Patient Bs evidence was likely to be affected thereby and thirdly whether it should exercise its discretion to allow the evidence to be given by video link. It may also be that the FTPP considered that it had discretion to permit Patient B to give her testimony by video link by reason of the discretion conferred on it by Rule 34. That may be the explanation of the reference to it accepting that it had inherent jurisdiction to manage the receipt of evidence by video link. There was no suggestion on behalf of Dr Lawrence, so far as I was informed, that evidence by Patient B by video link would not be admissible in criminal proceedings. As mentioned above provided that the court is satisfied that it is in the interests of the efficient or effective administration of justice for a person to be permitted give evidence in criminal proceedings through a live link, having considered all the circumstances of the case including the matters to which I have referred above, the court may so direct in certain criminal proceedings including a trial on indictment. There is no reason to suppose that the FTPP considered that such a direction could not have been given in criminal proceedings in respect of Patient Bs evidence. Accordingly given that under Rule 34(1) the FTPP had a discretion to admit Patient Bs evidence by video link provided it considered it fair and relevant to the case before it, it did not need to consider whether, in addition, it was desirable to do so pursuant to Rule 34(2). There is no question but that Patient Bs testimony whether given in person or by video link was relevant to the proceedings before the FTPP and it is plain that the FTPP considered that it was fair to allow it to be adduced by video link. In my view it was entitled to reach that conclusion. On that basis it had a discretion to allow the evidence to be given by video link under Rule 34(1) as well as Rule 36. Having found that it had a discretion under Rule 34(1), even had there been a basis for concluding that Patient Bs evidence by video link would not have been admissible in criminal proceedings, the FTPP would still under Rule 34(2) have had a discretion to permit it to be adduced if it was satisfied that its duty of making due enquiry into the case before it made its admission desirable. The FTPP made an explicit finding in the light of the extensive submissions by both parties that it considered it desirable to receive Patient Bs evidence via video link. Accordingly whether or not the evidence

94.

95.

96.

would have been admissible in criminal proceedings, the FTPP had a discretion to allow it to be adduced under Rule 34 provided that it considered it fair to do so. 97. As to the challenge to the way in which the FTPP exercised the discretion which in my view it clearly had, I have carefully considered the submissions made on behalf of Dr Lawrence as well as the relevant evidence. In my judgment the circumstances of this case do not come close to supporting a conclusion that the FTPP was wrong let alone irrational to exercise its discretion to allow Patient Bs evidence to be given via video link from Australia. The factors weighing in favour of allowing the use of video link were very powerful. The FTPP found, and I have held was entitled to find, that if Patient B gave evidence in person the quality of her evidence was likely to be adversely affected both because of the sexual nature of the allegations in respect of which she was the alleged victim and because of her depression and anxiety. Moreover the FTPP found, as I have also held it was entitled to find, that the stress involved in her giving evidence in the UK would increase the risk of a relapse of her disorder. The evidence of Patient B in her witness statement and the opinions expressed by Dr McAndrew were in my view compelling. The principal factor relied on by Dr Lawrence as pointing against it being fair or appropriate to permit the use of video link was the central importance to the case against Dr Lawrence of Patient Bs evidence and the fact that much of the case turned on a straight conflict of evidence between Patient B and Dr Lawrence as to what he said and how he behaved and how she understood his words and behaviour in sessions where no one else was present. Given the particular importance likely to be attached in such circumstances to the impressions made on the members of the FTPP by Patient B and Dr Lawrence and their view of the demeanour of the two principal protagonists, it was submitted that Dr Lawrence would be put at an unfair disadvantage if the FTPP were disabled by the use of a video link from being in a position to form as clear a view of the demeanour of Patient B as it is would be able to form of the demeanour of Dr Lawrence in the witness box. The element of unfairness it was submitted was exacerbated by the potentially disastrous effects on Dr Lawrences career and reputation in the event of Patient Bs evidence being preferred to his. It is in my view self evident that Patient Bs evidence was going to be of central and critical importance to the determination by the FTPP of the issues it had to decide. It is no less self evident that the seriousness of the allegations made by Patient B against Dr Lawrence and the adverse consequences in the event of them being accepted by the FTPP meant that the FTPP had an obligation to be particularly astute to ensure that Dr Lawrence was not put at an unfair disadvantage. On the other hand the FTPP had a duty to investigate these serious allegations in so far as it was possible to do so consistent with fairness to Dr Lawrence. There is a public interest in serious allegations against medical practitioners being properly investigated and, if they are found to be true, in such further steps, if any being taken as are necessary to protect the public and maintain confidence in the medical profession. The main purpose of disciplinary proceedings is to protect the public by upholding professional standards of competence and integrity on the part of medical practitioners, identifying departures from those standards and dealing with such

98.

99.

100.

101.

departures appropriately. There may be cases where the conflict between that duty and the requirement of fairness to the medical practitioner against whom allegations are being investigated gives rise to very difficult judgments in the exercise of the FTPPs discretion. In my view the circumstances of this case did not give rise to a very difficult judgment. 102. In my view the challenge fails at the preliminary stage of identifying a significant unfairness to Dr Lawrence. The FTPP had experience itself of video testimony on the basis of which it was satisfied that it was able to make observations on body language and demeanour. It did not consider time pauses, slowing of the pace of cross examination or potential difficulties with documentation to be significant factors. In my view there is nothing to suggest that it was wrong to be so satisfied. On the contrary as it pointed out support for that conclusion is to be derived not only from the speech of Lord Slynn in Polanski but also in the experience of Eady J referred to by Lord Slynn which led him to believe that there is in most cases very little, if any, actual disadvantage or prejudice to either side when [evidence by video link] is adopted and his experience that the process of cross examination takes place as naturally and freely as when a witness is present in the courtroom. (Paragraph 43 of the speech of Lord Slynn). Further support for Eady Js view and Lord Slynns view that in view of technological developments evidence by video link is both an efficient and an effective way of providing oral evidence both in chief and in cross examination is to be found in other passages in the speeches in Polanski. Thus Lord Nicholls of Birkenhead held that a direction that Mr Polanskis evidence in that case might be given by means of video conferencing, or VCF in short, would not prejudice Conde Nast to any significant extent. If anything, as Simon Brown LJ observed, any prejudice would more likely be suffered by Mr Polanski by reason of the lessened impact of his evidence and celebrity status on the jury. (Paragraph 13). There is an echo of this in the conclusion of the FTPP that if there were to be difficulties with the quality of video testimony which might cause it to give less weight to Patient Bs evidence that would tend to weaken the GMCs rather than Dr Lawrences case. Lord Nicholls added: Improvements in technology enable Mr Polanskis evidence to be tested as adequately if given by VCF as it could be given in court. Eady J, an experienced judge, said that cross-examination takes place as naturally and freely as when a witness is present in the court room. Thomas LJ [2004] 1 WLR 378,402 paragraph 60 said that in his recent experience as a trial judge, giving evidence by VCF is a readily acceptable alternative to giving evidence in person and an entirely satisfactory means of giving evidence if there is sufficient reason for departing from the normal rule that witnesses give evidence in person before the court: [2004] 1 WLR 387, 402. (Paragraph 14). Lord Slynn also said: As between the parties, if all other questions of policy are ignored, it seems here that the use of video link could be efficient and fair and contribute to the economic disposal of the litigation. If indeed there is any disadvantage it may be to the person asking for the video link evidence and it is not established that the Defendants would be adversely affected by the use of video link evidence. (Paragraph 45). Baroness Hale of Richmond held that in that case the Defendants would suffer no prejudice from the Claimants evidence being given by means of a VCF. (Paragraph 69). She went on to say that the technology used in

103.

104.

105.

giving evidence by VCF is good so that there is little disadvantage to the other party, as Eady J said in his ruling. She did say that that disadvantage has not been entirely eliminated and referred to paragraph 2 of the Video Conferencing Guidance set out in Annex 3 to Practice Direction Written Evidence at section 32 PD. 33 of the Civil Procedure Rules where, after the advantages of VCF had been enumerated, it was stated that: it is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use in particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or maybe more limited than it can exercise over a witness physically before it. (Paragraph 84). However on the facts of that case she held that if the only factors to be weighed in the balance were those operating to confer advantage or impose disadvantage on one or other of the parties, she should have no hesitation in accepting that this was a proper and correct exercise of Eady Js discretion to permit Mr Polanski to give evidence by VCF. (Paragraph 85). 106. In those circumstances in my judgment, having regard to the strength of the public interest in permitting the allegations against Dr Lawrence to be investigated and of avoiding the likelihood of Patient Bs evidence being adversely affected if that could be done without unfair prejudice to Dr Lawrence, there is no warrant for concluding that the FTPP was wrong, let alone irrational, to find that there would be no unfair prejudice to Dr Lawrence if she were allowed to give her evidence by video link such as to require the FTPP to exercise its discretion against permitting her to do so. Accordingly in my judgment this ground of appeal fails.

The decision to admit Suzi Barnetts typed notes as evidence in the proceedings 107. On 8 September 2010, the third day of the hearing, immediately before Ms Barnett was due to give evidence at the GMC an issue arose as to the admissibility of certain notes which she had prepared for the purpose of the hearing. The notes were described on their face as case notes of psychotherapy sessions between [Patient B] (client) and Suzi Barnett (psychotherapist) produced for General Medical Council investigation. In the introduction to this typed document Ms Barnett stated that she saw Patient B for one to one psychotherapy for 37 one hour sessions from July 5 2007 to September 12 2008. She stated that Patient Bs therapy with her could be seen in two parts: (1) to address the distress she felt following the treatment she received whilst under Dr Lawrences care and (2) to address the underlying depression which was the original reason for consulting Dr Lawrence. She stated that the notes she takes in sessions are in shorthand and are intended as an aid memoire for me and as such would make little [or] no sense to others. She stated that as agreed with the GMC Investigating Officer she had typed them up in a more structured manner for the purpose of the complaint but that they did not cover the entire content of the 37 sessions. She said that she had

108.

given as full an account as possible of the discussions regarding Patient Bs distress concerning Dr Lawrence and had included samples of the work they did addressing her recurrent depressive episodes. 109. She stated in the document that she had used hypnosis in the sessions. However because Patient B had told her from the outset that she was considering making a complaint against Dr Lawrence she had strictly followed the recommended protocol of not using hypnosis around any of the issues surrounding Dr Lawrence. Hypnosis had been confined to inducing relaxation, ego strengthening, revisiting and comforting the younger self, positive future orientation and working on diminishing comfort eating. The document stated that all words in italics in the document were words that Ms Barnett noted were specifically Patient Bs words. Mr Booth on behalf of Dr Lawrence objected to the document being admitted. He said that in response to requests for the GMC to disclose Ms Barnetts original records it transpired that she had them available to her when she prepared the typed summary but had then destroyed them after she had first been contacted by the GMC about Dr Lawrence. In those circumstances he submitted that the FTPP should have no regard at all to the typed summary but should simply hear such oral testimony as she was now able to give in the absence of her contemporaneous records and that that testimony should be tested on that basis. Ms Johnson on behalf of the GMC submitted that the document was admissible. What had happened was that Ms Barnett had written up her notes of her sessions with Patient B in a combination of long hand, short hand, speedwriting, and personal symbols that would only make sense to her herself. Having been contacted by the GMC to make a witness statement in the case Ms Barnett had asked whether she could write up a legible and comprehensible document on the basis of those notes and had been told that she could. Ms Johnson submitted that the notes which she wished to admit were predicated on the original handwritten contemporaneous notes. It was right to say that it was not done in chronological order but rather in topic order, subject by subject. However the underlying material was Ms Barnetts original notes. While the weight to be attached to the document was entirely a matter for the FTPP she submitted that the process by which it came to be created did not render it inadmissible. It was further admissible as a memory refreshing document for Ms Barnett if she needed it. After taking advice from the Legal Assessor, and after confirmation by Ms Johnson that the relevance of Ms Barnetts evidence was in the context of questions of recent complaint and was sought to be relied on by the GMC to rebut the allegation made in cross examination of Patient B that some of her allegations against Dr Lawrence had been fabricated, the FTPP adopted a two stage approach. It first announced that it had decided to accede to the GMCs application to admit what it described as the medical records of Patient B from Ms Barnett, by which I took it to refer to the notes to which I have been referring, subject to it being satisfied, on Ms Johnsons questioning of Ms Barnett when she was called, that it could be satisfied that they did represent her contemporaneous record. Ms Barnett was then called to give evidence about the circumstances in which the notes came to be made. Ms Barnett having been examined in chief and crossexamined as to the provenance of the notes, the FTPP withdrew to consider and then

110.

111.

112.

113.

announced that it had decided that, on the basis that the GMC was presenting Ms Barnett as a witness as to fact of recent complaint and not as a witness providing her professional opinion, it would accept receipt of the notes. It stated that it would be a matter for Ms Johnson and Mr Booth at a later stage when making submissions to address it on the issue of what weight it should give to the notes. 114. In her evidence as to provenance, Ms Barnett said that her typed notes were based on two things. The first was the hand written notes which were a combination of speed writing handwriting and short hand which she wrote specifically for herself as a clinician. The latter she described as being not Hansard notes of what goes on in the session, but rather reminder notes for her so that when she went into the next session she could be thinking of the process that the client was going through. She had all her pages of handwritten notes and was going to send them in to the GMC. However she said that that seemed to her like a mockery since she could not understand how anybody was going to make any sense of them. So she rang the investigating officer at the GMC and asked him what he would like her to do with them. She said that she told him that she could either send the original session by session notes or she could write it up as a report which would make it much easier to see what she was doing and if she had any specific notes that actually were Patient Bs specific words she could put those in italics so that one could get a flavour of both the process, what was in her mind when she was working with Patient B and the specific words which Patient B was using. She said that she was asked to do the latter if she had the time. The typed up notes were thus predicated on the contemporaneous notes. Apart from what she described as her experience, she said that she relied on no other material for the purposes of the typed document. Ms Barnett said that it was her usual practice to write notes some time after a psychotherapy session and then to keep them in perpetuity in case the client came back. She said that she retained all her clinical notes. On this occasion, having prepared the typed up notes from her original handwritten notes, she destroyed the latter. Asked why she had done so, she said that if she had time to go back and write all her other original clinical notes up in the way she had written up her notes on Patient B she would be absolutely delighted to throw away her original handwritten notes because the typed notes would be much easier to understand. The original notes would be no use to her and she could not understand why she would want to keep two sets of notes. She said that it was her usual record keeping practice sometimes to record topic by topic as well as session by session, because if she was working on a particular theme she needed to have written her sessions up and would sometimes sit down and work on a particular theme, writing it up and including it in her session notes. As to when she made the typed notes, she said it was whenever she sent them to the GMC. She did not have that date on her. Ms Barnett estimated that there had been about 20 pages of contemporaneous handwritten notes of the 37 sessions with Patient B compared to 11 or 12 pages of the closely typed document sought to be admitted. As to the destruction of the original notes she said they were destroyed as she went through them. She crossed through the bits that she had in the typed notes and threw them away. She did not accept that she knew that her original record was potentially highly relevant. She said that was precisely why she rang the GMC to ask if the

115.

116.

117.

118.

original notes were relevant or whether they would prefer her to write them up as a report and she was told that the latter would be very valuable. She said that if the GMC had wanted the original notes she would have kept them but no one at the GMC told her not to destroy them. She was never told that they were relevant. Indeed she could not see why they were relevant unless it was thought for some reason that she had not written up in the typed up notes what was in the original handwritten notes. She could not think why anyone would think that. She did not accept that it was wrong of her to have destroyed her original manuscript notes when she knew there was an investigation ongoing. 119. She elaborated on what she meant by her experience as the other source of her typed up notes. She said she meant her experience of being with Patient B. She also confirmed that she added no factual information to her account that was not included within the handwritten therapy notes. The original handwritten notes were made up either during the sessions or after the session was over on the same day. If she had seen the patient then she might have sat and thought about and written it up say in her lunch hour. The matters would be fresh in her mind and in her recollection. As to the typed notes she could not remember whether she prepared them before or after signing of a witness statement for the GMC in January 2009. However she confirmed that she did not rely in the typed notes on any information or material which postdated her last meeting with Patient B. In the Grounds of Appeal reference was made to the fact that the typed notes did not consist of contemporaneous notes and were not chronological in their approach. It was submitted that the FTPP was wrong to consider them. To have done so was said to have been unfair to Dr Lawrence. In Mr Booths skeleton argument for the appeal it was submitted that the decision of the FTPP to accept Ms Barnetts typed summary was perverse and plainly wrong given that (a) the typed summary was not chronological (b) Ms Barnett could not say when it had been created (c) she had drawn on her overall experience of Patient B in creating the document rather than simply transcribing her actual notes and (d) Ms Barnett could have given evidence as to the fact of recent complaint in the absence of the typed summary. In oral submissions Ms Lambert submitted that it was wrong to admit the typed notes because they were not chronological and it was not possible to identify in which of the 37 sessions something referred to in the typed notes had been said. She also submitted that it was wrong to admit them on the ground that some of what Patient B was recorded as having said might have been based on hypnosis. This was a reference to evidence given by Ms Barnett in the course of her substantive evidence after the typed notes were admitted. In that evidence Ms Barnett had said that during parts of some of the sessions she had used hypnosis on Patient B as a therapeutic tool. She had been at pains to emphasise that she only used hypnosis when dealing with Patient Bs underlying depression and not at all when discussing with her complaints about Dr Lawrences alleged behaviour towards her. She had however said that when she did use hypnosis she would interweave it into that part of a session in which she was dealing with Patient Bs depression so that Patient B might come in and out of hypnosis. Ms Lambert submitted that that being so it is possible that Ms Barnetts compartmentalisation as between those parts of a session dealing with Patient Bs depression and those parts dealing with her complaints against Dr Lawrence may not

120.

121.

122.

have been as clear cut as Ms Barnett asserted and that that assertion could not be tested. 123. Ms Lambert did not submit that the typed notes were inadmissible per se although she questioned what their status was. In her submission they were not memory refreshing aids or admissible hearsay. However her challenge was based on the submission that, although they were admissible it was unfair of the FTPP to admit them under Rule 34(1) because Mr Booth had been deprived on behalf of Dr Lawrence of the opportunity to cross examine Ms Barnett by reference to her handwritten notes which had been destroyed. She accepted that she would have had no objection if the new notes had been made earlier. The challenge relied on the fact of the original notes having been destroyed. Why she asked forensically had they been destroyed? In the GMCs skeleton argument for the appeal Ms Callaghan submitted that Ms Barnetts typed notes were plainly relevant and admissible. It was common ground between the parties that evidence of recent complaint is relevant and admissible under the Criminal Justice Act 2003 both as to consistency and as to the truth of the complaint. Rule 34(1) and (2) empowered the FTPP to admit the notes if it considered them fair and relevant to the case and, if they would not be admissible in criminal proceedings, or if it considered their admission desirable. She submitted that the FTPP was entitled to exercise its broad discretion in favour of admitting the notes and did not act unfairly in doing so. In oral submissions Ms Callaghan emphasised that the mere fact that the typed notes were not contemporaneous did not mean that they were not admissible. There was no doubt that the FTPP had a power to admit them under Rule 34. She submitted that the notes were still capable of being challenged even though the original manuscript notes had been destroyed because their accuracy could be tested by comparing their contents to the oral testimony of Patient B. Indeed Mr Booth did challenge their accuracy. Moreover she pointed to the fact that there was a chronological element in the typed notes and relied in particular on the fact that they recorded Patient B as having made a complaint at the first session. So far as the challenge based on the admitted use by Ms Barnett of hypnosis on Patient B in some parts of some of the sessions with her is concerned, it faces the insurmountable obstacle in my view that it was not an objection raised by Mr Booth on behalf of Dr Lawrence to the admission of the typed notes. Nor was Ms Barnett cross examined on the hypnosis point in the preliminary phase of her evidence which was designed to elicit evidence relevant to the question whether the notes should be admitted. That is not to say that the question of the use of hypnosis by Ms Barnett does not fall to be considered in the context of the separate ground of appeal, to which I shall refer later, that the FTPP should have attached little or no weight to Ms Barnetts evidence as a whole. In any event on the face of the notes Ms Barnett explicitly stated that, having been told by Ms Barnett from the outset that she was considering making a complaint against Dr Lawrence, she had strictly followed the recommended protocol of not using hypnosis around any of the issues surrounding Dr Lawrence. Although that assertion, which was later confirmed by Ms Barnett in her substantive testimony, was then challenged by Mr Booth in cross-examination, the FTPP was in my view entitled to take it at face value at the stage of considering whether to admit the notes. It was

124.

125.

126.

127.

always open to Dr Lawrence, as the FTPP expressly said, to submit in closing submissions that the FTPP should attach little or no weight to the notes and one ground on which such a submission could be made would be that they were unreliable by reason of doubt or uncertainty as to whether the factual allegations recorded as having been made by Patient B had been influenced by hypnosis. 128. At the stage of considering admissibility, the first question for the FTPP was whether the statements recorded as having been made by Patient B to Ms Barnett were actually made. On that question in my view the issue of hypnosis was irrelevant. Any issue as to hypnosis went to the question whether, assuming that statements attributed to Patient B were made by her, they were unreliable on the basis that they were or may have been influenced by hypnosis. That issue was as relevant to any oral testimony that Ms Barnett would in due course give as to what Patient B told her as it was to her written record of what she said Patient B told her. In my judgment those matters fell to be considered by the FTPP at the conclusion of the evidence in the context of deciding how much if any weight to attach to the notes and Ms Barnetts testimony in so far as they revealed what Patient B told Ms Barnett. The sole ground on which Mr Booth objected to the FTPP to the admission of Ms Barnetts typed notes was that it had emerged that Ms Barnett had destroyed her original notes which had been available to her when she prepared the typed summary. This was echoed in Ms Lamberts submission that, although the notes were admissible, it was unfair of the FTPP to admit them under Rule 34 (1) because Mr Booth had been deprived of the opportunity to cross-examine Ms Barnett by reference to her hand written notes, and in her acknowledgement that she would have had no objection if the new notes had been made earlier and that the challenge relied on the fact of the original notes having been destroyed. In my judgment the fact that Ms Barnetts original notes had been destroyed did not make it unfair to admit the typed notes. It was not suggested by Mr Booth in crossexamination that Ms Barnett had destroyed them in bad faith and it is clear on the transcripts that it did not occur to her that the original handwritten notes would be of any interest to anyone. Her evidence was that the typed notes contained no factual information other than what had been contained in the original handwritten notes and that where the original notes recorded the actual words used by Patient B to her that was shown in the typed notes by the use of italics. In my view the assertion by Ms Barnett that the statements attributed to Patient B in the typed notes reflected those which she had recorded in the handwritten notes was a sufficient basis to entitle the FTPP to consider that it was fair to admit them. It would be open to Mr Booth when testing her substantive evidence to suggest to Ms Barnett that those statements were or may have been inaccurately transcribed or recorded in the typed written notes and subsequently to submit to the FTPP that for that reason it should pay little or no weight to them. It would also be open to Mr Booth to crossexamine Ms Barnett by reference to any discrepancy between statements attributed to Patient B in the typed notes and Patient Bs oral testimony. In fact, as appears in my subsequent discussion of the weight which the FTPP was entitled to attach to Ms Barnetts evidence as to what Patient B told her, there was a marked similarity between Patient Bs account in her oral testimony and that appearing in the typed notes and in Ms Barnetts oral testimony.

129.

130.

131.

132.

I see the force of the argument that as evidence of recent complaint the reliability of the statements attributed to Patient B in the typed notes was capable of being questioned on the basis both that they were created at an unknown date no earlier than October 2008 when Patient B made her complaint to the GMC and that because they were not set out in chronological order it is not possible to say at what point in the 14 months of therapy between July 2007 and September 2008 many of the particular statements were made. However that has to be set against the fact that the notes contained statements which in my view appear clearly to have been made by Patient B at her first session with Ms Barnett in early July 2007 and that it was accepted by Ms Lambert that the notes were admissible per se. There was no suggestion that they would not have been admissible in criminal proceedings under section 120 of the Criminal justice Act 2003. The question for the FTPP was not one of admissibility but one of fairness and the exercise of discretion. As to Mr Booths submission in the skeleton argument for the appeal that the decision to admit the typed notes was perverse and plainly wrong because Ms Barnett had drawn on her overall experience of Patient B in creating the document rather than simply transcribing her actual notes, in my view it is tolerably clear from reading the typed notes which parts are intended to record what Patient B said to Ms Barnett and which parts were intended to record Ms Barnetts views. There is no reason to doubt her evidence that the typed notes contained no other facts. In those circumstance in my judgment the FTPP was entitled to admit Ms Barnetts typed notes and this ground of challenge fails.

133.

134.

The challenge to the FTPPs findings of fact 135. Dr Lawrence launched a root and branch challenge to the FTPPs findings of fact. That challenge was developed with varying emphasis on different points both orally and in writing. As to the latter, the challenges were set out initially in detailed Grounds of Appeal and a skeleton argument, both settled by Mr Booth, and subsequently in two further written submissions by Ms Lambert which focused principally on the FTPPs approach to issues relating to erotic transference and its reliance on its own self avowed expertise. The former were developed in opening and curtailed reply submissions by Ms Lambert over a period of several days. At the hearing Ms Lamberts primary submission was that the evidence pointing to Dr Lawrences innocence of the allegations against him was so strong that the FTPP was plainly wrong to find them proved. The principal evidence on which she relied for that submission was Patient Bs email to Dr Lawrence dated 11 September 2006, which Ms Lambert submitted was inconsistent with her evidence that Dr Lawrence had by that time acted towards her in the inappropriate manner alleged, and secondly the oral testimony of Susan Sutcliffe and Kay Dowd. Ms Sutcliffe and Ms Dowd were professional colleagues of Dr Lawrence who participated with him in a peer supervision group at his practice at 96 Harley Street. Ms Sutcliffe (and to a very limited extent Ms Dowd) in addition participated with Dr Lawrence in holding group therapy sessions attended among others by Patient B. They both gave evidence for Dr Lawrence at the hearing. Particular reliance was placed by Ms Lambert on Ms Sutcliffes evidence that she considered Patient B to be deluded and Ms Dowds

136.

evidence that Dr Lawrence reported to the supervision group that Patient B was refusing to acknowledge that her feelings towards Dr Lawrence could be emotional transference and that she had begun to say that perhaps Dr Lawrence also had the same feelings towards her. 137. Although Ms Lamberts primary submission was that the findings of the FTPP were against the weight of the evidence and plainly wrong and/or not supported by a sufficiently reasoned judgment, there was a separate ground of challenge which assumed even greater prominence in the submissions of both parties as they were developed orally and in writing at the appeal. There were two aspects to this ground of challenge, both of which related to the question of erotic transference. It was common ground at the hearing in front of the FTPP that Patient B suffered from erotic transference in what I shall refer to as the narrow sense. That is to say that there came a point during the course of her therapy sessions with Dr Lawrence when Patient B developed sexual and erotic feelings towards him which were not based on genuine feelings referable to his actual qualities but instead involved the projection onto him by Patient B of internal feelings reflecting her own inner world and past experience. It was Dr Lawrences case that one aspect or consequence of Patient Bs admitted erotic transference in the narrow sense was that she developed a wholly inaccurate fantasy that Dr Lawrence reciprocated her sexual and erotic feelings and felt the same way about her as she believed that she felt about him. No agreed phrase was used at the appeal to describe this latter alleged state of mind. For the sake of convenience I will refer to it as reciprocal erotic transference, while emphasising that that is not a technical or scientific term or one which was used by any of the factual or expert witnesses. The same is true of the expression erotic transference in the narrow sense. Ms Lambert took issue with two sentences in the Determination. (1) From its own expertise the Panel reasoned that a woman with low-esteem unless encouraged would be unlikely to fantasise that she was attractive to another. (2) The Panel considered what impact erotic transference might have had on Patient B's perception of events. It was mindful of the evidence of the GMC expert, Dr Kennedy, that an erotic transference was the projection of emotions and feelings of sexual attraction, which arose from the patient's previous experience, onto the therapist. In her oral evidence, Patient B openly admitted her former attraction to you. The Panel did not find, however, that this would be likely, on its own, to cause her to believe that you had feelings for her. (Emphasis added). I shall refer to these two sentences as respectively the first impugned statement and the second impugned statement. It will be necessary to set out at some length the nature of Ms Lamberts criticisms of these two statements and Ms Callaghans responses thereto. By way of introductory summary it is sufficient to say that Ms Lambert submitted that the first impugned statement revealed an illegitimate reliance by the FTPP on expertise which it did not have and showed that it reached a conclusion on an issue which had not been raised by either of the parties at the hearing and on which Dr Lawrence was therefore unfairly deprived of the opportunity of calling evidence or making submissions and which was in any event unsupported by evidence. As to the second impugned statement Ms Lambert submitted that the FTPPs conclusion was against the weight

138.

139.

140.

141.

of the agreed expert evidence, was unsupported by any expert evidence and was not open to the FTPP to make. Ms Lambert submitted that one or both of these errors on the part of the FTPP was of such fundamental importance that it affected and tainted the FTPPs factual findings which must for that reason alone be regarded as unsafe and should be overturned. 142. 143. There were in addition a number of additional specific challenges to which I shall briefly refer later. In order to see these challenges in context it is convenient to set out the FTPPs findings and reasons for those findings in relation to the evidence of Dr Lawrence and Patient B which preceded its individual findings in relation to the specific allegations against Dr Lawrence. In relation to the burden and standard of proof, the Panel has borne in mind that the burden of proof rests with the GMC and that the standard of proof is the civil standard, namely the balance of probabilities. Some of the decisions which the Panel has had to make have involved the Panel reaching a view as to the credibility of witnesses, as the Panel has had to assess conflicting accounts of the events which are said to have taken place.

Patient B Given the nature of her complaint, Patient B was deemed to be a vulnerable witness. The Panel acceded to Miss Johnson's application for Patient B's evidence to be heard by video link and for certain parts of the evidence to be heard in private in so far as it related to a particular aspect of Patient B's medical history. The Panel considered that the evidence Patient B gave, upon which she was closely cross examined, was generally consistent. She was a good witness who gave clear, considered and balanced answers. There was evidence of recent complaint in 2007 from the records of her general practitioner, Dr KingLewis and those of Dr Speirs, Consultant Psychiatrist. There was subsequent supportive evidence from the notes and oral evidence of Psychotherapist, Suzi Barnett. The Panel noted such differences or variation in Patient B's account as submitted by Mr Booth but found them minor or of little significance when weighing the evidence of Patient B as a whole and in assessing her credibility. The Panel did not consider Patient B to be deluded as to the events in 2006 and 2007. It did not find her to be motivated by anger or a desire for vengeance. The Panel accepts her evidence that she took time to reflect because she did not want to be motivated by such considerations as

anger or revenge. This was also demonstrated by the circumstances of her raising the matter generally with the GMC and by her own evidence that she did not want to make a complaint. Patient B wished the GMC to be aware of the events that occurred while she was under your care and indicated her willingness to be a witness, should a further complaint, by another person, be made against you. The Panel heard that the GMC nevertheless decided to pursue the matter. The Panel found that there was no evidence of mental disorder which would suggest her fabricating her evidence. The assessment of Dr Speirs in July 2007, found evidence of a moderate depressive episode with biological symptoms of depression, anhedonia, guilt, self-deprecation and considerable anxiety. From its own expertise, the Panel reasoned that a woman with low self-esteem unless encouraged would be unlikely to fantasise that she was attractive to another. The Panel concluded that there was no reason why Patient B's depressive disorder would be likely to cause her to fabricate her evidence. The expert evidence the Panel heard and the statement of Dr Speirs did not support a diagnosis of personality disorder and excluded a psychotic disorder. Patient B's behaviour, since terminating therapy with you, does not indicate an obsessive preoccupation with you. She has not sought to contact you, other than to inform you of her letter to the GMC. The Panel considered what impact erotic transference might have had on Patient B's perception of events. It was mindful of the evidence of the GMC expert, Dr Kennedy, that an erotic transference was the projection of emotions and feelings of sexual attraction, which arose from the patient's previous experience, onto the therapist. In her oral evidence, Patient B openly admitted her former attraction to you. The Panel did not find, however, that this would be likely, on its own, to cause her to believe that you had feelings for her. Differences in timing in Patient B's account such as, for example when she first disclosed that she had carried out a Google search on you, do not go to the core of her credibility. The Panel appreciates that with the passage of time it is often difficult to place events exactly.

