Ms S C Goodrich - CHAIRMAN
Dr H M Freeman - PROFESSIONAL MEMBER
Mr A J Lloyd - MEMBER
BETWEEN:
DR
ANTHONY DAVID CHYC
Appellant
and
COLCHESTER PRIMARY CARE TRUST
Respondent
DECISION
1. By notice of appeal dated 4th August 2003 [1/246] Dr Anthony David Chyc (General Medical Council registration number 2818001) appeals against the decision of the Respondent PCT (“the PCT panel”) dated 21st July 2003 [1/252-253].
(1) If it appears to a Health Authority that any of the conditions set out in subsections (2) to (4) is established in relation to a person included in any of the following prepared by them -
(a) A list of Medical Practitioners undertaking to provide general medical services,….
They may…. decide to remove him from that List
(2) The first condition is that the continued inclusion of the person concerned in the list would be prejudicial to the efficiency of the services which those included in the list undertake to provide (and such a case is referred to in this group of sections as an “efficiency case”)….
(4) The third condition is that the person concerned is unsuitable to be included in the list (and such a case is referred to in this group of sections as an “unsuitability case”).
.
In relation to contingent removal section 49G provides:
(1) In an efficiency case or a fraud case, the Health Authority may, instead of deciding to remove a practitioner from their list, decide to remove him contingently
(2) If they so decide, they must impose such conditions as they may decide on his inclusion in the list with a view to-
(a) removing any prejudice to the efficiency of the services in question (in an efficiency case)…
In relation to appeals Section 49M provides:
(1) A practitioner may appeal to the FHSAA against a decision of
a Health Authority mentioned in subsection (2) by giving notice in writing to the FHSAA within a period of 28 days beginning with the date on which the Health Authority gave him notice of the decision.
(2) The Health Authority decisions in question are-
(a) to remove the practitioner from a list (under section 49F…)
(3) The appeal shall be by way of redetermination of the Health Authority’s decision.
(4) In an appeal, the FHSAA may make any decision which the Health Authority could have made.
4. Throughout these proceedings the Appellant has been represented by Mr Neil Garnham QC and the Respondent by Mr Martin Forde. We would like to thank both counsel for their considerable assistance and cooperation throughout.
We held pre hearing reviews in this appeal on 6th
November 2003 and 2nd December 2003. In
short it was plain that given the nature of the issues involved both in
relation to unsuitability and inefficiency, it was necessary that our
“redetermination” should amount to a de novo hearing.
5. Although the panel canvassed the possibility of two separate appeal hearings in relation to the unsuitability and inefficiency issues it became apparent that this was not desirable from the Appellant’s point of view. We have considered each aspect of the case separately.
UNSUITABILITY
The Interlocutory Applications
9. During a two day hearing on the 19th and 20th January 2004, the panel heard and determined interlocutory applications made by the Appellant in relations to three discrete issues:
i. Whether the panel should hear evidence in respect of the allegations made by Miss L. and Miss P. (abuse of process)
ii. Whether the panel should permit the PCT to adduce evidence from Mr. Howard Garner who had provided counselling to Dr. Chyc (breach of confidentiality)
iii. Whether the panel had power into receive evidence at the request of the PCT, which had not been in evidence before the PCT panel (the additional material).
10. The third application related to additional evidence that went to both unsuitability and inefficiency. In the event it was unnecessary for the panel to decide this particular issue for the parties reached a compromise. They agreed that the PCT should prepare a schedule of particulars of inefficiency drawn from the additional material to which the Appellant would respond in schedule form. The panel consented to this approach not least because it seemed to us that the vast bulk of the additional material consisted of further detail that was unlikely to be determinative in the resolution of the central issue between the parties. Dr. Chyc had always accepted that he had been inefficient. The central issues that called for our determination were:
a) the causes of the inefficiency
b) the extent of the inefficiency
c) whether the inefficiency (admitted or proven) was such that it warranted removal of the Appellant from the medical list bearing in mind all relevant factors including the need to safeguard the interests of patients.
Further the PCT agreed to limit the evidence to those witnesses whose evidence had been before the PCT panel.
In relation to the other interlocutory applications we gave our decision on the 20th January with brief reasons upon which we now expand
Abuse of Process.
11. The allegations made by Ms. L and Ms. P related to events alleged to have occurred nearly fourteen years previously. Mr. Garnham contended that the pursuit of such serious allegations after such a lapse of time amounted to an abuse of process. In essence he relied upon two aspects:
i. The evidential difficulties that the PCT faced in seeking to establish the allegations were proven to the criminal standard.
ii. The evidential difficulties the Appellant faced by reason of the delay. In short he contended that had the allegations been made reasonably promptly it may well have been possible for Dr. Chyc to have refuted them by reference to numerous sources of evidence, including:
· His own memory.
· The memory of others who may have been with him at the time when the alleged incidents were said to have taken place.
· Documentary evidence of what Dr. Chyc was doing or where he was at a particular time including, for example, his diary or the diaries of his wife and others.
Mr. Garnham forcefully contended that the evidential difficulties faced by Dr. Chyc could not be addressed by the panel directing itself as to the standard of proof and the caution that must be exercised in considering such old allegations. In short, he submitted that there was simply no possible means by which the panel could make proper allowance for the exculpatory evidence that Dr. Chyc might have been able to give/adduce had these matters being dealt with within a reasonable period of time.
He gave a number of examples to illustrate his point. In relation to the allegations of Mrs P he posited that Dr. Chyc could have been somewhere completely different on 30th April 1990. After a lapse of nearly fourteen years it was now impossible to say where he was on that date “much less prove it”. He further contended that it was difficult to conceive of more serious prejudice to a person facing such allegations than to deprive him of the opportunity of presenting what may well have been a complete answer to the charges against him.
12. In our view Mr. Garnham’s submissions incorporated an unwarranted assumption, namely, that Dr. Chyc was required to prove where he was on 30th April 1990. We considered that it was for the PCT, as an essential starting point, to establish that Dr. Chyc saw and treated Mrs. P at her home on that day. Apart from any evidence that Mrs. P was likely to give there was a clear entry in her medical records in Dr. Chyc’s handwriting to the effect that he had treated her for a chest infection on 30th April albeit that his note did not specifically indicate where the consultation had taken place.
13. Mr. Garnham further developed his argument in respect of Ms. P. Her account was that Dr. Chyc assaulted her by squeezing her breast whilst her husband was just outside the house. She also alleged that Dr. Chyc asked her if he could kiss her. He contended that if the trial had taken place a year or so after the allegation Dr. Chyc may have been able to recall if Mr. P had come into the house and whether Dr. Chyc had spoken to him. He submitted that the Appellant might have wanted to call Mr. P. As it was he was now limited to a bare denial without the ability to call collateral witnesses or effectively cross-examine on peripheral issues.
14. In oral argument Mr. Garnham relied on a number of points as illustrative of the prejudice caused to Dr. Chyc in the case of Ms L. In this context it is necessary to set out the essence of Ms L’s allegations set out in her witness statement [1/49-54]. Ms. L alleged that on 15th April 1990 Dr. Chyc attended her at her home and treated her by injection of 30mls intravenous Diazepam. A friend of Ms. L let Dr. Chyc in and then left. When Ms. L woke up she realised that Dr. Chyc had raped her. She telephoned him and stated she knew what he had done. Dr. Chyc then returned to her home. In the conversation that ensued he initially denied rape and said that she had invited him into her bed. When Miss. L disputed this he admitted the rape. He told her that he had problems with women. His father had been a womaniser, and had committed suicide. He said that he was worried that he was like his father. He told her that he was a millionaire. Miss. L’s evidence was that she felt sorry for him. She encouraged him to seek help from Howard Garner, a counsellor in a Christian organisation called “Reach”. A social relationship subsequently developed in the course of which Miss. L saw Dr. Chyc on a number of occasions, some of which were at his home. She alleged that on one such occasion she had slept with Dr. Chyc in his marital bed and that he had touched her sexually her on that occasion.
15. Dr. Chyc vehemently denied that he had raped Ms L. He was unable to remember the visit. Against that background Mr. Garnham contended that, but for the delay:
a) the Appellant may well have been able to obtain witness statements from Miss. L’s friend to describe the state that she was in
b) if prosecuted timeously there would have been forensic evidence
c) there may have been telephone records to confirm or refute the alleged call to the surgery following the alleged rape
d) the defence could have reconstructed events on that day and called other patients that Dr. Chyc had seen so as to refute Miss. L’s allegations.
16. Mr. Garnham submitted that all these matters went to illustrate that Dr. Chyc had been deprived of the opportunity to prove his positive case. Furthermore he argued that when he cross-examined Miss. L on peripheral matters it was likely that she would justifiably answer that she could not remember, so preventing the Appellant from establishing that her evidence was inaccurate or dishonest. As an example he relied upon the fact that Miss. L alleged that Dr. Chyc had seen her socially after the alleged rape but could not now say for how long she alleged the relationship lasted. If the allegations had been made closer in time, it might have been possible to rebut her account by other evidence. A further example relied upon, was that Miss. L alleged that she had visited Dr. Chyc at his home on at least one occasion. Had Dr. Chyc known the date it was alleged to have occurred her evidence might have been proved to be untrue by other evidence.
17. In Mr. Garnham’s submission there was no possible means by which a panel properly directing itself as to the issue of prejudice could discount the possibility of the Appellant having been deprived of having the opportunity of showing that a significant part of Miss. L’s account was wrong. In short after so many years Dr. Chyc’s evidence would consist of a bare denial. It was not, submitted Mr. Garnham, a case that turned on documentation but was a simple conflict between Miss L’s recollection and that of Dr. Chyc. Given the passage of time and Dr. Chyc’s inability to remember what had occurred on 15th April 1990 he effectively had no means of undermining her account.
18. In oral argument Mr. Garnham gave a further specific example of the difficulties he might encounter in cross-examination. Dr. Chyc asserted in his witness statement that if Miss. L had been in his bedroom there was a particular detail that he would have expected any woman to notice. [1/202]. Mr. Garnham contended that the likelihood was that Miss. L when asked about the unusual detail would be able to say with conviction that she could not remember this feature after so many years. In contrast, if she had been cross-examined to this effect one or two years after the alleged event and had been unable to remember the unusual detail, this, in itself, would have tended to demonstrate that she had not been present in Dr. Chyc’s bedroom at all.
19. Mr. Forde submitted that most of the points raised by the Appellant were in fact far more prejudicial to the PCT who had to prove the allegations to the criminal standard. He argued that none of the matters raised amounted to exceptional circumstances but could apply in any situation where the issues involved the word of one person against that of another. He contended that Dr. Chyc was able to rely upon his medical records and his usual practice and, further, that the sort of detail that Mr. Garnham was relying on would probably have been lost within a short space of time in any event.
20. As we understood it, Mr.Garnham’s overarching submission that even a panel properly directing itself could not make proper allowance for the possibility of the accused being deprived of the opportunity of presenting exculpatory evidence and /or showing that a significant part of the complainants’ accounts was inaccurate. It seemed to us that if one took this submission to its logical conclusion, few, if any, trials would be allowed to proceed where any period of delay was involved.
.
21. We were referred to a number of authorities including R v B 2003 EWCA Crim 319 from which we discerned the following:
i. It is for the Appellant to satisfy us on the balance of probabilities that a fair trial of the allegations made by Ms. P and/or Ms. L is not possible.
ii. We should be assiduous in ensuring that there really was evidence of serious prejudice to the extent that a fair trial could not be held.
iii. A stay should only be imposed in exceptional circumstances. We should bear in mind our power to regulate the admissibility of evidence, to remind ourselves of all relevant factual issues arising from delay and to appropriately direct ourselves as to the effect of delay.
iv. We should bear in mind that had the allegations of Ms. L and Ms. P been made prior to the enactment of section 33 of the Criminal Justice and Public Order Act 1994, and had the Appellant been tried in criminal proceedings, he would have had the benefit of a corroboration warning.
v. There are more difficulties in ascertaining where the truth lies when allegations are stale.
vi. There are some cases where the passage of time is such that the person accused is deprived of any material upon which to cross-examine the complainant.
22. We concluded that in the particular circumstances of the allegations made by Ms. L and Ms. P the Appellant had not satisfied us on the balance of probabilities that he had been caused serious prejudice to the extent that a fair trial of the issues was not possible. In particular we noted that there was documentary evidence that the Appellant had seen and treated Ms. L and Ms. P on the dates that each alleged she had been assaulted. Although the Appellant’s case was that he had no recollection of either consultation he was likely to be able to refer to his own record of each consultation and to rely upon his usual practice. We did not consider that the case involved exceptional circumstances. It did not appear to us likely that there would be an absence of material upon which to cross-examine either complainant. Further, we would be able to assess and bear in mind:
- The evidential difficulties the Appellant might face in answering such old allegations, including his inability to trace and to call witnesses whose evidence might have placed doubt on the account of each complainant.
- The potential for cross-examination to be thwarted or rendered less effective because a witness could say that he/she did not remember.
Breach of Confidentiality
23. It was common ground that the evidence of PCT sought to adduce had been given in the context of a confidential counselling relationship between Mr Garner and the Appellant. The PCT and Mr. Garner sought to justify the breach of confidentiality on the grounds of public interest. All parties accepted that the breach of confidentiality violated the Appellant’s right to private life under article 8 (1) of the European Convention. The PCT however, contended that that violation was justified under Article 8 (2), which provides:
“There shall be no interference by a public authority with the exercise of this right except by such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others.”
24. It was agreed that in order to fulfil the criteria of Article 8 (2) any breach of confidentiality must be in accordance with law, have a legitimate aim and be necessary in a democratic society. As to the first limb, Mr. Garnham relied upon W v Egdell [1990] 1All ER 835 and submitted that at common law the admission of Mr. Garnham’s evidence could only be justified if there was an overriding public interest. On that issue he contended that such evidence as Mr. Garner was able to give did not relate to the specific allegations of assault that Dr. Chyc faced. In effect, his evidence went to the issue of propensity. Further, he submitted that, for many and various other reasons, the evidence that Mr. Garner was able to give was wholly unsatisfactory.
