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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Levinge v Health Professions Council [2012] EWHC 135 (Admin) (07 February 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/135.html Cite as: [2012] EWHC 135 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
DR ALISON LEVINGE |
Appellant |
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- and - |
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HEALTH PROFESSIONS COUNCIL |
Respondent |
____________________
Jenni Richards QC (instructed by Bircham Dyson Bell, Lynsey McIntyre) for the Respondent
Hearing dates: 19 & 20 December 2011
____________________
Crown Copyright ©
Mr Justice Wyn Williams:
Introduction
"The registrar is directed to annotate the HPC register to show that for a period of three years from the date that this order takes effect (the Operative Date), you, Dr Alison Levinge, must comply with the following conditions of practice:
1. Undergo clinical supervision by an HPC register Arts Therapist (within the music Mode) who is to submit a report confirming:-
a) Your practice conforms to HPC Standards of Proficiency for Arts, Therapists and Standards of Conduct, Performance and Ethics. This report to be submitted to the HPC every nine months from the Operative Date.
2. You, Dr Levinge, must notify the HPC within 42 days of the Operative Date of this order, the name and other details of the Clinical Supervisor who will be furnished with a copy of this order.
3. You must cease acting as a Clinical Supervisor to any therapist or trainee.
4. You must confine your practice to
a) The assessment and treatment of patients
b) Academic research
c) Academic publishing
d) Guest lecturing."
The legal framework
"(3) If, having considered an allegation, the …..Committee….. concludes that is well-founded, it shall proceed in accordance with the remaining provisions of this Article.
(4) The Committee –
a) refer the matter to screeners for mediation or itself undertake mediation, or
b) decide that it is not appropriate to take any further action.
(5) Where a case does not fall within paragraph 4, the Committee shall –
a) make an order directing the registrar to strike the person concerned off the register (a "striking-off order");
b) make an order directing the registrar to suspend the registration of the person concerned for a specified period which shall not exceed one year (a "suspension order");
c) make an order imposing conditions with which the person concerned must comply for a specified period which shall not exceed three years (a "conditions of practice order"); or
d) caution the person concerned and make an order directing the registrar to annotate the register accordingly for a specified period which shall not be less than one year and not more than five years (a "caution order")."
"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 would be obvious whose evidence has been rejected and why…..
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 8 years later is of real importance: that the evidence which touched upon this conversation took over 5 days is testament to that complexity. Furthermore it cannot be said that the contemporaneous material was all one way. Dr Caulfield's note (and, indeed, the evidence) supported the case that it was (or at least could have been) Mrs M's perception alone. Ms..... note (accepted by Mrs M as one hundred percent 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 were 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."
Clearly, there will be cases, those which are properly described as exceptional on account of their complexity, in which the disciplinary committee is obliged to provide adequate reasoning to justify its essential findings and its decision.
"62….in my view, at stage 2 when fitness to practise is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider in the light of all the other relevant factors known to them, whether by reason of the doctor's misconduct, his or her fitness to practise had been impaired……
63. I must stress that the fact that the stage 2 is separate from stage 1 [the stage at which a determination is made as to whether misconduct has occurred] shows that it was not intended that every case of misconduct found at stage 1 must automatically mean that the practitioner's fitness to practise is impaired.
64. There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired. Indeed the Rules have been drafted on the basis that once the Panel has found misconduct, it has to consider as a separate and discrete exercise whether the practitioner's fitness to practise has been impaired….."
"14. As I have said the question we must address is: what is the proper reach of the High Court's discretion on an appeal under section 40 of the Medical Act 1983 to vary a sentence imposed on a doctor…
15….
16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1 April 2003…As it seems to me there are in particular two strands in the relevant learning before 1 April 2003. One differentiates the function of the panel or committee in imposing sanctions from that of a court retributive punishment. The other emphasises the special expertise of the panel or committee to make the required judgment.
17. The first of the strands may be gleaned from the Privy Council decision in Gupta v General Medical Council [2002] 1 WLR 1691, para 21, in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:
"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less affect on the exercise of this kind of jurisdiction. And he observed that it could never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p. 519: 'The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.' Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.
18. The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This, as it seems to me, engages the second strand to which I have referred. In Marinovich v General Medical Council [2002] UKPC 36 Lord Hope of Craighead, giving the judgment of the Board, said:
"28….in the Appellant's case the effect of the committee's order is that his erasure for life. But it has been said many times that the Professional Conduct Committee is the best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.
29. That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their Lordships are satisfied that there are no such grounds. This was a case of such a grave nature that a finding that the Appellant was unfit to practise was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the Appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case, while undoubtedly severe, was wrong or unjustified."
19…..As it seems to me the fact that a principle purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel…..