Dr Lawrence, your evidence Your notes did not evidently support your present recollection of the events in many respects. On instructions, Patient B was cross-examined about whether a particular consultation in May

2006 could have taken place in a consulting room on the first 8 floor of 96 Harley Street, which had a window out of which you looked. It was positively asserted that the consultation could only have taken place in a window-less ground floor room. Patient B's recollection was shown to be reliable, as it was conceded later on by Mr Booth that from about April or May 2006 consultations took place in a first floor room with a window. The Panel finds that this was a simple example of Patient B's reliable recollection of events. In some instances you adamantly denied some of the words and behaviour attributed to you by Patient B, without any explanation, but in many other instances there were only nuances of difference between her account and your account of what was said. The Panel observed a difference between the way in which you gave those denials and that in which you gave alternative explanations for words which you agreed you had actually said. At times the Panel found your explanations implausible and unconvincing. Further the Panel found that your body language, when giving evidence, at times indicated considerable unease. Patient B's account of her relationship with you and your response to her, the personal circumstances which encompassed her depression, loneliness, the fact that she had recently lost a baby and had no close family or friends in London in whom she could confide, is more credible than your version of events. In assessing your evidence, the Panel also found that the way in which you gave your answers on some important issues was unsatisfactory, giving the appearance of your being evasive and not providing a true explanation of the reasons for your conduct. The Panel has weighed the evidence of Patient B and your own evidence in the context of the expert opinion and the evidence given by the other witnesses that it heard. The Panel is mindful of the fact that Miss Sutcliffe, Psychotherapist, and Miss Dowd, Counsellor, have a close working relationship with you through working at 96 Harley Street and as part of a peer supervision group. The Panel notes Miss Sutcliffe and Miss Dowd were not part of Patient B's one-to-one psychotherapy and that apart from the group sessions and what they might have inferred through them, they only had your reporting of the issues and outcomes of those sessions. Of these two, the Panel found Miss Dowd a more reliable witness of events within her knowledge. The Panel found that Miss Sutcliffe's view that Patient B was deluded was at odds with the expert evidence. In terms of credibility of evidence, the Panel has taken into account the views of those who gave expert evidence, Dr

Kennedy, Dr Denman and Dr Reveley. Suzi Barnett was called to give evidence on issues of fact reported by Patient B close in time to the events. Although there have been legitimate criticisms of her destruction of her original notes, and her therapeutic methodology, nevertheless on the issue of Patient B's recounting of the events to her, the Panel found she was a reliable witness on the key issues. The Panel in reaching that view has also taken into account the admitted statement of Dr Speirs and the other correspondence relevant in time to the events. In weighing all the evidence, the Panel was not assisted by the fact that your notes, particularly in relation to the latter part of your treatment of Patient B, were in many cases brief, without relevant information or wholly absent. They could not therefore support your recollection of events. It was concerned that although you said you were engaged in "passive dynamic" psychotherapy, your records contained no notes of that process. In relation to the unadmitted parts of the allegation, the Panel has considered each of the outstanding heads of allegation separately. It has made the following findings of fact:

Low self-esteem and erotic transference: the parties submissions 144. Ms Lamberts challenge to the first impugned statement that from its own expertise the panel reasoned that a woman with low self esteem unless encouraged would be unlikely to fantasise that she was attractive to another was put in a number of different ways. The question whether a woman with low self esteem would unless encouraged be unlikely to fantasise that she was attractive to another was not it was submitted a live issue at the hearing. It had not been the subject of expert evidence or submissions by either party. No questions were posed of Dr Kennedy (or Dr Denman or Dr Reveley) as to the likelihood of a woman with low self esteem who was also experiencing erotic transference fantasising that she was attractive absent encouragement although such questions could and would have been posed if either party had considered it to be a live issue. No statement was made by the FTPP at any stage until the reading of the factual Determination to the parties that it was considering the unlikelihood of a woman of low self esteem considering herself attractive absent encouragement. No submissions were therefore made on the point. It was thus unfair for the FTPP to reach a conclusion on an issue which formed part of its reasons for accepting the evidence of Patient B and finding the allegations against Dr Lawrence proved, in circumstances in which Dr Lawrence had been deprived of the opportunity of seeking to call evidence and/or advancing submissions on that issue. Next the FTPPs conclusion was said to be inconsistent with the expert evidence deployed before the FTPP concerning the existence and nature of the condition of erotic transference which affected Patient B and thus a rejection of that expert evidence.

145.

146.

147.

It was also submitted that the first impugned statement was at odds with Dr Kennedys evidence for example when considering Patient Bs response to the discovery of Dr Lawrences disciplinary history: It might have gratified the perverse aspect of her to think that hold on, this might be somebody I could have a relationship with. He has had a relationship with somebody else. I was right all along, the intimations were not imaginary. I am going to carry on in this and perhaps there might be some possibility of a real relationship this would go along with her poor self image. I interpose to observe that in my view this submission was consistent with Ms Lamberts first submission that the question of whether a woman with low self esteem would unless encouraged be unlikely to fantasise that she was attractive to another was not a live issue and had not been the subject of expert evidence. Further it was submitted that the issue on which the FTPP reached a conclusion was not one in respect of which it was legitimate for it to base a conclusion from its expertise. First it was submitted that the finding made by the FTPP was a finding as to the scope of erotic transference. The impugned sentence it was submitted should be read as though the following words were added at the end of the sentence: even in the context of erotic transference in the course of psychotherapy. None of the three members of the FTPP it was submitted had any relevant expertise on the nature or extent of the phenomenon of erotic transference in the course of psychotherapy. The FTPP comprised three members, of whom one was lay and two were medical. The lay member was not a qualified doctor and had no relevant medical training, qualifications or experience. Of the other two members, one was a general practitioner. She introduced a question to Ms Sutcliffe about the practice of peer group supervision in which Ms Sutcliffe, Ms Dowd and Dr Lawrence participated, by saying that she was medical but not a psychiatrist and... in no way an expert on these matters. The chairman of the FTPP was a former consultant psychiatrist, part time judicial member of the Mental Health Review Tribunal and a former part time psychiatrist member of the Parole Board. He introduced a series of questions addressed to Dr Kennedy, the GMCs expert psychotherapist, about the concept of transference by explaining that he was a psychiatrist but not a trained psychotherapist. I am certainly not analytically trained so I have a grasp of some of the concepts but probably somewhat tenuous in places. A measure of his self avowed lack of expertise in the area of erotic transference appears from his second question to Dr Kennedy: The question then I want to ask you about transference in this case is how does one as a therapist, as a psychiatrist, distinguish between transference that has a sexual content what has been referred to in this case as erotic transference and sexual attraction between patient and therapist. On behalf of the GMC Ms Callaghan submitted that, as is apparent from the paragraph in which the first impugned sentence appears, it was concerned not with erotic transference but rather with the separate question whether Patient Bs mental state, which she submitted included her depression and low self esteem, would be likely to cause her to fabricate her evidence or misperceive events. There was she submitted a live issue in the case as to the extent to which Patient B was suffering from a mental disorder and if so whether it could cause her to fabricate evidence and, she submitted, it was acknowledged that Patient Bs mental disorder included depression and low self esteem. It was therefore appropriate for the FTPP to consider

148.

149.

150.

151.

the extent to which if at all Patient Bs mental disorder, including her low self esteem, could cause her to fabricate her evidence or misperceive events. Ms Callaghan submitted that the expert evidence was clear that a mental disorder would not be likely to cause Patient B to fabricate her evidence. Although Dr Kennedy did refer to Patient Bs low self-esteem in one passage of his evidence, he was not, on a proper reading of that passage, expressing any view on whether a patient with low self esteem might experience reciprocal erotic transference in the context of psychotherapy. 152. Ms Callaghan submitted that there was no basis for the suggestion that the expertise referred to by the FTPP in the words from its own expertise must have been the Chairmans expertise in psychiatry or psychotherapy. To the extent that it was drawing on any particular expertise it was the collective experience of the FTPP in hearing fitness to practise cases, particularly those involving vulnerable female patients, and its expertise in considering and weighing up the evidence. Further she submitted that the FTPP was entitled to make the observation in the first impugned statement without relying on any expertise because it is a matter of common human experience. It is well known to any observer of human nature that people with low self esteem do not consider themselves attractive to others. To those submissions Ms Lambert had a number of responses. First she submitted that irrespective of whether the impugned passage represented a consideration of self esteem in conjunction with mental illness generally or with erotic transference the passage demonstrated that the FTPP decided a vital aspect of the case in a manner that was procedurally unfair. Expert advice given to or emanating from within a Panel should be aired openly in the presence of the parties if it is to form the basis of a finding of fact. Without that procedural safeguard the hearing and the resulting decision is unfair, contrary to natural justice and flawed. For that proposition she relied on Watson v GMC [2005] EWHC 1896 (Admin), [60] and Richardson v Solihull Metropolitan Borough Council [1998] EWCA Civ 335 [52]. Ms Lambert submitted that the obvious and natural reading of the first impugned statement is that a specialist Panel chaired by a psychiatrist applied its expert knowledge to the issue identified in the statement in order to reach a conclusion on an important factual matter. This was in effect taking expert opinion evidence in private as the parties had not been given an opportunity to adduce evidence or make submissions to agree or rebut the position adopted by the FTPP. Ms Lambert did not dispute that the FTPP was entitled to rely on its expertise to raise this point on its own initiative. However having decided that it was a live issue it was incumbent on it to return to an open hearing to allow the parties to comment on it see Watson [60], Richardson [36], [52] and Lucie M v Worcestershire County Council [2002] EWHC 1292 (Admin) [11]. Ms Lambert submitted that the need for such openness was particularly pronounced in this case for three reasons. First the finding of fact made by the FTPP was central to its overall finding that Patient B was a credible witness and that her account should be accepted over that of Dr Lawrence. This was the central issue in the case. While it may not be necessary for a Panel to express all elements of its reasoning in public, where the matter at stake is of significant detriment to one of the parties it must do so.

153.

154.

155.

156.

Second the finding that a woman of low self esteem is unlikely to fantasise that she was attractive to another unless encouraged was said to be neither self-proving nor obvious and did not reflect an observation concerning likely human behaviour according with experience and common sense. Fantasies by their nature are ways of escaping reality or imagining an alternative existence. There is no self-evident reason why a woman (or man) of low self-esteem would not be capable of constructing a fantasy in which he or she was attractive to another. Indeed a layman might feel that such a person would be more likely to include an element of attractiveness to others in his or her imagined world. In any event where a Panel seeks to make a complex and contentious finding such as this on its own expertise its duty to allow open submissions and (where necessary) evidence applies with still greater force. Third the hearings of GMC fitness to practise panels give particular prominence to questions that are asked by the specialist panel. The practice that has developed is that where a Panel member is concerned by a matter within his expertise he will raise this in questions to the relevant witnesses, generally after a brief introduction setting out his professional experience on the point in question. The FTPP in the present case had ample opportunity to do this. The fact that it did not was said to compound its error. Ms Lambert submitted that Ms Callaghans submission that the expertise to which the FTPP was referring was not that of a specialist panel as generally understood but instead the supposed expertise of a panel in hearing fitness to practise cases involving vulnerable female patients and sexual issues is extremely unlikely to be a correct interpretation of what the FTPP understood itself to be doing for a number of reasons. First the FTPP deliberately chose to preface its finding with the word expertise. It did so in the context of it being a Panel chaired by a mental health professional making a specific finding on a mental health issue, as part of GMC proceedings against a mental health registrant. Both the context and the obvious reading of the sentence made it overwhelmingly likely that the simple interpretation is the correct one: namely that the FTPP was drawing on its own special knowledge of mental health issues to draw its conclusion. Had it come to its finding in the manner suggested by Ms Callaghan it could have used a plethora of alternative formulations such as: From its own experience of hearing such cases, From its knowledge of similar cases..., From its general experience, Those who have heard cases such as this are entitled to conclude. None of those was used. The word expertise should accordingly be given its natural meaning of expert knowledge of the mental health issues raised at the hearing. Second the nature of the expertise which she said was contended for by Ms Callaghan, namely that of a Panel experienced in hearing fitness to practise cases involving vulnerable female patients and sexual issues, is not one generally recognised either by panellists, legal practitioners or courts. The reason that the High Court shows particular deference to the findings of specialist panels is not because they are used to hearing cases involving ill-defined issues (for example sexual matters) or concerning particular groups (for example vulnerable women) but because the Panel has an expert knowledge base that the lay judge lacks. Thus in McKeown v British Horse Racing Authority [2010] EWHC 508 it was said that I referred to the decision of the specialist panel because they knew about horse-racing while I did not (see for example [193], [194], [206]): it was not because the Panel was

157.

158.

159.

160. 161.

used to dealing with jockeys facing serious allegations of dishonesty involving gambling. 162. Third it was submitted that it was not at all clear that the members of the FTPP in this case had any experience, let alone expertise, in dealing with GMC proceedings concerning vulnerable female patients and sexual issues. The fact that such information is not included on the profiles of the panellists given to the parties whereas their individual professional expertise and experience is set out in some detail was said further to indicate that it is that expertise that makes them a specialist panel. Fourth it was submitted that if the expertise of the FTPP to which it referred was derived from its experience of sitting in cases concerning vulnerable women or cases concerning issues of sexual impropriety such experience was not necessarily or ever valid and/or relevant. There would be a real danger in applying imperfectly recollected expert evidence from a previous case to the instant case, or alternatively assuming that all vulnerable women respond in a particular way to certain types of behaviour. Such an approach would not do justice to the range, nuance and sophistication of expert opinion or to the range of particular circumstances in which women may become vulnerable, for example because of domestic abuse or addiction or mental illness. Even if the FTPP was unambiguously referring to its expertise in hearing cases involving sexual issues and vulnerable women, it was submitted that there was no proper evidential basis for the finding. It was far from self evident or a matter of general experience or common sense. A judge could not take judicial notice of such a matter and a lay tribunal considering the issue in the absence of expert evidence would not be entitled to come to the conclusion at least without giving cogent and full reasons. If in the impugned parts of the determination the FTPP was not rejecting agreed expert evidence but purporting to draw upon broader life experience generally then although it is possible that the members had experience of women with low selfesteem it was submitted that it was highly unlikely that they had experience of women with low self esteem who were also experiencing erotic transference and certainly not within a therapeutic context. Given the key significance of the effect of the two elements of low self esteem and erotic transference potentially to distort perception the FTPP should have raised the issue in open session and invited the parties to make submissions and in due course given full reasons for their determination. Finally it was submitted that even if the interpretation of from its own expertise contended for by Ms Callaghan may be correct, equally it may not. At the very least the words are and thus the impugned finding itself is ambiguous. Even if there is a real possibility that the FTPP was in fact referring to their expertise in hearing similar cases that does not remove as a possible alternative interpretation that for which Dr Lawrence contended, namely that it was drawing on the mental health expertise of its chairman. If the impugned finding is ambiguous it is still open to challenge on the basis of the improper use of private expert opinion / evidence for the reasons given above. Ms Lambert submitted that the FTPPs failure to take the necessary steps to ensure open ventilation of this point rendered the hearing unfair and the determination

163.

164.

165.

166.

167.

unlawful. It cannot be said that even if the FTPP had taken the steps required of it that would have made no difference to the outcome. The Court simply cannot know what submissions might have been made, what expert evidence might have been given and what the effect of such evidence and/or submissions might have been on the FTPP. Given the importance of the FTPPs finding on this point and the effect that it had on its overall view of Patient Bs reliability this ground of challenge alone warranted quashing the FTPPs Determination on the facts. 168. For her part Ms Callaghan submitted that the first impugned statement was not on its face an irrational observation in contrast for example to an observation that women with red hair are unlikely unless encouraged to fantasise that they are attractive to others. Given that it was common ground that Patient B had low self esteem and that it was a live issue in the case whether, and if so to what extent, Patient Bs mental state (including depression and, as submitted by Ms Callaghan, low self-esteem) impacted on her perception of events, it had been open to Dr Lawrence to call expert evidence to demonstrate that her low self-esteem could have caused her to misperceive Dr Lawrences actions. The fact that he did not do so suggested that there was no real possibility of expert evidence demonstrating that the FTPP was wrong. It was inappropriate to impugn the Panel for making observations on matters that could have been but were not disputed. Ms Callaghan submitted that if Ms Lamberts submissions were correct it would have the effect that fitness to practise panels would never be entitled to draw on their experience and expertise of hearing fitness to practise cases in order to assist their analysis of the issues and evidence before them and in reaching determinations on the facts. That would be contrary to authority which makes clear not only that such panels are best placed to analyse evidence and determine issues precisely because of their expertise and experience in hearing fitness to practise cases but also that they are entitled to draw on their experience and expertise in reaching judgments about the evidence and issues before them. In support of that submission she relied on Farag v GMC [2011] EWCH 1212 at [48], McKeown v British Race horsing Authority [2010] EWHC 508 at [212] and Yeong v GMC [2010] 1WLR 54 at [38]. She further submitted that Watson is distinguishable on the facts because in that case the panel heard expert evidence in the privacy of its deliberation room and on issues which had not been before the parties. Ms Callaghan submitted that the expert evidence was clear that a mental disorder would not be likely to cause Patient B to fabricate her evidence. In particular Dr Speirs gave evidence which was accepted that Patient B was suffering from a clinical depressive illness of moderate severity, anhedonia, guilt, self deprecation, cognitive compromise and considerable anxiety. She stated that there was no evidence of psychosis or personality disorder, that Patient B came across as of sound judgment and was very consistent in her account and that there was no reason to doubt her. Dr Reveley, one of the expert witnesses called by Dr Lawrence, gave evidence that Patient B was suffering from a major depressive disorder but no personality disorder, psychosis or delusional disorder. She also gave evidence that a major depressive disorder is not associated in any way with the making of false complaints. The evidence concerning self esteem on which Dr Lawrence relied was said to be Dr Kennedys evidence concerning the possible impact on Patient B of discovering via the Google search Dr Lawrences previous two year suspension for having a sexual

169.

170.

171.

relationship with a female patient. That evidence it was submitted did not concern erotic transference. His evidence about poor self image was that it causes the patient to want a harmful but real relationship with the therapist. In that second scenario that patients observations about the therapists behaviour are confirmed as real. 172. Read properly and in context Ms Callaghan submitted that what the FTPP was doing in the two paragraphs containing the two impugned statements was considering the expert evidence it had heard on mental state and erotic transference, considering whether either of those factors might have had any impact on Patient Bs perception of events (which were live issues in the case), considering Patient Bs own evidence and reaching the conclusion that neither her mental state (including her depression and low self-esteem) nor her erotic transference would be likely to cause her to fabricate her evidence or misperceive events. It was thus exercising its function as a specialist tribunal making a judgment on the evidence before it and giving reasons. That plainly fell on the right side of the line in terms of what is permissible. Both conclusions were said to be consistent rather than inconsistent with the expert evidence. In the second impugned statement Ms Callaghan submitted that the FTPP was not expressly or impliedly bringing to bear any particular experience or expertise of its own on the issue. It was merely reaching a conclusion on the basis of the evidence before it. In relation to the second impugned statement Ms Lambert submitted that the FTPPs conclusion was inconsistent with the expert evidence concerning the existence and nature of the condition of erotic transference which affected Patient B and thus amounted to a rejection of expert evidence. Further the rejection took place in circumstances in which no party had had an opportunity to address the issue either by expert elucidation or in submission. The expert evidence should not have been modified or supplanted by drawing on the FTPPs limited experience without raising the issue during the proceedings so that the parties were alive to the issue and demonstrating robust and logical reasoning in their determination. It was submitted that where a tribunals decision rests on a rejection of expert evidence there is a specific duty to give explicit cogent and coherent reasons for its finding. The extent of the reasons required to be articulated will depend upon the significance of the issue within the context of that adjudication as a whole but it is only by the provision of such reasons that the parties and public and the appellate jurisdiction can be satisfied that the decision was reached in a rational and procedurally fair manner. Reliance was placed on Yeong v General Medical Council [2009] EWHC 1923 (Admin), Cohen v General Medical Council [2008] EWHC 581 (Admin) and English v Emery Reinbold and Strick Ltd [2002] 1 WLR 2409, CA. Where, as it was contended happened in this case, the FTPP rejected agreed evidence from two experts concerning erotic transference it was submitted that the duty to give adequate reasons applies with still greater force such that the demands for clarity, coherence and cogency are particularly stringent. Ms Callaghan submitted that even if the Court were minded to accept the challenge to one or both of the impugned statements, any error by the FTPP would have made no difference to its conclusions that, overall, Patient Bs evidence was reliable and credible and that Dr Lawrences evidence was not. Given the multiple reasons the

173.

174.

175.

176.

FTPP advanced for preferring Patient Bs evidence over that of Dr Lawrence there is no basis for the suggestion that it would have reached a different view in absence of one or both of the observations in the two impugned sentences. 177. The parties did not agree about the effect of the expert evidence on the question of reciprocal erotic transference. Ms Lambert submitted that there was no real difference between the experts concerning the existence of erotic transference affecting Patient B and the clear association between that condition and the misperception of those erotic feelings being reciprocated. The expert evidence she submitted demonstrated that Patient Bs evidence might be unreliable as it resulted not from things actually said or felt by Dr Lawrence but from her misperception of those things resulting from the erotic transference that she was experiencing. That erotic transference was capable on its own of causing Patient B to believe that Dr Lawrence had feelings for her was clear she submitted from the evidence of Dr Kennedy, Dr Denman and Dr Reveley. The evidence of all three experts established unequivocally that erotic transference on its own was capable of causing Patient B to believe that Dr Lawrence had feelings for her. Ms Lambert accepted that the FTPP was entitled to find on the facts and by reference to other evidence that Patient B had not in fact been affected by erotic transference or that she was so affected but had also been inappropriately encouraged by the words or actions of Dr Lawrence into believing that he had feelings for her. However she submitted that the FTPP did neither of those things. The second impugned statement amounted to an unreasoned rejection of the expert evidence which it had heard. The use of the conditional tense would showed that the sentence was a rejection of even the possibility of erotic transference having been the sole cause of Patient Bs belief that Dr Lawrence had feelings for her. That was inconsistent with and hence a rejection of the expert evidence of all three experts. The fact that it was unsupported by any reasoning or any reference to the evidence rendered the determination unlawful. The question whether Dr Lawrences alleged inappropriate words and conduct were real and improper or merely the product of fantasy in the mind of Patient B induced by erotic transference was a key battleground in the case as defined by Ms Johnson on behalf of the GMC in her closing submissions: Was this purely erotic transference that she was incapable of grasping or was it the pursuit of an emotional relationship? The FTPPs failure to give reasons prevented Dr Lawrence or the Court from understanding why the decision was reached and whether it was the result of a sufficiently sound process. It cannot be said that a proper approach would have resulted in the same overall result since it is not known why the FTPP came to its conclusion and it is not possible to speculate what they might have done if they had approached the matter correctly. Ms Callaghan submitted that the expert evidence did not suggest either unequivocally or at all that erotic transference could by itself cause a patient to believe mistakenly that the therapist has reciprocal feelings for the patient. I set out below my conclusion on this dispute as to the effect of the expert evidence. Ms Callaghan also noted that Mr Booth on behalf of Dr Lawrence did not put to Patient B or to Dr Lawrence that the process of erotic transference could have caused her to misperceive Dr Lawrences actions. Nor did he place any reliance on Dr Kennedys evidence in his closing submissions relying on only that of Dr Reveley.

178.

179.

180.

181.

Ms Lambert relied on the following passages in the evidence of Dr Kennedy as supporting her submission that the effect of his evidence was that erotic transference is capable of explaining Patient Bs misperception of her acknowledged erotic feelings towards Dr Lawrence having been reciprocated by him. i) Basically transference is, it is a universal phenomenon but in the therapy setting, it is when patients starts attributing to a therapist feelings which do not belong to the therapist as such, but belong to the patients own inner world. I once had a patient, just to give you an example who was convinced that I was tall and blond and Nordic. I am definitely not. That very much related to her own relationship with her mother and all kind of things. She projected onto me all kinds of things that were not to do with me and we could take out by in a way quite sensitively trying to look at the difference between her fantasies of me and the reality, something about her own inner life It (that is, erotic transference) is the key issue here really, is it not? .. If it is going reasonably well, in a way, you expect the patient to trust the therapist and have positive feelings, but there are times when this gets basically so extreme that the patient has intense erotic feelings towards the therapist which go beyond what one would expect from an ordinary therapeutic relationship.. On the spectrum she is probably a bit more deprived and needy than usual and therefore it would not be an ordinary neurotic, but somebody with a history of depression a history of issues with the mother abandoning her, feeling abandoned by the mother. So it would be, as it were, more towards the middle, certainly not on the severe end, certainly not psychotic. Those feelings of erotic transference seemed to be fairly persistent from what I have read. If it (erotic transference) really happens because it is so powerful one cannot just simply sit there and think Oh well, Thats another day at the office...It is the kind of thing that you should not handle on your own generally, for obvious reasons. Ultimately for self protection, I have to say because it might get out of hand and it might lead to this building, but also in the patients interests. In connection with the discovery of Dr Lawrences GMC history It would have had a massive impact. There are two ways it could go. One which in some ways might have been more appropriate would have been to run a mile...It is a bit like if someone is in a domestic violence situation they should ideally get out. However, many people do not it might have gratified the perverse aspect of her to think that, Hold on, this might be somebody I could have a relationship with, he has had a relationship with somebody else. I was right all along, the intimations were not imaginary. I am going to carry on in this and perhaps there might be some possibility of a real relationship. That would go along with her poor self image, which is I am going to be with somebody who is going to essentially harm me and abuse me because I have gone through life really going through situations where I have really ended up with a poor self image so it could have had that effect . It could have (caused B to reinterpret). I suppose those are two readings. The other one would be a more benign interpretation as you are saying in a sense, which is Ah that he

ii)

iii)

iv)

has done it before, he is going to do it again and he must be even when he is not. It is true, one has to say that of course. v) Persistent transference reactions which can be very erotic or very negative which in some ways are somewhat similar, can be very persistent and can go on for sometimes years. I had a patient who had a very profound negative experience of me for at least four years and thought after each session that I was going to hit her and saw me as a persecutor.

182.

Ms Lambert submitted that neither Dr Denman nor Dr Reveley who were instructed on behalf of Dr Lawrence contradicted Dr Kennedys general description of erotic transference. She relied in particular on the following passages in their evidence. i) Dr Denman was asked how common the process of erotic transference was. She said It is extremely common. It forms the basis of the very first psychotherapy case ever written up, the case treated by a chap called Briar whose patient became very infatuated with him, so infatuated with him in fact that she developed a false pregnancy by him and so infatuated with him that Briars wife got seriously upset and they had to go away on holiday to break off the situation. Dr Reveley was asked about the significance of the existence of erotic transference. She said It is very significant because people who are emotionally emphasising let us say or experiencing certain emotions in relation to someone can see things differently. Memory is not a fixed thing. Remembering something, people often make this mistake, thinking that memory is like a DVD, a memory is a definite fact that is the way it is. Memory is not like that. Memory is influenced by emotion. It is influenced by other people. It is influenced by the context in which you experience it and so somebody who has an erotic transference can see things differently. This is illustrated I read the transcripts of Dr Kennedy, I think I am right, he said that a patient who had an erotic transference towards him saw him as tall and blonde and Nordic. I have never seen Dr Kennedy but presume he is not so. He is saying that that is an example of how peoples perceptions and memories can be altered. In considering the possibilities which she considered in connection with Patient Bs account, Dr Reveley stated at Day 8/59 D At the end of my report I outlined the three possibilities which I felt were in the running, as it were. There are possibilities like psychosis or personality disorder, which I felt were not in the running, but the three possibilities I would put in the running are that her allegations were associated with anger and a wish to punish or she may have been mistaken in the context of an erotic transference or her version of the events may be accurate and as she says.

ii)

183.

Ms Callaghans detailed submissions on the expert evidence on erotic transference were as follows: a. Dr Kennedy: One small passage in his extensive oral evidence is somewhat unclear and appears to suggest that erotic transference involves the patient attributing to the therapist feelings towards the patient.

b. However, this was merely a clumsy or shorthand way of expressing what he said repeatedly elsewhere in his evidence, namely, that erotic transference is the process whereby the patient, despite not knowing the therapist well or at all, develops strong erotic feelings towards the therapist by projecting or transferring onto the therapist certain qualities or characteristics (e.g. physical attractiveness or loveability) which derive from the patients own inner world rather than having anything to do with the therapist as such. Where the Chairman questions Dr Kennedy about the meaning of erotic transference, and he confirms the process of transference involves a transfer, or if you like, a projection of feelings that the patient has as a result of other earlier experience onto the therapist. c. Dr Kennedy did not give evidence in terms that the process of erotic transference could, by itself, cause a patient to believe mistakenly that the therapist is reciprocating her feelings. Nor did he give evidence that Patient Bs erotic transference actually caused her to believe that Dr Lawrence reciprocated her feelings. To the contrary, he was clear that if Patient Bs version of events was accepted, then Dr Lawrence had behaved inappropriately and unprofessionally. In other words, Dr Kennedy must have considered that, despite suffering erotic transference, Patient B was capable of being believed on the question of whether Dr Lawrence was behaving towards her in a professional and appropriate way. If he had considered that erotic transference can make a patient misperceive the therapists actions towards her, he would not have expressed himself in such clear terms. d. Dr Reveley: Dr Reveley gave evidence that memory is influenced by emotion and that one possibility was that Patient B may have been mistaken in the context of an erotic transference. e. However, Dr Reveley did not give evidence in terms that the process of erotic transference could, by itself, cause a patient to believe mistakenly that the therapist is reciprocating her feelings. Again, like Dr Kennedy, she spoke only of possibilities and acknowledged that one possibility was that Patient B was telling the truth. f. Dr Denman: Dr Denmans evidence on erotic transference was limited to her evidence where she states that the process of erotic transference is extremely common and she gives the example of a patient who develops a false pregnancy by her therapist, from which it is to be inferred that this particular patient believed her therapist was reciprocating erotic feelings and actions. g. However, Dr Denman did not give evidence in terms that the process of erotic transference could, by itself, cause a patient to believe mistakenly that the therapist is reciprocating her feelings. Again, like Dr Kennedy and Dr Reveley, she gave evidence that Patient B could be telling the truth, and if so, that Dr Lawrences behaviour was inappropriate and unprofessional. She also gave evidence that expert evidence was unable to resolve the factual issues in the case concerning what Dr Lawrence did in the one-to-one consultations with Patient B.

Erotic transference and low self esteem: Discussion 184. I am much troubled by the first impugned statement. The issue of greatest concern in my view, even before any question as to what the FTPP meant by its expertise, is whether the conclusion reached by the FTPP was reached in respect of an issue which was live in the proceedings. In order to address that issue in context it is necessary first to set out my views on the effect of the expert evidence. In my view the effect of the expert evidence was as follows. There is a recognised phenomenon whereby a patient in the course of psychotherapy may experience erotic transference or a false belief that he or she has erotic or sexual feelings of attraction towards the therapist referable to the therapists characteristics or qualities which in fact derive from the patients own inner feelings and past experience. That is the phenomenon which as a convenient shorthand I have referred to as narrow erotic transference. None of the three experts expressed the view that the phenomenon of erotic transference in psychotherapy is likely to cause a patient to experience what I have referred to as reciprocal erotic transference, that is to say a false belief that the therapist has the same or similar feelings of sexual or erotic attraction towards the patient as the patient falsely believes he or she has towards the therapist. Equally none of the experts expressed the opinion that the process of erotic transference in psychotherapy is not likely to cause or is incapable of causing a patient to experience reciprocal erotic transference. None of them in terms expressed the view that it is capable of doing so. However it is implicit in the evidence of two of them (Dr Reveley and Dr Denman) and possibly also of the third (Dr Kennedy) that it was their view that it is. There was evidence from one of the experts (Dr Reveley) that a possible explanation of Patient Bs allegations is that Dr Lawrence did not behave in the way alleged and that Patient B may have been mistaken in her perception of what he said and did towards her in the context of erotic transference. There was evidence from another expert (Dr Denman) that there is an early recorded case of a patient who experienced erotic transference who believed that her therapist was reciprocating her feelings and actions. And there was evidence from a third (Dr Kennedy) that he had personal experience of a patient who mistakenly attributed to him imaginary negative feelings towards the patient which were not based on reality. Thus all three provided some support for Ms Lamberts submission that Patient Bs evidence might be unreliable because it resulted not from things actually said or felt by Dr Lawrence but from her misperception of those things resulting from the erotic transference that she was experiencing. Dr Reveley came closest to expressing the view that erotic transference is capable of leading to reciprocal erotic transference, albeit as a matter of inference rather than in so many words. Her view that people who are experiencing certain emotions in relation to someone can see things differently and in particular that somebody who has an erotic transference can see things differently was in my view expressed in sufficiently open ended terms at least to permit of the possibility of reciprocal erotic transference. The context in which she expressed that view was in my view one in which she was addressing narrow rather than reciprocal erotic transference. Thus she cited as an

185.