25. Mr. Forde frankly accepted that Mr. Garner’s evidence went to the issue of propensity but submitted that it was of relevance to the overriding charge of unsuitability, which was the subject of part of the appeal.
26. We were referred to a number of authorities. Suffice to say that we came to the clear conclusion that such evidence as Mr. Garner could give was of little or no probative value. In these circumstances, and applying ordinary principles, we concluded that the breach of confidentiality involved in the reception of such evidence could not possibly be justified in the circumstances of this case. Accordingly we directed that the PCT were precluded from relying upon the evidence of Mr. Garner.
27. Given that we had necessarily read Mr. Garner’s statement and, furthermore, had read other witness statements and documentary evidence that had not been before the PCT panel, the clear risk arose that the Appellant might perceive that our consideration of the evidence at the appeal hearing would be tainted. We expressly invited Mr. Garnham to take instructions from his client as to whether he wished a new panel to be appointed to hear the appeal. Dr. Chyc was content that we should continue.
28. Shortly before the hearing was about to take place the PCT made an application that the evidence of Miss. L should be heard in Liverpool on the grounds that she was unable to travel due to her longstanding anxiety state and agoraphobia. The Appellant opposed the application. Given the imminence of the hearing it proved logistically difficult to arrange for a hearing, which the panel members could attend in person. The panel Chair proposed and the parties agreed that she should hear the representations of each party by telephone and that she would then relay these to Dr. Howard and Mr. Lloyd in order that a panel decision was made. This took place on 7th April 2004. Mr. Garnham opposed the PCT’s application on the grounds that the inconvenience of travelling to Liverpool and the additional expense that this would cause was unlikely to be warranted not least if one put into the balance the prospects of Ms. L actually attending to give evidence, even in Liverpool. Mr. Garnham’s wider point was, of course, that the evident fragility of Miss. L was such that it was debatable whether the PCT could prove its case to agreed standard. In the event the panel decided that the public interest in hearing the evidence of Miss. L far outweighed the inconvenience and expense involved in travelling to Liverpool.
29. The hearing of the appeal was listed for between 14th April and 30th April 2004. In the event it became necessary to adjourn in circumstances described below. Further, a number of issues arose requiring decision during the hearing for which we set out our reasons.
30. One of the witnesses from whom we heard evidence was Dr. Lock who had been the Appellant’s partner in Croxteth. It was to Dr. Lock that Ms. L and Ms. P ultimately disclosed the allegations in 1995 and 1997 respectively. Although the parties were content for the witness statement of Dr. Lock to be read the panel required that he give oral evidence pursuant to its powers under Rule 41(5) of the Family Health Services Appeal Authority (Procedure Rules) 2001 which provides that “ Evidence before the panel maybe given orally or, if the panel so directs, by written statement, but the panel may at any stage of the proceedings require the personal attendance of any maker of a written statement.”
31. Dr. Lock gave evidence on 23rd April. The panel asked
questions of Dr. Lock concerning the circumstances surrounding the complaints
made by Ms. L and Ms. P. Dr. Lock needed to refer to the records he had made
but these were not available. It then became apparent that the Appellant’s
advisers had not seen the entirety of the General Practitioner records of each
patient. After a short adjournment
partial photocopies and some original records were brought to the hearing.
Suffice to say that these suggested, in particular, the possibility that Ms. L
had suffered psychosis in the few weeks/months prior to her disclosure of her
allegations to Dr. Lock, a matter plainly relevant to the assessment of her
credibility as well as her state of mind when she first disclosed her account.
32. The panel were disturbed as to how this had occurred given that in this type of case it is usually considered essential that the full records and any hospital records are fully considered by those instructed on the practitioner’s behalf. In due course we saw correspondence setting out the approach that had been adopted by the solicitors to the PCT with regard to the disclosure of the background medical records, with apparent acquiescence on the part of the Appellant’s solicitors. It is unnecessary to set this out in detail. Suffice it is to say that Mr. Forde very properly accepted on behalf of those instructing him that the limit to disclosure of the records to a period of two years either side of the alleged incidents suggested by his instructing solicitor had been inappropriate, and moreover, the assertion that had been made in correspondence that the balance of the records did not contain relevant material was wholly erroneous.
It was obvious that, at the very least, the proceedings would have to be adjourned to ensure that the full general practitioner and hospital records of the complainants could be sought and scrutinised.
33. In
the light of this development Mr. Garnham made an application that the
allegations made by Ms. L should be dismissed.
In the alternative he sought directions that Ms. L be recalled to give
evidence and that a Dr. Milford and another General practitioner who treated
Ms. L in the period prior to the making of her complaint to Dr. Lock should be
called to give evidence. Further, he
sought leave to instruct a psychiatrist to give his opinion in relation to Ms.
L’s mental state. He submitted that the
issue of fault was relevant to the merits of his primary application. He did not suggest, however, that there was
any evidence of deliberate concealment.
The panel were puzzled as to the basis upon which Mr. Garnham contended
that the case on unsuitability, in so far as it relied upon the evidence of Ms.
L, should not be allowed to proceed. It
became clear that the application was made on the basis of the second limb of Galbraith. Mr. Garnham relied upon the unfairness of the
failure to disclose relevant material but not as a freestanding application. He
submitted that no crown court judge would permit the case in relation to Ms. L
to proceed because her account was inherently flawed and incredible.
34. It seemed to us that the issues raised from perusal of the Lloyd George records in relation to the period immediately before Ms. L made her complaint to Dr. Lock could and should have been considered and thoroughly investigated by both sides long before. There was, however, no evidence that the late discovery of these issues arose because of deliberate concealment. We did not consider that, on the material before us, the issue of fault was in point: what was essential was that the Appellant should have ample time to consider all the records and obtain appropriate advice.
35. We came to the view that it could not be said, at this stage, that the nature or character of Ms. L’s evidence was such that no properly directed panel could find the allegations in respect of Ms. L proved. Accordingly, we directed that Ms. L should be recalled and made it clear that the Appellant’s advisors were at liberty to obtain psychiatric opinion. As to Mr. Garnham’s application that Dr Milford and another unidentified general practitioner be called we indicated that this was a matter for the parties to agree upon but that if there were any difficulties the application should be renewed. We also stated that Mr. Garnham was, of course, at liberty to renew his application after Ms. L had been recalled.
36. It was, of course, inevitable that the proceedings had to be adjourned for a substantial period to enable the relevant general practice records and hospital records of all the complainants to be obtained and scrutinised. In the event Ms. P and Ms. L were recalled on 14th June 2004 and, with the agreement of the parties, their evidence was received by way of video link. At the resumed hearing on 16th - 18th June 2004 the Appellant called expert psychiatric and general practitioner evidence to deal with the issues raised and the Appellant and Mrs. Chyc gave evidence.
37. At the conclusion of the evidence it was estimated that
closing submissions would take one day and the proceedings were adjourned to
19th July 2004. The time estimate proved somewhat optimistic. By close of play
on 19th July Mr. Garnham had all but completed his submissions and the
proceedings were again adjourned to 3rd September.
38. Shortly after the adjournment on 19th July the panel formed the provisional view that Dr. Lock should be recalled. In her evidence Ms. L had stated that Dr. Chyc told her in the course of the alleged relationship that, on an occasion when they were both painting the surgery, he had told Dr. Lock that he found her attractive. In paragraph 6.16 of his witness statement [1/201] Dr. Chyc had implicitly denied this. Dr. Chyc corrected the impression created in his witness statement at the beginning of his evidence in chief. He said he now recalled telling Dr. Lock that he found Miss. L attractive on that occasion. He said that this memory had come to him the night before he started his evidence.
39. If we were to accept his evidence, the inference could be drawn that it was Dr. Lock and not Dr. Chyc who was the original source of that information to Ms. L and, further, that this might make it more likely that Dr. Lock imparted other information to Ms .L in relation to Dr. Chyc’s family history, circumstances and home.
40. It seemed to the Panel that had Dr. Chyc recalled this matter before Dr. Lock gave evidence it would have been put to Dr. Lock that he had told or had possibly told Ms. L that Dr. Chyc found her attractive and the issue of his having discussed other matters relating to Dr. Chyc’s family history and /or his home with Ms. L. would have been further explored. In these circumstances the Panel provisionally considered that it was in the interests of justice that Dr. Lock be recalled. We wrote to the parties indicating that provisional view and inviting representations in writing. We also stated that if the parties so wished an oral hearing to consider this issue would be held. In the meantime we kept an open mind. In a letter dated 26th July 2004 Dr. Chyc’s solicitor expressed his concern as to
“ whether it is entirely appropriate for the panel to seek to raise the matter in regard to the hearing of further evidence, after the close of the Appellant’s case when the evidential issue concerns a matter not raised by the Respondent.”
Both parties ultimately took a neutral position and did not request an oral hearing.
41. Whilst recognising that this was a very unusual course to take we decided that Dr. Lock should be recalled. It seemed to us that the change in evidence had left a potentially important issue “ in the air”. In his submissions Mr. Garnham had relied in general terms upon the possibility that Ms. L had gathered information about Dr. Chyc’s father from sources such as Dr. Lock. In paragraph 6.21 of his witness statement Dr. Chyc had stated, “I make it clear that I am suggesting that there may have been some discussion between Dr. Lock and Ms. L about this complaint. This is one of the many issues I would wish to see in cross examination.”[1/203]
We considered there was a risk of an injustice occurring if Dr. Lock was not even asked if it was possible that he had told Ms. L that Dr. Chyc had found her attractive. We accordingly directed that Dr. Lock be recalled.
Our
approach to the evidence and self direction
42. It was agreed by both parties that the allegations that formed the basis of the PCT’s case on unsuitability should be determined by applying the criminal burden and standard of proof. Accordingly we directed ourselves that the PCT bore the burden of proving that the Appellant committed the alleged acts that form the basis of its claim that the Appellant was unsuitable to be included on the List. Dr. Chyc was not required to prove that he had not committed the alleged assaults. The burden of proof could only be discharged by the PCT if, on the evidence before us, we were sure that Dr. Chyc had committed the acts alleged against him.
43. Mr. Garnham submitted that we should approach the evidence generally in a manner similar to a court in criminal proceedings. We agree with that submission in general terms with the following caveat; we did not, and do not consider that strict compliance with the criminal rules of procedure, evidence or the criminal law is or should be required. This appeal hearing is a civil proceeding and the procedures are governed by the Family Health Services Appeal Authority (Procedure) Rules 2001.The jurisdiction is quite different from that of a criminal court. For example, pursuant to Rule 41(2) the panel is required “to conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings”. That said, we decided that in relation to the assault allegations:
· Whilst we had power to receive hearsay power under Rule 41(6) of the Family Health Services Appeal Authority (Procedure) Rules 2001 we would attach little or no weight to such evidence.
· We should be guided by those directions that would be given to a jury in a Crown Court.
We directed ourselves as follows:
Character
Throughout our consideration of this case we reminded ourselves that Dr. Chyc is a man of good character. He has no convictions recorded against him and has never been the subject of any formal complaint procedure or disciplinary process. We also read and heard evidence from many witnesses who spoke highly of his positive qualities including his integrity. Mrs Terret, Mrs Stewart and Mrs Trudgian told us of the propriety of their treatment by the Appellant. Mrs Trudgian, in particular, spoke highly of the quality of the care and sensitivity shown to her by Dr. Chyc at a time when she was emotionally vulnerable. In short, Dr. Chyc has an unblemished medical career and enjoys the reputation of being an honest, competent, kind, considerate, and compassionate general practitioner who conducts himself appropriately. He is a committed Christian.
Good character cannot, of itself, provide a defence to the
charge of unsuitability faced by Dr. Chyc. It is, however, powerful evidence
that should be taken into account in the following ways. Firstly the fact of
Dr. Chyc’s good character supports his credibility. We directed ourselves that
we should take his good character into account when deciding whether we
believed his evidence. Secondly, we directed ourselves that the fact of his
good character was relevant to the issue of propensity in that his character
might mean that he was less likely to have committed the acts alleged against
him.
We considered that
in the circumstances of this case, not least the Appellant’s age, that we
should give considerable weight to his good character when deciding whether the
PCT had satisfied us that he had committed the alleged assaults and was thus
unsuitable to be included on the medical list.
A further factor arose relevant to the issue of character
when considering the evidence of Ms. L and Ms. P. Although no evidence was
adduced before us in relation to any previous convictions it was apparent to us
that the following matters should be taken into account in assessing their
credibility. Ms. L had a history of Benzodiazepine and alcohol abuse. In the
course of her evidence she admitted that, apart from regular prescriptions of
Benzodiazepine she had obtained illegal supplies of that drug. Although Ms. P declined to answer questions
in this regard (as she was entitled to do) there was documentary evidence
before us indicating that she had smoked cannabis and, further, may have been
involved in the illicit supply of that substance. We decided that it was fair
that these matters should be taken into account.
Delay
We have been concerned in considering events that are
alleged to have taken place a long time ago. We have given earnest
consideration to the risk of the Appellant having been caused real prejudice in
the conduct of his case. We have considered why these allegations did not come
to light sooner. We directed ourselves that we must make allowances for the
fact that memories fade with the passage of time and, further, that the passage
of time may even play tricks on memory. We directed ourselves that we should
make allowance for the fact that the passage of time may have placed the
Appellant at a real disadvantage in putting forward his case and that this
factor should be taken fully into account when deciding whether the PCT had
satisfied us that he had committed the alleged acts. Furthermore, the
length of time that has elapsed since some of the alleged incidents took place
was such that we directed ourselves to give considerable weight to the
Appellant’s good character.
We reminded ourselves that had the allegations of Ms L and Ms P been made sooner, and had Dr. Chyc been tried in a criminal court, the trial judge would have directed the jury as to whether there was evidence capable of corroborating the accounts of Ms. L and Ms. P and would have warned the jury of the danger of convicting on the uncorroborated evidence of those witnesses.
Lies (“the Lucas direction”)
Mr Garnham submitted that if we found that the appellant had lied in any part of his evidence we should direct ourselves in accordance with R v Lucas 73 Cr App R 159. We considered that this submission was too broad. This is a case where there is a stark conflict of evidence between the each of the complainants and Dr. Chyc. If the inevitable consequence of a finding that the Appellant has told lies is that he committed the alleged act, a separate direction is not usually required.