20. These strands and the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
The case against the Appellant as presented to the Committee
The Committee's findings
The grounds of appeal
Allegation 1 (Grounds of Appeal 1 to 8)
"In respect of particular 1 each sub-particular has three distinct elements comprising: Stage 1 an alleged act or omission by Dr Levinge, Stage 2 utilising psychodynamic therapeutic techniques in relation to Stage 1, and Stage 3 that what she did was inappropriate in a higher education setting (outside a controlled therapeutic setting)."
Mr Butler accepts that this approach to determining whether or not allegation 1 (or any part of it) was proved was correct.
"The panel accepts the definition provided by Mr Butler that: "psychodynamic therapy is a general name for therapeutic approaches which try to get the patient to bring to the surface their true feelings so that they can experience them and understand them".
The panel has accepted a commonsense definition of the word 'techniques' namely; "the means used to achieve ones purpose".
Neither in his skeleton argument nor in his oral submissions did Mr Butler suggest that the meaning which the Committee attributed the phrase "psychodynamic therapeutic techniques" was erroneous.
"Dr Levinge's witnesses provided a more limited view of the issues in particular, Ms Sloboda had never visited the college, Ms Flowers had involvement with the Course but not its day-to-day running and therefore viewed the final product but not the process by which this was achieved. Mr Pullin had not first-hand knowledge of the issues or the individuals concerned although he did assist the panel with evidence of Dr Levinge's response to those issues. Mr Wiltsher was sincere and willing to help the panel but from the perspective of someone in his first academic post and his only other academic experience was as a student."
Allegation 2 (Ground of Appeal 9)
"Dr Levinge undermined external personal therapists engaged in personal therapy of students JM and JG by advising students to transfer to other therapists (particular 2(a)) and Dr Levinge undermined external personal therapists engaged in personal therapy of students JM and JG by contradicting the therapeutic conclusions agreed by those therapists with their clients; specifically by indicating to the students that their levels of anxiety were higher than those identified by their therapists (particular 2(b)). Dr Levinge stated that she did not know the therapist in question and she was merely checking (as the course required she should) that this practitioner was sufficiently psychodynamic therapeutic aware to be able to support the student properly. Dr Levinge suggested a change of therapist and an increase in the frequency of sessions and raised questions with JG as to whether the therapist was addressing all the issues which needed to be addressed. This undermined the therapist as shown by the written evidence of HB. There is also evidence from JM that Dr Levinge questioned whether her therapist was sufficiently psychodynamic therapeutic orientated and from JG that Dr Levinge disagreed with her therapist."
Allegation 3 (Ground of Appeal 10)
"MD [Ms Drowley] gave evidence that it was difficult to get Dr Levinge to focus on criticisms raised by students and she was "preoccupied with interpreting the significance of the act of complaining rather than addressing the substance of the complaint". The Panel finds that Dr Levinge pathologised the act of complaining, as stated by MD. The Panel accepts the evidence of JW that students stated to him that any complaints were put down to the student "projecting" and concerns or criticisms were turned back onto the student because the student was "projecting something back". Also anyone who agreed with Dr Levinge was wrong and made to feel they had a problem. JM was informed that "her projections were massive" and she was projecting anger onto the Course."
Allegation 4 (Ground of Appeal 11)
"Dr Levinge openly discussed personal information about student JG's difficulty in working effectively with men in a clinical supervision group. JG gave evidence that her personal information was discussed by Dr Levinge. This allegation is proved because the Panel accepts JG's evidence that she was humiliated, felt powerless and was mocked by Dr Levinge. JG gave evidence that having survived abuse, she felt "very vulnerable" and she felt "constantly pushed back into" being a victim and felt "very diminished"."
Allegation 5 (Ground of Appeal 12)
"[The Appellant] presented subjective judgments and partial information about students' personal history as objective assessments of those students."
"The Panel finds that there was stereotyping by Dr Levinge in stating in effect that: (according to AMcG) no mothers have ever passed the course (according to JG), nurses are too medically focused, (according to ME) highly qualified academic students focus on thinking rather than feeling, of some students; she also presented subjective judgments and partial information about students' personal history as objective assessments of those students. This particular is proved."
"When you turn to particular 5 you will need to review the totality of the evidence that has been placed before you to find examples where Dr Levinge has presented subjective judgments and partial information about students' personal histories, objective assessments of those students. Some of the clearest examples, the Council says, are found within the evidence in respect of [JG] where it was, Dr Levinge says, her medical perspective that prevented her from being able to approach her work as a therapist and [JG] again and her experience of sexual abuse influencing her conduct with all of her clients and her ability to relate to men. [ME] and her academic perspective hindering her ability to fall in touch with her feelings and emotions. [JM] and her medical history of anxiety, therefore assuming that she continued to be a highly anxious student on the course. The perception of Ms [AMcG] that she was a mother and the comment that was made at the outset of the studies to [AMcG] that "no mother has ever passed this course". There is clear evidence in respect of these particular students when you work through their witness statements, through the evidence that they have given to you in the course of this hearing, that they were perceived in terms of their personal histories.