186.

187.

188.

189.

example of what she was talking about Dr Kennedys example of a patient who had an erotic transference towards him seeing him as tall and blond and Nordic when she inferred he had none of those characteristics. That was in my view an example of narrow rather than reciprocal erotic transference in that it fell short of falsely attributing to the therapist feelings towards the patient which in fact the therapist did not have. By falsely attributing to the therapist physical characteristics which he did not possess the patient demonstrated that she was experiencing narrow erotic transference, the imaginary characteristics of the therapist explaining why she projected onto him the false feelings of attraction which are the characteristic of narrow erotic transference. 190. However in one passage of her evidence Dr Reveley identified as one of the three possibilities which she would put in the running, apart from the possibility (1) that Patient Bs allegations were associated with anger and a wish to punish and (2) that her version of the events might be accurate that she may have been mistaken in the context of an erotic transference. In my view Dr Reveley was there expressing the view that one possible explanation for Patient Bs allegations against Dr Lawrence was that they were not based on things actually said or done by Dr Lawrence but rather were the result of mistakes in the context of an erotic transference. Whether she intended thereby to express the view that what I have called reciprocal erotic transference is a recognised phenomenon in psychotherapy or merely that one consequence or aspect of narrow erotic transference is that the patient can have a mistaken view of anything including a mistaken belief that the therapist did or said things reflecting attraction to her on his part and that in her view it is possible that this is what occurred in this case she did not make clear. Whichever it was in my view Dr Reveleys expert evidence was to the effect that in her professional opinion it was possible that Dr Lawrence did not say or behave towards Patient B as she alleged and that Patient Bs allegations that he did were explicable as the product of mistaken beliefs or recollections which resulted from the phenomenon of erotic transference. It follows that I do not accept Ms Callaghans submission that the expert evidence did not suggest either unequivocally or at all that erotic transference could by itself cause a patient to believe mistakenly that the therapist has reciprocal feelings for the patient. In the first passage of Dr Kennedys evidence relied on by Ms Lambert, set out in paragraph 181 (i) above, it is in my view likely that, although he described erotic transference in the therapy setting as one when the patient starts attributing to a therapist feelings which do not belong to the therapist as such but belong to the patients own inner world, he was not thereby intending to refer to what I have as described as reciprocal as distinct form narrow erotic transference. That is for three reasons. First in that passage he was in my view seeking to describe erotic transference in general terms and Ms Lamberts interpretation would be plainly inapplicable to narrow erotic transference, a phenomenon which she accepted exists. Second the reference to feelings must be seen in the context of the following sentence in which he cited the example of a patient who was convinced that he was tall blonde and Nordic. That was plainly an example of narrow rather than reciprocal transference. Third Dr Kennedys explanation of the Nordic example was that the patient projected onto him all kinds of things that were not to do with him and were based on the patients fantasies of him as distinct from the reality. Again that is in my

191.

192.

193.

view plainly a reference to narrow erotic transference and the inference in my view is that in the passage relied on by Ms Lambert Dr Kennedy used the word attributing as synonymous to projecting. For the same reason I agree with Ms Callaghans interpretation of Dr Kennedys answer to the chairman in the extract of his evidence cited in her submissions which I have quoted above. 194. In the second passage relied on by Ms Lambert Dr Kennedy in my view expressed the view that Patient B experienced narrow erotic transference but said nothing as to reciprocal erotic transference. As to the third passage, it is arguably consistent with Dr Kennedy recognising the possibility of reciprocal erotic transference. How might a patients narrow erotic transference get out of hand and lead to this building i.e. fitness to practise proceedings, unless by means of narrow erotic transference leading to reciprocal erotic transference in the mind of the patient who then makes a false complaint of improper conduct against the therapist based on a misperception of the therapists feelings and attitude to the patient? Possible answers might be that things could get out of hand in the sense of prompting an improper response on the part of the therapist as is alleged to have happened in this case or that a patient experiencing narrow erotic transference whose overtures are rebuffed by the therapist might make a false complaint out of spite. If that is what Dr Kennedy had in mind the passage would not be evidence that he was of the view that narrow erotic transference can lead to reciprocal erotic transference. If that is not what he had in mind then the passage might be evidence that he was of that view. The fourth passage relied on by Ms Lambert which addressed the possible reaction of Patient B to finding out about Dr Lawrences suspension for having had sex with a patient is in my view ambiguous. The reference to the possibility that the incident might have caused Patient B to reinterpret what had been going on might suggest that before the Google search she had realised that Dr Lawrence did not reciprocate her feelings of sexual attraction. That would also be consistent with Dr Kennedy saying that it might have caused her to think that the intimations were not imaginary, the inference being that before the Google search she had realised that any idea that Dr Lawrence was attracted to her was purely imaginary. On the other hand the suggestion that it might have caused her to think this might be somebody I could have a relationship with I was right all along suggests that Dr Kennedy considered it possible that prior to the Google search Patient B had indeed believed that Dr Lawrence found her attractive albeit not without doubts on the matter, and that the Google search might have confirmed to her that her previous belief that he found her attractive was correct. The fifth passage relied on by Dr Kennedy is in my view supportive of Ms Lamberts submission that Dr Kennedy was of the view that erotic transference can be reciprocal as well as narrow. The patient who, wrongly it is to be inferred, believed that Dr Kennedy was going to hit her would appear to have gone beyond narrow negative transference and entertained a mistaken belief that her therapist had negative feelings towards her. Dr Kennedy cited this as an example of the opinion that negative transference reactions can be somewhat similar to erotic transference reactions. However in so far as the passage supports Ms Lamberts submission it is indirectly and by inference rather than expressly or directly since it was dealing with negative rather than positive transference.

195.

196.

197.

I accept Ms Callaghans submission that Dr Kennedy did not give evidence in terms that the process of erotic transference could by itself cause a patient to believe mistakenly that the therapist is reciprocating her feelings. I also accept that he did not give evidence that Patient Bs erotic transference actually caused her to believe that Dr Lawrence reciprocated her feelings and that he was clear that if Patient Bs version of events was accepted then Dr Lawrence had behaved inappropriately and unprofessionally. I also accept Ms Callaghans submission that Dr Kennedy must have considered that, despite suffering erotic transference, Patient B was capable of being believed on the question of whether Dr Lawrence was behaving towards her in a professional and appropriate was. However I do not accept her submission that if he had considered that erotic transference can make a patient misperceive the therapists actions towards her he would not have expressed himself in such clear terms. That seems to me to be a non sequitur. The fact that Dr Kennedy, just as Dr Reveley, did not exclude the possibility that Patient Bs evidence may have been correct accurate and uninfluenced by any kind of mistake induced by erotic transference is in my view entirely neutral on the question of whether Dr Kennedy was of the view that it was possible that by reason of reciprocal transference Patient Bs evidence was in fact incorrect and influenced by mistake induced by erotic transference. As appears from my analysis of the passages of Dr Kennedys evidence relied on by Ms Lambert, in my view the effect of his evidence was neither positively to suggest that Patient B may have been experiencing reciprocal transference nor to exclude that as a possible explanation of her evidence. But it did provide some support for the proposition advanced by Ms Lambert that Patient Bs evidence might be unreliable because it resulted not from things actually said or felt by Dr Lawrence but from her misperception of those things resulting from the erotic transference that she was experiencing. Although Ms Callaghan was in my view right to say that Dr Reveley did not give evidence in terms that the process of erotic transference could by itself cause a patient to believe mistakenly that the therapist is reciprocating her feelings, it follows from what I have already said than in my view she did give evidence that that process could by itself cause a patient to see things differently as a result of erotic transference. She also in my view clearly expressed the opinion that in this particular case it is possible that Patient B may have been mistaken in her perception of what Dr Lawrence said and did towards her in the context of an erotic transference. As to Dr Denman, I agree with Ms Callaghan that she did not give evidence in terms that the process of erotic transference could by itself cause a patient to believe mistakenly that the therapist is reciprocating her feelings. Her reference to the Briar episode in which a patient became so infatuated with the therapist that she developed a false pregnancy by him is consistent both with Dr Denman citing that as an example of narrow erotic transference and of her citing it as an example of reciprocal transference. As to the former it could be argued to go no further that showing that the extent of the narrow erotic transference was so great and the patients false sexual fantasies about the therapist were so great that she falsely imagined herself having sex with him and becoming pregnant thereby. As to the latter it could be interpreted as the patients fantasy extending to a false belief that the therapist shared her feelings of attraction to the extent of having had sex with her. Ms Callaghan accepted that it is to be inferred that in the Briar episode the patient did believe that her therapist was reciprocating her erotic feelings and actions. She thus in effect accepted that the

198.

199.

example cited by Dr Denman was a case of reciprocal erotic transference, although she emphasised that that was just one case. 200. The fact that like Dr Kennedy and Dr Reveley Dr Denman gave evidence that Patient B could be telling the truth and that, if that was the case, then Dr Lawrences behaviour was inappropriate and unprofessional and that expert evidence was unable to resolve the factual issues in the case concerning what Dr Lawrence did in the one to one consultations with Patient B does not seem to me to address the question whether Dr Denmans evidence justified either Ms Lamberts submission that there was no real difference between the experts concerning the clear association between erotic transference and the misperception of those erotic feelings being reciprocated or Ms Callaghans submission that the expert evidence did not suggest either unequivocally or at all that erotic transference could by itself cause a patient to believe mistakenly that the therapist has reciprocal feelings for the patient. In my view Dr Denmans evidence did not support either submission. By citing the Briar episode she did however in my view provide some support for the proposition that it is possible that a patient experiencing erotic transference can mistakenly believe that the therapist reciprocates his/her feelings of sexual attraction. In the first impugned statement the FTPP reasoned from its expertise that a woman with low self-esteem unless encouraged would be unlikely to fantasise that she was attractive to another. For reasons which I shall develop in my view that was not a conclusion which it was open to the FTPP to reach at any rate without having given Dr Lawrence notice of its provisional conclusion and an opportunity to adduce evidence and/or make submissions on the issue. That is principally because it was in my judgment a finding on an issue which had not been canvassed at the hearing and on which Dr Lawrence had therefore been deprived of the opportunity of adducing evidence or making submissions. It is also because in so far as it purported to derive from the expertise of the psychiatrist chairman it was in my view not appropriate for the FTPP to rely upon that expertise in circumstances where the chairman acknowledged that he was not an expert in psychotherapy and in particular in the process of erotic transference in the context of psychotherapy. He was not analytically trained and said that his grasp of some of the concepts was tenuous in places. Even if he had expertise in the field of psychiatry as to whether a woman with low self-esteem unless encouraged would be unlikely to fantasise that she was attractive to another, he plainly did not have expertise on the question whether that unlikelihood was or might be affected by the phenomenon of erotic transference. Nor, on Ms Callaghans interpretation of from its own expertise, would the fact, if it were the case, that the members of the FTPP had experience in hearing cases involving vulnerable women constitute an expertise on which they would be entitled to rely in considering whether, whatever may be the likelihood or unlikelihood in other contexts, there was such an unlikelihood in the context of the erotic transference which it was agreed between the parties and by all three experts existed in this case at least in the narrow sense. Further I do not accept Ms Callaghans submission that the FTPPs conclusion was one which, in the absence of evidence on the point, any lay tribunal was entitled to reach as a reasonable conclusion on likely human behaviour. Ms Callaghan did not accept that in the first impugned statement the FTPP was making a finding on an issue which had not been canvassed at the hearing and on

201.

202.

203.

which Dr Lawrence had therefore been deprived of the opportunity of adducing evidence or making submissions. Central to her submission that this was not the case was her submission that, as is apparent from the paragraph in which the first impugned sentence appears, it was concerned not with erotic transference but rather with the separate question whether Patient Bs mental state would be likely to cause her to fabricate her evidence or misperceive events and her submission that there was a live issue in the case as to whether Patient B was suffering from a mental disorder and if so whether it would cause her to fabricate evidence and that that live issue included the question whether Patient Bs low self esteem would cause her to fabricate evidence because it was acknowledged that her mental disorder included depression and low self esteem. 204. In my view Ms Callaghans submissions are not borne out by the relevant material. It is true that there was evidence both that Patient B suffered from a mental disorder and that she had low self esteem. However the medical evidence that she suffered from mental disorder did not identify low self esteem as constituting part of that mental disorder. Thus for example although Dr Kennedy referred to Patient B as having lowself esteem he did not suggest that that constituted part of a mental disorder. Nor was the possibility that low self esteem might have caused Patient B to fabricate her evidence identified by either counsel for the GMC or counsel for Dr Lawrence in their closing submissions as a live issue between the parties. No such submission was advanced by Mr Booth on behalf of Dr Lawrence or contested on behalf of the GMC by Ms Johnson. Ms Callaghans submission to the contrary relied on two passages in the closing submissions of both counsel which do not in my view support her submission. In the first passage Ms Johnson said that it would probably be suggested on behalf of Dr Lawrence that Patient B was unreliable for three reasons: as a result of her mental state at the time, that she was motivated by anger and/or revenge, or, quite simply that she was lying. Ms Johnson then dealt with Patient Bs mental state first. She referred to Dr Lawrence and Dr Speirs as having both made the same diagnosis: an acute depressive episode (Dr Lawrence) and depressive illness of moderate severity (Dr Speirs). Ms Johnson relied on Dr Speirs impression that Patient B normally had a robust personality and was a stable person. She contrasted that evidence with Ms Sutcliffes evidence that Patient B was deluded which in turn she contrasted with Dr Reveleys evidence that there was no evidence of Patient B suffering from a delusional disorder. Finally she said that there was clear evidence from Dr Reveley that there was nothing about Patient Bs psychiatric being or in relation to her mental state that made her predisposed to making a complaint. As can be seen Ms Johnson made no reference to any of the medical or expert witnesses having identified low self esteem as constituting part of Patient Bs mental illness. Nor did she identify as one of the explanations for why Patient B should be regarded as an unreliable witness which she anticipated would be advanced on behalf of Dr Lawrence either the fact that she was woman with low self esteem or an argument that such low self esteem formed part of her mental illness or that such low self esteem might have caused her to fabricate her evidence. Nor did Ms Johnson advance a positive case, in response to any suggestion that Patient Bs evidence was the result of delusion associated with erotic transference, that such an explanation was unlikely to be correct because Patient B

205.

206.

207.

was a woman with low self esteem and a woman with low self esteem unless encouraged would be unlikely to fantasise that she was attractive to another. Neither did she submit that any of the medical or expert evidence supported such a proposition. 208. The second passage relied on by Ms Callaghan was the sixth reason given by Mr Booth in his closing submissions as to why it was very difficult to place significant weight on the evidence of Patient B. That reason was identified by Mr Booth as Patient Bs purported perception at the time, both in the context of her depression and a recognised erotic transference. The only evidence cited by Mr Booth in support of that sixth reason was Dr Reveleys evidence which I have quoted that people who are emotionally emphasising or experiencing certain emotions in relation to someone can see things differently and her reference to Dr Kennedys evidence about the patient who thought that he was blond, tall and Nordic. Those were both references to erotic transference rather than depression and neither suggested that low self esteem can cause someone to fabricate evidence. There is nothing in that passage of Mr Booths submissions which referred to Patient Bs low self esteem or submitted that it was part of her mental illness or suggested that it might have caused Patient B to fabricate her evidence. If the unlikelihood of a woman with low self esteem fantasising that she was attractive to another unless encouraged had been a live issue in the case one would have expected it to be a point raised not on behalf of Dr Lawrence but rather on behalf of the GMC as a response or defence to a submission that Patient Bs evidence may have been the product of fantasy induced either by mental illness or erotic transference. In that part of Ms Johnsons submissions relied on by Ms Callaghan in which she responded to the anticipated submission on behalf of Dr Lawrence that Patient Bs evidence may have been unreliable as a result of her mental state, there was no trace or hint of such a defence. The points taken were confined to denying that there was any evidence that there was anything in Patient Bs mental state which predisposed her to making a false complaint. Nor was low self esteem canvassed by any of the three expert witnesses as a possible explanation for Patient B having fabricated her evidence. No such suggestion was put to any of them in cross examination. Neither was it raised with any of the expert witnesses by any of the FTPP members in the course of their own questions. It is true that in the fourth passage of Dr Kennedys evidence relied on by Ms Lambert in support of her submission that it supported the existence of the phenomenon of reciprocal erotic transference, Dr Kennedy referred to Patient Bs low self-esteem. However I accept Ms Callaghans submission that that evidence did not concern erotic transference. In the relevant passage Dr Kennedy was saying that poor self image may cause a patient to want a harmful but real relationship with the therapist, the hypothesis being that the Google search discovery about Dr Lawrences past sexual misconduct with a patient confirmed Patient Bs understanding that he had been expressing sexual feelings towards her. Thus while Ms Callaghan was right to point out that there was a live issue as to whether Patient Bs depression might have caused her to give inaccurate evidence about Dr Lawrence and right that the first impugned statement was made in a paragraph of the Determination on facts in which the FTPP concluded that there was

209.

210.

211.

212.

no reason why her depressive disorder would be likely to cause her to fabricate her evidence, I do not accept Ms Callaghans submission that the impugned statement that a woman with low self esteem unless encouraged would be unlikely to fantasise that she was attractive to another was a finding on an issue which was live in the case before the publication by the FTPP of its Determination. 213. In my view that renders the FTPPs finding one which it was not open to it to make without giving Dr Lawrence an opportunity to address it by seeking to adduce evidence and/or making submissions. The failure of the FTPP to afford Dr Lawrence that opportunity and its inclusion of that finding in its Determination was in my view a material procedural irregularity. It was unfair to Dr Lawrence and contrary to a fundamental principle of natural justice that a court or tribunal will only make findings of fact in respect of matters on which the parties have been afforded a fair opportunity to make submissions and/or to seek to adduce evidence as appropriate. This conclusion is not dependent on the answer to the separate but related question of whether in making its finding of fact the FTPP was entitled to draw on its expertise and what expertise it was referring to. The FTPPs finding would in my view have been equally unfair whether made by a court or a tribunal comprised exclusively of lay members or one which did not purport to base its finding on any expertise of its own or by a tribunal comprised of experts who were entitled to base their findings on their expertise. The unfairness consists in the fact of making a finding of fact on a matter which had not been canvassed by the parties in argument or by the witnesses in evidence and thus which Dr Lawrence and his legal team could not reasonably have anticipated might form a material part of the FTPPs findings of fact or the process of reasoning by which it decided whether the allegations against Dr Lawrence were proved or not. Ms Callaghan was right to point out that the first impugned statement was made in a paragraph of the Determination in which the FTPP addressed the question whether Patient Bs mental state might have caused her to fabricate her evidence. She was also right to point out that the question whether Patient Bs evidence might have been fabricated as a result of her mental illness had been a live issue in the case. However neither of these points is an answer to Ms Lamberts complaint that in the first impugned statement the FTPP was making a finding of fact on an issue which had not been live. Thus in the sentences before and after the impugned statement the FTPP in effect rejected as an explanation of Patient Bs allegations against Dr Lawrence the possibility that they had been fabricated as a result of mental illness. However in the impugned statement itself the FTPP raised for the first time a free standing reason why fantasy as distinct from reality was unlikely to be the explanation for Patient Bs allegations, namely that she was a woman with low self esteem. By doing so the FTPP in my judgement raised a wholly new reason, not advanced by the GMC, why any suggestion that Patient Bs evidence reflected not the reality of Dr Lawrences words and conduct but rather a fantasy on her part was unlikely to be correct. Before turning to the separate challenge to the first impugned statement based on the FTPPs reliance on its self-avowed expertise, it is important to emphasise that the procedural unfairness which I find occurred by reason of the FTPP making a finding on an issue which in my judgment was not live in the case is neither dependent on nor

214.

215.

216.

217.

in my view mitigated or excused by the fact that the FTPP based the finding on what it regarded to be its expertise. The latter proposition derives support from the judgments in Watson and Richardson and was in any event accepted by Ms Callaghan who accepted that FTPP panellists are not entitled to reach a decision on an issue on the basis of their expertise or experience where the issue has not been the subject of any evidence or arguments. The use to which they can put their expertise or experience is limited to the evidence which is adduced and the submissions which are laid before them. To go beyond that and reach a conclusion on an issue which was not live before the panel or on which no evidence or argument had been made would be unfair. 218. Ms Callaghan accepted that that followed from Southall v General Medical Council [2010] EWCA Civ 407 where in obiter dicta Leveson LJ addressed a submission by the practitioners counsel that the lack of a Panel member from the same specialty as the practitioner required the court to pay less deference to the Panels conclusions. Leveson LJ rejected that argument stating at [767] : Any issues requiring particular specialist knowledge should be dealt with through the calling of expert evidence; neither the GMC nor the doctor would be in a position to challenge the opinion of a member of the panel and, if a professional in the same field, the risk would be that a decision would be made on the basis of an expert view that had not been subject of evidence or argument. 219. Watson was a case in which two medical examiners gave written evidence that the appellants fitness to practise was not at that time impaired although there was a danger of a recurrence of a previous health problem. At the conclusion of the hearing and after closing submissions, the FTPP retired to deliberate taking with them the medical assessors appointed in the case. When they returned the medical assessors summarised the advice that they had given to the FTPP in private: both assessors referred to the appellant being vulnerable to relapse. The FTPP refused an application to recuse themselves and gave a determination in which they concluded that the appellants fitness to practise continued to be seriously impaired and imposed stringent conditions on her registration. The appellant appealed under section 40 of the 1983 Act on the ground, among others, that contrary to natural justice and article 6 of the Convention she was deprived of a fair hearing in that the Panel relied upon the (inadmissible) opinion of experts whom she could not cross examine and whose opinions were given in private; in so doing the Panel rejected the opinions of those specifically nominated by the health committee to opine upon the issue of fitness to practise. Stanley Burnton J, as he then was, held that the appellant would have been justified in feeling that she did not receive a fair hearing and allowed her appeal on that ground, quashing the FTPPs determination and remitting the case to be heard by a differently constituted panel advised by different medical assessors. In giving his reasons Stanley Burnton J said: 60. In my judgment, the authorities to which I have referred above establish that those who advise a tribunal on issues of

220.

221.

fact, whether as its experts or as assessors, should do so openly, in the presence of the parties, and in circumstances in which the parties have an opportunity to make submissions on that advice before the tribunal makes its decision. This is, in general, what fairness requires. If the advice is controversial, there may be circumstances in which the tribunal may have to consider whether to permit the parties to put before the tribunal their own experts' responses to that advice. 61. The medical assessors' special relationship with a tribunal makes it the more important that all of their advice is given in the presence of the parties. The assessors are not parties to the case before the Panel. Nor are they members of the Panel. Where their advice may be adverse to the practitioner's case, it is particularly important that it is given in the presence of the parties, before the Panel deliberates on its determination, and in circumstances in which the parties have an opportunity to address that advice. Otherwise, the suspicion may be created that the advice given in private was not precisely the same, or was not given in the same manner, as that announced in public, or that the assessors have exercised influence on the decision of the tribunal. A perception of unfairness, and of bias on the part of the tribunal, is liable to be created.

222.

The mischief identified by Stanley Burnton J was the risk of a decision being influenced by the expression of expert opinions on a matter in circumstances in which the parties have been deprived of the opportunity of making submissions on that opinion. Although in that case the opinion in question was that of medical assessors, in my view by parity of reasoning the same mischief would exist where a member of the FTPP expressed an expert opinion on a matter which had not been canvassed at the hearing and in respect of which the parties had been deprived of an opportunity of making submissions and/or seeking to adduce evidence designed to challenge the opinion. As mentioned Ms Callaghan submitted that Watson was distinguishable on its facts the ground of distinction being because the FTPP in that case heard expert evidence in the privacy of their deliberation room and on issues which had not been before the parties. In my judgment that case is not distinguishable on that ground because in this case the first impugned statement and (if it was dependent on the first impugned statement) the second impugned statement purported to make findings on matters which had not been before the parties. In Richardson v Solihull Metropolitan Borough Council [1998] EWCA Civ 335 the Court of Appeal addressed the specific issue of an expert panel member becoming a backstage expert. The Court of Appeal heard three appeals against decisions of the High Court on appeal from the Special Educational Needs Tribunal. In one of the cases, the local authority proposed that twin boys with learning difficulties should attend School A, whereas the parents contended that they were under a duty to place them at School B. A tribunal that included two members with particular experience of

223.

224.

special educational needs and special schools held that neither School A nor School B was appropriate, but also found that there was provision suitable for [their] needs in England and that such a school represented the preferable solution in the case. The determination that there was an appropriate (and unnamed) school other than Schools A and B was made outwith the evidence presented by the parties and the parties were offered no opportunity to comment on the factual basis underlying it. The parents appealed on the ground (among others) that this determination was procedurally unfair. In the High Court Dyson J held that the specialist tribunal were not bound to act only on the evidence that was placed before them and hence the tribunal was entitled to reach this determination. That decision was in turn challenged in the Court of Appeal. 225. In the Court of Appeal it was argued for the local authority that the tribunal had been specifically appointed for their educational experience and accordingly could use this in making their decision without making the hearing unfair. Beldam LJ found that from a practical point of view there was much to be said for this position. However, he went on: I am conscious that it is sometimes difficult to distinguish between an expert Tribunal using the expertise for which its members have been chosen in deciding issues before it and using that expertise in a way which raises other issues the parties may not have had an opportunity to consider. I have no doubt that the specialist member of a Tribunal who had in mind a specific school which neither party had considered would regard it as fair and indeed in the child's interest to raise with the parties the possibility of the provision of such a school to meet the child's educational needs. In the present case I think it would have been preferable, once the Tribunal had decided that neither school proposed by the parties was appropriate, for the Chairman to have indicated this to the parties and told them that the expert members considered suitable arrangements could be made in this country, inviting submissions from the parties as to the course they wished the Tribunal to adopt in those circumstances. [36] (Emphasis added).

226.

Peter Gibson LJ stated that he found much force in the parents case that the tribunal had acted in a way that was procedurally unfair in making a finding dependent on its reasoning that an appropriate school could be found in this country when the parties had not been given the opportunity to comment upon or rebut the factual basis for that reasoning: Although the SENT is a specialist tribunal with members appointed for their expertise, it is important that the SENT obeys the rules of natural justice and that the members should not give evidence to themselves which the parties have had no opportunity to challenge. [52] (Emphasis added).

227.

Despite these observations the Court of Appeal dismissed this ground of the appeal on the basis that it could see little point in remitting the case to a fresh tribunal when for

all it knew the relevant parent might be prepared to accept a placement at a school such as that specified by the tribunal. 228. In a supplemental judgment Beldam LJ clarified that in his earlier judgment he had not found that the Appellant had been denied natural justice. Although it would have been preferable for the Chairman to have raised the question with both parties, his failure to give them that opportunity did not affect the decision of the tribunal on the suitability of the two schools proposed although it might have affected the procedure the tribunal then adopted. Peter Gibson LJ also confirmed that he was not satisfied that the relevant parents had suffered a substantial wrong or miscarriage of justice. In the course of his supplemental judgment however Beldam LJ mentioned that Dyson J had apparently suggested in argument that if the tribunal were to draw on its experience and expertise (as it was common ground they could do) they were obliged to give the parties a reasonable opportunity to comment upon or rebut the use of that experience or expertise. In my judgment the observations of Beldam LJ Peter Gibson LJ and Dyson J (as recorded by Beldam LJ) support the proposition that a specialist tribunal including a GMC FTPP remains bound by the rules of natural justice; that the rules of natural justice preclude members of a specialist tribunal including expert members from giving evidence to themselves which the parties have no opportunity to challenge and that where a specialist tribunal drawing on its own knowledge and experience independently identifies an important fact or matter which may influence its decision but which has not been the subject of evidence adduced by or submissions advanced by the parties, it should state this openly and give the parties an opportunity to seek to adduce evidence and/or make submissions on it. Lawrence Collins J in the case of Lucie M v Worcestershire County Council [2002[ EWHC 1292 (Admin), formulated the principle to be derived from Richardson in terms which in my view identify the requirement which the FTPP in this case in its first impugned statement (and, if it was dependent on the first impugned statement in its second one) failed to observe: Fifthly, the lay members of a Tribunal specifically appointed for their educational expertise may use that expertise in deciding issues before the Tribunal, but they may not use it to raise and decide other issues which the parties may not have had an opportunity to consider (for example the choice of a specific school which neither party has considered): Richardson v Solihull Metropolitan BC [1998] ELR 319 at 322. That is because although it is a specialist tribunal with members appointed for their expertise, it is important that the Tribunal obeys the rules of natural justice and that members should not give evidence to themselves which the parties have had no opportunity to challenge. [11]

229.

230.

231.

See also R(L) v London Borough of Walton Forest Special Educational Needs and Disability Tribunal [2003] EWHC 2907 (Admin) at [14] : where the specialist Tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it. That is established in the mental health

tribunal context by the Clatworthy case, and in the context of this Tribunal in Lucie M V Worcestershire County Council. (per Beatson J). 232. Ms Callaghan relied on an observation of mine in McKeown v British Horse Racing Authority [2010] EWHC 508: There is in principle no reason why a tribunal including members with relevant experience and a knowledge of the sport in question should not draw on their knowledge and experience of viewing and interpreting video evidence and drawing inferences from it and from the evidence relating to such things as the nature and record of the contestants. Indeed there is every reason why they should be free to do so. (At [212]) 233. One of the issues in that case was whether video recordings of races showed the appellant jockey using a so called air shot in which the jockey pretends to strike his horse with his whip but in fact the whip fails to make contact with the horse. Two of the three members on the panel were stewards with long experience of reviewing videos of horse races, in order among other purposes to ascertain whether a jockey had used an air shot. I held that the members of the panel were entitled to draw on their experience when reviewing the video footage in Mr McKeowns case and deciding whether it showed him to have used air shots. Counsel for both parties had made submissions to the panel on what the video footage did or did not show and in evaluating those submissions and interpreting the video footage the members of the panel were dependent on their senses, in particular their eyes. To that extent they were in the same position as I was sitting in my capacity as an appellate court. The difference between the panel and me was that their senses were likely to be far sharper than mine and better able to interpret what they saw. That fact did not in my view create any risk of the panel having made a decision on the basis of an expert view that had not been the subject of evidence or argument. The risk of that happening is of course the very mischief identified by Leveson LJ in Southall, in the passage to which I have referred, as liable to arise if a FTPP includes an expert from the same field as the practitioner whose conduct is challenged in proceedings by the GMC. Indeed Leveson LJ, with whom the other members of the Court of Appeal agreed, in rejecting a complaint that the panel in question included only one medical practitioner and that he practised in a different field to that of Dr Southall, stated; far from it being appropriate to have an expert from the same field, I consider the converse to be the case: as Ms Carss-Frisk put it, any issues requiring particular specialist knowledge should be dealt with through the calling of evidence; neither the GMC nor the doctor would be in a position to challenge the opinion of a member of the panel and, if a professional in the same field, the risk would be that a decision would be made on the basis of an expert view that had not been the subject of evidence or argument. (Para 67). Although none of the members of the FTPP in this case practised in the same field as Dr Lawrence, namely psychotherapy, the FTPPs reliance in reaching the first impugned conclusion, on its self avowed expertise in my view created precisely the risk which the Court of Appeal in Southall said was to be avoided, namely that a

234.

235.

236.

decision was made on the basis of an expert view that had not been the subject of evidence or argument. As explained below that error was in my view compounded in this case by the fact that although the FTPP considered that it had the relevant expertise upon which it was entitled to rely in finding that a woman with low self esteem would be unlikely unless encouraged to fantasise that she was attractive to others it did not in my view in fact have such expertise. 237. In the light of my findings thus far it is not necessary for me to elaborate at any great length on my reasons for upholding the challenge to the first impugned statement on the additional ground of the inappropriate reliance by the FTPP on its self avowed expertise. One of the problems with the first impugned statement is that the FTPP did not explain what it meant by its expertise. Ms Lambert submitted that the natural and obvious interpretation is that it intended to refer to the professional expertise of the chairman in his capacity as a former consultant psychiatrist. Ms Callaghan submitted that it was intended to refer to the collective experience of the FTPP members in hearing other cases involving vulnerable women. In my judgment Ms Lamberts suggested interpretation is more likely to be correct than Ms Callaghans for the reasons she gave which I have set out and with which I agree. It is however impossible to be sure because the FTPP in its Determination failed to explain what it meant by its expertise or to give any particulars from which it would be possible to assess whether its expertise qualified it to make the finding in the first impugned statement. Whichever is the correct interpretation I am not satisfied that the FTPP in fact possessed sufficient expertise to entitle it to make the finding which it did in the first impugned statement. Ms Lambert submitted that the first impugned statement should be read as though the words even in the context of erotic transference in psychotherapy had been added at the end of the sentence. Ms Callaghan challenged that submission on the basis that the first impugned statement appeared in a paragraph dealing with the question whether Patient Bs mental illness could have caused her to fabricate evidence and not in the subsequent paragraph in which the FTPP dealt with the possible effect on her evidence of erotic transference. In my view it does not matter whether the sentence is to be read as though the additional words were added or not. Either way the fact remains that it was Dr Lawrences case that one possible explanation for Patient B having made false allegations against him was that they were the product of fantasies in the context of her admitted (in the narrow sense) erotic transference. Either way the effect of the impugned first statement was that even if in other circumstances erotic transference in the narrow sense might be capable of causing someone to entertain a fantasy that their therapist found them attractive and reciprocated their sexual feelings, that would be unlikely to occur in the case of a female patient with low self esteem. It was in principle open to the FTPP to conclude that it was not satisfied on the balance of probabilities that the expert evidence had shown that erotic transference in the narrow sense would be likely on its own to cause Patient B to believe that Dr Lawrence had feelings for her. What it was not in my judgment entitled to do was to

238.