It may, however, be appropriate to apply a Lucas direction if it is considered desirable to look for support or corroboration of some piece of evidence in the case and we directed ourselves accordingly.
We agreed with Mr. Garnham’s submission that if we found that the Appellant had lied in his evidence on a separate and distinct issue we should direct ourselves that the mere fact of a lie is not, in itself, evidence of guilt. A person facing allegations may lie for many reasons and they may possibly be innocent reasons in the sense that they do not denote guilt. For example, a lie may be told to bolster a true defence, to protect others or to conceal some disgraceful conduct short of the commission of an offence or a person may lie out of panic, distress or confusion. We directed ourselves that it was only if we were sure that the Appellant told a deliberate lie and, further, did not lie for an innocent reason, that his lies could be regarded as evidence supporting the PCT case. The reason for this caution is that before treating a lie as tending towards proof of commission of the acts alleged, the panel must be sure that there is not some possible explanation for the lie that destroys its potentially probative effect.
Evidence in relation to complaints made
There were no complaints made in this case that could, by any stretch of the imagination, be considered as “recent”. Inevitably we heard evidence as to what was said when complaints were made, not least because, understandably, the complainants were cross- examined in relation to consistency. We reminded ourselves that any evidence in relation to a complaint previously made was not independent evidence and could not, of itself, prove that the complaint was true. Additionally we directed ourselves to disregard evidence about the distress or demeanour of the complainants at the time they made their complaints.
Separate consideration of the allegations
We heard submissions from both parties in relation to similar fact evidence. It was common ground between the parties that there were features of the evidence given by Miss. D and Miss. K that were capable (in the neutral sense) of being described as similar. Our approach was, however, to look at each allegation in respect of each complainant separately.
44. One of the allegations before the PCT panel was that Dr. Chyc behaved improperly towards Ms. S by seeking inappropriately to take a blood sample from her groin. Ms.S told us that many doctors had had difficulty obtaining blood samples from her at the usual sites. She did not seek to suggest any improper sexual motivation on the part of Dr. Chyc. In these circumstances Mr. Forde sensibly did not seek to rely upon her evidence in relation to the charge of unsuitability.
45. It had also been part of the case before the PCT panel that Dr. Chyc told jokes of a crude and sexual nature. Having properly explored this issue Mr. Forde again sensibly abandoned this part of the PCT case. It followed that we were therefore concerned only with the charge of unsuitability based upon the evidence of Ms. L, Ms. P, Ms. D and Ms. K. We examine the evidence of each complainant below.
Ms L.
46. The following matters were in common ground in relation to Miss. L. At the time of the alleged assault Miss. L had a long-standing history of having suffered from chronic anxiety state, benzodiazepine dependence and alcoholism. She had attempted to commit suicide on a number of occasions. She frankly accepted that she had not only abused benzodiazepines prescribed for her by her own GP but had also used benzodiazepines prescribed illegally by others. She had plainly had a very troubled family life. She described her husband from whom she had been divorced as a “psychopath” who had repeatedly raped her.
On 15th April 1990 Dr. Chyc was requested to visit Miss. L at her home he attended and noted the following:
“…drinking 4/7. Smells of alcohol.
Claims. DT symptoms. ? genuine.
Gross anxiety
Manipulative behaviour
Diazemuls IV 30mg
Reviewed-much
calmer
encouraged
to make positive plans for
the future for coping with crisis.” [2/445]
At the end of this entry Dr. Chyc had written his initials. His evidence was that he had no memory of his visit to Miss L at all. His usual practice was to initial an entry in respect of each visit even if two visits were made on the same date. His note indicated to him he had made one visit to Miss. L. After giving her an intravenous injection because of a gross anxiety state he had reviewed her condition, had encouraged her to make positive plans and had left.
47. Miss. L’s evidence was that she had been binge drinking for several days. Her rate of consumption was probably a bottle of spirits a day although on the day of the alleged incident she would have drunk less. She was hysterical. She had no life and could not see the woods for the trees. A friend called the surgery to request a visit, let Dr. Chyc into the house when he arrived and then departed. She could not remember whether it was her male or female friend. She and Dr. Chyc spoke downstairs for sometime about her problems. She was distressed and in a state. Dr. Chyc told her he was going to give her an injection to “ knock her out”. She asked him about the injection and was told that it was 30mls of Diazepam. She recalled the injection being given by Dr. Chyc into her right arm. She said “as I was falling asleep I thought there was a weight on me.” When she woke up about five or six hours later she stood up and semen ran down her legs. She phoned the surgery and was put though to Dr. Chyc. She told him she knew he had done something. Dr. Chyc did not say anything but returned to her home and she let him in. Miss. L accused him of raping her to which Dr. Chyc responded “you invited me into your bed”. The effect of Miss. L’s evidence was that she emphatically denied having consented to sex and Dr. Chyc had accepted this. Dr. Chyc became quiet. He then told her that his father had committed suicide because of problems with women and he was worried he might be like his father. Miss. L said she calmed down at this point. The effect of what Dr. Chyc told her made her feel sorry for him. He seemed fragile and she didn’t want anything to happen to him. She thought he was about to go and “top himself”. She spoke to Dr. Chyc about going to see Mr. Garner, who she knew as a counsellor in a Christian organisation called “Reach”. She said she gave Dr. Chyc a book about Reach because it had passages in which she thought would help him.
48. After 15th April 1990 she saw Dr. Chyc as a patient on a number of occasions. She said she also saw him in the context of a relationship about five times. On one occasion Dr. Chyc visited her at her home and they talked. She said that they talked about Dr. Lock, Dr. Chyc’s partner in the practice. Dr. Chyc told her that there had been an occasion when they had been painting the surgery and that he, Dr. Chyc had told Dr. Lock that he thought Miss. L was attractive
49. Ms. L’s evidence was that she visited his home on two occasions when his wife was away. On one occasion she had been drinking. Dr. Chyc made her something to eat and she slept with him in his marital bed. In her evidence in chief she described the bedroom as having wardrobes with mirrors. She said the phone was on the right hand side of the bed on the back wall. At the end of cross-examination, she said she did not remember whether the mirrors covered the whole wall and went from floor to ceiling. Although they slept in the same bed she and Dr. Chyc did not have sexual intercourse. Whilst in bed, Dr. Chyc had touched her sexually. She had not responded and he had stopped. In cross-examination she agreed that the touching that had occurred on this occasion was not against her will. In the morning his wife telephoned. Miss. L understood that she was asking Dr. Chyc to bring their children’s bikes to where she was staying. Dr. Chyc drove her home and dropped her off at the end of her street. She told us that when she saw Dr. Chyc they just talked. She said that a lot of the time Dr. Chyc would be arrogant and very superior and she felt belittled. She had told him once she wished she could have been a doctor. Dr. Chyc’s attitude to this was to the effect that she couldn’t be anything.
50. When asked to explain why she embarked on a relationship with someone who had raped her she said that by having some sort of relationship it did not seem like rape. She agreed that she had taken no action to protect herself. She said she had tried to help Dr. Chyc. She had no self-respect and didn’t feel she mattered. On Miss. L’s evidence the relationship, such as it was, petered out. She was uncertain as to when the social relationship ended. Some of her evidence suggested that it lasted a few months. She said that Dr. Chyc told her that he was leaving the practice because there was a clash in personalities between himself and Dr. Lock.
51. In cross-examination Ms. L accepted very nearly all the matters that were put to her in relation to her medical and personal history. She agreed that she had continued to see Dr. Chyc as a patient. She agreed that shortly before and after the alleged rape, Dr. Lock had prescribed the morning after pill because she had had unprotected intercourse. [2/445 and 2/447] She said she had been extremely anxious about getting pregnant because she was not well enough to have a baby and she did not trust the mini pill or the coil. Despite this anxiety she had not thought about the risk of having conceived as a consequence of the alleged rape. According to her medical records she had, in fact been prescribed the mini pill on 12th March 1990 [2/445]. She agreed that she didn’t know if she had taken her contraceptive pill that day. She said there was so much going on that the risk of pregnancy wasn’t at the forefront of her mind. She had not thought about the risk of having contracted AIDS. She agreed that her account of having telephoned the rapist, asking him back to her home and thereafter being involved in a relationship with him was extraordinary and bizarre. In her own words it was “total madness”
52. Mr. Garnham put to Ms. L her statement dated 15th April 2003 in which she said “when I awoke I thought immediately that I had been lying on my back in bed and that Dr. Chyc had been on top of me having sex with me” [1/50]. In answer to the suggestion that this was different to her evidence in chief she said it was obvious that what she had felt on top of her was a weight as she had earlier described. She confirmed her oral evidence that it was as she was falling asleep that she felt as if she was dreaming that someone was on top of her. She said that what was in her statement was her way of expressing that he was doing something to her as she drifted off. It was when she stood up and semen ran down her legs that she realised that she had been raped.
53. She said that she did not want to telephone the police. She didn’t think that anyone would believe her. Her explanation for seeing Dr. Chyc thereafter was that she felt sorry for him and was taken in by his apparent friendship. She tried to get Dr. Chyc to see Howard Garner, a counsellor she knew from an organisation called “Reach”. She said that Dr. Chyc told her that he had done so.
Ms. L did not disclose her allegations until November
1995 when she spoke to Dr. Lock.
54. We heard evidence from Dr. Lock who had been in partnership with Dr. Chyc at the Jubilee Medical Centre in Croxteth between September 1989 and 30th September 1991. He told us about the circumstances in which Ms. L made her disclosure. He said that he did not make a record of the actual allegation because he took the view that this was inappropriate. He sought advice from the Local Medical Committee and thereafter wrote a letter dated 12 February 1996 to the General Medical Council in which he set out Ms. L’s allegations. [1/45–46] It was clear from this letter that by this date Dr. Lock had been present at an interview of Ms. L conducted by the police. He recorded that in view of Ms. L’s long standing problems with anxiety and alcohol the police felt that she would not be a sufficiently convincing witness in court. Dr. Lock also stated in his letter “both this patient and myself have no wish to see Dr. Chyc publicly exposed or disciplined but are very concerned that other patients might be exposed to abuse in the future. My patient and myself would hope that Dr. Chyc could be approached in some way and offered counselling and supervision.”
55. Dr. Lock was also present when solicitors to the General Medical Council interviewed Ms. L which took place sometime after 16th May 1996 [1/47]. On 3rd January 1997 the G.M.C. wrote to Dr. Lock stating, “although serious allegations had been made, we have not been able to obtain any evidence that could be used in G.M.C. disciplinary proceedings.” [1/48]
56. In cross-examination Mr. Garnham asked Dr. Lock whether he had told Ms. L anything he knew about Dr. Chyc’s background. Dr. Lock replied that he did not recall: “only that there were other complaints, had been other complaints and she was aware that she wasn’t the only one, but it was only along those terms. I was very conscious that it might complicate things if I gave her unnecessary information.” Since Dr. Chyc appeared to assert in his witness statement that Dr. Lock was a possible source of the personal information about Dr. Chyc’s father that Ms. L had relayed, the panel asked questions in relation to these aspects. In short, Dr. Lock’s evidence was although he knew that Dr. Chyc’s father had committed suicide, he did not recall being aware that Dr. Chyc’s father had problems with women. The effect of his evidence was that he did not believe that he would ever have given any personal information about Dr. Chyc’s father to his patients or staff.
The Intravenous Injection of Diazepam.
57. The case advanced by the PCT was that this injection was given deliberately so as to enable Dr. Chyc to rape Miss. L. Professor Nutt was called on behalf of the Appellant and provided a report and further letters. [1/299-300c] He was called before the Appellant because of timing difficulties. His evidence was that the purpose of intravenous Diazepam in a hospital clinic setting in which Dr. Chyc had worked is to produce sufficient sedation to enable uncomfortable and intrusive procedures to be undertaken without the patient being aware of what was happening. Such injections are known to have an amnesiac effect so that even after the procedure patients are generally unable to recall what has occurred from the point at which the injection takes effect. The amnesiac effect can occur even if the patient remains awake.
58. The manufacturers data sheet advises that 10ml should be administered over a period of two minutes. In Miss. L’s case, on the evidence of Professor Nutt, 30ml should have been administered over a period of six minutes or so.
59. Professor Nutt could understand why a young general practitioner, with experience of intravenous diazepam in the hospital setting might use the drug to treat incipient delirium tremens (DTs). He had personally used intravenous diazepam in the treatment of DTs in a hospital setting. He said that if giving 30mg of diazepam intravenously it should be given over twelve minutes ideally. Whilst the danger of respiratory depression arose principally in the first five minutes he would want to observe the patient for up to an hour. He would be surprised if a patient given 30mg intravenously was not relaxed, calm, tranquil and sleepy. The patient may or may not be aware of what is going on. The amnesiac effect of the drug operates even if the patient is not asleep. Of the three possible routes for administering diazepam, oral administration was the most usual with DT’s. Intramuscular injections were not favoured.
60. Professor Nutt told us that a 30mg intravenous injection of Diazepam would cause an ordinary person to go straight into sleep approaching anaesthesia. If a conversation had ensued after the injection between the doctor and the patient this would indicate that Miss. L was extremely tolerant to the drug and had a reduced reaction. The fact that Miss. L abused benzodiazepines and alcohol would probably have reduced the pharmacological effect of the drug.
61. Professor Nutt also told us that it is recognised, albeit as a rare phenomenon, that patients given the intravenous diazepam have reported delusions of a sexual nature. These cases have sometimes led to the investigation of medical and dental practitioners who have been accused of molesting patients whilst under the influence of a benzodiazepine when used as a pre-medication for surgery. He told us that “often” these memories appear to be based on misinterpretations. For example the insertion of a dental drill and the hand of a dentist into the mouth of the patient has been “remembered” as oral sex. Dr Bradley also commented upon this aspect and produced an article by J.W. Dundee “Fantasies During Sedation with Intravenous Midazolam or Diazepam.” [1/300i] He agreed in cross-examination that nearly all cases concerned misinterpretation of a procedure such as the use of an endoscope. In one case in the literature a patient had mistaken a towel placed between the legs as sexual interference.
