The final scene

On the second day of the hearing not much new is presented, but it is a full day before the verdict is announced, the Panel having taken five hours to reach their decision. The routine requires us to sit through the summing up by the solicitors. Ms Kemp returns to the three categories (1. Facts; 2. Misconduct; and 3. Impairment) and reminds the Panel that there is a conflict of evidence on several counts, and that they will have to make a decision on what amounts to the facts. She does not remind them that it is up to her to present strong evidence and not up to Dr Cross to disprove her. Dr Cross, she notes, says he was neither drunk nor incapable of chairing the pre-meeting. He says he did not rub his crotch, and that he was making a joke when he offered to kiss and expose himself to Owen Hughes. The questions surrounding Simon Parritt are inconclusive in terms of “fact”, but it is, she notes, certain that Simon Parritt was not offended by Dr Cross and that he made no complaint. The only additional point she makes here is that no “truth statement” accompanies Mr Parritt’s statement, a position on her part that manages to insinuate that Parritt could be deceitful. She does note that the question of exposure was not something that Mr Hughes mentioned at all in his evidence but was mentioned by Molly Ross, who acknowledged that she was unable to be explicit about it. Given that it 124is the responsibility of the HPC to make the case against Dr Cross, the case sounds rather weak even if one accepts its underlying premise.

In respect of the particular of allegation 1(5), namely, that Dr Cross threatened to expose himself, the Council must accept that this was not something which was mentioned by Mr Hughes himself, and that the majority of the inappropriate behaviour in terms of sexual references or touching was aimed at Mr Hughes and it was not something that he mentioned. This was evidence that you heard from Ms Ross and she could not be specific about it. She simply referred to the fact that it seemed as if this was what he was suggesting. So I think the Council must accept that it was not something mentioned by Mr Hughes, and that it was something that Ms Ross only had a more limited view of given her position at the table and her own evidence that this is what she thought was happening.

Moving on then to the particular 1(6), this is that Dr Cross attempted to touch Owen Hughes and Mr Parritt inappropriately. In relation to Mr Hughes, Dr Cross accepts that he leaned over the table in an attempt to kiss Mr Hughes. He stated to you in his evidence that this was a mock situation and that he was being silly. Mr Hughes said when cross-examined that he had no doubt about the seriousness of this situation, in effect, that Dr Cross was being serious. And he said in his evidence “it was the way he put it”. Again, in cross-examination when Mr Hughes was asked, “could you have misinterpreted what was said”, Mr Hughes said, “it was not a bad joke”. His clear response was, no, he could not have mis-interpreted it. It was not a joke.

What Ms Kemp says next (which I have edited out) is, in essence, that two people say it wasn’t a joke, whereas Dr Cross says it was. She continues:

You also have to consider motivation in this type of situation. Why would Mr Hughes or Ms Ross come to the Council and state things that they did not believe had happened? They themselves putting themselves through the process of giving evidence in public, knowing that there are ramifications of doing so. I would invite you to consider that. I do not propose to say anything more in relation to the facts.

125Ms Kemp poses an important question and pretends the answer is obvious. She places it as if it were rhetorical—but is it? Why would Mr Hughes or Ms Ross come to the Council and give such flimsy evidence knowing that there are ramifications of doing so? Dr Hughes tried to explain his motivation, though in a muddled and contradictory way (to help a colleague he was apparently in league against). But the intention of Molly Ross seems a little like spite, though it would have to be quite strong to explain the trouble she seems willing to go to. It seems likely that there is in fact another actor who is hidden here, but whose motives should really be questioned. Perhaps this actor can be glimpsed by the reference to Ms Johnson—part of the directorate of the HPC itself—left behind the scenes but apparently manipulating things for their own unstated ends.

But I will briefly then move on to say something about misconduct. Misconduct is not defined as you know in any of the Health Professions Council’s orders or rules, or even Practice Notes. It is really a matter for your professional judgement notwithstanding that Dr Cross said that he considered his behaviour was below the professional standards that he would normally keep. It is still a matter for you to determine that. And in a sense you should do that relying on your own experience of what you consider to be proper conduct, bearing in mind what is expected of Registrants of the HPC and I have already referred you to the standard at paragraph 3 of the standards of conduct, performance and ethics.

There is a sense here that Ms Kemp, in spite of her experience at the HPC, is making it up as she goes along. Misconduct is not defined—this in itself is a problem that needs to be addressed and sensible limits set. She says that it is up to the Panel to define it. These three people, appointed by the HPC, only one of whom has gone through the procedures and experiences necessary to qualify as a practitioner, have been granted the power to decide what counts as proper conduct for a fellow human being. What logic underpins this?

In relation to impairment of fitness to practise, again, the notion of impairment is not defined, but in my submission you can consider it to be a negative, subsisting impact on the registration of a professional who is a member of the HPC.

126There are two elements to fitness to practise, there is the capability element and the suitability element, and the suitability element requires you to consider the wider public policy interests which were referred to the case of Cohen which are referred to in your practice notes, namely, the need to reaffirm clear standards of professional conduct, and to maintain public confidence in a practitioner. Those are the specific purposes or factors that you are considering in relation to impairment.

Again, if we refer back to the practice note, we will see that it contains no details whatsoever of the actual case that gave rise to it. The generalized principle that is drawn from it is therefore ungrounded and left to the whim or wit of the HPC lawyer. It is not a strong argument.

When considering impairment I would invite you to take into account three factors; firstly, the incident itself, it is accepted that it is a single incident that you are considering. Secondly, I would invite you to consider any insight that you consider has been displayed. And, thirdly, I would invite you to consider the Practice Note of the HPC which sets out some of the considerations which you should take into account when considering impairment. I do not propose to repeat those now, but I should add I was handed the case of Yeong v General Medical Council by the learned Legal Assessor. I understand Mr Tyme was also handed a copy. It is worth mentioning Paragraph 48 of this judgment. This Dr Yeong had been found to have crossed the patient doctor boundary by entering into a sexual relationship with a patient. At paragraph 48 of that judgment, I am not going to read all of it, but I read the second half of it. It says:

“Where a [Fitness to Practise Panel] considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence.”

127The text that is being referred to here says: “In July 2002, whilst Dr Yeong was working as a consultant at the Kedang Kerbaul Hospital, a lady (referred to as ‘GN’) made an appointment to see him in respect of medical complaints. She saw him for consultations again in February and in March 2003. Shortly thereafter, Dr Yeong met GN for lunch. On Dr Yeong’s account, set out in a written plea of mitigation to the Singapore Medical Council (SMC) which was also before the FTPP, during this lunch meeting GN propositioned Dr Yeong and suggested they should go to a hotel room together. Soon afterwards they began a sexual relationship. In the course of that relationship, GN insisted that Dr Yeong pay substantial sums of money into her bank account. Dr Yeong paid her 4,000 Singaporean Dollars (approximately £2,000) per month over the course of the relationship, which was continued over about two years, resulting in a total payment to her of approximately £44,000. He also provided her with gifts. GN threatened to expose their relationship to his wife if he did not …” Yeong v General Medical Council, Court of Appeal—Administrative Court, 28 July 2009, [2009] EWHC 1923 (Admin).