239.

240.

241.

242.

reach the conclusion that erotic transference in the narrow sense would not be likely on its own to cause her to believe that Dr Lawrence had feelings for her not based on its evaluation of the expert evidence alone but in reliance in whole or in part on its expertise in matters other than the scope, nature and limitations of erotic transference. 243. For those purposes it is in my view irrelevant whether the expertise relied on by the FTPP was the chairmans expertise as a psychiatrist or the collective experience of the panel members in hearing cases involving vulnerable women. In so far as neither expertise (even assuming that the previous experience of members of the FTPP in hearing cases involving vulnerable women justifies the epithet expertise) can have been expertise on erotic transference it would not in my view be appropriate for the FTPP to rely on facts or conclusions drawn from that expertise rather than its evaluation of the expert evidence before it for the purpose of deciding whether erotic transference in the narrow sense would be likely on its own to cause Patient B to believe that Dr Lawrence had feelings for her. For the sake of completeness I should say that I accept Ms Lamberts submission that given the ambiguity as to what the FTPP intended to refer to by its expertise I must proceed on the basis that since I cannot rule out the possibility that the reference was intended to be to the chairmans expertise as a psychiatrist, the impugned finding is still open to challenge for the reasons which I have given even if I were wrong to find that it is also open to challenge on the basis of the interpretation of its expertise contended for by Ms Callaghan. I would add that I do not consider that the FTPPs error, as I find it to be, is mitigated by Ms Callaghans submission that it was entitled to make the observation in the first impugned statement without relying on any expertise because it is a matter of common human experience and well known to any observer of human nature that people with low self esteem do not consider themselves attractive to others. I agree with Ms Lambert that the proposition is neither self-proving nor obvious and did not reflect an observation concerning likely human behaviour according with experience and common sense. As Ms Lambert submitted, fantasies by their nature are ways of escaping reality or imagining an alternative existence and there is in my judgment no self-evident reason why a woman with low self esteem would not be capable of constructing or likely to construct a fantasy in which she was attractive to another. In any event the problem would remain that the FTPP was in my view bound to give Dr Lawrence the opportunity of seeking to adduce evidence and/or make submissions to persuade the FTPP that its conclusion was wrong. Turning to the finding in the second impugned statement I accept Ms Lamberts submission that the use of the word would suggests that the finding of the FTPP was a conclusion as to the nature of erotic transference and its potential effects in general terms rather than a factual finding that the factual evidence in this case was such that it was not likely that erotic transference on its own caused Patient B to believe that Dr Lawrence had feelings for her. It was thus a finding on the nature and scope of the phenomenon of erotic transference in general terms. It follows that it was not a factual finding as to what actually occurred in this case based on the FTPPs evaluation of the conflicting factual evidence. What then was the finding based on? The only legitimate basis for its finding would have been the expert evidence, the FTPPs findings both as to the effect of that evidence and as to which parts of it it accepted and which parts it rejected and the inferences which it drew therefrom.

244.

245.

246.

247.

Ms Lambert accepted that in reaching a conclusion on the expert evidence the FTPP was entitled to rely on its individual and/or collective expertise and/or experience. She also accepted that it was open to the FTPP to reject expert evidence even if it was agreed. None of the experts expressed the view that erotic transference in psychotherapy is unlikely by itself to cause a patient to believe that the therapist has feelings for the patient. If the second impugned statement was based on a finding that that was the view of one or more of the experts and a finding that that view was correct, it would in my view be based on a misreading of the expert evidence and one for which there is no support in what the experts said. In any event, as appears below it would in my view have been incumbent on the FTPP both to make clear that that was the basis for the second impugned statement and to identify which of the experts evidence it was based on. As I have said my reading of the expert evidence is that there were parts of it in which opinions were expressed which were to the effect that it is possible that narrow erotic transference on its own may have caused Patient B to believe that Dr Lawrence had erotic or sexual feelings for her but that none of it went so far as to express the opinion that that was likely. In principle that would leave it open to the FTPP to conclude that, while the effect of the expert evidence was that it was possible that erotic transference could on its own have caused Patient B to perceive that Dr Lawrence had feelings for her, it was not satisfied that the factual evidence proved that that is what is likely to have actually happened. However as I have said in my view the wording of the second impugned statement makes it clear that it was not based on the FTPPs assessment of the factual evidence in the case. The FTPP could in theory have rejected the expert evidence as I have interpreted it and concluded that it did not even support the proposition that it is possible that narrow erotic transference on its own may have caused Patient B to believe that Dr Lawrence had erotic or sexual feelings for her, in which case a fortiori there would have been no support in the expert evidence for the proposition that it was likely to have done so. However I am not satisfied that it is possible to be sure that that is how the FTPP reached its conclusion in the second impugned statement and in fact I do not consider that it is likely that that is how it reached its conclusion. The question arises whether the FTPPs conclusion in the second impugned statement, namely that it did not find that erotic transference would be likely on its own to cause Patient B to believe that Dr Lawrence had feelings for her, was or may have been dependent in whole or in part on the finding, which I have held to be illegitimate, in the first impugned statement that a woman with low self esteem unless encouraged would be unlikely to fantasise that she was attractive to another. If the second conclusion was dependent in whole or in part on the first, it follows in my view that it is itself for that reason illegitimate. In my view at its lowest it cannot be said that the second impugned conclusion was not or may not have been influenced or dependent in whole or in part on the first. It was to that extent in my view tainted by the error in the first impugned statement. In fact I would put it higher. In my judgment it seems likely that the second conclusion was influenced or dependent in whole or in part on the first. But I emphasise that my view that the second conclusion is tainted by the first does not depend on that judgment.

248.

249.

250.

251.

252.

Allied to this point is the absence of any explanation by the FTPP as to how or why it reached the conclusion in the second impugned statement. As appears from my analysis above the expert evidence was not straightforward on the crucial question of whether and if so to what extent narrow erotic transference is capable of causing a patient to entertain false beliefs and perceptions that the therapist has reciprocal erotic or sexual feelings towards the patient. In my view on this issue the evidence of Dr Reveley goes further in favour of Dr Lawrence than that of Dr Kennedy and Dr Denman albeit it derives some support from both of them. It may be that the FTPP rejected the evidence of Dr Reveley and/or Dr Denman and/or Dr Kennedy on this point and/or interpreted it differently to me and/or accepted or preferred the evidence of Dr Kennedy as interpreted in the way contended for by Ms Callaghan. If so there is no clue in the Determination, which is entirely silent both as to the reasons why the FTPP made the second impugned statement and as to which parts if any of the expert evidence relevant to this issue it accepted, which parts if any it rejected and in either case why. Equally that may not be the case. The FTPPs finding in the second impugned statement may have been based on the FTPP agreeing with Ms Lambert that Dr Reveleys evidence on its own or supported by that of Dr Kennedy and/or Dr Denman allowed of the possibility of erotic transference having caused Patient B to misperceive and having made a mistake in her belief as to the nature of Dr Lawrences words and conduct towards her, but concluding that because it was expressed as giving rise to no more than a possibility, the expert evidence itself did not satisfy the FTPP that that was likely to have happened. It may or may not in that context have concluded that the evidence of Dr Kennedy and/or Dr Denman supported and/or was to similar effect as that of Dr Reveley in terms of a possibility. On that hypothesis the finding in the second impugned statement may have amounted to no more than a finding that the expert evidence did not go beyond a possibility and in particular did not extend to supporting likelihood. On that footing its finding would have been legitimate. However the language of the second impugned statement does not support that interpretation of what it meant. The conclusion is expressed in terms which suggest that it was an opinion of the members of the FTPP rather than an opinion of the experts with which the FTPP agreed or from which the FTPP drew an inference. Again the Determination is silent. Equally it may have been based on a conclusion that even though the expert evidence suggested that it was a possibility, the FTPPs own expertise suggested to it that it was unlikely to have occurred in this case because Patient B was a woman with low self esteem and, as set out in the first impugned statement, the FTPP did not consider it likely that a woman with low self esteem would unless encouraged consider that she was attractive to others. That, as I have indicated, would be an impermissible approach. Regrettably the absence of reasons or explanations as to how it reached its second impugned conclusion makes its impossible in my view to rule out the possibility that that is what happened. Although my conclusion that the second impugned statement is flawed does not depend on it, my view is that this is the most likely explanation of the thinking that lay behind the second impugned statement. It would explain why the second impugned statement is not said by the FTPP to derive from its interpretation of and/or findings as to the expert evidence on erotic transference and also explain why the FTPP did not feel the need to go into the expert

253.

254.

255.

evidence on this point in the Determination even though as I have found that evidence supported the proposition that erotic transference is capable of causing patients in psychotherapy to believe that the therapist has feelings towards them. 256. If the second impugned statement was indeed based on the first impugned statement it would follow in my judgment that there is a real possibility that the FTPP may have been led into error in its approach to its assessment of the evidence. My reading of the expert evidence is that it gave support to the proposition that erotic transference is capable by itself of causing a patient to believe that the therapist has erotic or sexual feelings towards the patient. In my judgment the FTPP was under a duty to assess the expert evidence and consider whether it supported Dr Lawrences case in that regard. If, having assessed it, the FTPP interpreted the expert evidence in the same way as I have done, it was in my judgment then under a duty to take into account, when assessing the factual evidence, the fact that erotic transference is capable of causing a patient to have such false beliefs. Having concluded, on the hypothesis that the second impugned statement was based on the first, that whatever may be the possibilities in the case of other patients, erotic transference is unlikely to cause a female patient with low self esteem to believe that her therapist has feelings towards her, there is an obvious risk that the FTPP either considered it unnecessary to reach findings as to whether the expert evidence supported the proposition which I have found it does, or that it did interpret the expert evidence in the same way that I have but nonetheless concluded that it was irrelevant in this case because Patient B was a woman with low self-esteem. Either way there would be a material risk that the FTPP failed properly to consider all relevant evidence. If the FTPP accepted the evidence of Dr Reveley and/or that of Dr Kennedy and/or Dr Denman as supporting the possibility of mistake through erotic transference, albeit falling short of suggesting that to have been of itself a likely explanation of Patient Bs evidence, it would follow that in assessing all the other evidence in the case and in particular the evidence of Patient B, supported by the evidence of recent complaint on the one hand and the evidence of Dr Lawrence, supported by the evidence of Ms Sutcliffe and Ms Dowd on the other, the FTPP should have taken into account as a relevant factor and weighed in the balance the expert evidence that erotic transference is itself capable of causing a patient to form a mistaken belief that the therapist has feelings towards them. Thus if the FTPP accepted the evidence of Dr Reveley (and/or Dr Kennedy and/or Dr Denman) as interpreted by Ms Lambert, that evidence was a matter which it should have taken into account on Dr Lawrences side of the scales as weighing in favour of his case. It would not have been obliged of course to regard that as a decisive factor and it would have been entitled to say that it was outweighed by the strength of the evidence against him. However the complete absence of any explanation as to how or why the FTPP reached the finding it did in the second impugned criticism makes it impossible for Dr Lawrence to know whether it failed to take into account important relevant evidence on which his case relied. If anything the inference to be drawn from the absence of any further reference in the Determination to the expert evidence on erotic transference as a factor relevant to resolving the dispute between Patient B and Dr Lawrence would point towards the inference that the FTPP did not take that evidence into account in weighing the disputed factual evidence.

257.

258.

259.

Equally if the FTPP did consider the expert evidence on the effect of erotic transference and either rejected it or interpreted it in the way contended for by Ms Callaghan it would have been entitled to take the view that it did not for one of those two reasons support Dr Lawrences case. What it was not entitled to do in my view was to decline to take it into account on the ground that even if it applied in other cases it could not apply in this case because Patient B was a woman with low self esteem. If it properly considered and rejected the expert evidence relied on by Dr Lawrence on this point and/or interpreted it in the way contended for by Ms Callaghan it would, provided it did so rationally and gave adequate reasons, have been entitled to ignore it when assessing the factual evidence. If it accepted it and/or interpreted it in the way contended for by Ms Lambert it was bound in my view to take it into account. Again which if either of those explanations is correct it is impossible to say by reason of the absence of any reference to the point in the Determination. The extent and nature of the duty to give reasons was authoritatively stated by the Court of Appeal in English v Emery Reinbold and Strick Ltd [2002] 1 WLR 2409. There are two essential requirements. It must be apparent to the parties why one has won and the other has lost and the judgment must enable an appellate court to understand why the judge reached his decision. While the adequacy of reasons depends on the nature of the case they must in every case satisfy those two requirements which are of universal application. Giving the judgment of the Court Lord Phillips said: 16. We would put the matter at it simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost 17. As to the adequacy of reasons, as has been said many times, this depends on the nature of the case: see for example Flannery at page 382. In the Eagil Trust case, Griffiths LJ stated that there was no duty on a Judge in giving his reasons, to deal with every argument presented by Counsel in support of his case: When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to how the Court of Appeal the principles on which he has acted, and the reasons which led him to his decision. They need not be elaborate. I cannot stress to strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case. It is sufficient if what he says shows the parties, and if need be the Court of Appeal the basis on which he acted (see Sachs LJ in Knight v Clifton [1971] 2 AER 378 at 392393, [1971] CH.700 at 71). (p.122). 18. In our judgement these observations of Griffiths LJ apply to judgments of all descriptions.

260.

261.

19. It follows that, if the Appellate process is to work satisfactorily, the judgment must enable the Appellate Court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judges conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. 21. When giving reasons a Judge will often need to refer to a piece of evidence or not a submission which he has accepted or rejected. Provided that the reference is clear, it may be unnecessary to detail, or even summarise, the evidence or submission in question. The essential requirement is that the terms of the judgment should enable he parties and any Appellate tribunal readily to analyse the reasoning that was essential to the judges decision. (emphasis added). 262. In Phipps v GMC [2006] EWCA Civ 397 the Court of Appeal held that although the decision in English v Emery Reinbold was primarily addressed to the professional judiciary, the application of the principles set out in that judgment are universal and its conclusions are applicable to any tribunal charged with the duty to reach a judicial or quasi-judicial conclusion. (paras 78, 81). Phipps was a case concerned with a decision of the professional conduct committee of the GMC, the predecessor of Fitness to Practise Panels. Wall LJ saw considerable force in the submission that there is no reason why doctors sitting in judgment on their peers should be exempt from the general rules that apply to all other tribunals. Plainly, the need to give reasons for findings of fact will vary from case to case, and will depend on the subject matter under consideration. There may be cases where such reasons are unnecessary because they emerge clearly form the courts findings: there may be cases where the expression of such reasons is essential. The test in every case, it seems to me, is the same, and finds its expression in many places in the books, most succinctly in paragraphs 16 of this courts judgment in English v Emery Reinbold and Strick (para 77).

263.

Wall LJ referred to the decision of the Privy Council in Gupta v General Medical Council [2002] 1 WLR 1691 in which the Board rejected the view that there was general duty to give reasons in cases where the essential issue is one of the credibility or reliability of the evidence in the case. He referred to paragraph 14 of Lord Rodgers judgment in which he held: the Committee can always give reasons if it considers it appropriate to do so in a particular case. Their Lordships

would go further: there may indeed be cases where the principle of fairness may require the Committee to give reasons for their decision even on matters of fact. In the present case [counsel for the GMC] accepted that in certain circumstances which he said would be exceptional there could indeed be a duty on the Committee to give reasons for its decisions on matters of fact He urged the Board to provide guidance to the Committee on the matter. Their Lordships are satisfied that no duty to give reasons arose in this case. That being so, they prefer to leave the questions of the existence of any such exceptional duty to give reasons, and of its scope, to be determined in a case where the point is live.

264.

Wall LJ referred to Gupta and observed that: Although counsel for the GMC in Gupta plainly submitted that it would only be in exceptional circumstances that there could be a duty on the PCC to give reasons for its decisions on matters of fact, the common law does not stand still, particularly in the developing area of the need for judges and tribunals to give reasons for their decisions. Thus it seems to me that what was exceptional in 2001 may well have become commonplace in 2006. (Para 73).

265.

Wall LJ cited as perhaps one of the best known expressions of the universal theme that set out in the judgment of Bingham LJ in Meek v Birmingham City Council [1987] IROR 250 paragraph 8 which included the conclusion that There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises (Para 81). He further held: In every case, as it seems to me, every tribunal (including the PCC of the GMC) needs to ask itself the elementary questions: is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost? If in asking itself those questions the PCC comes to the conclusion that in answering them it needs to explain the reasons for a particular findings of fact that, in my judgement, is what it should do. Very grave outcomes are at stake. Respondents to proceedings before the PCC of the GMC are liable to be found guilty of serious professional misconduct and struck off the register. They are entitled to know in clear terms why such findings have been made. (Paras 85, 86).

266.

267.

Sir Mark Potter P endorsed Wall LJs observations concerning the inter-reaction of paragraph 14 of the decision of the Privy Council in Gupta v GMC [2002] 1 WLR 1691 and the principles set out in English v Emery Reinbold. In doing so he held that the requirement laid down by the Court of Appeal in English v Emery Reinbold on judicial and quasi-judicial tribunals to state their decision in a form which is sufficient to make clear to the losing party why it is that he has lost will be satisfied: if, having regard to the issues as stated and decided and to the nature and content of the evidence in support, the reasons for the decision are plain, whether because they are set out in terms, or because they are implicit i.e. readily to be inferred from the overall form and content of the decision. I do not think that there is any real difference or substantial inconsistency, other than one of emphasis, between that principle and what was stated in Gupta, namely that there is no general duty on the PCC of the GMC to give reasons for its decisions on matters of fact, in particular where the essential issue is one of credibility or reliability of the evidence in the case, whilst at the same time recognising that there are cases where the principle of fairness requires reasons to be given even on matters of fact: see paragraph 14 of Gupta. It seems to me that such cases are those where, without such reasons, it will not be clear to the losing party why he has lost. It is not a necessary ingredient of the requisite clarity that the reasons should be expressly stated when they are otherwise plain or obvious. I consider that the analysis of the law set out by Lord Justice Wall should provide a helpful exposition by way of guidance for the PCC of the GMC in future cases, and it is one with which I concur. (Paras 106, 107).

268.

Lady Justice Arden echoed the point made by Sir Mark Potter that it is not necessary for reasons to be set out in terms provided they are implicit in the sense of being readily to be inferred from the overall form and content of the decision. In my judgment the English case establishes that a decision of the court does not infringe Article 6 or the common law on the grounds that the reasons are not spelt out if the reasons can be deduced from other sources to which reference may properly be made: see the judgment in the English case at the paras already cited and para 26 (para 104). In Southall Leveson LJ with whom the other two members of the Court of Appeal agreed, cited extracts of the judgments in Phipps and held: 55. For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected

269.

and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter. 56. When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex. First, underlying the case for Dr Southall was the acceptance that Mrs M might perfectly justifiably have perceived herself as accused of murder with the result that the analysis of contemporaneous material some eight years later is of real importance: that the evidence which touched upon this conversation took over five days is testament to that complexity. Furthermore it cannot be said that the contemporaneous material was all one way: Dr Corfield's note (and, indeed, her evidence) supported the case that it was (or at least could have been) Mrs M's perception alone. Ms Salem's note (accepted by Mrs M as 100% accurate so far as it went) did not support the accusation and her evidence was that if those words had been said, she would have recorded them. I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the panel. 57. Perhaps because of the nature of the case, the panel did, of course, provide a few sentences of reasons but, in my judgment, they were simply inadequate and did not start to do justice to the case. On the specific findings of fact, although entitled to conclude that Mrs M was a clear, honest and credible witness, they do not specifically deal with the suggestion that she perceived herself to have been accused and so represented herself as having been accused which, when upset (as she described) would be entirely understandable and could itself explain why (if it be the case) that she so reported the interview over the days that followed. Let me make it clear that I am not making such a finding but merely concluding that Dr Southall was entitled to know why that possibility was discounted. 58. In relation to Dr Corfield, said to support Mrs M because of the comment "they didn't do toxicology quite possibly you drugged him first", the panel totally ignored the thrust of her evidence, recounted above, which was entirely supportive of the perception theory and did not deal with how that evidence impacted on the words she wrote or, in relation to her and Mrs Parry (whose evidence also included at least one conditional phrase), how Mrs M's perception might have been reflected in what she said in the days that followed. As for Dr Southall's

report, the categorical denial would be no less categorical if Mrs M perceived herself as being accused as if she was accused. 59. Further, once providing some reasons, in my judgment, the panel did have to say something about Dr Southall who gave evidence on this topic for some days. If (as must have been the case) they disbelieved him, in the context of this case and his defence, he was entitled to know why even if only by reference to his demeanour, his attitude or his approach to specific questions. In relation to Ms Salem, the position was worse: to say that the panel "did not find her evidence to be wholly convincing" is not good enough. If she did not make a note of the specific challenge of murder (which she said she would have done), it must have been the panel's view that she decided, at the time of the interview, that she would not do so and so have entered into an implicit agreement with Dr Southall to cover up an overly oppressive interview. That is nothing to do with not being wholly convincing: it is about honesty and integrity and if the panel were impugning her in these regards, it should have said so. 60. Finally, I express concern about the way in which the panel approached their task by reference in the sanction remarks to their extreme concern that Dr Southall formed the belief that the circumstances of M1's death needed to be investigated by him. It is entirely legitimate to conclude that the panel there demonstrated that the approach to the interview had concerned them and it is not fanciful to suggest that it may have informed their approach to the factual dispute. If that is correct, their approach was not one based on evidence: it had not been the subject of expert evidence or specific charge and, in my judgment, was not one upon which they were entitled to form a view. I do not criticise the panel for that: it is how the matter was put in cross examination and doubtless in the submissions; it is certainly reflected in the submissions to Blake J, in his judgment and in the GMC's skeleton argument for this court. 61. In that regard, when Blake J said that the panel were entitled to have regard to the extent to which Ms Salem could be said to be independent of Dr Southall, he also fell into error. First, there was simply no evidence to justify the conclusion that it was inappropriate for the social worker in the case to be present when Dr Southall interviewed Ms M: that itself required expert evidence of appropriate practice. Secondly, it is unclear how it is said that this was a "matter to which the panel could have had regard"; if it be to suggest that it permitted the panel to reject her evidence as untruthful, again in the absence of evidence condemning the practice, I respectfully disagree. To that extent, also, this determination is open to criticism.

62. In his judgment, Blake J considered that the panel's conclusions were sufficiently explained both by the reasons it gave "and the detailed scrutiny of the transcript that the court has been invited to undertake". That comment echoes a reference in Gupta v General Medical Council (supra) to the decision of the European Commission of Human Rights in Wickramsinghe v United Kingdom [1998] EHRLR 338 to the fact that the practitioner can study a transcript of the hearing, including not only the evidence but the submissions on the evidence by the respective parties further to understand which witnesses the panel accepted and why. It is unnecessary for the purposes of this judgment to decide how far such an exercise can go although, without the panel identifying which arguments in a complex case it accepted, however briefly that exercise is undertaken, it does not appear to me that an assumption can be made that all the submissions advanced by one side found favour with the panel simply because it concluded in favour of that party. The difference between this case and that of a criminal trial is that the judge's summing up is an impartial analysis of fact and argument for both sides; submissions by the parties are not. 63. In summary, I conclude that, although superficially straightforward, this case was exceptional within the language of Gupta and required the panel to provide reasons. Contrary to the view expressed by Blake J, I do not consider the reasons which it provided were sufficient to explain why the panel rejected the defence that Mrs M might have perceived that she was accused of murder without her having been so accused.

270.

In English v Emery Reinbold the Court of Appeal addressed the approach to be followed when a court rejects expert evidence. : 19 if the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon. 20. the first two appeals with which we are concerned involved conflicts of expert evidence. In Flannery Henry LJ quoted form the judgment of Bingham LJ in Eckersley v Binnie [1998] 18 Con LR 1 at 77-8 in which he said that a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal. This does not mean that the judgment should contain a passage which suggests that the Judge has applied the same, or even a superior degree of expertise to that displayed by the witness. He should simply provide an explanation as to why he has accepted the evidence

of one expert and rejected that of another. It may be that the evidence one or the other accorded more satisfactorily with facts found by the judge. It may be that the explanation of one was more inherently questionable than that of the other. It may simply be that one was better qualified, or manifestly more objective, that the other. Whatever the explanation maybe, it should be apparent from the judgment.

271.

What emerges form English v Emery Reinbold and Phipps in my view is that, whereas the degree of detail needed to satisfy the universal requirements of enabling the parties to know why they have won or lost and an appellate court readily to analyse the reasoning that was essential to the courts decision is fact sensitive and thus infinitely variable, it will often be necessary to refer to a particular piece of evidence or submission which has been accepted or rejected and particular rigour is likely to be necessary when dealing with expert evidence. Although in English v Emery Reinbold Lord Phillips cited with approval Bingham LJs requirement that a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, in my view it is implicit that a similar approach is necessary if, in order to enable the parties and the Appellate Court to understand the reasoning and basis on which the court or tribunal has reached its decision it is necessary to know which part or parts of certain expert evidence were accepted and/or rejected. Applying these general principles to this case I find myself unable, for the reasons set out above, to conclude that the FTPP satisfied the requirement to give adequate reasons for its conclusion in the second impugned statement. In reaching that conclusion I have, of course, taken into account the FTPPs review of the factual evidence, its clear indication that it preferred the evidence of Patient B to that of Dr Lawrence and the factors it identified in the Determination on the facts. However, for the reasons I have given, it is clear in my view that the FTPPs conclusion in the second impugned statement was not based or dependent on its review of and views as to the factual evidence. At its lowest it is in my view certainly not clear that it did so. Nor, as appears from my analysis above, can the basis on which it reached its conclusion in the second impugned statement be readily inferred from other parts of its determination. The question of what, if any, effect erotic transference may have had on Patient B and in particular on her evidence as to Dr Lawrences words and conduct towards her was one of central importance in the case. That is reflected in the extensive references to erotic transference in the evidence of the three expert witnesses. It was also recognised in my view by the FTPP, as is implicit in the fact that it felt it necessary to pose and answer the question whether erotic transference would be likely, on its own, to cause Patient B to believe that Dr Lawrence had feelings for her. Having posed and answered the question it was in my view incumbent on the FTPP to explain the basis and reasons for its answer to it. As appeared from the extensive oral and written submissions of Ms Lambert the reasons and basis were not clear to Dr Lawrence or his legal advisers and they are not clear to me.

272.

273.

274.

I was referred to the decision of Sales J in Yeong v General Medical Council [2009] EWHC 1923 and Silber J in Cohen v General Medical Council [2008] EWHC 581. The former was a case in which an FTPP made findings that a doctors fitness to practise was impaired without referring explicitly to expert evidence adduced on behalf of the doctor to opposite effect. Sales J considered that in the light of the standards laid down in English v Emery Reinbold and Phipps it was incumbent on the panel to refer explicitly to the opinion of the expert and in that context to give its reasons why it did not accept or propose to act upon it. In Cohen the FTPP also concluded that a doctors fitness to practise was impaired notwithstanding the evidence of an expert adduced by the doctor to opposite effect. In Cohen the FTPP referred to the experts contrary opinion and stated that it did not accept his view. Silber J concluded that the decision of the FTPP was wrong among other reasons because it failed to give any reasons or any cogent reasons why it disagreed with this opinion. (para 68). While those cases provide useful examples of the application of the principles to which I have referred to decision of FTPP's, I derive no assistance from them as to whether the application of those principles to the Determination in this case satisfied the requirements set out in English v Emery Reinbold and Phipps, because each case necessarily falls to be considered on its particular facts. I have given careful and anxious consideration to the critical question whether or not the errors which I have found the FTPP made make it necessary in the interests of justice for me to set aside the FTPPs findings on the disputed facts and its findings that the disputed allegations as to misconduct were proved. I am very conscious of the time and money expended on all sides in the preparation for and conduct of the hearings before the FTPP. I also bear in mind the emotional strain which both Dr Lawrence and Patient B no doubt underwent and which they would both no doubt undergo in the event of a second hearing in front of a new panel. While these considerations cannot of course of themselves provide the answer to the question they do provide very good reasons why the question should be approached with great care. Ms Callaghan submitted that it was open to Dr Lawrence at the hearing to call expert evidence to demonstrate that Patient Bs low self esteem could have caused her to misperceive his actions. The fact that he did not do so she submitted suggests that there is no real possibility of expert evidence demonstrating that the FTPP was wrong in its first impugned statement. As I have indicated the premise on which that submission was based, namely that the question whether Patient Bs low self esteem impacted on her perception of events was a live issue in the case, is in my view a false premise. That submission and the submission that the FTPP was entitled to make the observation in the first impugned statement without relying on any expertise because it is a matter of common human experience were no doubt designed to support the submission that this is a case, like that in Yeong, in which an error or errors on the part

275.

276.

277.

278.

279.

280.

281.

of the FTPP did not materially affect the outcome and thus do not require the drastic step of quashing the findings of fact. 282. In Yeong Sales J found that the failure of the FTPP to refer in clear terms to the evidence of the practitioners expert and then to explain why it did not accept his evidence in the context of explaining its own reasons was comparatively trivial. He was satisfied that it was clear that the panel would have come to the same decision both on impairment of fitness to practise and sanction if it had adjusted its statements of its reasons to refer specifically to the experts evidence and to explain why it did not accept it. (Para 40). In reaching that conclusion Sales J considered that the FTPP was well entitled to draw upon its own experience and judgment in forming this view whether the practitioner presented a present risk to his patients. The experts expression of opinion as to the risk posed by the practitioner carried in his view little weight attributable to any special expertise on his part. The question on the possibility of a recurrence of misconduct by the practitioner was a matter of the ordinary assessment of the likelihood of human behaviour in relation to which a psychiatrists expertise conferred no special privileged insight. The assessment of risk of any particular form of future behaviour is the sort of task that courts and tribunals regularly perform without needing to refer to expert psychiatric evidence. (Para 38). In my judgment the errors which I have found were committed by the FTPP in this case cannot be characterised as comparatively trivial. For reasons which I have given at its very lowest it is impossible to exclude the possibility that rather than weighing the expert and factual evidence on its merits the FTPP approached its evaluation of that evidence with pre-conceived conclusions which it was not entitled to make and in respect of which Dr Lawrence was deprived of the opportunity of seeking to adduce evidence and/or make submissions. In fact I would put it higher. In my view it is likely that that is what occurred. It does not necessarily follow from that that the FTPPs errors are fatal. It is still necessary to consider whether there is a realistic possibility that if it had not made those errors the FTPP might have reached different findings of fact on the allegations against Dr Lawrence which it found proved. The starting point of course is that put in broad terms the FTPP preferred the evidence of Patient B to that of Dr Lawrence and found her a more impressive witness than it found him. That is a matter to which great weight must be attached. It is not, however, in my view determinative of the question to be answered. In particular it cannot be ignored that in weighing up the strengths and weaknesses of respectively Patient B and her credibility and reliability on the one hand and the evidence and factors relied on by Dr Lawrence as undermining her credibility and reliability on the other, the FTPP must be assumed to have started from the assumptions, based on its findings in the two impugned statements, that, (a) for reasons unconnected with Patient B herself, it was inherently unlikely that a woman in her position with low self esteem would fantasise without encouragement that she was attractive to Dr Lawrence and that (b) it was not likely that narrow erotic transference on its own would be likely to cause her to believe that he had feelings for her. If, as I have found, it was not entitled to make the first assumption and, as I have found may have been the case, it was not entitled to make the second assumption, it follows that its assessment of the factual evidence including the reliability of Patient B and the other factual witnesses including Dr

283.

284.

285.