62. Dr. Chyc’s evidence was that he visited Miss. L once at her home on 15th April 1990 and that nothing untoward occurred. He said he had no independent recollection of the visit at all. Having looked at his notes he could recall some aspects of the visit but did not have a complete picture or recall. He relied upon his usual practice. He relied upon his contemporaneous note, which is consistent with one visit having been made.
He told us that when he received the call from Miss. L he thought he was aware that she was a patient with anxiety and drinking problems. He would usually go to the surgery to collect a patient’s notes and would read the previous notes. He had no recollection of what he discussed with Miss. L prior to the injection of diazepam. He thought it would be very unlikely that he would have mentioned his father’s problems with women or the fact of his suicide. He could not say for how long he stayed but thinks that it was probably for ten to fifteen minutes after the injection.
63. As to the intravenous injection of diazepam he had become experienced in the use of IV diazepam when he had worked in the bronchoscopy and gastroscopy clinics as a senior house officer at Leigh Infirmary, North Manchester General Hospital and Crumpsall Hospital. He told us that intravenous diazepam was used in the hospital clinic setting as a sedative to enable the passage of the bronchoscope or gastroscope. The normal dose given in the hospital setting was 20ml but on occasions he would give more. In Miss. L’s case he believed that he had increased the dose by fifty percent because he must have aware that she had abused benzodizapines and alcohol for many years and would therefore have developed cross-tolerance. In accordance with his hospital practice he would have administered the dose of 30ml to Ms. L in one injection over about twenty seconds. He accepted that an intravenous dose carried the risk of causing respiratory depression but he would not have thought it was a serious risk in her case. He had only seen it occur in frail, elderly patients.
64. Dr. Chyc thought he would have recollected a telephone call from Miss. L after the visit in which she accused him of rape had such a telephone call taken place. Although it was true that he did consult Mr. Garner for counselling it had nothing to do with any suggestion from Miss. L. He saw Mr. Garner of his own volition in the period before his partnership with Dr. Lock came to an end in September 1991.
65. In his evidence Dr. Chyc said that he gave the injection of 30ml as a single bolus shot over twenty seconds. He said he thought that he must have been aware that Ms. L had access to illicit supplies of Diazepam. He gave her a large dose against a background of her alcohol abuse and the likelihood of cross-tolerance. He agreed that Ms L had not been prescribed Diazepam since January of that year. He thought that he must have considered that Ms. L was tolerant to Diazepam obtained illicitly because of information given to him by her or by Dr. Lock. She was not inebriated at the time he saw her.
66. The British National Formulary states that Diazepam is indicated for short- term use in anxiety and as an adjunct in acute alcohol withdrawal [1/300]. It advises caution when there is a history of respiratory disease, a history of drug abuse or marked personality disorder. In relation to dosage it advises slow intravenous injection at a rate of not more than 5mg per minute. For severe anxiety and acute alcohol withdrawal the suggested dose is 10mg, repeated, if necessary, after four hours. Mr Forde took the point in submissions that this was a further reason that Dr Chyc’s decision to use 30ml was outwith normal practice. We reject this point. It can be inferred the BNF is dealing in this particular context with oral administration. Moreover, Professor Nutt has told us that in using the drug intravenously for DT’s or severe anxiety in a hospital setting a “loading dose” was usual practice [see also 1/300c]. He considered 30ml to be a high loading dose which was not necessarily excessive if Dr L considered Ms L to be cross-tolerant.
67. In cross-examination Dr. Chyc said there was no oxygen readily available at the hospital. Sedation would be achieved within a minute or two. Most patients would stay in the hospital for some time, two to three hours being the outer parameter. He repeatedly told us he did not believe that administering 30mg over twenty seconds put Miss. L in any danger.
68. In answer to questions from Dr. Freeman it became apparent that each of the three hospitals in which Cr. Chyc worked as an SHO had had full resuscitation facilities including fully equipped cardiac arrest trolleys as well the means of maintaining an airway or supplying oxygen if an emergency arose. Dr. Chyc accepted that he had no means available for maintaining as airway had that need arisen. He agreed that apart from the risk of respiratory depression there was also the risk of Mendelssohn’s Syndrome i.e. when the contents of the stomach are aspirated into the lungs because of depression of the cough reflexes caused by the administration of the drug. He agreed the risk features associated with this syndrome were sedation, a recumbent position and alcohol “on board”. In light of these features he conceded only that, with the benefit of fourteen years of experience, his use of intravenous diazepam in a domiciliary setting “might not be seen as good practice”. He did not believe it to be unsafe.
69. He told us that he estimated that he had administered about one thousand intravenous diazepam injections in a hospital setting. He had used IV diazepam in a domiciliary setting on about six occasions: about half of these related to treatment for fitting and the balance for delirium tremens (“DTs”) or gross anxiety.
70. Apart from the evidence of Professor Nutt the Appellant called Dr. Healy, a general practitioner of many years experience. [1/300e] He considered the dose of diazepam, which he described as “huge,” was not excessive in the context of a doctor recognising cross-tolerance. He would expect a doctor who suspected tolerance to make a record of his baseline observations. He considered that the risk of acute respiratory depression would be present for about half an hour and that a doctor acting responsibly should stay with a patient for at least that time. . He considered that administration of the injection was irresponsible if the doctor did not have necessary equipment for resuscitation available. It was evident that he was taken aback by the fact that 30ml had been administered as a single injection over 20 seconds. In the light of that fact he was unable to stand by paragraph 4.16 of his report in which he had stated that there was no evidence that Dr Chyc did not observe standard protocols for administering the drug.
71. Dr Healy told us that the purpose of using intravenous diazepam in this context is to achieve anxiolysis rather than sleep. Dr Healy accepted that even with tolerance to benzodiazepines and cross-tolerance to alcohol it was likely that Miss. L would have fallen asleep with a dose of 30mg. He said if the dose had been given rapidly logic told him that Miss. L would have fallen asleep sooner rather than later. He told us that if it was right that Miss. L slept for about five hours after the injection it suggested that her cross-tolerance was not so great. The effect of a bolus injection is that it hits the brain more quickly. In the hospital setting where the drug is given slowly patients are semi-conscious and rousable. In short he explained that the effect of the drug is related to both the size of the dose given and the speed of its administration. It is usual to give 10ml slowly and judge the patient’s response, giving further 10ml injections as necessary. In over thirty years of practice he had never given an injection of diazepam intravenously in a domiciliary setting.
72. Dr. Bradley, an eminent consultant psychiatrist was called on behalf of the Appellant. He provided a report that drew upon the extensive medical records of Ms. L [1/300g]. She had consistently been diagnosed over a number of years as suffering from a hysterical or histrionic personality disorder. This is defined in ICD 10 as characterised by a number of features including
· Shallow and labile responses
· Suggestibility.
· Continually seeking excitement and activities in which the patient is the centre of attention.
· Inappropriate self-dramatisation and exaggerated expression of emotions.
· Seductiveness in appearance of behaviour.
· Being overly concerned with physical attractiveness
Associated features including easily hurt feelings and persistent manipulative behaviour.
73. We found Dr. Bradley’s evidence very helpful. He was appropriately careful not to usurp the function of the panel. In effect, he said there was much in Miss. L’s history that would suggest that her ability to give evidence might well be impaired. He also said that Miss. L might be telling the truth. His point, which we entirely accept, is that very considerable caution must be exercised in assessing Miss. L’s evidence given her personality disorder and its characteristic features, as well as her long term dependence upon benzodiazepines and alcohol. He said that the GP notes referring to “unwanted thoughts” and the drug treatment prescribed for her at this time could indicate the possibility of psychosis. He drew our attention to the fact that her admission to having suffered hallucinations in the context of alcohol withdrawal indicated the possibility of her having suffered delusions in a similar context. He considered that it was possible that Ms L had suffered from psychotic episodes in the context of acute alcohol withdrawal. It was also possible that she had suffered a fantasy due to the administration of IV diazepam or a fantasy because of her personality disorder.
74. We have approached her evidence with these matters at the very forefront of our minds. We have also borne in mind that Miss. L appeared to be an intelligent woman. For example she told us, and we accept, she had not read her medical records prior to giving evidence. Despite this, she had little difficulty in reading, understanding and responding to those records when they were put to her in the course of cross-examination. Indeed she displayed a considerable knowledge and insight into psychiatric illness in general and her own illness in particular. Apart from a firm denial that she had ever been considered to be psychotic she agreed with very nearly all of the matters put to her. We reminded ourselves continually that manipulative behaviour is symptomatic of the behaviour from the illness from which she suffers. She frankly told us that those treating her had told her that she was manipulative but that she was not conscious of this at the time. As Dr. Bradley said this was the very essence of her condition and showed remarkable insight. In considering her evidence we have continually reminded ourselves of the need to guard against the risk of being convinced by Miss. L’s evidence simply because she herself was convinced of the truth of what she said.
75. We have given full
weight to the fact that Dr. Chyc is a man of good character both in relation to
our assessment of the credibility of his evidence and the issue of propensity.
We have born fully in mind that poor medical practice, of itself, is not
indicative of improper motive. We did not, however, believe Dr. Chyc’s evidence
in relation to his justification for the injection he gave to Ms. L. On his own
evidence as to his hospital practice he well knew that the effect of such an
injection would be to render Ms. L sedated to the extent that she was
compliant. His expectation, based on his experience was that she would not remember
anything. He administered the injection despite the need for caution in a
patient with a history of drug abuse. He gave the injection despite the risk of
respiratory depression. He did not give the drug slowly to guard against this
risk. He did not give a small dose to judge its effect and give more if
necessary. He did not have the means to resuscitate the patient if the risk
materialised. He gave the injection
despite the risk of regurgitation and despite the presence of all three risk
factors.
We have asked ourselves why a doctor who is undoubtedly competent and intelligent would take all these risks and behave so irresponsibly. We are satisfied so that we are sure that Dr. Chyc administered the intravenous injection of 30mg of diazepam in order to facilitate a sexual assault by him upon Ms. L. Further, for the following reasons, we are satisfied so that we are sure that having administered that drug he raped her:
1) We have repeatedly reminded ourselves of all the factors that have the potential to cast doubt upon Miss. L’s evidence. We have reminded ourselves of the need to exercise extreme caution in relation to her evidence in the light of her psychiatric history and, not least, the fact that the disorder from which she suffers is characterised by manipulative behaviour. We reminded ourselves of the need to guard against the risk of being convinced by a witness who was herself convinced of the truth of her claims. We reminded ourselves of all the relevant factors in relation to the delay. Despite all of this we are sure that Ms. L was telling the truth.
2) Despite her extensive knowledge of psychiatric conditions and terminology, there was no evidence that Miss. L had any knowledge of the pharmacological effects of diazepam when injected intravenously either in general or to patients with cross-tolerance. Her description of the effect of the drug was, however, consistent with the expert evidence before us. We accept her evidence that she was rendered unconscious. We accept her evidence that Dr. Chyc told her that the purpose of the drug was to knock her out. In our view the time that ensued before she was actually fell asleep is of little importance.
3) It was plain from Dr. Chyc’s evidence that he believed that all patients given intravenous diazepam would not remember that which was done to them. Whilst the expert evidence was plainly to the effect that the amnesiac effect of the drug would arise from the point of administration, it was clear from his evidence that Dr. Chyc himself believed that it related to events prior to as well as following an injection. We infer that it was in reliance upon that mistaken belief that he thought he was additionally safe in assaulting Miss. L as he did for he believed that she would have no memory of events even prior to the injection.
4) We do not accept that his note “reviewed. Encouraged to make plans as to coping with future crisis” was an honest note. Having given about one thousand injections of diazepam or similar drugs to patients in order to induce sedation/amnesia, we consider that Dr. Chyc was well aware that there would be no point or purpose in giving such advice to a patient after the administration of the drug. His expectation was that Ms. L would remember nothing at all about his visit, including the rape.
5) We accept Miss. L’s evidence that having woken she stood up and found semen running down her legs and then realised she had been raped. We do not consider that there was any material inconsistency in her evidence as to precisely when she realised that Dr. Chyc was the perpetrator. Such inconsistency as there was did not make us doubt her evidence.
6) We accept her evidence that having telephoned Dr. Chyc he then returned to her home. We accept that she confronted him and that he eventually admitted he had raped her. Although it may seem bizarre that a victim of rape should call her assailant back to her home in these circumstances it is not, in our view at all surprising that he did so return. We infer that Dr. Chyc having originally denied the rape found that it was then in his interests to admit it. We accept Ms. L’s evidence that she was told by Dr. Chyc in this confessional context that his father had had problems with women and had committed suicide. We infer that he did so in a concerted effort to manipulate Ms. L’s emotions in order to make her feel more sorry for him than she did for herself and to seek to deter her from making any complaint.
7) It was contended on Dr. Chyc’s behalf that Miss L. could have gathered the information about Dr. Chyc’s father from either Dr. Lock or Dr. Chyc himself or others. We have considered this aspect very carefully given the risks posed where allegations are made many years after the event. We have seen Dr. Lock give evidence. It was apparent that he was an extremely careful witness. He struck us as being extremely reserved, considered and circumspect. We accept his evidence that he did not know that Dr. Chyc’s father had had problems with women. Given the delay involved in this case we considered the possibility that Dr.Lock had once known but had forgotten that he knew that Dr. Chyc’s father had had problems with women. Whilst we consider that this was possible we are no doubt whatsoever that, had he known it, he would not
in any circumstance have imparted such information, either purposefully or accidentally to any patient, let alone to Ms. L or to any other person It was clear from his evidence that he was very circumspect in his dealings with Ms. L.