Dr Levinge presented those views of their personal histories as the truth and refused to consider any alternative way of thinking about them. Again, this conduct, the students say, left them feeling powerless and as though their efforts and achievements would not be recognised because once Dr Levinge formed a view then there was no way to change it."
Allegation 6 (Ground of Appeal 13)
"Dr Levinge ignored the practice-based observational evidence of other tutors/placement supervisors, regarding the performance of particular students on their clinical placements. The Panel finds this particular proved because the evidence of the former students and Dr Levinge herself shows that the placements supervisors' views were no acknowledged by Dr Levinge. The Panel accepts the evidence of AMcG that the video evidence from placements was only lightly considered by Dr Levinge and the supervisors' feedback reports were not discussed with the students."
"Q….you said several times, and I agree, that the training institution has a duty of care to the clients' patients. This is in fact the secondary duty of care, is it not, the primary duty exists with the professional actually who has responsibility for that client and yet you seem to limit the placement supervisor's role to a very managerial one, timekeeping, attendance and so on. In what sense are they supervisors and in what sense are they party to the clinical…..
A. Yes, there is quite a lot of different placements which students go on and of course they do experience different ways of being managed and different contexts. It's very clearly set out that the manager is responsible, they are responsible to that manager whilst on site and the manager is clinically responsible in the sense that whatever happens with a patient, the concerns with the patient must be brought by the student to them initially, if there are any, but in terms of actually clinically supervising, we felt it was important the students had the supervision on site from music therapists as that was what they were going to be developing as and therefore the perceptions and the understanding of the work would be from a music therapy perspective.
Q. Would you agree with me that part of the training situation is to prepare trainees for the field itself and how institutions work and how perhaps in the university situation they may get a more rarefied idea of practice than they do if they're really getting their feet wet on placement which all of that implies? It seems to me that there is a real danger of a defensive split and even the placement supervisor becoming quite idealised in this process if they do not have that experience of really perceiving their work as part of the work of the institution.
A. Sure and I understand that and I think there were occasions when that split occurred, and one of the ways in which we tried to address that was to try and have regular meetings with the staff that were the personal managers of each student. I mean the students did have to be very much as part of the institution as they could be, so we very much encouraged them to go to any meetings that were possible to do with their clients or even not to do with their clients and to become part of the institution to understand how it worked. We did ask the managers to write quite a detailed report on each student about how they were within the setting, so we did include that.
Q. But without having sight of the video material?
A. Yes, yes. My experience when I was a student was that there was equally the potential for conflict or differences of opinion or splits in the work when we had hands-on supervision from our placement supervisors and that you could actually get into a situation where students would say, "Well, hang on, my placement manager said this", so even with the other way round that could occur. I think in some ways our idea partly was to have a very consistent approach to the thinking of the work and I think in some ways, particularly some of the students who found that difficult would sort of use what the managers said if it was very positive and so on to try and sort of address the fact that, "Well, you didn't understand my work" and I think that was something about the splitting that we had to suggest, "Well, hang on, let's think about that". I think it could have happened either way and that was certainly my experience.
Q. Was there a situation or meeting where the placements supervisors could meet each other?
A. Yes that would be on site in the college. We would always invite them to college to talk about the different placements, to talk about the student to have a feedback session for themselves."
Following this exchange another member of the Committee, Ms Summers, the lay person, took up the same line of questioning.
"Q. Can I ask one question picking up on that sort of area my colleague has been asking about? The placement supervisors were providing a report on the managerial aspects really?
A. And professional issues.
Q. Indeed, yes, so can I clarify how the students' work on placement was actually assessed, who was doing the assessment and how?
A. That's why it was brought back to the clinical supervision.
Q. The assessment was done in the supervision?
A. Well not in the supervision, but their work was assessed in terms of ….I mean there would be reports written about how they were working with their clients and then also the vivas were in part to do with that so that in the halfway viva and in the last final viva they would do a presentation of their work and that was assessed then as well and that would be by a music therapist.
Q. What you saw of their work on placement in the supervision sections, several of the students have made reference to the fact that you saw only a short part of the video, just a few minutes, did you at any point view the entirety of the video?
A. No, not necessarily, and actually that isn't always necessary. I think in therapeutic work a lot of very important information sort of significance happens within the first few minutes of sessions, but equally they were allowed to bring particular moments if they had issues or concerns or worries that had occurred within the session."