Lawrence was and/or may have been tainted. Chief among them of course was Patient B and the reliability or unreliability of her testimony. But it was not confined to her. 286. In my judgment that is a very powerful consideration. It permeates many aspects of the evidence which was in contention and on which the FTPP had to make up its mind. Thus for example Ms Sutcliffe gave evidence that her observations of Patient B over a period of time led her to believe that she was deluded. The FTPP rejected that evidence. Dr Lawrence denied that he acted and spoke in the way alleged and the FTPP rejected that evidence. Ms Dowd, who the FTPP found a more reliable witness of events within her knowledge than Ms Sutcliffe, gave evidence that Dr Lawrence reported to the supervision group that Patient B was refusing to really acknowledge that this could be transference and really being fairly resistant and blocking to that idea, and had begun to really say that perhaps Dr Lawrence also had the same feelings towards her, at which point we felt that it would be in his best interests to cease working with the client. . On its face Ms Dowds evidence supported the possibility that Patient B was indeed fantasising that Dr Lawrence reciprocated her erotic feelings towards him. There was no shortage of evidence to support a possible finding that Patient Bs account of events was not correct and there was certainly some evidence both factual and expert to support, as a possible explanation for why her account might be incorrect, the suggestion that it may have been the product of fantasy. Having reviewed the evidence and submissions and taking all these considerations into account I have come to the very clear conclusion that it would not be safe to conclude that there is no realistic prospect that the errors which I have found the FTPP made had a material impact on its assessment of the evidence or on the ultimate outcome or that, if the errors had not been made, the FTPP might not have made the same findings of fact or that it might not have found proved those allegations of misconduct which Dr Lawrence had not admitted. Further in my view the inadequacy of reasons is significant. In critical respects it is not clear to me what findings the FTPP made or why it made the findings it did. The consequence is that Dr Lawrence does not know why he has lost. The consequence of the FTPPs findings is that Dr Lawrences name has been erased from the register. He is in my judgment entitled to know why he lost. In my judgment it follows that in those circumstances the interests of justice require that for the reasons I have given the FTPPs findings on the disputed facts and the findings of misconduct against Dr Lawrence must be quashed.

287.

288.

289.

290.

291.

Dr Lawrences primary challenge: The FTPP was plainly wrong to find the allegations against Dr Lawrence proved. 292. Ms Lambert acknowledged that the FTPPs factual findings were dependent in whole or in part on its assessment of the credibility respectively of Patient B and Dr Lawrence and accepted that it was entitled to take into account in reaching its findings

of fact what she described as its visceral response to the two principal protagonists. She further accepted that the burden of persuading this court on a Section 40 appeal to overturn findings of fact which were based to such a large extent on assessment of credibility is heavy and hard to discharge. However she submitted that the FTPP was not entitled wholly to disregard key evidence which might run counter to the conclusions which it drew from its assessment of the demeanour of the witnesses or to dismiss that evidence without a reasoned foundation, particularly since it knew that Dr Lawrence had previously been sanctioned for having inappropriate sexual relations with a patient. His entitlement to know the reasons why the FTPP found the allegations against him proved was particularly important given the risk that the FTPP might think that there is no smoke without fire. 293. Ms Lambert submitted that the only safe conclusion is that the critical evidence in favour of Dr Lawrence was disregarded since there was no reasoned explanation why it did not feature in the determination. The central part of the appeal was thus a hybrid. The FTPP was not entitled to make the findings it did. No reasonable panel could have reached the conclusions which it did and it was therefore plainly wrong. Alternatively the FTPP failed to discharge the duty to give sufficient reasons for its findings to enable Dr Lawrence to understand why it had reached them. That duty was greater than in the normal run of GMC disciplinary hearings because this was a case involving peculiar complexity and a number of difficult aspects including the subtleties of erotic transference, the important differences of nuance as between the evidence of Patient B and Dr Lawrence and the apparent rejection by the FTPP of expert evidence on psychotherapy. Ms Lambert submitted that there were a number of reasons why the FTPP should have approached Patient Bs evidence with very considerable care and caution. First it was common ground that Patient B experienced what two of the experts, Dr Kennedy and Dr Reveley, described as erotic transference, whereby internal feelings experienced by a patient are transferred or attributed to the therapist. Dr Kennedy gave unchallenged evidence that, subject to the caveat that he had not seen Patient B, from what he had read he saw evidence of clearly very powerful feelings of persistent dependency from Patient B towards Dr Lawrence. Second no formal complaint was made by Patient B to the GMC until October 2008, some 15 months after the ending of Dr Lawrences therapy. During that period Patient B had 37 one hour long sessions with Ms Barnett, who said that one of the main components of the therapeutic discussion was Patient Bs relationship with Dr Lawrence. The relationship had thus been workshopped as Ms Lambert put it over a long time. Moreover a significant number of those sessions included the questionable use of hypnosis. The inference was thus that Patient Bs complaint might reflect her perception, rather than the reality, of what had been said by Dr Lawrence to her, particularly as she had suffered from erotic transference. Patient Bs evidence might therefore have been influenced by her therapist and the process of therapy might have altered Patient Bs perception of what Dr Lawrence had actually said. Third Ms Lambert relied on the evidence of the GMCs expert Dr Kennedy that the discovery by Patient B through a Google search, whether around Christmas 2006 or early 2007, that Dr Lawrence had been sanctioned for having had a sexual relationship with another patient would have been likely to have had a massive impact

294. 295.

296.

297.

on her and might have caused her to re-evaluate what had taken place in her sessions with Dr Lawrence. Fourth the only witnesses to the conversations in which Dr Lawrence was alleged to have behaved inappropriately were Patient B and Dr Lawrence themselves and in many cases what was at issue was not the words used themselves but the nuance and interpretation of the words used. 298. For those reasons Ms Lambert submitted that the extrinsic evidence and in particular the 11 September 2006 email and the evidence of Ms Sutcliffe and Ms Dowd, both of whom knew Patient B through the group therapy sessions and/or the supervision sessions and both of whom were told things about Patient B by Dr Lawrence should have been considered and evaluated by the FTPP with particular care and caution. In fact Ms Lambert submitted it is clear from the terms of the Determination on the facts that the FTPP did not exercise extreme care. First there was no reference in the Determination to the 11 September 2006 email at all or to the evidence of Patient B and Dr Lawrence relating to it or to Mr Booths submissions in relation to it. It is to be inferred that the FTPP paid no or insufficient regard to the email and its significance. Second Ms Lambert relied on the treatment of the evidence of Ms Dowd and Ms Sutcliffe in the determination. It was dealt with in only one paragraph and the reference by the FTPP to the close relationship between Dr Lawrence on the one hand and Ms Sutcliffe and Ms Dowd on the other implied that the FTPP considered their evidence to be unreliable for that reason even though that was never suggested to them in cross examination by Ms Johnson or in her closing submissions.

299.

Patient Bs email dated 11 September 2006 300. Patient Bs email dated 11 September 2006 to Dr Lawrence surfaced only after the GMC closed its case. Dr Lawrence said that he found it by interrogating his inbox. The email was in these terms: Hi, not sure if its a good idea to send this email, but in the spirit of honesty what the heck I left our session today feeling pretty upset and angry. It seems to me that you have made certain assumptions about me, which may or may not be true, but I feel its quite unfair to do so based on things I have told you about previous relationships. I am quite capable of being in a loving relationship, they have not all just been about fixing my yearnings. I am sorry that whichever way you think of things the path leads to sadness that is not how I see things, but of course it would be a silly thing to do if it doesnt make you happy. I also felt quite angry that you expect me to be able to say where/how I see things going but you have never said anything about your views on this issue, so how can I answer that question? It seems to me that the vibes have not just been in one direction, so why do I feel that I am the one who has f**** things up?

I agree with you on one thing however I do feel like Im in another loop, but from my perspective its the one where I get rebuffed by someone I am attracted to. I never seem to get that one right! As you can tell I am feeling pretty lousy about all of this. Im not sure that its a good idea for me to continue seeing you it seems a bit daft to do so when I seem to leave feeling worse that I did when I went in. I also got a bit of a shock tonight when I was putting xxxxx to bed and he said a few times mummys sad. Im just not sure that I can do this anymore. But maybe I will have cooled down a bit while you a re away.

301.

A copy of the email and two replies to it from Dr Lawrence to Patient B dated 13 September 2006, were emailed to Patient B in Australia by the GMC. Patient B sent a two page email dated 12 September 2010 to the GMC giving her comments on the email exchange. She was then recalled to give evidence via video tape on 13 September 2010 and cross examined on the email exchange by Mr Booth. Ms Lambert submitted that Patient Bs email dated 11 September 2006 flew in the face of the testimony which she had by then already given as to the nature of her relationship with Dr Lawrence up to September 2006. Some of the contents of the email she submitted were inconsistent with her account of his conduct and the inconsistency was so stark that, it should have cast a real question mark over Patient Bs reliability as a whole, especially when seen against the background of her admitted erotic transference and Dr Kennedys evidence that the effect of her Google discovery would have been to cause her to re-evaluate the relationship. Ms Lambert went further and submitted that the FTPPs findings as to the events up to September 2006 which were derived from Patient Bs evidence in chief must have been wrong and it was therefore wrong for the FTPP to accept her testimony as true and reliable. Whatever views it may have had as to her credibility based on her demeanour when giving testimony, the FTPP was wrong not to find that those views must have been wrong when set against the email. The visceral impression of witnesses is not a card that trumps the FTPPs failure to consider relevant evidence or dismiss evidence on a wrong basis. Ms Lambert also submitted that the adverse inferences as to Patient Bs credibility to be drawn from the email itself were supported by the unsatisfactory nature of her attempts to explain it both in her email to the GMC dated 12 September 2012 and in her testimony under cross examination when recalled on 13 September 2010. Alternatively it was submitted that the FTPP should have made reference to the email dated 11 September 2006 and Patient Bs evidence in relation to it and should have

302.

303.

304.

305.

stated how, if at all, it affected its view as to the matters alleged against Dr Lawrence. To ignore the email altogether was not an option reasonably open to the FTPP. 306. In response Ms Callaghan submitted that on its face the email dated 11 September 2006 was open to two interpretations. One interpretation was entirely consistent with Patient Bs account of the chronology of the relationship. It was not possible to reach a concluded determination as to its meaning just by reading it. It was not clearly inconsistent with Patient Bs evidence in her earlier oral testimony and her explanation of its contents in her oral testimony when recalled on 13 September 2010 was plausible. In his closing submissions Mr Booth had made detailed submissions on the alleged inconsistency between the email and Patient Bs attempt to explain it when recalled on the one hand and her earlier testimony that the relationship had gone beyond mere flirtation to the point where Dr Lawrence had made explicit inappropriate comments to her on the other. Ms Callaghan submitted that it is thus obvious that the FTPP rejected Mr Booths submissions on the email and accepted Patient B account of it. It is to be inferred that the FTPP considered that the email did not undermine Patient Bs testimony or her credibility and that was a conclusion which it was entitled to reach. Although it did not expressly refer to the email in its Determination, there was no basis for the suggestion that it failed to take it into account when assessing credibility or reaching findings of fact. It clearly had the email in mind and did not consider it inconsistent with Patient Bs account. In relation to all the challenges to the FTPPs findings of fact Ms Callaghan submitted that the authorities made clear that in relation to challenges to findings of fact the role of the High Court is the same as that of any appellate body, namely that it will be reluctant to interfere with findings of fact and will only do so if it is clear that the factfinder was plainly wrong. In the words of Leveson LJ in Southall v GMC [2010] EWCA Civ 407 at [47], It is very well established that findings of primary fact particularly if founded upon an assessment of the credibility of witnesses are virtually unassailable. Reliance was also placed on the remarks of Lord Rodger in Gupta v GMC [2002] 1 WLR 1691 which were cited with approval in Southall at [47], to which I shall refer below. In reaching findings of fact, the FTPP carefully considered the credibility of the two main witnesses. It preferred the evidence of Patient B over that of Dr Lawrence, finding her a good witness whose evidence was clear, considered and balanced, and generally consistent. By contrast it found Dr Lawrences evidence generally unreliable. It concluded that at times he gave implausible and unconvincing explanations for his conduct, and found that the way in which he gave his answers on some important issues was unsatisfactory, giving the appearance of [his] being evasive and not providing a true explanation of the reasons for [his] conduct. It observed a difference between the way he gave his denials of some of the allegations and that in which he gave alternative explanations for words which he agreed he had actually said. It also found that his body language when giving evidence at times indicated considerable unease. Ms Callaghan submitted that the challenges to the findings of fact were in essence a challenge to the FTPPs findings as to the credibility and reliability of the evidence of Patient B and Dr Lawrence. The FTPP had the benefit of hearing live evidence form both of them over the course of a number of days and had an excellent opportunity to assess their respective characters, demeanour, credibility and reliability. It also heard

307.

308.

309.

extensive submission from the parties as to the credibility and reliability of the two main witnesses and received careful legal advice from the Legal Assessor as to how to approach credibility. 310. The FTPP concluded that it preferred the evidence of Patient B to that of Dr Lawrence on the key issue and that she was a generally impressive witness whereas he was not. It provided detailed reasons for reaching that conclusion. It carefully considered the factors that might undermine her credibility and reliability. For example it noted differences or variations in Patient Bs account but considered them minor or of little significance when weighing the evidence of Patient B as a whole and in assessing her credibility. It did not find her to be motivated by anger or revenge. It found no evidence of mental disorder which would cause her to fabricate her evidence. It carefully considered what impact erotic transference might have had on her perception of events. There was thus no possible basis for the Court to interfere with the FTPPs conclusions on credibility, particularly given that the Court did not have the benefit of seeing the witnesses give evidence. Ms Callaghan submitted that I would have to find that the FTPP was not entitled to find the email dated 11 September 2006 to be consistent with Patient Bs testimony before I could uphold the challenge to the FTPPs findings of fact based on the email. As to the reasons challenge, Ms Callaghan submitted that the task of the FTPP at the fact finding stage is to determine whether each of the heads of charge is found proved. It was only necessary for the FTPP in this case to resolve those factual issues which were relevant to the heads of charge. It was not necessary for it expressly to address the email dated 11 September 2006 because it was not directly relevant to any of the factual allegations in the heads of charge. Thus the FTPP only needed to address it in its reasons if it considered it inconsistent with Patient Bs testimony. The FTPPs function was to decide if each charge against Dr Lawrence was proved (see Rule 17) and thus it only needed to resolve issues relevant to the heads of charge. Dr Lawrence was entitled to know why he lost the case. He could be in no doubt about that. The FTPP found him an incredible witness and Patient B a credible witness. It is obvious that the FTPP both considered the email and accepted Patient Bs account of it and rejected Mr Booths submissions on it. It was thus not important because the FTPP, it is to be inferred, did not find it inconsistent with Patient Bs testimony. Dr Lawrence in those circumstances was not entitled to know why the FTPP found the email to be unimportant. Patient B in her original testimony said that in May 2006 Dr Lawrence had told her that he was aware of a growing attraction to her adding another time, another place. She also said that in July 2006 he told her that he would like to visit her at the end of her therapy after a suitable period of time and that this could not be about her yearning anymore and that he was now part of it, which she indicated she would like. Ms Lambert submitted that the following extracts from the 11 September 2006 email were inconsistent with that testimony: I am quite capable of being in a loving relationship, they have not all just been about fixing my yearnings. I am sorry that whichever way you think of things the path leads to sadness

311.

312.

313.

314.

that is not how I see things, but of course it would be a silly thing to do if it doesnt make you happy. I also felt quite angry that you expect me to be able to say where/how I see things going but you have never said anything about your views on this issue, so how can I answer that question? It seems to me that the vibes have not just been in one direction I agree with you on one thing however I do feel like Im in another loop, but from my perspective its the one where I get rebuffed by someone I am attracted to.

315.

The first extract she submitted makes it plain that Dr Lawrence had indicated that a sexual relationship would not make him happy. The second extract showed that Dr Lawrence had never said anything about his views on the possibility of them pursuing a sexual relationship. Moreover the use of the word vibes was inconsistent with Dr Lawrence having made either of the alleged comments attributed to him by Patient B in May and July 2006, since if he had done so she would have referred to them rather than to vibes. The third extract Ms Lambert submitted demonstrated clearly that Dr Lawrence had rebuffed Patient Bs admitted expressions of attraction towards him and were thus inconsistent with all the allegations of inappropriate sexual conduct and words which were said to have preceded the email. Patient B was vigorously cross examined by Mr Booth on these points and also on the contents of her explanation of the 11 September 2006 email in her 12 September 2010 email and more particularly on what that email did not say. Patient B confirmed that her dominant feeling when she wrote the email was upset and anger about a very difficult discussion they had had which had left her feeling very confused about what it was Dr Lawrence actually wanted from her. By this stage he had already revealed to her that he had a growing attraction to her and that he wished to visit her after her treatment ended. During the session they had talked about what would happen and Dr Lawrence raised with her what she wanted to happen. It felt to her that he was trying to get her to say exactly what it was she wanted to happen at the end of the therapy and she did not know other than that she wanted to see him as he had already said he wanted to see her. It was getting in to an area that she was very confused about. She was not sure what his intentions were and felt she had to clarify that with him. As to Im sorry that whichever way you think of things the path leads to sadness Patient B denied that Dr Lawrence had been saying that the pursuit of any fantasy would always end up in an unhappiness for her. Her recollection was that he had talked about the difficulties either way, namely whether they saw each other after the end of therapy or did not see each other. It was to that that he must have said and that leads to sadness.

316.

317.

318.

319.

320.

She denied that he had been striving to stress the unreality of her belief that the two of them would be able to meet up in the future and said that it was clear from the email that that is not the message she took out of the session. If it had been she would not have written the email. She did however repeatedly say that there had been very mixed messages. She had the impression that he wanted her to say things she was not in a position to say and did not know what he wanted from her which is why she sent the emails. As to you have never said anything about your views on this issue Patient B denied that she was thereby confirming that Dr Lawrence had never said anything to her about his views on the issue of them having a relationship in the future. He had, as mentioned in her earlier testimony, already told her that he wished to see her at the end of her therapy. Her recollection of the session which led to the email was that he was starting to talk about where it would go not that they would see each other but if they saw each other where would it go. He had not revealed his thoughts on that issue to her. He had not gone in to any discussion about how he viewed they would see each other at the end of the therapy. At the session they had gone beyond Dr Lawrence saying that he wanted to see her and he was now starting to move forward and looking at how they could do that. He was asking what she envisaged as to the future of the relationship which she could not answer because she did not know the motive behind his question. She did not know if he was asking whether she wanted to leave her husband or wanted just to have an affair with him. She could not answer that at that stage. In short the issue he had never expressed a view on was not whether they should pursue a relationship but the nuts and bolts of the mechanics of how they would pursue it. Patient B denied having deliberately omitted to refer to that sentence or her use of the word rebuffed in her explanatory email dated 12 September 2010. As to the word rebuffed Patient B denied that Dr Lawrence had been at pains to stress the impossibility of them ever meeting up for a relationship in the future. That was not what she had meant by the word rebuffed. She felt that he had been rebuffing her in a different sense, namely that the issues raised about her previous relationships might have made him question whether a relationship would make him happy in that somehow she was not capable of being in a relationship. She was very confused as to what he wanted from her. At times it seemed he wanted something more than what they had discussed and she did not want that and had never said that she did. He would sometimes convey frustration that she would not go further and was not brave enough to go after what she wanted. As to the use of the word vibes she had told him very clearly in their session that day that she was really confused about what it was that he wanted her to say which was a vibe that she got from him. Her explanation for not having referred to Dr Lawrences comments in May 2006 and July 2006 in her email was that she had been aware all along that her behaviour was not exactly appropriate either and that she would not have put down anything so explicit that would have got either her or Dr Lawrence into difficulties. In answer to the suggestion that if Dr Lawrence had said what she alleged he had said in May 2006 and July 2006 she would have made reference to it in her email, Patient B said she would not have sent the email if they had not had that discussion. She would not send an email like this to someone

321.

322.

323.

completely out of context. She would not humiliate herself like that. She would not have put herself through the stress of the whole process if it had not happened. 324. In her email dated 12 September 20120 Patient B referred to the extract but of course it would be a silly thing to do if it doesnt make you happy. She said that she meant what she said and that she would not pursue anything if it was not reciprocated. She would not have raised it again if Dr Lawrence had not continued to give her clear and explicit signals that he wanted to see her after therapy. In her 12 September 2010 email Patient B also referred to Dr Lawrences notes of the 11 September 2006 consultation which included the words good. V good optimism back plus looking forward to things. In her email she said that his notes clearly did not accurately reflect what was discussed at that session and made no reference to their email exchange. She believed that he was a clever and manipulative man and that his written records, including his email messages to her, were worded very carefully to ensure that he protected himself and could not be held to account if his records were ever examined. In cross examination Patient B accepted that in earlier testimony she had accepted that good. V good was how she felt at the time. Her explanation for that was that as she had previously acknowledged she had been relieved at the session that she had made a decision about the termination and had an initial bounce back after that. However she then went downhill. She maintained her view that Dr Lawrence had very carefully worded both his written records and his email messages to protect himself and said that the fact that she sent him an email on the day of the 11 September 2006 session so obviously upset and angry suggested that his notes were not an accurate reflection of their meeting. She also confirmed in her cross examination that, as agreed by Dr Lawrence in his 13 September 2006 email, she arranged to see him the next day. It was during that session she said that Dr Lawrence revealed that he had sexual fantasies about her. As she had already testified she was able to recall the approximate date of that discussion because she had sent him a text message on 16 September 2006, her sons birthday, saying Did you mean what you said about your SF? If so I think it could work. She also stated that at a session on 29 September 2006 she told Dr Lawrence that she did not know what he wanted from her and that she would like it if they had a sexual relationship at the end of her treatment. She directly asked him if that was what he wanted. He said that he held her gaze, blushed and smiled and nodded yes. He then said I am quite shy you know. From her perspective that exchange clearly indicated that he wanted to continue to treat her and also wished to see her for a sexual relationship after her treatment had finished. In answer to questions from the chairman, Patient B said that she no longer had the text message because she did not keep text messages and no longer had that phone. She was able to pinpoint her memory of sending the text to the exact date of 16 September 2006 because it was her sons birthday. She also confirmed her recollection of Dr Lawrence saying he wanted a sexual relationship and holding her gaze blushing smiling and nodding yes. It is not hard to see why both Mr Booth and Ms Lambert placed such reliance in their submissions on the email dated 11 September 2006. Parts of it without doubt can be read as supporting an inference that Dr Lawrence had not previously made any explicit comments to Patient B such as those which she alleged he made in May 2006

325.

326.

327.

328.

and July 2006 and that, rather than reciprocating her admitted expressions of attraction towards him, he had rejected them. 329. The first question that arises is whether those suggestions are so clear and incapable of any other interpretation that, irrespective of any alternative innocent explanations that Patient B might offer, they could lead only to the conclusion that Patient Bs earlier testimony as to what Dr Lawrence had said in May 2006 and July 2006 must have been wrong and that Patient B must accordingly be treated as an unreliable witness. In my judgment the answer to that question is no. The absence of explicit reference in the email to the inappropriate comments allegedly made by Dr Lawrence in May 2006 and July 2006 could be explained by a concern on the part of Patient B not to create a written record of a relationship which was inappropriate not only on the part of Dr Lawrence but on her part as well. The reference to vibes having not just been in one direction is capable of giving some support to Patient Bs evidence that he had behaved in a flirtatious way which reciprocated her sexual overtures to him. The statement that Dr Lawrence had never said anything about his views on this issue is not in my view necessarily inconsistent with him having spoken to Patient B of his growing feelings of attractions towards her. Nor is it inconsistent with him having told her in July 2006 that he would like to visit her at the end of her therapy, that this could not be about her yearning anymore and that he was now part of it. The reference followed a statement in the email that Patient B felt quite angry that Dr Lawrence expected her to be able to say where/how she saw things going. It does not seem to me necessarily to follow that that was a reference to whether she saw Dr Lawrence visiting her at the end of her therapy. It is in my view consistent with a number of possible explanations such as that in fact given by Patient B in her 12 September 2010 email and her oral testimony, namely that it was about how they would develop a relationship rather than whether they would do so. It was also capable of referring to whether she contemplated an affair or something more long lasting. I also note the inconsistency between the reference in the email to Patient B having left their session feeling pretty upset and angry and the references in Dr Lawrences notes of the session: good. V good optimism back plus looking forward to things. One possible explanation for that inconsistency could be that Dr Lawrences notes were not only inaccurate but deliberately so for the purpose of creating a false paper trail. Although, if that were the case, that would not of itself provide an interpretation of the 11 September 2006 email other than that contended of by Mr Booth and Ms Lambert, it does however underline the fact that the existence of documentary evidence supporting one sides case or undermining that of the other is not necessarily always dispositive of the veracity or reliability of the relevant witnesses without the benefit of testing explanations given by the author as to what was intended by particular expressions or statements. I accept that the 11 September 2006 email was a piece of evidence capable of providing powerful support to Dr Lawrences case and undermining the reliability of Patient Bs testimony. It does not however in my judgment, at any rate on its own, constitute such powerful evidence that the FTPP was obliged for that reason alone to find the allegations against Dr Lawrence not proved. It was not of such a character in

330. 331.

332.

333.

my view that it was incapable of being reconciled with the testimony which Patient B had given up to that point nor were the inconsistencies relied on by Mr Booth and Ms Lambert so compelling that the passages said to be inconsistent with it were incapable of alternative explanation. 334. It follows therefore that in my view the FTPP was entitled and indeed bound to continue with the case and in particular to allow Patient B to be recalled to give her explanations of the email. Indeed it is not without significance that it was Mr Booth who, rather than submitting that in the light of the email there was no case to answer, applied for Patient B to be recalled so that she could be cross-examined about it. Reading the transcript of her explanations I find some of them less convincing or plausible than others. Ignoring any question of the impact made on the FTPP by the manner in which Patient B gave her testimony when recalled, I do not detect in what she is recorded as having said any knockout blow, either in the sense of self evidently incredible explanations or in the sense of a failure to provide any explanation at all. Of course that is not the end of the matter because it is not possible to decide on Dr Lawrences challenge to the FTPPs findings of fact without reference to the question of the demeanour of Patient B and indeed Dr Lawrence when giving their oral testimony in front of the FTPP. An appeal to the High Court against the decision of the FTPP under section 40 is by way of re-hearing. (see Practice Direction 52, paragraph 22.3 (2).) However it differs from the hearing in front of the FTPP in that, as regards oral testimony, the Court is limited to a review of the transcripts (unless unusually there has been an order for oral evidence), whereas the FTPP has had the advantage of seeing the witnesses give live evidence (in this case partly by video link). The conclusions reached by the FTPP as to the reliability and veracity of witnesses is thus informed not only by the content of the testimony but also by the manner in which it is delivered. In that critical regard the court is in a different position to that of the FTPP. It does not, of course, follow that there are no circumstances in which a decision based in whole or in part on express or implied conclusions reached by an FTPP as to the demeanour of witnesses will not be overturned by the Court. There may be circumstances in which for example critical evidence has been ignored or is of such a character that logic or common sense or both demonstrate(s) that the view reached by the FTPP must be wrong. The court will always be astute to assess whether that has in fact occurred in any particular case if invited to do so. However, as stated by Leveson LJ in the extract from his judgment in Southall cited above, the task facing an appellant seeking to overturn findings of fact based on an assessment of the credibility of witnesses is a daunting one. In Southall Leveson LJ said that More recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per StuartSmith LJ in National Justice CIA aviera SA v Prudential Insurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyds Rep 445 at 458. Further the court should only reverse a finding on the facts if it can be shown that the findings were sufficiently out of tune with the evidence to indicate with

335.

336.

337.

338.

reasonably certainty that the evidence has been misread (Per Lord Hailsham of St Marylebone LC in Libman v General Medical Council (1972) AC 217 at 221F, more recently confirmed in R (Campbell) v General Medical Council [2005 1

WLR 3488 at [23] (per Judge LJ ). (Paragraph 47).

339.

The explanation for the stringency of the test which an appellant must satisfy is provided by Lord Rodger in the extract of his judgment in Gupta v GMC cited with approval by Leveson LJ in Southall: In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position

340.

The decision in Southall itself illustrates the scale of the obstacle facing an appellant seeking to overturn findings of fact made by an FTPP which were based on findings as to the credibility of witnesses. The Court of Appeal in that case dismissed an appeal from the decision of Blake J dismissing an appeal brought by Dr Southall against a decision of the FTPP which found him guilty of serious professional misconduct. The central allegation was that at an interview on 27 April 1998 Dr Southall accused Mrs M of drugging and murdering her ten year old son who had died by hanging nearly two years earlier. Dr Southall admitted that he had probed the circumstances of Mrs Ms sons death and accepted that she might have perceived that he was accusing her of murder but maintained that he did not in fact do so. Dr Southall was supported by the evidence of the social worker in the case who was present at the relevant interview. The FTPP found Mrs M to be a clear honest and credible witness. It found that her evidence was supported by the notes written shortly after the interview on 28 April 1998 by Dr Corfield whom Mrs M had met and by Mrs Ms solicitor whom she met following the interview. The FTPP did not refer to its views as to Dr Southalls credibility

341.

but said that in many respects it did not find the evidence of the social worker who supported his evidence to be wholly convincing.
342.

It was accepted on behalf of Dr Southall that it could not be suggested that there was no evidence that he accused Mrs M of murder. However it was submitted that the weight of the evidence was such that it was quite impossible for the panel to be sure that he made the specific accusation which formed the narrow basis of the charges. It was submitted that inconsistencies in Mrs Ms account undermined her credibility and reliance was placed on a reference in Dr Corfields note that Mrs M felt that she had been accused, which was said to be consistent with Dr Southalls acknowledgement of the perception but was different from actually being accused.
In rejecting the appeal Leveson LJ held: In my judgment, it is far from reasonably certain that the evidence was misread to such extent as itself justifies interfering with the assessment of the panel on issues of credibility and I am not in a position to say that a review of the transcript is more likely to produce a correct answer. The panel heard Mrs M (albeit over a television link) and were in a position to assess her evidence; they similarly heard all the other witnesses. Although I do not for one moment minimise the difficulty in seeking to assess what happened at an interview some 8 years prior to the hearing where the issue between the parties is so narrowly defined (namely the difference between making of an accusation of murder and asking questions which could create the perception of being accused of murder), provided that it can be shown that the issue has been addressed correctly, I would not be prepared to interfere with the findings of the panel. To translate the issue into slightly different terms, there was undoubtedly a case to answer and it was for the panel, as fact finders, to make up their minds about where the truth lay and, provided no other error is apparent, it is no part of the function of this court to interfere: given the overall thrust of her evidence, the 'concession' by Mrs M in cross examination to which I refer at paragraph 39 above need have been no more than the misunderstanding of what was a very complex assertion. I do not accept that the panel misunderstood the burden or standard of proof and reject the submission that its findings were perverse. (Paragraph 48) (emphasis added).

343.

344.

In this case the hurdle which Dr Lawrence has to overcome is greater that that faced by Dr Southall because the standard of proof which the FTPP had to apply in this case was the civil standard whereas in Dr Southalls case it was the criminal standard. His challenge to the principal findings of fact against him as plainly wrong is based not just on the 11 September 2006 email but on the other matters to which I shall refer as

well cumulatively. However at this stage I record my conclusion that, in so far as reliance is placed on the contents of the email and Patient Bs explanations of it in her email dated 12 September 2010 and her oral testimony when recalled, while they undoubtedly raise questions in my mind, they do not in themselves lead me to conclude that the FTPPs findings of fact were sufficiently out of tune with the email and Patient Bs explanations of it to indicate with reasonable certainty that that evidence was misread by the FTPP or that the FTPP was plainly wrong either in its conclusions as to the reliability of Patient B as a witness or in finding the principal allegations against Dr Lawrence proved. 345. As to the reasons challenge in respect of the failure by the FTPP to refer to the 11 September 2006 email, Patient Bs explanations of it, Mr Booths submissions relating to it and any conclusions in drew in relation thereto, I will deal with that compendiously after my review of the other grounds on which the FTPPs principal findings of fact are said to be plainly wrong.