8) It was suggested that the information in relation to the personal characteristics of his father could have been given to Ms.L by Dr.Chyc himself in the lengthy conversation between Dr. Chyc and Ms. L prior to the administration of the drug. Dr. Chyc said himself that it was extremely unlikely that he would have given that information to Ms. L. This evidence, of course carries the implicit possibility that he did so tell Ms. L on that occasion. We have carefully considered the possibility that, but for the delay involved in this case, Dr. Chyc might have been able to give exculpatory evidence himself or call others in relation to this issue. Mr. Garnham contended that there was evidence that Dr. Chyc freely disclosed information of this type to his partners and staff. As well as Dr. Lock who had practiced with Dr. Chyc in Liverpool, we heard evidence from Drs. Grimm, Kreis and Nabarro as well as from Ms. K, the practice manager at the Colchester surgery, all of whom had been involved with Dr. Chyc in the recent past. Although Dr. Chyc variously had informed them that his father had committed suicide and/or that he had had a troubled childhood, there was no suggestion that Dr. Chyc had told them that his father had had problems with women. This is particularly significant in the case of Ms. K with whom, on his own evidence, he had a close, confiding and supportive relationship. We accept Mr. Ford’s submission that it is extremely difficult to conceive of the context in which Ms. L could have gathered such sensitive information about the personality of Dr. Chyc’s father other than in the context of the confrontation and confessional conversation alleged by Ms. L.
9) Miss. L also told us in evidence that Dr. Chyc informed her on the second visit on 15th April 1990 that he was a millionaire. Although this information is, in fact, untrue we accept her evidence that it was said: that she had been so told is entirely consistent with her surprise that Dr. Chyc’s home was relatively sparse. We consider that if Ms. L had wanted to bolster her evidence she was sufficiently intelligent not to have chosen to rely upon a matter that could all too easily have been proven to be false.
10) Whilst mindful of the characteristics of exaggeration that can be characteristic of her particular personality disorder, we were struck by the absence of any outlandish claims by Miss. L. With the exception of the statement that Dr. Chyc had told her he was millionaire each of the matters she related in respect of her conversation with Dr. Chyc were, in truth, accurate. She did not embroider or embellish her evidence in any material respect.
11)
Despite all the necessary caution, which must be
exercised in evaluating the evidence of a witness who suffers from a diagnosed
personality disorder and the additional need to guard against manipulation we
were struck by the conscientious manner in which Miss. L gave her evidence. We
watched her give evidence on two separate occasions and over the period of many
hours. Irrespective of from whom the
questions came she would not be led to give evidence of something she did not
genuinely remember even when on the face of it the “easy” answer would possibly
have supported her case. Extraordinary as her account was she did not
exaggerate
12)
We accept Ms. L’s evidence as to the social
relationship. Mindful of the extreme caution which must be exercised in
relation to an intelligent witness with a personality disorder in which
subconscious, manipulative behaviour is characteristic we looked long and hard
to find an explanation for the fact that Miss. L was able to describe features
of Dr. Chyc’s bedroom such as the fact that the telephone was on the right hand
side of the bed, there were mirrored wardrobes at the foot of the bed and the
bathroom suite was white. She also described the dining room furniture. Whilst
Miss. L did not remember that the mirrors were floor to ceiling and
wall-to-wall she nonetheless remembered that the wardrobes were mirrored. We
accept Mr. Garnham’s point that it would be usual for a doctor to have a
telephone by his bed and that white bathrooms and mirrored wardrobes may be
relatively common. We noted, however that Miss. L correctly stated the phone
was on the right hand side. On her
evidence she would have had reason to recall this for she said that Dr. Chyc’s
wife had telephoned in the morning. Her description of all those matters
when taken with her evidence as a whole convinced us that her evidence could
not sensibly be accounted for by a lucky guess on all three points. We
noted also that such detail she gave in relation the telephone, the bathroom
and the mirrors had not been set out in her witness statement dated 15th April
2003. We regard the suggestion that such evidence is the product of a lucky
guess in the course of giving evidence as tenuous in the extreme. We are sure that her description was the
product of real memory. We are sure that she had indeed been present in
Dr. Chyc’s house.
13)
We have carefully considered whether, but for the
delay, the Appellant might have been able to adduce evidence that would have
cast doubt upon Ms. L’s account. Mr. Garnham submitted that it might have been
possible to call evidence from or about people who had been to Dr. Chyc’s home,
so enhancing the prospects of establishing the range of people from whom Ms. L
could have garnered the information. We regard the possibility that
Miss. L could have gleaned all this information from others as tenuous. It
presupposes a number of events. Firstly, that anyone attending Dr. Chyc’s home
would be sufficiently interested to note and remember such details. Secondly,
that he/she would then impart such information to Ms. L. Thirdly, that Ms. L
could then be almost entirely accurate in describing such second hand
information so many years later.
14) Ms. L’s evidence as to the duration of the relationship was not clear. At one stage she was asked about a reference to a lodger in her medical records in September 1990. She appeared to agree that the relationship had ended by that date. She said, however that on an occasion that Dr. Chyc saw her socially he told her that he was leaving the surgery. Since Dr. Chyc’s evidence was that he left the practice in September 1991 this tends to suggest that the relationship was still in existence to about that time. The significance of this issue goes, of course to whether Ms. L could have visited Dr. Chyc’s home when his wife was away. Her evidence was that there was no occasion in 1990 when she absent. She did, however, visit her parents with the children on occasions in 1991 and her husband drove down to collect her. We have considered and taken into account that the delay involved may have prevented the Appellant casting doubt on Ms. L’s evidence by calling other evidence or by producing diaries. We are, nonetheless, sure that Ms. L did visit Dr. Chyc’s home.
15) Mr. Garnham asked us to consider that rejection of Dr. Chyc’s evidence that Ms. L had never been in his home did not, of itself, prove that he was guilty of raping Ms. L: there could be innocent reasons why a married man might deny that he had invited a woman into his home. We accept the force and logic of that point which relates to the Lucas direction. We are satisfied that Dr. Chyc’s denial that Ms. L had been in his home was deliberate. We have considered all the possible reasons that might account for why Dr. Chyc lied in his evidence. We are satisfied so that we are sure that he did not lie for an innocent reason.
16) We examined the symptomatic characteristics of Miss. L’s personality disorder against Miss. L’s account of her relationship bearing in mind Dr. Bradley’s evidence and his evidence as to how delusions can become fixed and well encapsulated. In short, they can be very real to the deluded. We have already said that Miss. L’s account, although extraordinary, did not strike us as exaggerated or delusional. The vast majority of the matters she related to us as imparted to her by Dr. Chyc and/derived from her by her attendance at his house were, we find, based in fact. Additionally we were struck by the fact that her account of the affair was so mundane that it was extremely unlikely to be the manifestation of fantasy. The relationship was not passionate or exciting. It could perhaps best be described as pathetic. On Miss. L’s evidence it was based upon her relating in a profound way to Dr. Chyc’s personal history and insecurities. She felt sorry for him. She was not even attracted to him yet saw him on a number of occasions. She did not want to be kissed by him. On the one occasion they slept together they did not have sexual intercourse. We consider that her behaviour is consistent with her extremely low self-esteem. We infer that because the poverty of her own life the attention paid to her by Dr. Chyc after 15th April 1990 was, in some way, better than nothing. We accept her evidence that in some way, it made her able to normalise or live with the gross abuse that had been perpetrated upon her. A functional person would not, of course, have responded to these events as did Ms. L. She was, however, profoundly dysfunctional.
17) It was contended that the account of Miss. L could possibly be the product of a drug-induced fantasy. The hypothesis is that having experienced such a fantasy, Miss. L, despite her histrionic personality disorder with its characteristic features of attention seeking, said nothing about it for five years until she told Dr. Lock her story. We noted that the literature and the expert evidence suggest that such fantasies are not only rare but usually relate to the procedure being undertaken in the sense that the patient misinterprets the clinical procedure as a sexual event. In any event this theory requires, on the evidence we have heard, two possibilities to have occurred: the first being a sexual fantasy due to the drug, the second being a delusional or histrionic patient who then adds delusion to the fantasy. We discount this.
18) The further possibility put forward is that her account may well have resulted from a delusion as the result of a psychotic episode experienced at some stage in the context of acute withdrawal from alcohol or benzodiazepines or otherwise. When Ms. L was recalled, in order to be cross-examined as to her full psychiatric history, she firmly denied that she had ever suffered from any delusions. She told us, with disarming frankness, that she had always been told she suffered from a histrionic personality disorder. Within the extensive hospital records of Ms. L there was one discharge summary in which a junior hospital doctor had made reference to psychopathy. No treating doctor had ever suggested to her that she was psychotic. The only records suggestive of psychosis were the entries in October and November 1995 by a general practitioner which referred to “unwanted thoughts”.[MRI-807 et sec]. Certainly, this Doctor had prescribed slupenthixol and considered whether Ms. L would benefit from the prescription of Lithium. It was plain that Dr. Bradley was somewhat unhappy to speculate. He did, however, make it clear that the possibility of a psychotic episode in the context of acute alcohol withdrawal should be considered.
19) Although he is not, of course, a psychiatrist, we
were impressed by Dr. Lock’s evidence in relation to whether or not Ms. L had
ever displayed psychotic symptoms. Dr.
Lock treated Ms. L over a period of many years. He had seen her and spoken to
her on the telephone on a very frequent basis.
He was unimpressed by the tentative diagnosis considered by the general
practitioner and the treatment prescribed for a short period. He had never seen
any signs or symptoms suggesting that Ms. L suffered from thought disorder or
delusions. In the light of all the evidence we have heard we consider that the
possibility of Ms. L’s account being the product of psychotic delusion is
negligible. Moreover, we do not regard
it as a real possibility that Miss. L stored within her memory some matters
and/or subsequently gathered information from others only to deploy them some
years later. In so far as Dr. Bradley suggested this was a real possibility we
reject his evidence. In our view the evidence of Miss. L was too grounded in
fact and too devoid of embellishment to be accounted for in this way.
20) We have carefully considered the effect of delay upon the cogency and availability of evidence. It is, of course, not uncommon for an allegation of sexual assault to be made after a period of delay. When such allegations are made against a medical practitioner it is often the case that he has to rely upon his clinical notes and/or his usual practice. We accept that the potential for prejudice that arises in this regard and we further accept that this increases with the length of the delay. We also accept as was contended by Mr. Garnham that the potential for prejudice was greatest in relation to the social relationship. We do not believe that the potential for prejudice was realised. In the event a significant part of our reasoning for the acceptance of Ms. L’s evidence was her account of Dr. Chyc’s confession when he returned to her home on 15th April 1990. Moreover, we find for reasons that we set out below in Sub paragraph 21) below that Dr. Chyc was untruthful in relation to his memory of Ms. L.
21) Dr. Chyc relied very heavily on the assertion that he did not remember his visit to Miss. L. He told us he had no memory of this visit independent of his records. He said that when he read the interim PAG report [1/181e] at the time of his suspension he had only a vague general memory of Ms. L as a patient. Reading her medical records had provoked no real memory of the visit on 15th April 1990 and he relied on his usual practice. He also said that he had administered about six injections of diazepam in his practice between 1989 and 1993. Making due allowance for the inaccuracy of such estimations it is plain that the administration of IV diazepam was an minutely small proportion of the many occasions he has treated patients over the years. We simply do not believe that in these circumstances he did not remember what happened when he attended upon Miss. L on 15th April 1990 or that he only had, as he claimed, a vague general memory of Ms. L as a patient. In our view it was highly significant that when being closely cross-examined as to the basis of his belief that Ms. L was cross- tolerant and his justification for such a large dose, he was suddenly able to remember that Miss. L had been critical of Dr. Lock’s prescribing practice and that she used to call him “Dr. Spock”. Unlike the rest of his evidence this account, which emerged entirely spontaneously, had an undoubted ring of truth. We do not believe that he had retained only this memory of Ms. L.
22) Dr. Chyc told us that the night before he gave evidence he had remembered that when he was painting the surgery with Dr. Lock he had told him that he thought Ms. L attractive. He gave us details about the occasion. He was able to remember that he had painted the ceiling and was not amused when Dr. Lock suggested a second coat. He also recalled that a patient wanting a consultation had interrupted their painting. Mr. Garnham relied on the evidence about his conversation with Dr. Lock as a hallmark by which we could judge Dr. Chyc’s honesty since it amounted to an admission against interest. We consider that far from such being the case the evidence emerged as part of a concerted effort on the part of Dr. Chyc to manipulate the evidence in his favour. We have concluded that the reason that he allowed his “recent” memory to emerge was because he sought to enhance his case that it was possible that the source of this and other more significant pieces of information related by Ms. L was Dr. Lock rather than himself. We conclude that Dr. Chyc was not telling the truth when he sought to suggest that he had only recently recalled his conversation with Dr. Lock. We note further that it seems remarkable that Dr. Chyc could remember mundane details of a fairly unremarkable event and yet recall nothing of his visit to Ms. L, which, even on his own case, must have been a highly unusual event.
23) We have considered the Lucas direction in relation to this evidence. We are satisfied that the lie was told deliberately .We have considered all the possible reasons that might account for why Dr. Chyc lied on this issue. We have concluded that it was a lie told to bolster his defence and it is not, of itself, probative of guilt.
24) We have considered Dr. Lock’s evidence that he did not recall Dr. Chyc telling him that he thought Ms. L attractive. It was plain from his evidence that he would not have regarded that sort of comment between young doctors as worthy of particular note. We accept his evidence that if he had recalled such a comment at an earlier time it was extremely unlikely that he would have relayed that information to Ms. L or to another person such as Mr. Garner. It is, of course implicit in that evidence that it is at least possible that he did relay the information to Ms. L and /or Mr. Garner during the period that he was collating sources of information for the GMC. That said, we accept Ms. L’s evidence that it was Dr. Chyc who told her that he had told Dr. Lock that he found her attractive. Dr. Chyc made the point in his witness statement that it would have been an unwise comment to make had he raped her. This somewhat overlooks the point that he was, as we infer, seeing Ms. L in an effort to ensure that she did not make a complaint against him and/or that if she did she would not be believed.
25)
On 12th February 1996 Dr Lock had written a letter to the GMC
setting out an account of Ms L’s allegations [1/45-46]. Dr Lock had not made
any contemporaneous record of Ms L’s
account when she complained to him on 22nd November 1995. It follows that Dr Lock’s account was
written from memory nearly three months after the original complaint. The
account recorded is more extensive than Ms L’s evidence to this panel. In particular Dr Lock related that she had
reported that sexual intercourse had occurred between herself and Dr Chyc a few
times by consent and that she had been given a sedative injection after one
other episode of intercourse. This
account also stated Ms L remembered Dr Chyc getting into bed with her on the
occasion of the alleged rape. At one stage in her evidence Ms L appeared to
agree that she had made this statement but this had been put on the basis that
this was her account rather than Dr Lock’s recollection of her account. Assuming the letter accurately reflects that
which she told Dr Lock, we do not consider that the inconsistencies are such as
to effect our overall view as to Ms L’s credibility.