"Particular 6 concerns the observational evidence of other tutors, placement supervisors. There is a common theme, you may think, when you look through the totality of the student complaints that the view Dr Levinge took of particular students was totally at odds from the feedback that the students were receiving from either their placement supervisors or their tutors. [JM] makes reference to this. [AMcG] makes reference to this. In the written document ME, or MB makes reference to this.
Dr Levinge is, of course, entitled to take a different view from the tutors and placement supervisors regarding the way in which the students were presenting. However a common theme in these student complaints is the reasons why there was such disparity in the feedback was never discussed, explored or examined and the students, by the nature of their very complaints and the words that they used, had clearly not understood what the relevance of their tutors' and supervisors' feedback was if it was as irrelevant as Dr Levinge would have you believe. The impact of this was to leave the students again feeling at a loss as to what they were expected to do to improve their performance on the course. Importantly, in respect of this allegation may I just remind you that you are not required to determine whether Dr Levinge had any power to influence the external examiners. Some of the students had made reference to that in their original letters of complaint but this does not form part of the factual particulars that you need to find proved to find this particular proved."
Allegation 7 (Ground of Appeal 14)
"You will need to look at the totality again of each student's evidence to ask yourselves whether there is sufficient evidence in this regard to find the particulars proven to be more likely than not that she has singled out particular students for negative assessment. Not because they deserve it and not because she was giving constructive feedback, but because in her personal opinion of the student once she had formed an opinion of them she did not budge from it. [JM] was quite clear when she gave evidence. She said there was a particular type of student that Dr Levinge did not like: someone who challenged her, who was confident. You may think having heard from two of those students who did feel singled out by her, JG and JM, that they indeed fit that personality type. JG and ME say that Dr Levinge struggled with students that she perceived adhered to a medical or academic perspective rather than immersing themselves within the therapeutic framework. They too say that she did not budge from the view she formed of them and when they sought to raise it with her she was not willing to discuss it.
The weight of the evidence, the Counsel says, supports that not only those students named in the particular but a number of other students on this course experienced the feeling of being singled out and never been able to say or do anything right in the eyes of Dr Levinge once she had formed a view.
In response, and in some ways this is the very nub of the case, Dr Levinge asks you to accept that this was a demanding course and that some students simply struggled to cope with it. She says that any criticism that she had of students was always done with a view to helping that student become ready to practice. Dr Levinge says it is also no surprise that the students who have complained are those who have failed the course and say that they are seeking to lay blame on her rather than take responsibility for their own shortcomings.
Against that, and having considered the evidence, the Counsel says that does not hold weight. Student concerns are validly held and the Counsel says she did single out particular students without proper grounds for doing so. There has been some suggestion made to a number of student witnesses that it was simply their perception and therefore cannot be relied on to prove the allegations. Well, of course it cannot be because of the very nature of her conduct is bullying and that does not lend itself to hard evidence.
You can accept the evidence, the testimony of these witnesses if you find them to be credible and reliable witnesses telling you an account of what they experienced and what they saw happen to other students on that course. In so doing you will be assured, no doubt, by the calibre of the students making the complaint. These are educated individuals, they are mature students and they have high degree of musicianship to be eligible for entry on this course. They are moderate in their criticism. They are fair to Dr Levinge where it is appropriate to be so. I think it is JG who goes so far as to talk about Dr Levinge being a highly respected individual within the clinical context. They are not all failures. [JM], [ME], [JG] and [AMcG] all went on to become successful music therapists. Interestingly in [JM's] case she says to you that she passed the course having presented the same material she did a year earlier and failed. She says that the difference that she could point to in her success was her confidence to present that material now and the registrant had left the course."
The Committee found as follows:-
"Dr Levinge singled out students for negative assessment based solely upon her personal opinion. The Panel finds this particular is proved by the evidence of JS who states that SW was picked on. JW stated that JM and DW were similarly treated by Dr Levinge. JM said in evidence that there was an "inequality in the way that students were treated" by her. JW in his investigation of JM's complaint noted difficulty in obtaining developmental feedback "in direct contrast to other students who had approached Dr Levinge and were readily provided with feedback". ME gave evidence that students were treated differently. JS gave evidence about certain other students being singled out in a way that became uncomfortable to watch. JG stated that "I often felt so nervous about the likelihood that I could be "attacked" by Dr Levinge in these group sessions that I was twice physically sick before the sessions commenced and often shook on the occasions when I had to present my work" and further stated "Dr Levinge bullied students until they essentially broke down and became resigned to her way of thinking. In our group sessions Dr Levinge would systematically work through the students she had issues with and would pick on them until they broke down."
Fitness to Practice (Ground of Appeal 15)
Sanction (Ground of Appeal 16)
Conclusion