Ms Sutcliffe and Ms Dowd 346. Susan Sutcliffe is a psychotherapist. She has a certificate, a diploma, a degree and a second degree and had been working as a psychotherapist for about sixteen years at the time of the hearing. She first met Dr Lawrence at the Promise Clinic in 1996. Five years later she joined Dr Lawrences practice at 96 Harley Street which was also his house. She, Dr Lawrence and Ms Dowd ran a group therapy session as an extension of their individual therapeutic work. The sessions took place on a Thursday evening, initially every two weeks but then every week and lasted an hour and a half. Dr Lawrence, Ms Sutcliffe and Ms Dowd took it in turns to be the facilitator and sometimes they would co-facilitate if there were more than six to eight people in the group. In addition the three of them had a peer supervision group on a two weekly basis on a Friday lunch time for an hour and a half. There were ancillary members of that group. The supervision group discussed patients who they found particularly difficult or in respect of whom they had personal problems. Ms Dowd participated in only three group sessions attended by Patient B between January and March 2006, that is to say before the alleged misconduct on the part of Dr Lawrence. The first group session attended by Patient B was in January 2006. Ms Sutcliffe said that she first heard of Patient B when Dr Lawrence brought her to supervision because he wanted to introduce her to the group therapy sessions. Shortly after initially raising Patient Bs case at the supervision group, Ms Sutcliffe said that Dr Lawrence raised her case again. Based on his one to one sessions with her he said that he was concerned that she was fantasising about the relationship between him and her. Dr Lawrence told the supervision group that he had told her that she had an uncomfortable relationship with men. From her own observation in the group sessions Ms Sutcliffe felt that Patient Bs relationship with the men in the group was not particularly harmonious either. On the other hand she said that she was very good at giving feedback to other people, would listen well and on the whole would give appropriate feedback.

347.

348.

349.

Ms Sutcliffe said that as Dr Lawrence explored in the supervision group the level of the erotic transference which he said he felt was taking place with Patient B in his one to one sessions we, which I take to be a reference to her and Ms Dowd and possibly any other ancillary member of the supervision group present, suggested that that was possibly something that would make his position vulnerable because there is no witness in individual therapy. They therefore advised him that it might be for his own safety better not to continue to see the client. She said that Dr Lawrence accepted that that was a very real possibility and endeavoured to refer Patient B on to Ms Sutcliffe but Patient B, despite knowing Ms Sutcliffe through the group sessions would not take the referral. Ms Sutcliffe said that the risk to the therapist if erotic transference is taking place is that the client believes it is real and therefore believes that they are engaged in a relationship which the therapist is then not fulfilling which can cause resentment and anger. Ms Sutcliffe said that Dr Lawrence raised in supervision that Patient B had Googled Dr Lawrence whereupon we continued to express their concern that they felt that that would increase the risk of Dr Lawrence working with a vulnerable female client who patently had feelings of erotic transference towards him. They were very worried about him and Ms Sutcliffe thought that she also expressed that worry to Dr Lawrence directly. Ms Sutcliffe said that she was aware at the time of the matter which had led to Dr Lawrences suspension in 1996 to 1998 because it revolved around a client initially referred from the Promis Clinic. Ms Sutcliffe confirmed that she advised Dr Lawrence that they felt that he, not Patient B was at risk. Her advice was always with his interests in the forefront of her mind. She first gave that advice quite early in the process. She had no direct evidence from Patient B that she refused to be referred to her. She inferred it because Dr Lawrence had told her that she refused and because she did not contact her. She said that the advice to refer Patient B to someone else was repeated after the events between July and September 2006 and again in 2007 after Patient B discovered his previous case at the GMC. Ms Sutcliffe said that they advised Dr Lawrence to be very careful of how he worked with Patient Bs transference and not to give her any ammunition or anything to work off that would feed her erotic transference. That was a question of being very careful about body language and the words used to avoid giving the least possible feed to the transference process. She said that they monitored and checked with Dr Lawrence all the time during the supervision process how he was working with Patient B. Ms Sutcliffe said that her advice to Dr Lawrence that he was at risk treating Patient B was in part informed by her knowledge of his history with the GMC which was overtly discussed. Ms Sutcliffe said that Dr Lawrence would bring Patient Bs case to supervision regularly. After she had disclosed that she was pregnant the issue became very acute. The issue of termination was discussed in the group therapy but Ms Sutcliffe felt that Patient B felt that the group was against the termination and for that reason attended group sessions less regularly thereafter.

350.

351.

352.

353.

354.

355.

356.

Ms Sutcliffe was referred to an email from her to Dr Lawrence dated 3 October 2006 in which she wrote: I have found myself thinking a great deal about your client over the weekend and becoming more and more concerned for your position. Do take care. She confirmed that the patient was Patient B. In testimony she said that what concerned her was that she felt that Patient Bs comportment was so erratic, unstable and volatile that she felt that she was at high risk. She considered her to be very unstable. This was of course shortly after the 11 September 2006 email, the session on that day which preceded it and the session on 14 September 2006 at which Patient B said that Dr Lawrence had revealed a sexual fantasy of his to her. In cross examination Ms Sutcliffe was asked about the nature of her relationship with Dr Lawrence. She said that she had known him since 1996 and socialised with him as one does with colleagues. Ms Johnson put it to Ms Sutcliffe that she was quite close to Dr Lawrence given all their years of working together which Ms Sutcliffe confirmed. She was shown an email from her to Dr Lawrence which she signed: do take care. Sue [x]. Ms Johnson said that she was not suggesting anything inappropriate but asked if this was indicative of a close personal working relationship. Ms Sutcliffe confirmed that it was. She said that they work in a very supportive field and it is not unusual. She also said that she would often say the same thing in emails to other practitioners or indeed to her friends. She said that after Patient Bs letter to Dr Lawrence in September 2008 indicating that she contemplated making a formal complaint, she discussed Patient B with Dr Lawrence in supervision four or five times at least. She could not remember discussing it with Dr Lawrence outside the environment of the supervision but she would probably have spoken of it in passing shortly before the hearing. Ms Sutcliffe accepted that apart from her experience within the group therapy sessions, her knowledge was dependent upon what Dr Lawrence had told her about Patient B in supervision. However she emphasised that the knowledge you have of someone working in a group is very revealing because it is not only their relationship with you as the therapist but it is the relationship with other group members which can sometimes give a bigger picture. Patient Bs one to one treatment with Dr Lawrence was never discussed in the group therapy. Ms Sutcliffe was asked about Dr Lawrences attitude to Patient B. She said that Dr Lawrence said that he was quite irritated and annoyed with Patient B as a kind of recalcitrant child who could not take responsibility for their own behaviour. She said he did not describe any other emotions of counter transference at all. She did not feel that there was any erotic transference from Dr Lawrence to Patient B whatsoever. In fact quite the reverse. Ms Sutcliffe did not feel that he warmed to her at all. Ms Sutcliffe said that she thought that Patient B was a good judge of what people said was going on for them but that was very different from being a good judge of what is going on for yourself. There she felt that Patient B was very deluded almost at times. Asked by the chairman what she meant when she said that Patient B was almost deluded at times Ms Sutcliffe said that she did not believe that Patient B deliberately falsified but thought that she was deluded. She thought that she genuinely misinterpreted the circumstance around her. She said that that was an impression that she certainly experienced in the group and was reinforced by her response to her termination which Ms Sutcliffe felt did not bear any real relevance to what was going

357.

358.

359.

360.

361.

on at the time. She felt that she was deluded and in denial. That feeling was reinforced by her later behaviour. 362. The chairman said that as a psychiatrist terms like deluded meant certain things to him that they perhaps do not mean to everybody else. He asked if Ms Sutcliffe was suggesting from her own observation of Patient B that she had false beliefs that could not be confirmed or whether she was suggesting that she was simply in denial about certain matters. Ms Sutcliffe responded: I think both. Asked what the false beliefs were she said that the relationship with Dr Lawrence was one of them but that did not happen in the group sessions. Sticking to her own observation Ms Sutcliffe said that in the group she felt that the relationships Patient B talked about with her husband did not really relate to the reality of the circumstances that she was reporting. With regard to her termination she certainly felt that Patient B was really seriously deluded in the sense of the impact that it would have on her. She felt it was stronger than denial. She thought she was actually deluded that she would be able to survive that. Ms Dowd is a councillor accredited by the British Association for Counselling and Psychotherapy and registered with the UK register for councillors and Psychotherapists. She has an advanced diploma in Integrative Counselling, another in group work and a third in clinical supervision. She works from 96 Harley Street. She knew Dr Lawrence since 1998 and participated in the supervision group at 96 Harley Street since 1998. One of the purposes of the supervision group was to ensure that practitioners were doing what they were supposed to and to look out for the wellbeing of the clients. Ms Dowd said that she met Patient B in three group sessions in February and March 2006. As to the group supervision, after Dr Lawrences initial reference of Patient B in January 2006 as to whether she might be suitable for group therapy, Ms Dowd said that he brought her back at regular intervals about her depression and medication and that Ms Sutcliffe would give feedback about the group sessions with Patient B. Towards May/June 2006 Ms Dowd said that the issue of erotic transference was brought in to group supervision. Prior to then she had observed Patient B interacting with Dr Lawrence on an occasion when she was in the reception area. She noticed how Patient B looked at Dr Lawrence while he was conducting a procedure with the credit card machine and was quite stunned at what she saw. She said that she saw somebody looking up almost quite lost in their gaze, almost like a trance-like state. It was enough for her to notice it, beyond how anybody would normally look at somebody. After Patient B left the building Ms Dowd said that she asked Dr Lawrence if he had noticed how Patient B was looking at him. She told him that he needed to be careful. She said that Dr Lawrence was completely oblivious to it and said she thought that was true because he was not looking at her at the time. Ms Dowd also said that there were times when she would let Patient B into the building or see her around the building. She noticed that she was wearing makeup, matching earrings and was fairly well dressed. Against a backdrop of someone who had suffered a great loss and who was really depressed the appearance did not quite match.

363.

364.

365. 366.

367.

368.

369.

When Dr Lawrence first raised the issue of an erotic transference in around May or June 2006 Ms Dowd said that Dr Lawrence reported that on questioning Patient B had admitted to having erotic feelings towards him. Her understanding of the questioning which she said would be usual was that the therapist might prompt and ask if the patient had any sense of such feelings, whether or anger, hatred, love or sexual and on prompting she understood that Patient B admitted to having erotic feelings towards Dr Lawrence. By that time Miss Dowd said that she had a fairly good awareness of Patient Bs relationship and sexual history from what she had been told by Dr Lawrence in supervision. She understood that she had a history of falling for and becoming infatuated by older unavailable men probably authority figures. One example she cited was a relationship with a married man when Patient B was about 18 years old. Dr Lawrence had reported that Patient B had said that she had been involved with a boss of hers in her line of work abroad. They had set up a rendezvous in a hotel but the man did not turn up. Given that knowledge and Dr Lawrences presentation of an erotic transference towards him on the part of Patient B Ms Dowd said that the supervision group felt that it was fairly consistent that the patient would project these same feelings through transference onto Dr Lawrence being an unavailable older man who is unobtainable. Initially Ms Dowd said that they felt right at the beginning that this could be worked through. However, on further presentation at other group supervisions she said there was another piece of information that started to raise an alarm bell. That was that Patient B was refusing really to acknowledge that this could be transference and really being fairly resistant and blocking to that idea and had begun to really say that perhaps Dr Lawrence also had the same feelings towards her. At that point Ms Dowd said that they felt that it would be in his best interests to cease working with the client and they expressed that to Dr Lawrence quite clearly. She said that the supervision group did not feel that the client was at any risk. Ideally it would be best for any client to stay with the practitioner to work through it because the therapist is the best person to do that with because it is not a reciprocal relationship. Ms Dowd said that the concerning piece of information was that the patient was not willing to look at it as an erotic transference. She had met Patient B herself and seen her behaviour. She came across as an intelligent articulate woman and yet she was refusing to look at quite a well known phenomenon and accept that perhaps that was the case. Ms Dowd said that the supervision group advised Dr Lawrence that they felt that he should cease the therapy and that they should look at onward referral. Dr Lawrences response was that the patient was the most important person in the dynamic, that referral would perhaps leave her feeling rejected and that the best thing for her would be to work this through. Ms Dowd said that the supervision agreed, provided he was transparent with Patient B and told her that this was being brought to supervision and that he would if appropriate tell Patient B what the supervision group was saying. As to any counter transference described by Dr Lawrence in the supervision sessions, Ms Dowd said that before the events of July 2006 it was straightforward empathy.

370.

371.

372.

373.

374.

375.

376.

Much later on towards the end of the phase of therapy that changed. Ms Dowd said that Dr Lawrence intensely disliked Patient B and made no secret of that in supervision. She said that there were two attempted referrals of Patient B. The first was to Ms Sutcliffe which was discussed in group supervision which she believed he did and Patient B refused. The second time at the end of the therapy was to a woman called Maggie Chapman. From May to July 2006 Ms Dowd said that Dr Lawrence brought Patient Bs case to supervision every time they met. Ms Dowd said that she learnt from Dr Lawrence in supervision and from Ms Sutcliffe from the group sessions that Patient B had become pregnant and was considering a termination. She said that she was very shocked against the backdrop of a woman who had failed IVF, had had a miscarriage under terrible circumstances, was now pregnant and wanted to abort. Ms Dowd said that the feelings that Dr Lawrence presented to supervision about Patient Bs wishes was one of exasperation. It was at this time that his dislike of Patient B started through what she described as his counter transference. He said that this seemed to be a client whom you could not penetrate, into whose life you could not speak sense. 377. Following Patient Bs termination Ms Dowd said that Dr Lawrence recommended that Patient B contact her to assist her into gaining insight into transference issues because one of the training programmes Ms Dowd ran was to look at transference and counter transference. Dr Lawrence warned Ms Dowd to expect a phone call and Patient B then called her. Patient B said she did not think she was going to pursue it but asked about the course and anything else that was available. It was left that Patient B said she would probably not pursue that line of enquiry. After the events of July-September 2006 Ms Dowd said that Dr Lawrence brought Patient Bs case to supervision very frequently. It seemed that erotic transference had been exacerbated even further by the termination. Ms Dowd said that on one occasion Dr Lawrence reported to the supervision group that Patient B had suggested that she and Dr Lawrence might meet in a hotel room in order to see if there was any chemistry between them and to take it from there. Dr Lawrence said that his response had been to explore with Patient B the fact that that was impossible, reiterating boundaries and looking at the process rather than the detail of what was being said, still trying to work on it. Ms Dowds impression was that Dr Lawrences therapy did not seem to have any positive effect. Her belief was that Patient B seemed so invested in holding on to her infatuation that there was no way that Dr Lawrence was going to be able to work with that effectively. Ms Dowd said that the supervision groups approach did not alter in the autumn of 2006 in the sense of suggesting that Dr Lawrence should not see Patient B on a one to one basis any more. She said that they had no cause for concern that he would behave inappropriately with the client and sticking with the process could have been the most healing thing to do. Ms Dowd said that Dr Lawrence reported to the supervision group that Patient B had Googled him and found information about his previous findings at the GMC of which she was already aware. She was able to place that as the last Friday before Christmas 2006 because she recalled it was the same day that she lost her debit card and tried to admit a patient who had a bipolar manic episode. She said that Dr Lawrence reported that Patient B started along the track of saying You did it with her, why wont you do it with me?

378.

379.

380.

381.

Following Patient Bs last one to one session with Dr Lawrence Ms Dowd said that he reported that he was not getting anywhere in his continued attempts to breakthrough her erotic transference. Patient B had stormed out of the final session saying Im sorry it had to end this way. At the time Ms Dowd felt that there was an implicit threat in that statement. From what Ms Dowd heard in the supervision group Dr Lawrence never reached the point when treatment had to stop because the erotic transference was blocking everything although towards the end of the therapy erotic transference seemed to be the primary issue. Ms Dowd said that the issue of erotic transference was brought to the supervision group initially in around May/June 2006. It was around September 2006 that alarm bells began to ring when Dr Lawrence reported that Patient B was refusing to acknowledge that this could be a transference and attributing feelings to him. Ms Lambert submitted that the strength of the support given to Dr Lawrences case by the testimony of Ms Sutcliffe and Ms Dowd was so great that, taken together with the 11 September 2006 email in particular, it required the FTPP to find the principal charges of misconduct against Dr Lawrence not proved. She also submitted that the only safe conclusion is that it was disregarded by the FTPP because there is no reasonable explanation as to why it did not feature in the FTPPs determination on the facts. To that extent this was also a reasons challenge. There are a number of passages in the evidence of Ms Dowd and Ms Sutcliffe which supported Dr Lawrences case. The two on which Ms Lambert placed greatest reliance were Ms Sutcliffes evidence that she considered Patient B to be deluded and Ms Dowds evidence that in around September 2006 Dr Lawrence reported to the supervision group that Patient B was refusing to acknowledge that her feelings towards Dr Lawrence could be transference and had begun to say that perhaps he also had the same feelings towards her. As to the former she submitted that it provided contemporaneous evidence of Patient Bs deluded state of mind which made it unsafe for the FTPP to take at face value Patient Bs evidence as to how Dr Lawrence behaved towards her and what he said. As to the latter it was contemporaneous evidence that Dr Lawrence was reporting that Patient B was showing signs of reciprocal emotional transference. Unless this was a devious attempt to cover his tracks by creating a false trail or record on the part of Dr Lawrence it followed that Dr Lawrences testimony at the hearing reflected what he felt and said at the time and was not subsequently fabricated for the purpose of providing a defence to Patient Bs allegations. Ms Lambert submitted that it was not open to the FTPP to conclude that Dr Lawrences report to the supervision group was a manipulative attempt to lay a false trail because the GMC had not applied to have Dr Lawrence recalled so that that suggestion could be put to him. In addition she submitted that it was far fetched to suggest that, two years before Patient B wrote in September 2008 warning him that she might make a complaint to the GMC, he would have thought it necessary to cover his tracks by creating a false record. Moreover if Dr Lawrence had in fact said and done the things alleged by Patient B he was taking a big risk by telling the supervision group that Patient B was saying that he reciprocated her feelings. If the supervision

382.

383.

384.

385.

386.

387.

group had insisted on Patient B being referred to Ms Sutcliffe or another therapist Patient B might have revealed the truth, (as, on that hypothesis, in fact happened in July 2007 when Patient B was referred to Dr Speirs and Ms Barnett when the therapeutic relationship with Dr Lawrence came to an end). 388. As to Ms Sutcliffes evidence about Patient B being deluded, Ms Lambert submitted that the FTPP was wrong to find that it was at odds with the expert evidence. Dr Reveley expressed the opinion that Patient B had no Delusional Disorder. She confirmed that she used Delusional Disorder with a capital D and a capital D. She said that that is a form of psychosis in which the individual develops erotomania, a delusional fixation of an erotic or romantic nature on somebody. Ms Lambert submitted that the FTPP fell into error by treating Ms Sutcliffes evidence as though it were a formal diagnosis of Delusional Disorder. Dr Reveley was a consultant psychiatrist qualified to make a formal diagnosis of a psychosis. Ms Sutcliffe was not. She made it plain in answer to the Chairmans question that she felt both that Patient B had false beliefs that could not be confirmed and that she was in denial about certain matters. Because of this mistake Ms Lambert submitted that the FTPP wrongly failed to give Ms Sutcliffes evidence proper weight in deciding whether it was likely that Patient Bs evidence of improper conduct on the part of Dr Lawrence was a misinterpretation on her part of what was really going on. If, as Ms Lambert submitted is to be inferred from the FTPPs reference to being mindful of the fact that Ms Dowd and Ms Sutcliffe had a close working relationship with Dr Lawrence, it discounted their evidence as being biased in favour of Dr Lawrence it was wrong to do so since that suggestion had not been put to them in cross-examination and had not formed any part of the GMCs closing submissions. Further support for Dr Lawrences case is to be found in the evidence of Ms Dowd and Ms Sutcliffe that Dr Lawrence regularly reported to the supervision group on Patient Bs erotic transference in the narrow sense and his attempts to deal with it in therapy. Not only did this support the conclusion that Patient B was experiencing erotic transference in the narrow sense but, just as with Ms Dowds evidence of his reporting of Patient B showing signs of reciprocal transference, it was a high risk thing for Dr Lawrence to do if he was abusing his professional position by exploiting Patient Bs erotic transference for his own gratification. Support for Dr Lawrences case is also to be found in Ms Dowds testimony that the supervision group had no cause for concern that Dr Lawrence would behave inappropriately with Patient B. The fact that Dr Lawrence recommended Patient B to speak to Ms Dowd with a view to going on a course to gain further insight into erotic transference (a fact corroborated by Patient Bs subsequent call to Ms Dowd) is again conduct which would be a very high risk on the part of Dr Lawrence if in fact he had expressed feelings of growing attraction towards Patient B and said that he wanted to visit her after the therapy. Equally the fact that Patient B did ring Ms Dowd to enquire into courses on gaining insight into erotic transference is on its face curious behaviour on the part of a patient who has been the object of inappropriate sexual remarks by her therapist. The evidence of both Ms Dowd and Ms Sutcliffe that Dr Lawrence gave the impression of being angry and exasperated with Patient B, again unless a calculated

389.

390.

391.

392.

attempt to cover his tracks, was on its face inconsistent with Dr Lawrence making sexual overtures to Patient B. 393. The reporting of Patient Bs suggestion that she and Dr Lawrence might meet in a hotel room to see if there was any chemistry between them and to take it from there was a further high risk strategy if Dr Lawrences testimony was false and Patient Bs was correct. Ms Dowds evidence as to the Google search having been before Christmas 2006 was inconsistent with Patient Bs evidence that it occurred in 2007. Similarly the inference from the fact that Ms Dowd said that it had been reported that Patient B had been involved with a boss of hers with whom she had set up a rendezvous in a hotel to which the older man did not turn up is that Patient B must have recounted that story to Dr Lawrence as part of her sexual past. On its face that is inconsistent with Patient Bs denial of that episode. The FTPPs only reference to the evidence of Ms Sutcliffe and Ms Dowd was in the following paragraph of the Determination: The Panel has weighed the evidence of Patient B and your own evidence in the context of the expert opinion and the evidence given by the other witnesses that it heard. The Panel is mindful of the fact that Miss Sutcliffe, Psychotherapist, and Miss Dowd, Counsellor, have a close working relationship with you through working at 96 Harley Street and as part of a peer supervision group. The Panel notes Miss Sutcliffe and Miss Dowd were not part of Patient B's one-to-one psychotherapy and that apart from the group sessions and what they might have inferred through them, they only had your reporting of the issues and outcomes of those sessions. Of these two, the Panel found Miss Dowd a more reliable witness of events within her knowledge. The Panel found that Miss Sutcliffe's view that Patient B was deluded was at odds with the expert evidence.

394.

395.

396.

The challenge to the FTPPs findings in relation to Ms Dowd and Ms Sutcliffe can be analysed as falling into three broad categories. First the evidence was so strongly undermining of Patient Bs credibility and supportive of Dr Lawrences case that it was plainly wrong to prefer her testimony to his and, having regard also to the 11 September 2006 email, plainly wrong to find the allegations against Dr Lawrence proved. Second it wrongly discounted their testimony failed to give it proper weight and/or ignored it. Third they failed to refer to key parts of it and/or to explain whether they accepted or rejected critical parts of it and if the former how they reconciled the accepted testimony to their findings and if the latter what their reasons were for rejecting it. There is some overlap between the second and third categories. In response Ms Callaghan submitted that the FTPP did not reject the evidence of either Ms Dowd or Ms Sutcliffe but, as it was entitled to, found it to be of limited significance as to what happened in the one to one sessions between Dr Lawrence and Ms Lambert. It was not unfair for the FTPP to conclude that Ms Sutcliffes view as to

397.

Patient Bs delusion was at odds with the expert evidence. As to Ms Dowds evidence that Dr Lawrence reported to the supervision group that Patient B had begun to say that perhaps he had the same feelings towards her as she had to him, it is to be inferred that either the FTPP did not place weight on that testimony because it was not corroborated by Dr Lawrence (who might have been expected to mention it if it happened) or by Ms Sutcliffe or that it accepted Ms Dowds evidence and concluded that it meant that Dr Lawrence in making that report had been covering his tracks. The FTPP was entitled to reach either conclusion and, although the latter finding would have been a finding of serious deviousness on the part of Dr Lawrence, there was no need for the FTPP to address Ms Dowds evidence on this point separately. Dr Lawrence had no right and did not need to know if the FTPP found that he had tried to cover his tracks by lying to the supervision group. 398. As to the FTPPs reference to the close working relationship between Ms Sutcliffe and Ms Dowd on the one hand and Dr Lawrence on the other, Ms Callaghan submitted that it is not clear if the FTPP considered that that factor made them more or less reliable witnesses. The reference was neutral. It may be that the FTPP considered that the close working relationship may have caused Ms Dowd and Ms Sutcliffe to believe what Dr Lawrence told them. It cannot be inferred that the FTPP thought that it made them unreliable. Ms Callaghan submitted that the FTPP did not reject the evidence of Ms Dowd. Further Ms Callaghan submitted that the FTPP was entitled to discount the evidence of Ms Dowd and Ms Sutcliffe because they were not present at the one to one sessions and their testimony depended on Dr Lawrences hearsay evidence to them which the FTPP must have regarded as inaccurate and partial. Patient Bs account was true and Ms Dowd and Ms Sutcliffe did not know the true extent of what went on in the one to one sessions. That submission had been made by Ms Johnson to the GMC in her closing submissions. Ms Dowd had only attended three group therapy sessions in February and March 2006 which predated the critical events starting in May 2006. Although Ms Sutcliffe attended group therapy sessions after May 2006, Ms Callaghan submitted that nothing turns on what happened in the group therapy sessions. Like Ms Dowd she was not present at Dr Lawrences one to one sessions. As to the question of Patient Bs alleged delusion, it was common ground that Patient B did not suffer from a Delusional Disorder. Dr Reveley said so in terms. There was no reference to clinical delusion in the witness statement of Dr Speirs and it was not suggested by Dr Kennedy or Dr Denman. Dr Speirs had been a Consultant Psychiatrist for about twenty three years. Patient B was referred to her by her GP, Dr King-Lewis, in a letter dated 2 July 2007 and she saw her the next day. She said that she was suffering from a clinical depressive illness of moderate severity, but made no reference to any Delusional Disorder. Dr Speirs role was to assess Patient Bs mental state and treat her depressive illness. She said in her witness statement that Patient Bs personal history gave her the impression that she normally had a robust personality and was a stable person. She did not feel either from the history or from Patient Bs current state that she had at any time been psychotic. There was no evidence that she had a personality disorder. She came across as of sound judgment and was very consistent in her account and therefore she had no reason to doubt her. She appeared to be a straight forward patient

399.

400.

401.

who was clinically depressed and extremely vulnerable. Dr Speirs witness statement was read to the FTPP as agreed evidence. Ms Johnson had urged the FTPP in closing submissions to treat Ms Sutcliffes evidence with a degree of caution, partly because of her qualifications, partly because she had only attended sixteen group sessions over an eighteen month period, and partly because there was a risk that she might have conflated information gleaned from group therapy sessions with information gleaned from Dr Lawrence in the supervision. There was clear evidence from Dr Reveley that there was nothing about Patient Bs psychiatric being or in relation to her mental state that made her predisposed to making a complaint. 402. Although Ms Lambert submitted that Ms Sutcliffes view that Patient B was deluded was not intended to be a formal diagnosis of Delusional Disorder, Ms Callaghan submitted that her evidence that Patient B had false beliefs that could not be confirmed coincided with the chairmans definition of Delusional Disorder. Ms Callaghan submitted that the FTPP was entitled to treat Ms Sutcliffes evidence as tantamount to a diagnosis and as such to find both that it was inconsistent with Dr Reveleys diagnosis and, by implication with those of the other witnesses who were competent to diagnose Patient Bs mental state and that it preferred the evidence on this point of the other medical witnesses to that of Ms Sutcliffe. As to Ms Dowds testimony that Dr Lawrence told the supervision group that Patient B had begun to say that perhaps Dr Lawrence had the same feelings towards her, neither Dr Lawrence nor Ms Sutcliffe gave evidence to that effect. If he had reported it to the supervision group one would have expected him to have mentioned it in his evidence. Nowhere in his testimony did he say that he had reported to the supervision group that Patient B claimed he had feelings towards her. Nor was it in his contemporaneous notes. It was therefore possible that Ms Dowd was mistaken as to her recollection. Ms Callaghan submitted that either the FTPP placed little weight on this evidence because it was uncorroborated or it accepted the evidence and concluded that Dr Lawrence had been covering his tracks. She accepted that the latter would be a serious finding. Mr Booth had not relied on this part of Ms Dowds evidence in his closing submissions. Ms Callaghan submitted that that showed that no one placed any weight on it. Nor did Mr Booth pick up on the point in the Grounds of Appeal. The FTPP was therefore entitled to conclude that Dr Lawrence had not said it. It should therefore be assumed that the FTPP concluded that it had not been said rather than that Dr Lawrence was covering his tracks. Ms Callaghan submitted that the FTPP was entitled to reach either conclusion and that although the latter finding would have been a finding of serious deviousness on the part of Dr Lawrence there was no need for the FTPP to address Ms Dowds evidence on this point and its findings on it separately. Dr Lawrence did not have a right and did not need to know if the FTPP found that he had tried to cover his tracks by lying to the supervision group. Having set out the key passages of the evidence of Ms Dowd and Ms Sutcliffe and the arguments on both sides I turn to address Ms Lamberts first submission on the evidence of those two witnesses. It is convenient in doing so to address her primary overarching submission that the cumulative weight of the evidence which was contrary to Patient Bs allegations and/or supportive of Dr Lawrences case was so strong that, notwithstanding its visceral impressions of the credibility and reliability of the two main witnesses, the FTPPs principal findings of fact were plainly wrong.

403.

404.

405.

In this regard Ms Lambert prayed in aid in addition to the 11th September 2006 email and the testimony of Ms Sutcliffe and Ms Dowd, the expert evidence on erotic transference and the fact that Patient B gave her evidence by video link. The former, she submitted, showed that Patient B was experiencing narrow erotic transference and that that was capable of having led also to reciprocal transference and/or having led her to misinterpret Dr Lawrences words and conduct towards her. The latter she submitted significantly diminished the ability of the FTPP to make reliable comparisons of the way in which Patient B gave her evidence compared to the way in which Dr Lawrence gave his. As to the expert evidence, as I have already indicated, I do not consider that it was to the effect that the fact that, as was acknowledged, Patient B experienced erotic transference in the narrow sense itself made it likely that she also experienced reciprocal erotic transference. As appears from my analysis of the extracts relied on by both sides, the highest it can fairly in my view be put is that it supported the proposition that narrow erotic transference is capable of causing a patient in therapy to experience reciprocal erotic transference. As to the significance of the fact that Patient B gave her evidence by video link whereas Dr Lawrence gave his in the witness box, I reject Ms Lamberts submission that in considering the issue of body language it was unfair and wrong of the FTPP to have formed an adverse view of Dr Lawrence as opposed to Patient B when they could not evaluate any difference in their respective body language because a witness giving evidence by video link sits at a desk and is thus visible only from the chest up, whereas a witness giving evidence at the GMC sits at an open table so that their legs are visible as well. If there were anything in that submission it would lead to the conclusion that video link evidence should never be permitted in a case where the credibility and reliability of the witness is likely to be in issue. That conclusion would be contrary to the authority to which I have referred in rejecting Ms Lamberts submission that the FTPP was wrong to permit Patient B to give her evidence by video link. In approaching Ms Lamberts primary submission I remind myself that Dr Lawrence must establish that the FTPP was plainly wrong (per Stuart-Smith LJ in Ikarian Reefer) and that I should only reverse findings on the facts if it can be shown that they were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread by the FTPP (per Lord Hailsham in Libman v GMC). I also remind myself that the advantage enjoyed by the FTPP which this Court does not have, in that, having heard and seen the witnesses give their evidence, the FTPP is in a better position to judge their credibility and reliability, is very significant in a case where the witnesses credibility and reliability are in issue. Where the FTPP has observed the witnesses and weighed their evidence its decisions on matters of fact are more likely to be correct than any decision of this Court which cannot deploy those factors when assessing the position (per Lord Rodger in Gupta). This is plainly a case in which the credibility and reliability of the witnesses was not only in issue but lay at the heart of the case. Moreover while that was particularly so in relation to Dr Lawrence and Patient B, it also was the case in relation to the factual witnesses relied on respectively by Patient B (Ms Barnett) and Dr Lawrence (Ms Dowd and Ms Sutcliffe) and, as regards reliability, in relation to the expert witnesses.

406.

407.

408.

409.

I also remind myself of the approach of the Court of Appeal in Southall. Having reviewed the authorities and identified the correct test, Leveson LJ said: In my judgment, it is far from reasonably certain that the evidence was misread to such extent as itself justifies interfering with the assessment of the panel on issues of credibility and I am not in the position to say that a review of the transcript is more likely to produce a correct answer. The panel heard Mrs M (albeit over a television link) and were in a position to assess her evidence; they similarly heard all the other witnesses provided that it can be shown that the issue has been addressed correctly, I would not be prepared to interfere with the findings of the panel. To translate the issue into slightly different terms, there was undoubtedly a case to answer and it was for the panel, as fact finders, to make up their minds about where the truth lay and, provided no other error is apparent, it is no part of the function of this court to interfere I do not accept that the panel misunderstood the burden or standard of proof and reject the submission that its findings were perverse. (Para 48).