Ms. P
76. It was common ground that Ms. P was a vulnerable patient. She told us that she suffered from anxiety. She had consulted Dr. Chyc on many occasions and had always found him friendly, approachable and extremely sympathetic. On one occasion she saw him in the surgery when she was upset. Dr. Chyc came from behind his desk and caressed her hand and up her arm in a comforting manner.
77. On 30th
April 1990 Ms. P was ill in bed with breathing difficulties. She had seen a locum the day before who had
prescribed treatment that did not alleviate her symptoms. She telephoned the surgery and asked for a
home visit. Dr. Chyc attended her in her bedroom. She was in bed
wearing her nightdress. Her husband was outside the house working on his car in
the driveway. Having ascertained the history Dr. Chyc examined Ms. P’s chest
with a stethoscope. To this end Ms. P
had opened three buttons of her nightdress.
Dr. Chyc asked her if she needed help with the fourth button. Ms. P alleged that as Dr. Chyc put the
stethoscope inside the nightdress with his right hand he took hold of her
breast with his left hand and ‘cupped’ it.
At the same time he said to her “may I kiss you?” Ms. P said she drew back suddenly with the
result that the fourth button on her nightdress was pulled off. She told us that Dr. Chyc apologised and
quickly left.
78. Ms. P
did not tell her husband what had happened. There were problems in her
marriage. She told us that her husband
would have had a negative response and would have asked her if she had
misconstrued Dr. Chyc’s intentions.
79. Ms. P
did not make a complaint about the incident until April 1997 when she saw Dr.
Lock. She told us that in the course of
treatment at a pain management clinic at Walton Hospital she had been seen by a
psychiatrist who had asked her if she had any problems on her mind. She told her about the incident with Dr.
Chyc. She was then referred to a
psychologist called Kate McIvor who encouraged her to disclose her allegation
to the surgery. As a result of her
disclosure to Dr. Lock the GMC were contacted and Ms. P set out her account of
what had occurred in a letter dated 15th June 1997 [1/60]. She was not interviewed by anybody from the
GMC. In due course she was telephoned
by the GMC and, in effect, was told that they required a certain number of
complaints in order to proceed.
80. Ms. P
told us that within a week of writing to the GMC she was admitted to hospital
and was treated as an inpatient for five weeks. Following her discharge she told Dr. Lock that she felt unable to
proceed with the GMC investigation. She
felt it would be a constant reminder of what had happened and that she needed
to move forward.
81. In
cross-examination Ms. P said that following the incident she could not tolerate
seeing Dr. Chyc in her home. She said
that she was willing to see him at the surgery but that she always made sure
that there was someone with her. She
agreed that in her witness statement she had stated that she had not seen Dr.
Chyc again. She told us that she was
referring to the day of the incident. She said that the surgery did not have an
appointment system and was very busy.
When she needed to see a doctor she asked if she could see Dr. Lock but
would be told that he was not there.
She did not remember that she had seen Dr. Chyc just two days after the
alleged incident. She told us that she
was unaware that she could have changed surgeries. She did, however, change
surgeries following her disclosure to Dr. Lock in 1997.
82. It
became apparent from the records that Ms. P saw Dr. Chyc very frequently in
relation to a wide range of medical issues and emotional concerns after the
alleged assault. In particular she
confided in him in relation to her feelings about the death of someone she
regarded as her father figure. It was
put to her that the medical complaints for which she had consulted Dr. Chyc
after the alleged assault necessitated physical examination. She asserted that a friend or member of her
family who would be outside in the waiting room always accompanied her.
83. Dr.
Chyc denied that he had assaulted Ms. P or asked if he could kiss her.
84. Dr
Bradley provided two reports that set out in some detail the myriad complex
social problems and significant psychiatric history of Ms. P [1/300 g and
h]. In our view it is unnecessary and
undesirable to relate the full extent herein.
Suffice it to say that it is apparent that Ms. P had a history of sexual
abuse as a child and adolescent. In Dr
Bradley’s opinion a person abused in this way may misinterpret or fantasize
about further sexual abuse.
It is also apparent that the hospital admission to
which Ms. P had originally referred when giving her evidence involved her being
sectioned under Section 2 of the Mental Health Act. A diagnosis of mild hypomania and dependent personality disorder
was made. At that time she was
suffering from mild paranoid ideas and claimed that cars had been following her
for the previous two weeks.
Significantly this admission occurred very shortly after Ms. P had made
her disclosure to Dr. Lock. We noted
that there was clear documentary evidence indicating that there had been family
concern about her mental health for some months prior to her making her
complaint.
85. In
March 2002 Ms. P was re-admitted to hospital and was diagnosed to be suffering
from schizoaffective disorder of mixed type.
She was apparently not discharged until September 2002. Although the dates in respect of the various
admissions are difficult to discern it appears that there was another occasion
when Ms. P was re-admitted to hospital in late 2002. At this time her presentation was extremely bizarre. She was hearing voices and appeared to be
muddled and perplexed. The notes appear
to indicate that she believed that she was hearing the voice of a man saying
that he loved her.
86. In
short, in Dr Bradley’s opinion there was clear evidence that Ms. P had suffered
from significant psychotic episodes in 1997 and on two occasions in
2002/3. In his view it was a real
possibility that she had suffered a similar psychotic phase in 1990 involving
Dr. Chyc in her delusional system.
87. In the light of Dr Bradley’s evidence we have come to the conclusion that we could not be sure that the alleged assault took place.
Ms. D
88. Ms. D was a patient of Dr. Chyc at The Hawthorn Surgery in Colchester. She alleges that Dr. Chyc assaulted her in February 2001 when he hugged her and pressed his erect penis against her. She alleges that on a later occasion in the autumn of 2001 he put his arms around her and asked her if he could kiss her. Dr. Chyc denies assaulting or behaving inappropriately towards Ms. D.
89. The following matters are common ground:
a) Ms. D was a vulnerable patient. She had had considerable emotional problems in her early childhood and had been physically abused. She spent part of her early years in a children’s home. She had low self- esteem. She had had problems in her marriage. At the date of the alleged incidents she was a lone parent with a teenage son living at home. There were significant problems at home. She suffered from panic attacks, depression and anxiety. She also had difficulty putting on weight.
b) She first saw Dr. Chyc in about July 1999 and saw him frequently thereafter. She felt that she could totally trust him and he helped her to develop a more positive outlook. She told us that as a result of that help for the first time in her life she wanted to help herself. At one consultation Dr. Chyc placed his hand on hers and she cried. She told us that she felt that no one had been that kind to her. Dr. Chyc told her that she was a good patient and she tried really hard to get better.
c) In February 2000 Dr. Chyc referred Ms. D to Merrill Matthews, a counsellor attached to the practice. Ms. D saw Ms Matthews on regular occasions between February 2000 and July 2001 when counselling was brought to a close. On 14th July 2001 Ms Matthews wrote to Dr. Chyc stating “…We closed our work on July 2nd. (Ms. D) is aware that should she need help in this way again she can contact you and my perception is that she would not hesitate to do so.” [2/544].
90. Ms. D told us that on an occasion in early 2001 as she got up to leave the room Dr. Chyc also stood up and put both arms around her and pushed his body against hers. She could feel his erect penis against her lower abdomen. She pulled away. When asked to demonstrate she pointed to the horizontal mid line in the area between her tummy button and the pubic bone. She said that she could identify the date of the incident as 1st February 2001 by reference to her diary. From that date she would write “C” accompanied by an upwards arrow as a means of indicating to herself the occasions when Dr. Chyc started to stand up as she was about to leave his room. She also said that she wrote ‘C’ because she said that from this date she could not bring herself to write his full name.
91. Despite the alleged assault Ms. D continued to consult Dr. Chyc on a regular basis. She told us that on 13th September 2001 as she went to leave his room Dr. Chyc said, “Please may I?” Ms. D left before he could say any more. On 21st October 2001, Dr. Chyc who had hold of her hand, put his arm around her and, calling her by her first name, asked if he could kiss her. She left the room quickly.
92. Having confided in her daughter, she contacted Merrill Matthews on about 27th November. As she began to relay her account Ms Matthews told her that she could not listen anymore and that she should see another doctor in the same practice. She then saw Dr. Grimm on 28th November 2001 to whom she related an account of Dr. Chyc’s conduct.
93. In cross-examination she agreed that when Dr. Chyc had first held her hand she found this friendly and supportive. She said that she started to feel uncomfortable when he began to put his arms around her. She agreed that there was an occasion between the alleged assaults when she had been very distressed about her daughter and had cried on Dr. Chyc’s shoulder while he had his arms around her. On this occasion Dr. Chyc made circular movements on her back with his fingers. She felt that Dr. Chyc was not really listening to her. She agreed that she knew she could obtain repeat prescriptions by telephone. The effect of her evidence was that she needed to see Dr. Chyc to tell him that her tablets were not working and because she wanted him to see the state she was in. She said she just wanted something to make her feel better. She agreed that her weight had increased between April and June 2001. She attributed this to the fact she was on supplement drinks rather that an indication that her well being had improved.
94. She said that she had continued to see Dr. Chyc despite the assault because she wanted to maintain the link to Merrill Matthews. When counselling ended in July 2001 Merrill Matthews had told her if she needed to see her again she should speak to Dr. Chyc about re-referral. She thought that she needed to see Dr. Chyc in order to be referred back to Merrill Matthews if the need arose. She agreed that she had made good progress in counselling but had not confided in her counsellor about her alleged experiences with Dr. Chyc. The effect of her evidence, however, was that she had been to counselling to deal with difficult issues in her distant past. Whilst this was going on she had pushed the incident out of her mind. She agreed that even after the alleged assault (in October 2001) she told Dr. Chyc that he was kind and thanked him. When asked why she had not changed doctors she said she had not known she could see another doctor until November. After she had confided in her daughter, she went to see Merrill Matthews. She had not confronted Dr. Chyc about what had happened because she did not want to upset him.
95. Following her attempt to tell Merrill Matthews she saw Dr. Grimm and told her that Dr. Chyc had held her so close that she had felt “the outline of his body”. Ms. D told us that she could not bring herself to use the precise words to a doctor she had only just met. She asked Dr. Grimm not to tell Dr. Chyc of what she had said and Dr. Grimm agreed not to do so. In the event the next time she saw Dr. Grimm she learnt that Dr. Grimm had informed Dr. Chyc of her complaint without her permission. She was traumatised by the breach of her confidence.
96. As a result of Dr. Grimm’s involvement Marilyn Quade, Consumer Services Officer at the PCT, contacted Ms. D on the telephone. She did not tell Mrs Quade about the erection. She told us that she didn’t know if she could trust her. She had confined herself to saying that Dr. Chyc had been over familiar. Following the involvement of the PCT she was transferred to another surgery and, in due course, saw a Dr O’Callaghan. Such was her anxiety about having to tell a new doctor of her experience she asked Mr. Greenwood to explain to Dr O’Callaghan why she was in such a state. Her reluctance to tell Dr O’Callaghan is referred to by that Doctor in the letter of 15th February 2002 [2/558].
The Seroxat Issue
98. Dr. Chyc first consulted Dr Murray in late 1999. On 17th November1999 she discussed or suggested that he take Seroxat. On 19th January 2000 she noted that Dr. Chyc continued to take no medication. On 16th August 2000 she recommended 20mg Seroxat daily. On 16th September 2000 Dr Owens wrote a prescription for Seroxat for Dr. Chyc. On 2nd October Dr Owens noted that Dr. Chyc had not collected his prescription and she questioned whether Dr. Chyc was taking the medication. Dr. Chyc’s evidence was that he started taking Seroxat in October 2000. On 7th November 2000 he consulted his G.P., Dr Owens, and was given a repeat prescription. The effect of her note on that date is that Dr. Chyc told her that whilst Seroxat improved his mood he experienced the side effect of decreased sexual function (2/570). In cross-examination Dr. Chyc agreed that he had told Dr Owens of decreased rather that non-existent sexual function. When asked why he said that he had probably wanted to save his general practitioner embarrassment.
99. Professor Nutt explained that the aim of Seroxat is to increase the level of serotonin in order to alleviate depression. A recognised side effect is that the increased levels of serotonin act to damp down sexual function. The majority of patients taking the drug will notice some alteration in their sexual function (the partially affected group) and 10 – 20% will be completely unable to obtain an erection. For those partially affected the ability to obtain an erection is not total. The drug reduces the strength of an erection and increases the time required to achieve erection and arousal demands. If the side effect is to become manifest it will occur either directly or within one week of taking the drug. When the patient stops taking the drug the side effect will wear off over a period of two – three weeks. The majority of patients taking Seroxat will achieve some sort of erection but it takes longer than normal. It is not necessarily the case that all patients suffer from sexual dysfunction as a result of taking Seroxat.
100. Dr. Chyc’s evidence was that the effect of Seroxat on him was to prevent his achieving an erection at all throughout the period between October 1999 and March 2001. At that time he went on a family holiday to Tunisia. As his mood was better he forgot to take his medication and his erectile function returned. He resumed sexual relations with his wife whilst on holiday. His evidence was supported by that of Mrs. Chyc. She told us that throughout the relevant period (and until the holiday) she was unaware of any sexual function on the part of her husband.
101. Dr. Chyc was cross examined as to why he had not mentioned the effect of Seroxat upon him to the police in October 2000 when he was interviewed by police under caution in relation to Ms. D’s allegations. He said he had not remembered it at the time. Although cross examination had not, in fact, gone so far as to strictly entitle him to do so, the panel received in evidence a letter from Dr. Chyc to his solicitors dated 12th June 2003 stating: “EUREKA. I don’t know why it has taken me so long to realise that I have devastating evidence that pretty much proves (Ms. D) is lying…I was on an anti-depressant….. all the time I have been on this medication it has rendered me virtually incapable of achieving an erection….The chances of her feeling my erect penis are as near as makes no difference zero. I don’t know why it has taken me so long to realise this…”
102. In
his submissions Mr. Garnham argued that a number of factors placed considerable
doubt on the reliability of Ms. D’s evidence. Apart from the evidence of Dr.