410.

I have already explained why, taken on its own, I do not consider that the 11 September 2006 email, whether looked at in isolation or together with Patient Bs explanations of it, do not satisfy the tests to which I have referred. Does the testimony of Ms Dowd and Ms Sutcliffe and the expert evidence, when added to the 11 September 2006 email, satisfy the test? I have already indicated that in my view there were aspects of the testimony of Ms Dowd and Ms Sutcliffe which provided powerful support for Dr Lawrences case and/or powerful ammunition for undermining the reliability of Patient Bs testimony. If Ms Dowd was correct in her evidence that Dr Lawrence reported to the supervision group in about September 2006 that Patient B had begun to say that perhaps Dr Lawrence had the same feelings towards her as she had to him, I see considerable force in Ms Lamberts submission that, unless Dr Lawrence was covering his tracks, that supported his version of events rather than Patient Bs. It is in my view to be regretted that the FTPP did not make any reference to this part of Ms Dowds evidence. While I accept that it was not highlighted by Mr Booth specifically in his closing submissions, it was in my judgment in its nature potentially a very important piece of evidence. If Ms Dowds account of Dr Lawrences report was correct and if he was not covering his tracks it went a long way to supporting his case. Ms Callaghan was right to point out that neither Dr Lawrence nor Ms Sutcliffe gave evidence that Dr Lawrence had said what Ms Dowd said he said. She was also right in my view to point out that if he did say it, one would have expected Dr Lawrence to have referred to it in his testimony given its potential for significantly supporting his account of events. It is also to be noted that there is no reference to this in Dr Lawrences manuscript notes of his sessions with Patient B or in particular in his typed file note dated 15 September 2006 a day after the session on 14 September 2006

411.

412.

413.

which is the session which Patient B ultimately identified as likely to have been the one on which he told her of his sexual fantasy about her. 414. Although the FTPP said that it found Ms Dowd to be a more reliable witness of events within her knowledge than Ms Sutcliffe, from which it may be inferred that it did not conclude that Ms Dowd deliberately lied in her evidence about what Dr Lawrence said, it cannot be ruled out that the FTPP concluded that she was simply mistaken in her evidence as to what Dr Lawrence reported to the supervision group. While I see the force of that submission it is again unfortunate that the FTPP did not spell out what inferences if any it drew from the fact, which it chose to highlight, that Ms Sutcliffe and Ms Dowd had a close working relationship with Dr Lawrence through working at 96 Harley Street and as part of a peer supervision group. Did the FTPP draw the inference from that fact that the evidence of Ms Dowd and Ms Sutcliffe was actually or may have been deliberately designed to assist Dr Lawrence because of their close relationship, or that it was or may have been affected by an unconscious desire to assist him? Did it for one or either of those reasons discount the testimony of Ms Dowd and Ms Sutcliffe and find it to be for that reason unreliable? The reference to Ms Dowd being more reliable than Ms Sutcliffe might point against such an interpretation but it is not in my judgment conclusive, particularly since the following sentence in the Determination, emphasising the limited opportunity for Ms Sutcliffe and Ms Dowd to form first hand impressions of Patient B and their dependence on what Dr Lawrence told them of what happened in the one to one sessions, was clearly intended to be a reason for attaching only limited weight to their testimony. Alternatively is it to be inferred that the FTPP considered that because of their close working relationship it is likely that they knew Dr Lawrence well and that for that reason their testimony as to their impressions of his conduct of the therapy, as observed by Ms Sutcliffe in the group therapy sessions and by both of them in the supervision groups, were likely to be reliable and part of the evidence to which particular weight should be attached? Again we do not know. Either way it is impossible to know what role, if any, Ms Dowds evidence on Dr Lawrences report to the supervision group played in the FTPPs thinking, its assessment of the evidence of Patient B and Dr Lawrence and its findings of fact. It is impossible to know whether it considered the evidence irrelevant or relevant. If the latter it is impossible to know whether it accepted or rejected it and if it accepted it how it reconciled such a finding to its finding as to the reliability of Patient B and the unreliability of Dr Lawrence and its ultimate findings that the allegations against Dr Lawrence were proved. In particular it is not possible to know whether it concluded that Dr Lawrence had been trying to cover his tracks by laying a false trail. If it rejected the evidence it is impossible to know whether it was because the FTPP considered Ms Dowd to be mistaken or whether it considered her evidence unreliable as having been influenced by a direct or indirect, conscious or subconscious attempt to assist Dr Lawrence because of their close working relationship. Ms Lambert is right in my judgment to submit that it is regrettable that Dr Lawrence was not recalled so that he could be asked about his alleged report to the supervision group. That would have assisted the FTPP in forming a judgment as to whether he did in fact say what Ms Dowd said he said. It would also have enabled Ms Johnson to put to him squarely, if so advised and instructed, that if he did say it, he was covering his

415.

416.

417.

tracks. That would have enabled the FTPP to make informed decisions on whether he did or did not say what was attributed to him by Ms Dowd, and if so whether he was or was not covering his tracks. 418. Those are matters which go to Ms Lamberts second and third challenges relating to the testimony of Ms Dowd and Ms Sutcliffe, namely whether it failed to give proper weight to their evidence and whether it failed to give adequate reasons. Where does that leave matters in the context of Ms Lamberts primary case that the FTPPs findings of fact were to such an extent against the weight of the evidence that I can be satisfied that they were plainly wrong? The answer to that question involves an assessment not only of the evidence supporting Dr Lawrences case but also of the evidence contradicting it and/or supporting the credibility of Patient B as well as an assessment of the FTPPs entitlement to reach the findings it did as to reliability and credibility of witnesses. Even if it is right to approach the matter, as submitted by Ms Lambert it should be, on the basis that in the absence of Dr Lawrence having been given an opportunity to deny that he was seeking to cover his tracks, it would have been wrong for the FTPP to proceed on the basis that he was, there remains the possibility that Ms Dowd was mistaken in her recollection. In that context I note that although Ms Sutcliffe said that Dr Lawrence told the supervision group that he felt that Patient B was fantasising about the relationship and that he was exploring the level of the erotic transference that he felt was taking place with Patient B and that the supervision group suggested that that was possibly something that would make him vulnerable, she did not say that Dr Lawrence reported that Patient B was beginning to say that Dr Lawrence had the same feelings towards her. On the other hand it is perhaps intrinsically less likely that Ms Dowd would mistakenly mention a potentially crucial comment made by Dr Lawrence if he did not make it than that Ms Sutcliffe forgot it or that it did not occur to her to mention it in answer to particular questions during her testimony. It is right that Ms Johnson did not specifically challenge the accuracy of Ms Dowds recollection on this point but the FTPP may nonetheless have concluded that her recollection was or may have been at fault. Just as the FTPP was entitled to take into account its assessment of Ms Dowds evidence on this point when weighing up and reaching a conclusion as to the reliability of Patient Bs testimony, so it was entitled to do the reverse. That is to say in assessing whether Ms Dowds recollection was or may have been faulty, the FTPP was entitled to take into account its provisional assessment of all the other relevant evidence in the case including in particular its provisional views as to the reliability of Patient Bs testimony. Those are assessments which the FTPP was far better placed to make having heard Ms Sutcliffe and Ms Dowd give evidence than I am, confined as I am to reading the transcripts. Moreover, although Dr Lawrence was not recalled after Ms Dowd gave her evidence so that any suggestion that the reference which Ms Dowd said he made in September 2006 to Patient B saying that she was beginning to feel that Dr Lawrence had the same feelings towards her was a lying attempt to cover his tracks could be put to him, a similar allegation had been made by Patient B in her testimony before the completion of Dr Lawrences testimony so that the general issue was on the table and Dr Lawrence had an opportunity to deal with it in his testimony. As already mentioned, Patient B did explicitly accuse Dr Lawrence of being a clever and

419.

420.

421.

422.

manipulative man whose written records including his email messages and his notes of her therapy sessions, which made no reference to their email exchange, were worded very carefully so as to ensure that he protected himself and could not be held to account if his records were ever examined. Some support for that contention was capable of being derived from the discrepancy between the positive impression of Patient Bs mood contained in Dr Lawrences note of the 11th September 2006 session and the reference to her being very angry and upset in her email of that date. The FTPP made no reference to Patient Bs allegation that Dr Lawrence was covering his tracks and it is impossible for this court on the transcripts to reach a conclusion on it. 423. 424. Similar points may be made in relations to Dr Lawrences letter dated 12 September 2006 to Mr Thorpe-Beeston and his typed file note dated 15 September 2006. In the former Dr Lawrence wrote:[Patient B] was greatly relieved when I saw her today in my out patient clinic, she feels quite convinced that she made the right decision in terminating her pregnancy and her mood has improved.

425.

On the reasonable assumption that that is a reference to the 11 September session, it gives a completely different impression as to what occurred at the 11 September 2006 session and Patient Bs state of mind to the 11 September 2006 email and as to Patient Bs oral testimony. It also made no reference to the exchange of emails between Dr Lawrence and Patient B. This could be explained either on the basis that the interpretation of the email contended for by Ms Lambert is right and that attested to by Patient B was wrong, or by Dr Lawrence having sought to cover his tracks by creating a false paper trail. In the 15 September 2006 file note Dr Lawrence wrote:[Patient B] remains completely preoccupied with the erotic transference which she has developed towards me, and wants to know my reasons for not acting it out, I will discuss this in supervision before going any further.

426.

427.

Taken at face value this would tend to support Dr Lawrences evidence that he made it clear to Patient B that he was not prepared to engage in any sexual relationship with her including most recently at the session on 14 September 2006 at which she said that he revealed his sexual fantasy to her. An alternative explanation might be that it was a further example of him seeking to cover his tracks by creating a false paper trail following a session at which he revealed a sexual fantasy to his patient. This file note was put to Patient B by Mr Booth when she was recalled to deal with the 11 September 2006 email. Patient B accepted that Dr Lawrence might have talked about the reasons why it would not be appropriate or might not work but was adamant that she clearly indicated that he had sexual fantasies about her.

428.

429.

Hamstrung as I am by not knowing what the FTPP made of Ms Dowds evidence as to Dr Lawrences report to the supervision group, it is difficult to reach a definitive conclusion as to what weight ought properly to have been given to it. It is for that reason that I consider the failure of the FTPP to refer to the evidence and explain its reasons for accepting or rejecting it and, if the former, what weight it attached to it was a material error on its part. If Dr Lawrence did make that report to the supervision group and if in doing so he was not lying in order to cover his tracks, that would in my view be a very powerful piece of evidence supporting his case and undermining the credibility of Patient B. As with the 11 September 2006 email, however, it would not strike me as necessarily striking a fatal blow to the credibility and reliability of Patient B such as to require the FTPP to reject her evidence. It is not logically inconsistent with Dr Lawrence having said to Patient B in May July and September 2006 the things which Patient B asserted that he did and which Dr Lawrence asserted that he did not. Powerful though it would be it would not seem to me to be a card that must necessarily trump the ace of the view formed by the FTPP of the demeanour of Patient B and Dr Lawrence as they gave their testimony. As it is I am not in a position by reading the transcripts to conclude whether Ms Dowds evidence on this point was correct. Nor am I in a position to conclude whether, if it was correct, the report given by Dr Lawrence was an attempt to cover his tracks or was itself truthful and accurate. Although because he was not recalled it was not put to Dr Lawrence specifically that this report, if made, was a deceitful attempt to cover his tracks, the general allegation that he was a clever and manipulative man who did create false records to cover his tracks had been made by Patient B and it was open to the FTPP, in my view, to accept that allegation. Although, as a I have said, Dr Lawrence was entitled to know whether the FTPP did find that allegation true, in the present context of Ms Lamberts primary submission that the evidence was so strong that the FTPP findings on fact were plainly wrong, in my judgment Ms Dowds evidence, even taken together with the other points relied on by Ms Lambert, do not demonstrate that. That of course is not to say that an FTPP approaching the case without the handicap of the first and maybe also second impugned statement may not have attached great weight to it. If Ms Sutcliffes evidence that Patient B was deluded including in her interpretation of relationships was correct it was powerful evidence suggesting that Patient Bs testimony may have been unreliable. However in my judgement even if correct it would not of itself be decisive. As pointed out by the FTPP she was not present in the one-to-one sessions between Dr Lawrence and Patient B at which the disputed conduct and comments occurred. It would not necessarily follow from the fact that Patient B was deluded in her interpretation of past relationships or the impact of events on herself that her account of how Dr Lawrence behaved was incorrect. Indeed that would seem to follow from the fact that, while it was common ground among the experts that Patient B was experiencing narrow erotic transference and to that extent was deluded about her own feelings of attraction towards Dr Lawrence, they did not in my judgement say that it was for that reason likely that she was also experiencing reciprocal erotic transference, i.e. that even though she was deluded about her own feelings towards Dr Lawrence it was not for that reason likely that she was also deluded about his feelings towards her.

430.

431.

432.

433.

Nonetheless, if Ms Sutcliffes evidence on this point was correct it was a powerful piece of evidence. Was the FTPP entitled to reject it? Three questions arise. First, did the FTPP reject it? Second, was her evidence at odds with the expert evidence, as found by the FTPP? Third, if the FTPP rejected her evidence, was its rejection of her evidence confined to the inconsistency which it found between it and that of the experts or was it based on an incorrect approach to her testimony? On the first question, while the FTPP did not expressly say that it rejected Ms Sutcliffes evidence, that would appear to be the inference from its observation that it was at odds with the expert evidence. On the second question it is right that Ms Sutcliffe was not purporting to give a formal diagnosis of a Delusional Disorder whereas Dr Reveley said that her view of the correct diagnosis of Patient B as at the end of December 2005/beginning of January 2006 was that she had no Delusional Disorder and confirmed in answer to a question from the chairman that that was with a capital D and a capital D and explained that Delusional Disorder is a form of psychosis in which the individual develops, in the form relevant to this case, erotomania, a delusional fixation of an erotic or romantic nature upon somebody. On the other hand there was in my view at least some overlap between Ms Sutcliffes description of Patient Bs apparent delusion and the definition of Delusional Disorder given by Dr Reveley. See for example her confirmation that she meant deluded in both senses raised by the chairman of the FTPP, that is to say that she felt both that Patient B had false beliefs that could not be confirmed and that she was in denial about certain matters. On the other hand Ms Sutcliffe was describing the impressions she gained not just as to Patient Bs delusion in relation to relationships but in relation to the impact of events on herself. Unless Ms Sutcliffe was deliberately lying or consciously tailoring her evidence to support Dr Lawrence because of their close working relationship, common sense would seem to suggest the possibility of at least some room for Ms Sutcliffes observations having been accurate notwithstanding the expert evidence that Patient B was not suffering from a formal Delusional Disorder. This raises the third question. Ms Sutcliffe is a psychotherapist who had practised for about 16 years by the time of the hearing. However, although she held a certificate, a diploma and two degrees (in what subjects was not clear), unlike Dr Speirs she was not a psychiatrist. There was no suggestion that she was formally qualified to make a clinical diagnosis of Delusional Disorder. If the only issue for the FTPP to decide in order to reach a conclusion whether Ms Sutcliffes evidence was correct was whether Patient B was suffering from a Delusional Disorder the FTPP in my judgement would plainly have been entitled to prefer the evidence of Dr Speirs to that of Ms Sutcliffe. However, the waters are somewhat muddied by three aspects of the FTPPs determination on this point. First, it found Ms Sutcliffe a less reliable witness of events within her knowledge than Ms Dowd. Second, it chose to draw attention to the fact that apart from the group sessions and what they might have inferred through them, Ms Sutcliffe and Ms Dowd only had Dr Lawrences reporting of the issues and outcomes of the one-to-one sessions. Third, the FTPP chose to draw attention to the close working relationship between Ms Sutcliffe and Ms Dowd on the one hand and Dr Lawrence on the other. Can it safely be ruled out that the FTPPs apparent

434.

435.

436.

437.

438.

rejection of Ms Sutcliffes evidence as to Patient Bs delusion was influenced by one or more of these factors and if not is the rejection tainted by one or more of them? 439. In my view, based on my reading of the transcript of her testimony, Ms Sutcliffes evidence as to Patient Bs delusion derived principally and certainly to a significant extent from her personal observation of her. There were, according to Ms Johnson, no fewer than 16 such sessions spread over a period of 18 months. That is to be contrasted with the single consultation on 3 July 2007 which formed the basis of Dr Speirs formal diagnosis. Of course the FTPP were entitled to take into account the fact that neither Ms Dowd nor Ms Sutcliffe could give direct evidence as to what took place in the one-to-one sessions. It does not follow, however, that they, and in particular Ms Sutcliffe, were not in a good position to form a view as to Patient Bs state of mind from their own direct observations of her. As to the reference to the close working relationship it is impossible in my view to be sure what significance the FTPP attached to that or what part it played in its approach to the evidence of Ms Sutcliffe. If anything I would incline to the view that Ms Lamberts interpretation may well be correct. The FTPP was of course entitled to form its own view as to the reliability of Ms Sutcliffes evidence and to find her to be a less reliable witness of events within her knowledge than Ms Dowd. However, if in its view the testimony of both Ms Dowd and Ms Sutcliffe was affected by a desire to assist Dr Lawrence, in my judgment it was incumbent on the FTPP to spell that out. In so far as it is possible to draw conclusions as to the FTPPs approach to Ms Sutcliffes evidence on delusion from the paragraph in its determination in which her evidence was referred to, it would appear that it may have given it insufficient weight and/or rejected it, at least in part, on an unsound basis. By emphasising the obvious fact that Ms Sutcliffe, like Ms Dowd, had no direct knowledge of what took place between Patient B and Dr Lawrence in the one to one sessions, it appears to have overlooked or given insufficient weight to the fact that Ms Sutcliffe was in a position in the course of sixteen group therapy sessions over an eighteen month period to observe Patient B very closely and to form a clear impression of her state of mind. In apparently concluding, as it was entitled to in my view, that the opinion of Dr Speirs that Patient B was not suffering from a Delusional Disorder was likely to be correct, the FTPP appears to have assumed that, because Ms Sutcliffe was not qualified to make a formal diagnosis, her evidence as to Patient B being deluded was for that reason likely to be wrong. In so doing it appears to have or at any rate may have, failed to consider whether, by reason of her observation of Patient B in the group sessions, Ms Sutcliffes evidence that Patient B gave the impression of being deluded in the respects described by her might be reliable. Moreover even if the FTPP considered that the close working relationship might have subconsciously caused Ms Sutcliffe or Ms Dowd to seek to assist Dr Lawrence, apart from the fact that if that was its view it should have said so in clear terms, Ms Sutcliffes evidence as to her impression that Patient B was deluded was cast in such clear and firm terms that it is counter intuitive to suggest that such a positive impression may have been reached through unconscious bias. In theory it could of course have been the result of deliberate bias, but in my view that would not have been a conclusion open to the FTPP to draw in the absence of the allegation having been squarely put to Ms Sutcliffe and explicitly recorded in the Determination. The same applies in relation to Ms Dowd.

440.

441.

442.

The evidence of both Ms Dowd and Ms Sutcliffe, the latter particularly on the issue of delusion, the former particularly on the issue of what Dr Lawrence reported to the supervision group, were of such central importance to the case that in my view Dr Lawrence was entitled to know why the FTPP rejected Ms Sutcliffes evidence or attached little weight to it and whether it rejected Ms Dowds evidence on Dr Lawrences report to the supervision group and if so why, and in particular whether it was because it discounted their evidence because of their close working relationship with Dr Lawrence or concluded that Dr Lawrence was covering his tracks. Again those are matters which go to Ms Lamberts second and third challenges. In the context of her primary case, however, while Ms Sutcliffes evidence on delusion was potentially important evidence in favour of Dr Lawrence I feel unable to reach a conclusion as to whether it was correct, deprived as I am of the advantage of having seen Ms Sutcliffe give her testimony or having seen Patient B and Dr Lawrence give their testimony. Further as already mentioned, even if it was correct, it was in my view an important but not in itself a decisive piece of evidence in favour of Dr Lawrence and against the reliability of Patient B. As to the other passages of the evidence of Ms Dowd and Ms Sutcliffe to which I have referred, some of them undoubtedly give further support to Dr Lawrences case and point to the unreliability of Patient Bs testimony. I have in mind in particular the evidence of Ms Dowd that she saw Patient B gazing at Dr Lawrence as though in a trance, the fact that Dr Lawrence so regularly reported on Patient Bs erotic transference to the supervision group, a high-risk strategy if he was guilty of the misconduct alleged, and the fact that neither Ms Sutcliffe nor Ms Dowd felt that Patient B was at any risk from Dr Lawrence despite the erotic transference. It was rather the other way round. Of less significance, but of some weight given the FTPPs reference to the more reliable recollection of Patient B, was Ms Dowds evidence that Patient Bs Google search took place before Christmas 2006. All these matters must be placed on one side of the scales together with my conclusions as to the 11th September 2006 email and Patient Bs explanations thereof. In addition there must in my view be placed on Dr Lawrences side of the scales the effect of the expert evidence on erotic transference interpreted not in the way contended for by Ms Lambert but in the more limited way which I have found to be correct. That is to say that the expert evidence provided some support for the proposition that the narrow erotic transference which it was agreed Patient B experienced was capable of having caused her to form the mistaken belief that Dr Lawrence reciprocated her erotic feelings. Ms Lambert submitted that there should also be placed on Dr Lawrences side of the scales Dr Kennedys opinion that finding out about Dr Lawrences previous sexual misconduct with a patient would have had a massive impact on Patient B and could have caused her to reinterpret what had been said before. Although as already indicated I do not accept Ms Lamberts submission that Dr Kennedy was in the relevant passage of his evidence expressing the opinion that a woman with low selfimage experiencing narrow erotic transference would be likely to experience reciprocal transference, I see some force in this submission. Patient B was not cross-examined on the basis that the Google search caused her to reinterpret what Dr Lawrence said and that suggestion was not put to her by Mr

443.

444.

445.

446.

447.

Booth. Patient Bs own evidence was that the discovery did not have a big impact on her and did not cause her reinterpret what had happened. It merely caused her to doubt if she was special to Dr Lawrence and to wonder if he treated all his patients like that. That is to say none of the three scenarios postulated by Dr Kennedy. Ms Callaghan in my view was right to submit that the FTPP was entitled to accept Patient Bs evidence, Dr Kennedys scenarios not having been put to her. The premise of her evidence was that what happened to her was real. However, in order to assess whether Dr Lawrence can satisfy the stringent test laid down in the authorities, it is necessary to consider the factors on the other side of the scales. 448. By the time Ms Sutcliffe and Ms Dowd gave evidence Dr Lawrence had already given evidence. It would in those circumstances in my view be artificial to ignore Dr Lawrences evidence and the FTPPs findings in relation to it when assessing whether Dr Lawrence has satisfied the test. Although in Southall Leveson LJ said that there was undoubtedly a case to answer in this case (as in Southall) the argument that the decision of the FTPP was plainly wrong is not confined to reliance on the alleged inadequacy of the GMCs evidence but in large part on the alleged strength of evidence adduced by the practitioner. It is inescapable that the FTPP formed a very favourable impression of Patient B as a witness and a very unfavourable impression of Dr Lawrence as a witness. I have quoted the references in the Determination to the FTPPs reaction to Dr Lawrences testimony. This included very unfavourable views based on his demeanour while giving evidence, particularly while giving answers on some important issues. I see force in the criticism of the finding that Patient Bs account of her relationship with Dr Lawrence and his response to her, the personal circumstances which encompassed her depression, loneliness, the fact that she had recently lost a baby and had no close family or friends in London in whom she could confide, was more credible than his version of events, insofar as there was no real dispute between Dr Lawrence and Patient B about the personal circumstances which encompassed her depression, loneliness, the fact that she had recently lost a baby and had no close family or friends in London in whom she could confide. However, that criticism cannot in my view fairly be levelled against the finding that Patient Bs account of her relationship with Dr Lawrence and his response to her was more credible than his version of events. In principle that was a judgement which it was entitled to reach provided it addressed the issue correctly. It is also inescapable that the FTPP found that Patient B was a good witness who gave clear considered and balanced answers. The FTPP said that some of the decisions it had to make involved it reaching a view as to the credibility of witnesses as it had to assess conflicting accounts of the events which were said to have taken place. It is abundantly clear that it reached a negative view of Dr Lawrence as a witness and a positive view of Patient B. To the extent that the FTPPs positive view as to Patient Bs credibility rested in part on its conclusion that her evidence was generally consistent it is arguable that this court is not materially disadvantaged in assessing whether that was a conclusion which it was entitled to reach. However the same cannot be said of the conclusions it reached on her credibility to the extent that they were based on the impression made on the members of the FTPP by the manner in which she gave her oral testimony.

449.

450.

451.

I have held that the FTPP erred in concluding, at least without giving Dr Lawrence an opportunity to seek to adduce evidence and/or make submissions on the point, that a woman with low self-esteem unless encouraged would be unlikely to fantasise that she was attractive to another. I have also held that it cannot safely be assumed that that conclusion did not taint the FTPPs conclusion that it did not find that Patient Bs openly admitted former attraction to Dr Lawrence would be likely on its own to cause her to believe that he had feelings for her and that it cannot safely be assumed that it did not for that reason close its mind to the possibility (as distinct from the likelihood) that Patient Bs narrow erotic transference might have caused her mistakenly to believe that Dr Lawrence reciprocated her feelings, a proposition for which in my view there was support in the expert evidence. If it is the case that the FTPP closed its mind to this possibility and the expert evidence which supported it and/or failed to give it proper weight, it is possible that had it not closed its mind and instead given proper weight to the possibility and to the expert evidence which supported it, its conclusions as to Patient Bs credibility and indeed that of Dr Lawrence might have been different. That is one of the reasons why in my judgement its findings on the disputed allegations of misconduct against Dr Lawrence should be quashed. However I am here concerned with the separate question whether the evidence relied on by Dr Lawrence was so strong as to justify quashing the FTPPs principal findings of fact and its finding that the allegations of misconduct against Dr Lawrence were proved on the ground that they were plainly wrong. In that context it seems to me that I should approach the matter on the basis of considering how an FTPP adopting a correct approach (that is to say without reference to the assumption in the two impugned statements and taking proper account of the effect of the expert evidence which I have analysed) might legitimately have assessed Patient Bs credibility and that of Dr Lawrence. Leaving aside the impact which the evidence relied on by Dr Lawrence on the other side of the scales should have had on the FTPPs assessment of Patients Bs credibility as a witness, it seems to me that it cannot be ruled out that an FTPP following the correct approach on the two matters identified might have reached the same views on Patient Bs credibility as are recorded in the Determination on the facts. The question is whether the cumulative weight of the evidence relied on by Dr Lawrence tips the scales so decisively as to compel the conclusion that it would have been bound to reach different views on her credibility and reliability and that the findings actually made by this FTPP were plainly wrong. Ms Callaghan submitted that a further substantial matter to place on the GMCs side of the scales was the evidence of recent complaint in 2007 from the records of Patient Bs General Practitioner, Dr King-Lewis and those of Dr Speirs as well as what the FTPP described as subsequent supporting evidence from the notes and oral evidence of Ms Barnett. Dr King-Lewiss notes of Patient Bs attendance at his surgery on 2 July 2007 entered the word abuse under the heading coding details. His comments were:

452.

453.

454.

455.

456.

Abused (non physical) in therapeutic [relationship] over past [year]. Suggestions of meeting for drink outside [appointments] and having sexual fantasies about each other.

457.

That is in my view very strong evidence of recent complaint in that it records Patient B having referred to two of the allegations which she subsequently mentioned in her testimony. By definition it cannot have been influenced by the process of psychotherapy with Ms Barnett which only commenced later. In his letter dated 2 July 2007 to Dr Speirs referring Patient B to her Dr King-Lewis wrote: [Patient B] came in today deeply distressed to tell me that the relationship with the consultant psychiatrist had become deeply inappropriate and that he had been very flirtatious and seductive with her. He admitted to having sexual fantasies about her, and she had reciprocated that she found him attractive and had had fantasies about him. She feels very ashamed since she is married and also feels very angry, hurt and abused. I have explained to her that she is in fact a victim of abuse.]

458.

This was further strong evidence of recent complaint with the added reference to Dr Lawrence having been very flirtatious mirroring Patient Bs testimony to that effect. 459. In a letter dated 5 July 2007 to Dr King-Lewis by whom Patient B had been referred to her, Dr Speirs wrote: I saw her on 03.07.07 and will summarise. The letter included the following: The individual psychotherapy has at times been inappropriate. [Patient B] found her consultant attractive and he asked if she had any sexual fantasies about him which she admitted to. He said he was aware of a growing attraction towards her and declared that he had a fantasy about visiting her when she was no longer a patient. Sometimes he behaved professionally and sometimes was flirtatious and she became confused feeling unsure of her ground and vulnerable. He appears to have been very revealing about his own life and she has been drawn in. There has been no inappropriate touching. She talked to you about her concerns and now realises how she has been abused and is angry and, will no longer be seeing him but is sad about not being able to attend a group.

460.

Again this is in my view very strong evidence of recent complaint. It corresponds closely to Patient Bs testimony that she found Dr Lawrence attractive, and that he asked her if she had any sexual fantasies about him which she admitted to. Critically it mirrors closely her testimony that Dr Lawrence told her that he was aware of a growing attraction towards her and told her that he had a fantasy about visiting her when she was no longer a patient. It also mirrored her testimony that sometimes he behaved professionally and sometimes was flirtatious and that she became confused feeling unsure of her ground and vulnerable. Its reliability is lent support in my view by the reference to Dr Lawrence having been very revealing about his own life, a matter which he subsequently admitted. As with Dr King-Lewiss medical note of the previous day this letter cannot be said to have been tainted by the subsequent psychotherapy with Ms Barnett. In closing submissions Mr Booth had submitted that there was a difference between the details of Patient Bs oral testimony and what she was recorded as having said to Dr Speirs and Dr King-Lewis. That is because there is no reference to the words this is my sexual fantasy having been used in their letters. There is in my view nothing in that point. Dr King-Lewis records Patient B saying that Dr Lawrence had admitted to having sexual fantasies about her and Dr Speirs recorded her as having said that he was aware of a growing attraction towards her and declared that he had a fantasy about visiting her when she was no longer a patient. In her witness statement dated 15 January 2009 Dr Speirs gave an account of the 3 July 2007 consultation which broadly confirmed the contents of her letter to Dr KingLewis. She stated: [Patient B] told me about her sessions with Dr Lawrence which she felt had been inappropriate. She told me she found Dr Lawrence attractive and that he had asked if she had sexual fantasies about him, to which she answered yes. Dr Lawrence had told [her] that he was aware of a growing attachment to her. [Patient B] told me that Dr Lawrence had discussed a fantasy he had, whereby he would visit her when she was no longer a patient. The therapy [Patient B] received sounded flirtatious and Dr Lawrence seemed to share a lot of information about his personal life with her. She said that there was no physical touching but the therapy appeared to lack the usual boundaries. She came across as of sound a judgment and was very consistent in her account and I therefore have no reason to doubt her [Patient Bs] main concern was that the situation might potentially happen again to someone else. She did not discuss with me her intention of making a complaint to the GMC but she did send me a copy of the written complaint she made. I think this was written in a very measured way and the account fits exactly with the account she gave me when I first saw her.

461.

462.

463.

I have already dealt with the background to Ms Barnetts notes of her sessions with Patient B. Ms Barnett gave evidence for the GMC and in doing so referred to the typed notes which she said that she had created from the contemporaneous handwritten notes which she had destroyed at the time she created the typed written notes.

464.