Chyc and Mrs. Chyc as to his sexual incapacity he submitted that the relative
heights of Dr. Chyc and Ms. D were such that if any erection occurred it would
have been felt significantly further up her body than alleged. Ms. D gave her
height as 5’4” and said that she was wearing trainers with a 2” heel. Dr. Chyc
at 5’10” was some 4” taller than her. Leaving aside that the relevant
measurement would be that of leg length, we reject this argument. On any
sensible analysis it is unrealistic to say that it was impossible for Ms. D to
have felt an erection somewhere between her pubic bone and tummy button as she
described. Mr. Garnham also relied upon the inconsistency between Ms. D’s
statement to the police and that which she had provided to the GMC. In the
former Ms. D had described the erection as having been against her “ privates
(vagina)”. In the latter (and in her
evidence) she stated that she felt the erection against her lower abdomen.
103. Mr. Garnham also relied upon the fact that there was no stimulation that might have caused Dr. Chyc to obtain an erection. Mr Ford contended that the panel might wish to consider that normal stimulation may not be required in a dominant abuse scenario. Mr. Garnham argued in reply that acceptance of that proposition would require expert evidence and that, in any event, it was not a matter that had been put to Dr. Chyc
104. Mr. Garnham further contended that the fact that Ms. D had welcomed some physical contact with him made it plain that the heart of her complaint lay not in the fact of the fact of the embrace she alleged but in the simple fact of the alleged erection. Ms. D was, however, never explicitly asked if she welcomed Dr. Chyc putting both arms around her and pulling her towards him.
105. Mr Forde submitted that if we found that Dr. Chyc lied in his evidence about putting both his arms around Ms. D then it may be easy to accept Ms. D’s evidence in respect of the pressing of the erection against her. Mr. Garnham submitted that a Lucas direction was therefore required. Ordinarily we would not have considered a Lucas direction to be appropriate since the overall issue involves a stark conflict of evidence where the evidence said to be a lie is intrinsic to the allegation. However, since Mr. Forde seemed to contend that he sought to rely on the Defendant’s evidence as to one aspect of the alleged assault as probative of guilt in relation to a different part of the same allegation, we decided to direct ourselves in accordance with Lucas. We did not believe Dr. Chyc’s evidence. We are satisfied that he told a lie when he said that he had never hugged Ms. D. We are satisfied that the lie was deliberate. We considered, however, the possibility that the defendant lied on this issue to bolster a true defence in relation to the allegation that he pressed his erection against Ms. D or in order to conceal conduct that would be considered improper. We also considered whether he lied because of panic, fear, or stress. We are satisfied that he did not lie for an innocent reason.
106. We are satisfied so that we are sure that Dr. Chyc assaulted Ms. D on 1st February 2001. We found Ms. D to be a wholly credible witness. We did not consider that the inconsistency between her witness statement to the police and her evidence before us was sufficiently significant to place real doubts upon the reliability of her evidence. She appeared to us to be an extremely timid and reserved person. She readily conceded points in Dr. Chyc’s favour. She acknowledged that he had kind and considerate. She conceded when challenged that she could not be certain that Dr. Chyc had massaged her back in circular movements on 1st February 2001 as she had originally stated. She was, nonetheless, certain that she had not made a mistake about his erection. We do not consider that it is possible that she mistook a handkerchief, keys or other objects for an erection. We reminded ourselves that an honest witness can be mistaken and may convince others because of her own conviction. We are, however, sure that Ms. D was not mistaken. Her evidence was characterised by an almost complete lack of animosity towards Dr. Chyc. Indeed, if one had to characterise the tone in which she gave her evidence it was that of resigned sadness.
107. We came to the clear view that the reason she returned to Dr. Chyc time and time again was that because she was completely dependant upon him. He was the only person who had been kind to her for some time. She was a very vulnerable woman with low self- esteem. We accept her evidence that she sought to block out the events of 1st February 2001 whilst she struggled to deal with issues from her troubled past in counselling. We accept also that it was only when she had dealt with those issues that she was able to summon up enough courage to confide in her daughter who advised her to make a complaint. We further accept her evidence regarding her disclosure to Merrill Matthews and Dr. Grimm. We consider that the fact that she did not relate the full account to Ms Matthews was entirely understandable given the manner in which Ms Matthews had responded. She was simply not given an opportunity to do so. In our view there is no significance in the fact that she did not “spell out” exactly what had occurred in relation to the erection when she spoke to Dr. Grimm and Mrs Quade. She was simply too embarrassed. It is significant in this regard that she could not inform her new general practitioner of the events that occurred. We could find no reason or motive for Ms. D to have lied. We found her to be an honest, credible and reliable witness. We accept Mr. Forde’s submission that given her evident timidity it is inconceivable that Ms. D would have gone to the lengths that disclosure of her allegations has required unless the allegations were true.
108. We are extremely conscious that acceptance of her evidence involves rejection of that of Dr. Chyc, a man of previous good character.
We do not believe his evidence that the effect of Seroxat was to render him completely incapable of achieving an erection throughout the period until March 2001 as he alleged. We find that his sexual function was reduced as he related to his general practitioner. We do not believe his evidence that he did not tell Dr. Owens of his total incapacity to spare her embarrassment. We accept Professor Nutt’s evidence in relation to the general side effects of Seroxat. We do not believe that Dr. Chyc was taking Seroxat at the relevant time. In so far as the evidence of Mrs. Chyc supported that of her husband we do not consider it to be reliable.
At one stage it was said that if the allegation in respect of 1st February was found proved it would be difficult to reach a different conclusion in relation to the later allegation. We directed ourselves, however, to look at each allegation separately. Having focused upon the evidence we concluded that is little or no room for Ms. D to have been mistaken in relation to this allegation. We found Ms. D’s evidence to be wholly credible and are satisfied that Dr. Chyc did put his arms around her and ask if he could kiss her.
Ms. K
109. Ms. K was not a patient of Dr. Chyc but was employed at the surgery as Practice Manager when he joined the practice in 1997. A professional and supportive friendship developed in which each was able to talk to the other. Dr. Chyc told Ms. K about his unhappy childhood and that his father had committed suicide. Ms. K talked to Dr. Chyc about her unhappy childhood and the fact that she had been sexually abused. In the context of this supportive friendship Dr. Chyc would hold Ms. K’s hand or put his arm around her. They also hugged each other on occasions.
110. In the autumn of 1988 Ms. K’s second marriage had broken down and her husband left her. She was distressed and worried about her future. She felt fragile and frightened of being on her own. She confided in Dr. Chyc. He sat by her and held her hand. When she stood up Dr. Chyc also got to his feet and embraced her by putting both his arms around her shoulders. Ms. K put her arms around him. She told us that Dr. Chyc held her very close and she felt his erect penis pressed against the right side of her body. In evidence she pointed to the area of her lower abdomen near her right hipbone. She said she put both her hands up to push Dr. Chyc away. She was shocked. She said that she did not consider complaining about the incident or going to the police. She tried to put it out of her mind. She had been sexually abused as a child and told us “you just don’t tell people…it’s difficult to get your head around something like that.” She told us that during the incident Dr. Chyc had rubbed her back with circular movements. This had not occurred when she and Dr. Chyc had hugged previously nor had he ever held her so close.
111. Shortly before the incident she had been having difficulties with the heating at her home and Dr. Chyc had offered to come and help her. A few days after the incident she declined his offer of help because she was frightened. She also said words to the effect “you know my background. I really do have a problem with men holding me like that.” Her evidence was that Dr. Chyc acknowledged what she had said by nodding.
112. Following Dr. Chyc’s suspension on 10th February 2003, Ms. K was visited by Mr. Greenwood and made a statement dated 13th March 2003, and amongst other things, she set out her account. [1/113-116] She was closely cross-examined as to why and how she came to make a statement complaining of an incident that had occurred some years previously and, further, what she knew of Ms. D’s allegation prior to making her own complaint.
Ms. K told us that she was aware shortly before Dr. Chyc’s suspension that a patient had complained that Dr. Chyc had embraced her. She had not, however, in any way been involved in the complaint process itself and did not know any further detail.
113. In his evidence, Mr. Greenwood told us that he visited the surgery in order to gather information. In the course of taking a statement from Ms. K she disclosed her account which he recorded sequentially as it emerged. When Ms. K had told him of the incident with Dr. Chyc he felt it necessary to find out whether Ms. K had been influenced by any knowledge she had about Ms. D’s complaint. He specifically asked her if she knew that a patient had alleged that Dr. Chyc had embraced her whilst erect. He then recorded her response in the witness statement.
114. In the light of the evidence of Ms. K and Mr. Greenwood, Mr. Garnham did not contend that Ms. K’s evidence had been contaminated by any prior knowledge of the detail of Ms. D’s complaint. Not withstanding this concession we have looked at the matter with some care. We are satisfied that the witness statement itself supports the oral evidence given that it was only after Ms. K had made her allegation that she became aware of the detail of Ms. D’s account. Since some muted criticism was made of Mr. Greenwood in this regard we consider it only fair to say that we consider that he acted conscientiously in difficult circumstances and in a spirit of fairness. Mr. Garnham’s broader point, which we accept, is that we should be cautious in assessing Ms. K’s evidence given that the knowledge that she was not the only complainant to allege a similar assault may have strengthened her evidence.
115. Ms. K firmly denied the possibility that she was mistaken in her belief that Dr. Chyc had an erection. She also firmly denied the suggestion that it was possible that what she felt was an alarm control and/or some other object. She agreed that there had been nothing in her relationship with Dr. Chyc that ever indicated that he ever felt any sexual attraction to her. She agreed with the suggestion, delicately put by Mr. Garnham, that it might be surprising that Dr. Chyc would find her attractive. She had, endearingly, described herself as “ fat and fifty”. She agreed that most men in their forties do not obtain erections without some form of stimulation. She told us that that is why she had been so shocked. She was certain she was not mistaken. After the incident she no longer wanted Dr. Chyc to come to her home to help with her heating. She agreed that after the incident Dr. Chyc never held her in that way again. As she saw it Dr. Chyc did as he was asked. Although she did not view their relationship in the same way as before she put the incident to the back of her mind. Dr. Chyc was her employer and she needed her job. When her son tragically died in 2001 the surgery partners agreed to pay for twelve counselling sessions to help her come to terms with her loss. It was Dr. Chyc who agreed to further sessions when it became clear that more counselling was required. Ms. K was grateful that Dr. Chyc had done something good for her and she hugged him. She told us that she felt able to do so because she had put the earlier incident “on a shelf.”
116. As has been indicated there was considerable common ground between Ms. K’s account and that of Dr. Chyc. The significant difference related to the issue of whether he pressed his erection against her as she alleged. He had some recollection of embracing Ms. K in the context described by her. He told us that he could remember her recoiling from him. He was certainly not aware of having an erection at the time but said that there was a faint possibility that this had occurred since spontaneous erections can occasionally happen. He thought that he had hardly ever had an erection at work. He remembered that he had offered to help Ms. K with her night storage heaters but that she had declined. He also recalled that within a few days of the embrace Ms. K had told him that she was not happy with the way he had embraced her because it brought back unpleasant memories. He had not noticed that their relationship had become less friendly. They had hugged after the incident on more than one occasion and even on the day he was suspended. He was astounded by Ms. K’s allegations. His view was that as Ms. K would not accept that she was mistaken she must be lying.
The evidence in relation to
the alarm fob
117. Dr. Chyc had made no reference to this in his witness statement because it was something that had occurred to his wife whilst the panel were hearing evidence in April 2004. He told us that his wife found the alarm fob in a drawer and had said to him that it was “about the right size and shape”. Mrs Chyc had suggested to him that he bring it to the hearing. Mrs Chyc told us that when she found the alarm fob she remembered that there had been an occasion when she and her husband embraced when she thought that he had an erection. When this occurred she indicated as much to her husband and he told her that it was the alarm fob.
118. In his submissions Mr. Garnham principally relied upon two matters. The first was that Dr. Chyc had had a spontaneous erection of which he was unaware. The second was that Ms. K had mistaken the alarm fob and attached key and/or some other object for an erection. Since Dr. Chyc went further in that he suggested that Ms. K was lying it is only right that we deal with this point.
119. We consider that Ms. K was an honest and conscientious witness who was plainly doing her best to describe the incident accurately. We agree with Mr Ford’s observation that Ms. K was a witness who gave her evidence more in sorrow than in anger. She acknowledged Dr. Chyc’s kindness to her and in her evidence generally was scrupulously fair in only saying that which she recalled. An honest witness can, however, be mistaken and in our view, Mr. Garnham sensibly directed his submissions to this point.
120. First and foremost, Mr. Garnham submitted that in the context of the supportive and tactile friendship between them, there could be no basis for the suggestions that the fact of the hug or the stroking of the back (if it occurred) could properly be regarded as an assault. In the light of Ms. K’s evidence we agree with that submission. Mr. Garnham accepted, however, that if Dr. Chyc did have an erection when he held Ms. K and deliberately pressed himself against her this would amount to an assault.
121. At one stage Mr. Garnham suggested that it was only if the panel could be satisfied that Dr. Chyc’s penis was erect before the embrace or immediately upon contact that an assault could be established He contended that logic dictated this analysis for otherwise young men dancing closely with a woman at a disco or similar who suffer a spontaneous erection would be guilty of assault. There is some force in this submission. It seems to us that much would depend upon the evidence as to actions of the man in question in response to the event that befell him. In our view it is unnecessary to consider this further. We consider that the issue is whether Dr. Chyc held Ms.K in a manner so as serve his sexual gratification.
122. We have also considered the possibility that Dr. Chyc had a spontaneous erection of which he was unaware. Whilst common experience tells us that a man can unwillingly become erect when embracing a woman, common sense tells us that he would step back if this occurred. Moreover he would remember the incident. He would be embarrassed and apologetic, not least if it occurred when embracing someone he knew well. We do not regard it as a real possibility that Dr. Chyc unwittingly suffered a spontaneous erection when he embraced Ms. K.