Ms Callaghan prepared a detailed schedule comparing extracts from Ms Barnetts typed notes and Patient Bs oral evidence. It would be to exaggerate the importance which in my view it is appropriate to attach to Ms Barnetts typed notes to attach this schedule to my judgment or to set out its contents in full. It is sufficient to record that there is in my view a very considerable similarity between the contents of the extracts from the notes and from Patient Bs oral testimony. The FTPP stated that it weighed the evidence of Patient B and Dr Lawrences own evidence in the context of the expert opinion and the evidence given by the other witnesses that it heard. Specifically in relation to Ms Barnett it found that although there had been legitimate criticisms of her destruction of her original notes and her therapeutic methodology nevertheless on the issue of Patient Bs recounting of the events to her she was a reliable witness on the key issues. In reaching that view the FTPP stated that it had also taken into account the admitted statement of Dr Speirs and the other correspondence relevant in time to the events (which I take to be a reference to the letters of Dr King-Lewis and Dr Speirs which I have quoted). Although Ms Lambert made a number of criticisms of Ms Barnetts typed notes and her oral testimony, she accepted that her evidence was capable of amounting to evidence of recent complaint. That was in my view a realistic concession. On the other hand it is true that, with the exception of the first session the themed structure of the typed notes makes it impossible to identify at which of the 37 sessions between July 2007 and September 2008 Patient B was said to have made the statements as to what occurred between her and Dr Lawrence which are recorded in the notes. To that extent it was right for the FTPP to treat them with caution. It is in my view clear from the passage which I have cited from its Determination that the FTPP did treat Ms Barnetts evidence with caution. It is however in my view tolerably clear that the statements attributed to Patient B on the first page of the typed notes were intended to reflect Ms Barnetts original notes of what she said at their first session on July 5 2007. The notes of the first session include the following: Presenting problems: (1) Acute extreme distress at treatment by her (now ex) psychiatrist RL (2) Chronic depression (original problem for seeing RL) which she reports as not having been adequately addressed or changed by seeing RL. felt alive with sexual energy between her and RL Shared sexual fantasies. She thought he had meant it. He said I reminded him of his first love. He said he had wanted to visit her when therapy was over. Thought she really was special to him. But now just feels stupid she didnt see that he was using her for his sexual titillation

465.

466.

467.

468.

469.

Ms Barnett said in testimony that she told the GMC before preparing the typed notes that if she had any specific notes that actually were Patient Bs specific words she could put those in italics. And that was what she was asked to do. As already mentioned that is reflected in a statement to that effect on the front page of the notes. The FTPP was in my view entitled to reach the view, which by implication it did that the contents of Dr Speirs witness statement and her letter and that of Dr King-Lewis supported the reliability of Ms Sutcliffes evidence as to what Patient B told her on the critical events. There was considerable overlap between Ms Barnetts testimony, which was based in large part on her typed notes, and the contents of those documents. Ms Lambert submitted that given the absence of her contemporaneous notes and the references in the typed notes to Ms Barnetts interpretation of events, little if any reliance should have been placed by the FTPP on her evidence. In my view that considerably overstates the position. As to the first point Ms Barnett made it clear that the typed notes were taken from the original manuscript notes and where original words were recorded in the manuscript notes they were put in italics in the typed notes. Although the accuracy of her typed notes could not be checked against the destroyed original notes it was not suggested to her in cross examination that she had destroyed them for some sinister reason. Although not all the statements attributed to Patient B were in italics and thus it is to be inferred were not her actual words that would not have been a reason for placing little or any reliance upon them had they appeared in the original manuscript notes and had those notes been adduced in evidence and relied on by Ms Barnett in her testimony. As to the latter point it is in my view reasonably clear from the typed notes which purport to be an account of what Patient B said to Ms Barnett and which parts were her own comments. Ms Barnet said that her typed notes were based on her handwritten notes and her experience with the patient and nothing else and in particular that they contained no other factual information. As Ms Callaghan pointed out there were parts of Ms Barnetts oral testimony which were not dependent for her account of what Patient B told her on the themed notes, which showed that she had an independent recollection of some at least of what Patient B told her. Thus she said that Patient B told her that Dr Lawrence told her that his sexual fantasy about her was that he would visit her once the therapy was over and that he would do so in different parts of the world wherever she was she travelled a lot with her husband and that they would have sex together and it would be with the knowledge and approval of her husband. Apart from the reference to wanting to visit Patient B to have sex when the therapy was over, none of the details of the fantasy mentioned by Ms Barnett orally appears in the typed notes. The same is true of Ms Barnetts testimony that Patient Bs words to her were that all she wanted to do was put on lacy underwear for Dr Lawrence. Ms Barnett said that she remembered this very clearly. It was not in her notes because she does not write down everything a patient says if it is not of interest to her. The fact that Patient B said lacy underwear would not be of therapeutic interest to Ms Barnett.

470.

471.

472.

473.

474.

But she remembered that Patient B said it very clearly because it was a very strong visual. 475. Initially Ms Lambert submitted that the fact that Ms Barnett used hypnosis in some of her sessions with Patient B made Ms Barnetts evidence unreliable. Ms Barnett said that she only used hypnosis when dealing therapeutically with Patient Bs chronic underlying depression and that she never used it when discussing Dr Lawrence. There were two separate aspects to the sessions, one helping Patient B to deal with her upset at the way her relationship with Dr Lawrence had developed. The second was therapy for her depression. Initially Ms Barnett said that she only used hypnosis in 10% of the 37 sessions but when it was pointed out that that would only be 3 or 4 she said that it was more like 12 sessions. In explaining that shift in evidence in her evidence Ms Barnett said that she would move in and out of hypnosis in the course of her sessions making the total time under hypnosis hard to calculate. Ms Lambert submitted that this showed that the use of hypnosis was so interwoven into the fabric of her sessions that it would be extraordinary if the compartmentalisation of issues claimed by Ms Barnett had been maintained. It was inevitable that hypnosis might have been used in the context of her discussions about Dr Lawrence and thus affected the reliability of what Patient B told Ms Barnett had happened between her and Dr Lawrence. In the absence of the original notes it was impossible to know what was or was not said under hypnosis. Ultimately Ms Lambert conceded that it would have been a legitimate factual finding for the FTPP to find that hypnosis did not take place when Patient B was discussing Dr Lawrence. However if the FTPP considered that hypnosis did not take place when Dr Lawrence was being discussed, it should have said so given the reliance on Ms Barnetts evidence as evidence both of consistency and truth and given the shadow cast over that evidence by the absence of the original notes and the use of hypnosis. Ms Lambert submitted that there should have been a reasoned analysis by the FTPP as to why it considered her evidence to be reliable. That of course is a reasons challenge rather than a plainly wrong finding challenge. In my judgment it has no merit. It is in my view clear from the FTPPs reference to legitimate criticisms of Ms Barnetts destruction of her original notes and her therapeutic methodology that it took those matters into account but did not consider that they rendered Ms Barnetts evidence unreliable. It is to be inferred that that is because it accepted her evidence as to compartmentalisation and also that her destruction of the notes was innocent and that her typed notes reflected the account in them of what Patient B said to her. In addition the FTPP made it expressly clear that one reason why it found her to be a reliable witness on the key issues was that it overlapped with the other evidence of recent complaint. It can also in my view properly be inferred that one of the reasons why the FTPP considered Ms Barnetts evidence to be reliable was that it was closely consistent with what Patient B said in her testimony. Ms Barnett said that generally the hypnosis would probably last no more than 10-15 minutes in any one hour session and that it weaves in and out and is not necessarily a lump of time. Dr Kennedy was asked if he had experience of a therapist using hypnosis that weaves in and out during a session. He said that he did not and that it

476.

477.

478.

479.

480.

was not recognised psychodynamic psychotherapy or behavioural cognitive therapy that he knew of. However, it is in my view clear that the FTPP accepted that Ms Barnett did not use hypnosis when discussing Dr Lawrence and in my view it was entitled to reach that conclusion. The same point is in my view an answer to Ms Lamberts reliance on Dr Kennedys expressed concern at the possibility of a patient becoming hypersuggestible in a hypnotised state. Moreover Mr Booth accepted that he had not suggested to Ms Barnett in cross-examination that she might have suggested any facts to Patient B. Nor did he suggest to either Patient B or to Ms Barnett that hypnosis had generated facts from her subconscious mind. 481. I note that Dr Kennedy said that he was not aware of a distinction between hypnosis and hypnotherapy and that he thought that Ms Barnett was doing hypnotherapy. In fact Ms Barnett said that she used hypnosis not hypnotherapy which she said is a different thing for which one can be trained in 5 days and which is dangerous. She had spent a year doing a post graduate diploma in applied hypnosis with a first from UCL. Moreover she did not use deep trance hypnosis. Ms Barnett was also very clear that although, as her notes showed, Patient B accepted her offer of hypnosis to address an incident from her childhood in order to help her understand why it was that she felt reluctant to proceed with making a complaint to the GMC, however she denied having suggested through hypnosis to Patient B that she should make a complaint. Indeed if anything she encouraged her not to rush into making a complaint until she had dealt with her feelings of anger and upset. Given the extensive overlap between Patient Bs testimony and the contents of Ms Barnetts notes, it seems to me that the FTPP was entitled to conclude that, whatever misgivings Dr Kennedy may have had, Patient Bs account to her or what Dr Lawrence said to her was not the product of suggestion under hypnosis. In any event Ms Barnett said that she did not start hypnosis until about her fifth session with Patient B so that it could not have affected what she was recorded as having said to Ms Barnett at the first session in July 2007, which is in itself strong evidence of recent complaint. Given that in my view notwithstanding the reasons for treating both Ms Barretts typed notes and her oral testimony with caution, the FTPP was entitled to reach the view that she was a reliable witness, the combination of her typed notes, her oral testimony, the witness statement of Dr Speirs, the letters passing between Dr Speirs and Dr King-Lewis and the latters file note in my view constitute strong supportive evidence of Patient Bs oral testimony and the account she gave in it. Ms Lambert submitted that in the peculiar circumstances of this case the significance of evidence of recent complaint was so significantly attenuated as to lack relevance. If because of erotic transference Patient B believed truthfully but erroneously at the time of the therapeutic relationship that Dr Lawrence was behaving inappropriately to her then the fact that she reported an outline of such conduct shortly after ending the relationship added nothing to the intrinsic reliability of her account. While I see the potential logical force of that submission, it is not in my view a complete answer to the support given to the reliability of Patient Bs evidence by the evidence of recent complaint. There were a number of clear factual disputes between Dr Lawrence and Patient B. The FTPP had to resolve those factual disputes. There were a number of possible explanations for the different accounts given by Dr

482.

483.

484.

485.

Lawrence and Patient B. A mistaken belief on the part of Patient B as to what Dr Lawrence said and did induced by erotic transference was one. It was not however the only one. The fact that shortly after the end of the therapeutic relationship Patient B gave accounts consistent with that which she later gave in the witness box was strong evidence that the account she gave at the hearing was not the product of subsequent fabrication or faulty recollection. It was one of the matters the FTPP were entitled to weigh in the balance when assessing the credibility and reliability of Patient B and indirectly of Dr Lawrence. The possibility of her account being the product of reciprocal erotic transference was another. It is in that context that I see the force of Ms Lamberts point, albeit in my view it was overstated. 486. In similar vein Ms Lambert submitted that because of the clear association between erotic transference and possible misperception the fact that Patient apparently gave balanced responses to questions, as found by the FTPP which said that she gave generally consistent clear considered and balanced answers, was not a matter on which it should not have placed any, or any significant weight. I do not accept that submission. The effect of the expert evidence was not, as I have found, that narrow erotic transference is likely in itself to lead to reciprocal erotic transference. If Ms Lamberts submission were right, the mere fact that Patient B experienced narrow erotic transference would lead automatically to the conclusion that it was likely that she was experiencing reciprocal erotic transference so that no matter what Patient B said in the witness box would have to be rejected by the FTPP as the product of reciprocal erotic transference. There is no support for such a conclusion in the evidence in my view. One of the questions the FTPP had in my view to ask itself was whether Patient B had or had not been experiencing reciprocal erotic transference at the time of her sessions with Dr Lawrence. I do not accept the proposition that in assessing that question the FTPP were not entitled to place weight on their finding that in the witness box she gave generally consistent clear considered and balanced answers. At its highest Ms Lamberts point was no more than one among many factors which the FTPP would have been entitled to take into account when weighing up the reliability of Patient Bs testimony. Certainly they were entitled to attach significant weight to that finding in considering whether there might be any other explanations as to why her account of events might have been wrong, whether because of faulty recollection or any aspects of her mental state, including narrow erotic transference, of which there was much evidence both expert and factual. A further submission Ms Lambert made flowing from Patient Bs 37 sessions with Ms Barnett was that there was a risk that the process of what Ms Lambert described as work shopping the events which occurred between Patient B and Dr Lawrence may have had an unconscious impact on Patient B and altered her recollection and/or perception of those events. While there may have been such a risk that was a matter for the FTPP to take into account in assessing her oral testimony. In doing so it would have been entitled to conclude that the risk had not materialised given the consistency between the account given by Patient B in her testimony and Patient Bs account to Dr Speirs, Dr King-Lewis and Ms Barnett in July 2007 immediately after the end of the therapeutic relationship with Dr Lawrence, as recorded in their several notes, but before any workshopping could have occurred. Further factors weighing on the GMCs side of the scales referred to by the FTPP in its Determination were the finding that Patient B was not motivated by anger or a

487.

488.

desire for vengeance and its acceptance of her evidence that she took time to reflect because she did not want to be motivated by such considerations. That was demonstrated by the circumstances of her raising the matter generally with the GMC and by her evidence that she did not wish to make a complaint.

Conclusion on the submission that the FTPPs findings on the disputed allegations of misconduct were plainly wrong 489. I have given very careful consideration to all the evidence on both sides of the scales and the submissions of Ms Lambert and Ms Callaghan as to the strengths and weaknesses of it. I am not satisfied following that review that the strength of the evidence relied on by Dr Lawrence is so great as to justify a conclusion by this court that for that reason the principal findings of fact by the FTPP and its conclusion that the disputed allegations of misconduct against Dr Lawrence were proved were plainly wrong. I do not consider that either individually or cumulatively the parts of the evidence relied on by Dr Lawrence satisfy the stringent test laid down in the authorities. Ms Lambert accepted that it would be very hard to dislodge the FTPPs findings of fact as to Dr Lawrences credibility. At the heart of this case was a conflict of testimony between Dr Lawrence and Patient B. The FTPP formed very clear views and made very clear findings of fact about their respective reliability and credibility. In doing so they relied on a number of factors to which I have referred. In each case they included the strong impression made on the FTPP by the manner in which the witness gave evidence. I have held that the FTPPs findings that the disputed allegations of misconduct against Dr Lawrence were proved are flawed and must be quashed because of the errors the FTPP made in relation to the two impugned statements and its failure to give adequate reasons. It may be that if it had not made those errors the FTPP would have reached different conclusions, made different findings of fact and found that the disputed allegations of misconduct against Dr Lawrence were not proved. However, it does not follow from that that the evidence relied on by Dr Lawrence was so strong that the FTPPs findings of fact and its findings that the disputed allegations of misconduct were proved were plainly wrong or an FTPP approaching the matter correctly could not have found the allegations proved.

490.

491.

Inadequate Reasons and Wrong Approach Challenge 492. I have set out earlier in this judgment extracts from some of the leading authorities on this topic. Applying the principles to be derived from those authorities I have held that the FTPP erred in failing to give reasons for what I have referred to as the impugned statements. I have also found that, taken together with the procedural errors which I have found the FTPP made in relation to the first impugned statement, this error compels the conclusion that the FTPPs findings that the disputed allegations of misconduct against Dr Lawrence were proved are flawed and should be for that reason be quashed.

493.

In my judgment however the FTPPs failure to give adequate reasons was not confined to the impugned statements. In my view this is an exceptional case. Although, as in Southall, at its heart lay a conflict of evidence between two witnesses of fact as to what one of them said and how he behaved, the resolution of that dispute required the FTPP, also as in Southall, to consider and reach conclusions about a number of issues which were themselves disputed and the subject of conflicting evidence and/or submissions. It is true that, unlike in Southall where the panel made no findings as to Dr Southalls credibility, the FTPP in this case made findings as to Dr Lawrences credibility and reliability and gave some reasons for why it found him to be an unsatisfactory witness. Similarly in relation to Patient B the FTPP made findings as to her reliability and credibility and referred to a number of matters which, it is reasonably to be inferred, informed those findings. There were however a number of issues and pieces of evidence which in my view went to the heart of the question as to whether Patient Bs testimony was reliable to which the FTPP made no reference and/or gave no indication as to whether it took them into account and if so what findings it made in respect of them and for what reasons and what weight it attached to them. Principal among these in my view were the 11 September 2006 email and Patient Bs explanations thereof and the evidence of Ms Sutcliffe and Ms Dowd. The importance of the 11 September 2006 email in my view speaks for itself. I have set out in some detail the respects in which Ms Lambert submitted that it was fundamentally inconsistent with Patient Bs oral testimony as to what Dr Lawrence did or did not say to her. In his closing submissions it was the second point relied on by Mr Booth in support of his submission that Patient Bs evidence was unreliable. On its face in my view there were passages in it which were strongly supportive of Dr Lawrences case and contrary to Patient Bs account of events. In its Determination on the facts the FTPP did not refer to the email or to Patient Bs explanations of its contents in her 12 September 2010 email or her oral testimony when recalled. Neither did it indicate what, if any findings it made on its contents and her explanation thereof or what inferences it drew from them. Nor did it give any indication as to what if any part any findings it made on the email and/or Patient Bs explanations thereof played in its findings as to her reliability and credibility. The closest the FTPP came was its findings that it considered that the evidence that Patient B gave, upon which she was closely cross-examined, was generally consistent and that it noted such differences or variation in Patient Bs account as submitted by Mr Booth but found them minor or of little significance when weighing the evidence of Patient B as a whole and in assessing her credibility. Neither finding makes it clear whether it was intended to encompass the FTPPs views on the email and/or Patient Bs explanations of its contents. If one or other was intended to encompass them in my judgment it is wholly unclear. The former appears to be a reference to internal consistency within her oral testimony. The latter appears to be a reference to differences or variation in Patient Bs account as given in oral testimony

494.

495.

496.

497. 498.

499.

500.

and as recorded by Dr Speirs, Dr King-Lewis and Ms Barnett in the evidence of recent complaint. Neither finding appears to be dealing with alleged inconsistencies between her oral testimony and the 11 September 2006 email. 501. I have set out both Ms Lamberts submissions on the inconsistency between the contents of the email and Patient Bs account of events in her oral testimony and in her evidence of recent complaint and also Patient Bs attempts to reconcile them. In my judgment Dr Lawrence is entitled to know whether the FTPP accepted Patient Bs explanations and/or interpreted the email in the way contended for by the GMC and if so why or whether the FTPP rejected Patient Bs explanations and/or accepted some or all of Mr Booths submissions as to the contents of the email, in which case how and why it concluded that such findings did not fatally undermine the reliability and credibility of Patient B as a witness. In the extracts from the judgment of Leveson LJ in Southall cited earlier in this judgment, the Court of Appeal held that there is a difference between what is required in a straightforward case and an exceptional one. In the former setting out the facts to be proved and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence had been rejected and why. In the latter, where the case is not straightforward and can properly be described as exceptional, the position is different. One of the factors identified by Leveson LJ which made Southall exceptional was the fact that it could not be said that the contemporaneous material was all one way. He did not suggest that a lengthy judgment was required but in the circumstances of the case a few sentences dealing with the salient issues was essential because that was an exceptional case. Even though it was said that the case was no more than a simple issue of fact, namely whether Dr Southall did or did not use the words set out in the charge, the Court of Appeal held that the true picture was far more complex and the analysis of contemporaneous material some years later was of real importance. The Court of Appeal also criticised the panel for totally ignoring evidence said to be entirely supportive of Dr Southalls case and for not dealing with how that evidence impacted on the words written by Mrs M or how Mrs Ms perception might have been reflected in what she said in the days that followed her conversation with Dr Southall. In relation to the social worker who supported Dr Southalls testimony the Court of Appeal held that it was not good enough for the panel to say that it did not find her evidence to be wholly convincing. If the panel were impugning the social workers honesty and integrity by agreeing with Dr Southall to cover up an overly oppressive interview it should have said so. The Court of Appeal also held that the panel were not entitled to have regard to the extent to which the social worker could be said to be independent of Dr Southall in the absence of evidence supporting such a conclusion. The Court of Appeal also held albeit obiter that without the panel identifying which arguments in a complex case it accepted however briefly that exercise is taken an assumption could not be made that all the submissions advanced by one side found favour with the panel simply because it concluded in favour of that party.

502.

503.

504.

505.

506.

Of course every case must be considered on its facts both with regard to whether it is exceptional and as regards what is required in order to satisfy the duty to give adequate reasons. In this case the email dated 11 September 2006 formed a central plank in Mr Booths challenge to the reliability and credibility of Patient B. On its face it contained passages apparently inconsistent with Patient Bs account of events. If Mr Booths submissions as to what inferences could be drawn from it were correct, it went a long way to undermining Patient Bs credibility and reliability and supporting that of Dr Lawrence. In those circumstances it is in my view no answer to the criticism that the FTPP made no reference to the email, any findings it made as to what Patient B meant by it, whether it accepted Mr Booths submissions on it or Patient Bs explanations of it, and if the former how it reconciled such findings with its findings on Patient Bs credibility and reliability, to say that the interpretation of the email was not one of the facts alleged against Dr Lawrence in the charges and therefore not an issue which the FTPP was required either to decide or if decided to give reasons for its decision. In my judgment no amount of scrutiny of the transcripts provides a clear answer to any of these questions. It the FTPP accepted Patient Bs explanations when recalled it may well be that it was entitled to take the view that the email did not undermine Patient Bs credibility or reliability. By contrast if it reached no conclusion on what Patient B meant by the email and wholly disregarded its contents when assessing the respective reliability and credibility of Patient B and Dr Lawrence, Dr Lawrence would have an arguable complaint that the FTPP failed to give proper consideration to an important bit of evidence in the case. As it is, neither Dr Lawrence nor I would add the Court knows which if either of the above explanations of how the FTPP approached the matter is correct. Ms Sutcliffe and Ms Dowd were important witnesses whose evidence supported Dr Lawrences case in material respects. The solitary paragraph in which the FTPP deals with their testimony leaves me unclear as to how the FTPP treated some of that evidence and/or what findings of fact it made and/or why it made them. Most important in my judgment was Ms Dowds testimony that Dr Lawrence reported in September 2006 to the supervision group that Patient B had begun to say that perhaps Dr Lawrence also had the same feelings towards her. If Dr Lawrence did say that to the supervision group it was as I have said evidence that he was reporting at the very time when he was alleged to have made inappropriate comments to Patient B that Patient B was showing signs of reciprocal emotional transference. The two obvious explanations would be either that it was a devious attempt by Dr Lawrence to create a false trail or record to cover his tracks or that it followed that his testimony at the hearing reflected what he felt and said at the time. Again the FTPP made no reference to this evidence at all. It is impossible for Dr Lawrence to know and I do not know whether the FTPP accepted Ms Dowds evidence that Dr Lawrence did make this report to the supervision group. If it did not accept it is impossible for him to know why it did not accept her evidence, on this incident which had not been challenged by the GMC. If it did accept her evidence Dr Lawrence does not know whether the FTPP took it into account in assessing respectively his and Patient Bs reliability. If it did not take it into account he does not know why it did not consider it relevant. If it did take it into account he does not know how or why it concluded that it did not undermine Patient Bs credibility and

507.

508.

509.

provide material support for his account. In particular Dr Lawrence does not know if the FTPP found that it was reconcilable with Patient Bs version of events and thus her reliability because he had been deliberately laying a false trail to cover his tracks. If Ms Dowds evidence is correct and he did make the report that would appear to be the most obvious explanation which is reconcilable with Patient Bs account of events. That would be a very serious finding of deceit and manipulation against Dr Lawrence and in my judgment he is entitled to know whether such a finding or conclusion was reached by the FTPP and underlay its assessment of the credibility of him and Patient B and its ultimate findings of fact. 510. Generally in relation to Ms Dowd and Ms Sutcliffe the reference by the FTPP to their close working relationship with Dr Lawrence is in my judgment unsatisfactorily opaque and delphic. Was it intended to suggest that their evidence was in some way impaired by a direct or conscious desire to assist Dr Lawrence? If so Dr Lawrence in my judgment is entitled to know that, not only because their evidence was of importance to his case but because no such suggestion was put to them in crossexamination for them to deal with and it was arguably not a finding which the FTPP was entitled to make. If that was what the FTPP meant, what impact did that adverse view have on the FTPPs view of the reliability of Ms Dowd and Ms Sutcliffe and on its assessment of their evidence and which parts of their evidence if any did it either reject or attach little weight to for that reason? It may of course be that the FTPP intended by the reference to the close working relationship to make the opposite point, namely that they were thereby well placed to have a good insight into Dr Lawrence. If that is what they meant Dr Lawrence in my view is entitled to know why nonetheless they rejected important parts of their evidence, if they did reject it, such as Ms Sutcliffes evidence as to delusion, Ms Dowds evidence as to the report to the supervision group that Patient B was saying that she felt that Dr Lawrence felt that same way towards her, the evidence of both of them that Dr Lawrence regularly reported on Patient Bs erotic transference, their impression that he was irritated with Patient B and Ms Dowds testimony that the supervision group had no cause for concern that Dr Lawrence would behave inappropriately with Patient B. In addition her specific recollection that Dr Lawrence reported Patient Bs Google discovery before Christmas 2006 supported Dr Lawrences recollection rather than that of Patient B. That is relevant in the context of the FTPPs contrast between the extrinsic support for the reliability of Patient Bs recollection with the lack of such support for Dr Lawrences recollection. When I first read the Determination on the facts my impression was that it was informative of the FTPPs approach and not lacking in examples of its reasons for making the findings of fact that it did. However that does not alter the fact that once one appreciates the complexity and subtlety of the main issues in controversy and the most important pieces of evidence in the case and their relevance to and bearing on the two disputed versions of events, in my judgment it is apparent that in the respects which I have identified there was insufficient reference to those issues and no or inadequate explanation of whether and how they were resolved by the FTPP and/or no or inadequate reasons as to why it resolved them in the way it did. There is no doubt that in order to resolve the central dispute between Patient B and Dr Lawrence the FTPP had to form an impression of their respective reliability and credibility. However just as in Southall so in this case in my view the fact that the central issue is

511.

512.

capable of being simply stated does not mean that its resolution did not necessarily depend or should not necessarily have depended on a series of conclusions and/or findings of fact on sub-issues. Dr Lawrence is entitled to know why he lost and also in my judgment whether the FTPP approached important evidence in the case properly. 513. That evidence and the nature and extent of the issues to which it related are set out in this judgment. I am of course very far from suggesting that the FTPP needed to go into anything like the level of detail which appears in this judgment. A few sentences on the key issues would have sufficed. As it is in my view the matters to which I have referred to in this section of my judgment and in the sections of the judgment dealing with the 11 September 2006 email and the evidence of Ms Dowd and Ms Sutcliffe support the conclusion which I have reached that the FTPPs Determination on the facts is flawed not just because of the errors it made in respect of the two impugned statements but also because of its lack of adequate reasons for its findings (if any) it made in relation to the email and the most important parts of Ms Dowds and Ms Sutcliffes evidence. That lack contributes to the inability of Dr Lawrence to know why he lost and whether the FTPP approached important evidence in the case properly. In my judgment these flaws contribute to the conclusion which I have reached that the FTPPs findings that the allegations of misconduct against Dr Lawrence were proved should be quashed.

514.

Additional challenges to Findings of Fact 515. Ms Lambert had a number of detailed submissions as to why some of the FTPPs findings as to Dr Lawrences conduct having been inappropriate and/or not in the best interests of Dr Lawrences patient and/or an abuse of his professional position and/or sexually motivated were wrong. Since I have held on the one hand that the FTPPs findings on the disputed allegations of misconduct should be quashed on grounds of unfairness and insufficient reasons and on the other hand that the challenge to the main findings of misconduct against Dr Lawrence as plainly wrong has not been made out, no useful purpose would be served by lengthening an already long judgment by dealing with those detailed submissions. If there were to be no further hearing in front of a fresh FTPP that would be the end of the matter. If there were to be a second hearing the new FTPP would not be bound by the primary findings of fact as to the disputed allegations of misconduct made by this FTPP so that any question as to whether this FTPPs characterisation of the misconduct which if found proved as being inappropriate and/or not in Patient Bs best interest and/or an abuse of Dr Lawrences professional position would not arise. I should mention briefly Dr Lawrences challenge to the FTPPs finding that the allegation in paragraph 2(b)(vi) was proved. In the Grounds of Appeal it was submitted that having found in relation to the allegation in paragraph 2(b)(v) that Dr Lawrence did not attempt to have an emotional relationship with Patient B it was not then open to the FTPP to find in relation to paragraph 2(b)(vi) that he encouraged her to believe that he wanted to pursue such a relationship with her. It was submitted that it seemed to follow that Dr Lawrence would have had to intend to so encourage Patient B, that there is a wafer thin difference between the two allegations in 2(b)(v)

516.

and 2(b)(vi) and that the FTPP erred by going on to find that he exploited Patient Bs attraction to him for his own gratification when this was never a matter alleged against Dr Lawrence. 517. Again nothing turns on whether that challenge was well founded. The FTPPs finding that the allegation in paragraph 2(b)(vi) was proved is one of the findings of misconduct which I have held must be quashed. Again if there were to be no further hearing that would be the end of the matter. If there were to be a second hearing in front of a second FTPP, it would not be bound by this finding of fact made by this FTPP any more than it would be by any of the other findings of disputed fact made by this FTPP. Out of deference to the arguments of counsel I would record that had it been necessary to do so I would have concluded that this criticism is not well founded. The allegation in paragraph 2(b)(v) was an allegation that Dr Lawrence by his words and conduct attempted to persuade Patient B to enter into an emotional relationship with him. That was rejected by the FTPP. It does not in my view follow from that rejection that Dr Lawrence could not have encouraged Patient B to believe that he wanted to pursue an emotional relationship with her even though he did not in fact want or intend to do so. In reaching its conclusion that he did the FTPP relied on its findings that he did so by amongst other things telling Patient B that she was attractive, behaving towards her in a flirtatious manner, telling her that when this was all over he would like to meet her and by divulging his fantasy that he would visit her anywhere in the world and have sex with her. The FTPP found that his pattern of encouragement led Patient B to believe that he wanted to pursue an emotional relationship with her. I see no logical inconsistency between a finding that Dr Lawrence did not actually intend to pursue an emotional relationship with Patient B and a finding that he encouraged her to believe that that is what he wanted. Nor do I consider that if the FTPP had been entitled to make the detailed findings of fact to which I have just referred it would not have been entitled to draw the inference therefrom that in doing so Dr Lawrence encouraged Patient B to believe in the possibility of having such a relationship. There were other more detailed criticism of aspects of the Determination and the FTPPs approach to the evidence. However in the light of my two overarching conclusions, nothing material turns on them.

518.

519.

Conclusion 520. For the reasons I have given in my view the FTPPs Determination of fact is flawed by reason of procedural unfairness, failure to give adequate reasons and, as a result, a possible failure properly to address all the evidence. As a result the Determination of fact is in my judgment unsafe as regards the FTPPs findings that those allegations of misconduct which were not admitted were proved. Accordingly those findings should be quashed. The question arises as to what consequential orders I should make. I have not concluded that the weight of the evidence relied on by Dr Lawrence was so strong that the FTPPs findings that the disputed allegations of misconduct against him were

521.

proved were plainly wrong. In those circumstances the obvious order to make would be to quash the findings that the disputed allegations of misconduct against Dr Lawrence were proved and direct the Registrar to remit the case to a freshly constituted FTPP, as happened in Southall. 522. I am of course conscious that a second hearing would be likely to involve both Dr Lawrence and the GMC in the expenditure of considerable further time and costs. It would also no doubt be a source of strain both for Patient B and for Dr Lawrence. That notwithstanding my strong provisional view is that there should be a second hearing. The same public interest that led the GMC to bring the first proceedings would in principle point to the desirability of a second hearing so that a definitive ruling can be made as to the disputed allegations against Dr Lawrence. I am mindful that the effect of quashing the FTPPs Determination on the disputed facts for the reasons I have given does not constitute a finding that the disputed allegations are incorrect. I do not of course know what Patient Bs attitude to a second hearing may be. It may be that the GMC would wish for time to consult Patient B and to consider its position. Or it may be that it would wish to argue that it would be preferable for me to remit the case to the Registrar on terms that would leave it to the GMC to determine whether it is appropriate to pursue Patient Bs complaint to a fresh FTPP. It may also be that Dr Lawrence may wish to persuade me that I should not remit the case to the registrar at all. The question also arises as to the status and effect of those findings of fact made by the FTPP which were admitted by Dr Lawrence. For those reasons and because the hearings before me to date have been confined to the challenge to the FTPPs Determination on the facts it seems to me right to give the parties an opportunity to make submissions as to the appropriate consequential orders.

523.

Postscript 524. I would not wish to conclude this judgment without acknowledging my debt to Ms Lambert and Ms Callaghan for the admirable quality of their oral and written submissions. Those submissions were the product of diligent and painstaking mastery of the detail of a very complicated case and also very persuasive. The former made my task much easier than it otherwise would have been. The latter made it more difficult.