123. It seems to us that the crux of the issue to decide is whether what Ms. K felt was an erect penis rather than an alarm fob or some other object. We accept that whatever Ms. K felt was experienced by her through a number of layers of clothing. We do not consider that this feature, of itself, would cause a sensible woman of mature years such as Ms. K to make a mistake. Although it was not a matter raised in submissions in relation to this witness we have considered whether the significant difference between the stature of Dr. Chyc and Ms. K coupled with the fact that she located the point on her abdomen at which she felt pressure as adjacent to her hipbone could lead to the real possibility that an honest mistake has been made. Having considered the matter very carefully we are sure that Ms. K was not mistaken. We are of the firm view that if there had been any possibility of mistake, Ms. K, who plainly took no pleasure in giving evidence against Dr.Chyc, would have conceded the point. She was, however, clear in her evidence that Dr. Chyc pressed his erect penis against her in the course of a tight embrace that was unlike his previous contact with her. We regard her as a wholly reliable witness.
124. In the circumstances it has been strictly unnecessary for us to consider the application of similar fact evidence. We did so for the sake of completeness. We consider that the facts capable of being described as similar are the pressing of an erect penis in the context of a tight embrace or hug where the Appellant put both arms around the shoulders of each complainant. We are satisfied that there was no contamination in relation to the evidence of Ms. D and Ms. K in the sense that there is no evidence that they put their heads together to make false allegations against Dr. Chyc. We consider that it was not reasonably possible that two people independently making the similar accusations we have heard could both be mistaken or lying. In our view given the degree of similarity between their accounts it would be a remarkable coincidence if Ms. K hit upon the same lies or made the same mistakes as Ms. D in relation to the pressing of an erect object against her body in the context of a tight embrace. We do not consider that Ms. D may have been consciously or unconsciously influenced in making the accusation or in the detail of her evidence through hearing of the complaint of the other. Ms. D was completely unaware that Ms. K had suffered a similar experience. True it is that Ms. K knew that a patient had made a complaint in relation to an embrace and this caused her to make her disclosure. She did not, however, know at that time that Ms. D alleged that the Appellant had pressed his erect penis against Ms. D’s body or that he had held Ms. D in a tight or close embrace with his arms around her shoulders. Had it been necessary to do so we would have concluded that it was an affront to common sense that two witnesses should both be either mistaken or lying in relation to such a similar incident.
125. Again
we are conscious of the fact that acceptance of Ms. K evidence involves
rejection of that of a man of good character. So far as Mrs Chyc’s evidence is
concerned, in the particular circumstances of this case, we need only say that
we did not consider her evidence on this issue to be reliable. We felt that
Mrs. Chyc’s evidence was given under circumstances of enormous pressure.
Disposal under section 49f(4) of the act
126. With the exception of the matter particularised as 1 iii in respect of Ms. L, we have found the allegations of Ms. L, Ms. D and Ms. K proved. With the exception of the allegation made by Ms. K, it was accepted by Mr. Garnham that any of the allegations made, if proved, would justify removal from the List. We have nonetheless formed our own view. In the light of the allegations found proven, we order that the Appellants name is removed from the Medical List pursuant to Section 49F(1) and (4) of the Act.
In our view each of the allegations proved in respect of Ms. L and Ms. D would justify removal from the List. Mr. Garnham submitted that Ms. K was different because she was not a patient. We agree with that submission. We consider it appropriate to say that if Ms. K had been the only complainant whose evidence we found proved, we would not have made an order for removal from the list.
INEFFICIENCY
127. In considering this part of the case we sought, so far as humanly possible, to ignore our findings in relation to unsuitability.
The allegations of Dr Chyc’s inefficiency before the PCT were that:
“Between 1997 and 2002, Dr Chyc:-
(1) failed in numerous instances to refer to a hospital consultant promptly or at all, patients who required such referral
(2) failed to record clearly or at all in the notes of some patients, the condition, signs or symptoms for which hospital referral was required, or other significant records.”
128. The rationale for the decision of the PCT was set out in their letter dated 21st July 1993.
“It is a fact that you have grossly under-performed in your responsibilities through your failure to complete patient summaries and to refer patients in a timely manner. The scale of your under-performance is considerable, both in terms and number of patients involved, at one point 150 plus, the length of the delays, notes dating back three years and more in need of completion, for example, and the detrimental effects, both real and potential on patients. We have taken note of the details of some of these set out in the PAG Report. Whilst the panel noted your acceptance of this under-performance and your reasons for it, namely your depression, we are not persuaded that you have taken significantly strenuous steps to inform the Trust or any other authority of the risk you presented to patients through your inability to perform these responsibilities to an acceptable standard. We consider that your references to the acceptance of past depression and inefficiency in your representations (paragraphs 6.114 to 8.126) as well as oral confirmation at the Hearing by you and Mrs. Chyc that you are still depressed indicates, given your past when depressed, that there remains a risk to your patients that you cannot provide the service that those doctors on the Medical List undertake to provide. By your own admissions, we consider that you are likely to continue to perform poorly. [1/253]
It seems to us that the PCT did not make any findings in relation to subparagraph (2) above (see para 127) except in relation to patient summaries,. We have not heard or seen any significant evidence to support the balance of this particular subparagraph. We therefore disregard it except as stated.
129. The decision in respect of disposal was expressed by the PCT as follows:
“ We believe that the alleged pattern of behaviour by you, added to the admitted inefficiency, is sufficient to justify removal, in our view. We have concluded that in accordance with section 49F(2) of the NHS act1977, as amended, that the continued inclusion of your name on the Medical list would be prejudicial to the efficiency of the General Medical Services and that in accordance with Section 49F(4) that you are unsuitable to be included in the Medical List.”[1/254] ( our emphasis)
It seems to us that the PCT panel did not make a separate decision in relation to the disposal of each category under section 49F of the Act. We should say that it would have been appropriate (and helpful) to do so. We make this observation not to be unduly critical but so as to alert the Respondent and other PCTs of the need to make separate disposal decisions when considering different conditions under section 49 of the Act.
130. Mr Garnham relied upon the fact that “when the case was put before the PCT, it was on the basis that the alleged inefficiency justified contingent removal, not immediate removal (see Greenwood and Grews’ report paragraph 236 at 80 1/238 and the PCT letter of 9.6.2003 at 1/235). Faced with challenges to the decision on suitability, first before the PCT panel and now on appeal, the PCT have changed their position. They now suggest that inefficiency alone would justify immediate removal. They made no such submission to the PCT panel.”
In his written submissions Mr Forde had also stated the PCT had changed their position. He went on to refer to the examination by Mr Greenwood of additional documents following the PCT hearing. On the evidence we have heard it was the Performance Advisory Group that placed their recommendations before the PCT panel. The PAG as explained by Mr Greenwood in evidence is not the PCT panel. It is an advisory body. It seems to us that it was entirely open for the PCT panel to accept or reject the PAG recommendation. As matters stand, however, the PCT panel in making their disposal decision did not make it clear that they had reached a separate disposal decision in relation to both inefficiency and unsuitability.
131. The PCT’s case before us was that the decision of the PCT panel to remove Dr. Chyc’s name from the List on the grounds of efficiency was reasonable and proportionate. It plainly relied upon further evidence by way of various schedules of inefficiency, to which the Appellant did not object.
132. The Appellant’s case is that the background causes for Dr. Chyc’s inefficiency are multi-factorial but that the primary cause was Dr. Chyc’s illness. In these circumstances the Appellant contended that removal from Medical List was a disproportionate response on the part of the PCT panel and would be a disproportionate response by the Appeal panel. The crux of the Appellant’s case is that his inefficiency was attributable to untreated depression. In effect he contends that now that his depression is effectively treated by antidepressants at optimal level, the panel can be satisfied that conditions will eliminate the risks posed to the efficiency of service that Dr Chyc would be expected to provide.
133. Since it was agreed between the parties that Dr. Chyc’s appeal should be dealt with by way of a de novo hearing it has been unnecessary to undertake the exercise of a review of the PCT decision. The evidence before us has, in any event, been more detailed and has been subject to detailed cross-examination and analysis.
134. Dr. Chyc has always accepted that he was inefficient in his
practice in that he failed to write referral letters or deal with other
correspondence within a reasonable period of time. He has also accepted other
shortcomings in relation to his practice in that he admitted matters that were
categorised as “maladministration” and “failure to provide reports and
information” as set out in the Bundles 3 and 5 and the schedules. By far the
most significant matters before us related to the issue of delay in referral
and we have concentrated on these.
135. It had been agreed that any factual issues in dispute in relation to the inefficiency schedules should be determined on the balance of probabilities. In the event there was little cross-examination by the PCT in relation to the specific matters that had not been admitted in the schedules. We decided, that in these circumstances, the correct approach was to disregard all the documentary evidence before us in relation to matters not admitted.
Although a number of matters had been explored in cross examination by Mr. Garnham in order to put the admitted inefficiency in proper context, in the event, limited submissions were made in relation to the extent of the inefficiency.
136. Notwithstanding Dr. Chyc’s substantial admissions we consider it appropriate to analyse the evidence we have heard in relation to the extent and nature of the inefficiency: it is the starting point for any considered analysis of the potential detriment to the efficiency of services if Dr. Chyc remains on the List and the assessment of whether conditional inclusion will seek to remove such prejudice.
The
Background
137. Dr.
Chyc began his practice in Colchester on 1st January 1997 when he
joined the partnership of Dr Howe in a part time capacity. Dr Howe retired in September 1999 and locums
assisted him until Dr. Grimm joined the practice as a partner in January
2000. Dr.Kreis joined the partnership
in January 2001and worked a job share with Dr. Grimm. She left the surgery in December 2002.
138. The patient list size increased from about 2000 to 3500 in the period between 1999 and the date of Dr Chyc’s suspension. Whilst this increase appears significant it has to be borne in mind that additional medical posts had been provided to cope with the increase. The effect of the evidence was that the list size was not, in itself, excessive. A significant factor, however, relating to this surgery was the fact that it was situated in an area of high social deprivation and, in terms of morbidity, was very demanding. Of the twenty-six practices within his control, Mr Priest recognised this surgery as ranking at the very top of the scale. Only one other practice exceeded it.
Other factors placed pressure on Dr Chyc. Apart from his efforts to modernise the surgery he was responsible for overseeing the building project of the new surgery premises at St Edmunds Centre to which the practice moved in mid 2000. Furthermore, he negotiated and oversaw the development and opening of a branch surgery known at the Hythe Health Centre.
Apart from these matters Dr Chyc was the only full time partner in the practice. We reject the suggestion explored in cross-examination that Drs. Grimm and Kreis did not pull their weight. We accept, however, that it is an inevitable that a senior full time partner will bear more burden than other doctors in the practice.
139. It is common ground that, with the possible exception relating to March 2001, there was to greater or lesser extent a continual “revolving backlog” in referral letters. On Dr. Chyc’s case this pattern had begun in about March 1999 and had become significant in volume by early 2000. We heard evidence that it was still in existence at the time of Dr. Chyc’s suspension on 10th February 2003.
140. We heard evidence from Drs Grimm, Kreis, Thomas and Nabarro as well as Ms K. With the exception of the evidence of Dr Thomas a fairly consistent picture emerged in relation to the “revolving backlog”. In the light of her limited time in the practice we did not consider the evidence of Dr Thomas to be reliable. With the possible exception of March 2001, throughout most of the period between January 2000 and February 2003 (to which these witnesses, between them, were able to speak) there was a significant backlog of records requiring attention of some sort. In Dr. Grimm’s view the backlog invariably related to referrals requiring to be written by Dr. Chyc. When the filing system was changed Dr.Kreis counted 150 sets of notes requiring attention. It was common ground that in March 2001 Dr. Chyc dictated 51 referral letters prior to going on holiday. He told us that he had done so in the weekend prior to his departure. Dr. Grimm was unable to agree that the backlog was thereby eliminated. We understood that she simply was not in a position to say. We note that in his witness statement Dr. Chyc stated that before going on holiday “I did as much as I could to bring all the patient referrals up to date. I completely cleared my desk of referrals at that time.” There was clear evidence, however, that the records awaiting referall were kept in various other locations. We accept that on this occasion Dr Chyc probably made substantial inroads into the backlog. We accept Drs Grimm and Kreis’ evidence that the backlog soon grew again upon Dr. Chyc’s return.
141. The Appellant called Dr Nabarro. She was an impressive witness. She had been a locum at the surgery between February and August 2002. She told us that she was quite shocked by the piles of notes around the surgery awaiting attention by Dr. Chyc. She could not believe what she was seeing. She described the backlog as considerable and constant throughout the time she worked at the practice. In the course of her work she would see notes where referral letters had not been written once or twice a week. The delay involved was weeks or months. She thought that the upper limit in referral delay was three to four months. She saw patients who said they had not been referred. She told us that this was not as often as once per day. She did not consider the practice to be particularly busy, although she considered the patient profile to be demanding and of high morbidity.
142. At the time of Dr. Chyc’s suspension Dr James, a general practitioner employed by the PCT came in to deal with the pressing referrals. Ms. K told us that she went through the outstanding referrals with her, which comprised between 80 and 100 in total.
The efforts made to tackle the
problem
147. In his closing submissions Mr. Garnham accepted on Dr. Chyc’s behalf that the delays involved had posed a serious risk to patient safety. We consider, nonetheless, that since past response is one guide to future risk it is important to examine the quality of Dr. Chyc’s own insight into the effect and potential consequences of his inefficiency.
In his witness statement Dr. Chyc stated that the delay involved several months after March 2001 was 6 to 8 weeks for routine letters and that urgent referrals were done immediately. Dr. Nabarro told us of delays of three to four months during the period she was there. The documentation we have seen shows delays of up to 19 months. We consider it very likely that Dr. Chyc probably had very little idea of just how behind he was. This is, of course, entirely consistent with the fact he was depressed.
148. Dr. Chyc told us that, so far as he was aware, only one case involved potentially serious consequences (patient LL). This evidence troubled us. In our view, it showed a remarkable lack of insight into the potential for risk to patient safety posed by such significant delays. Given that Dr. Chyc had made no attempt to prioritise the backlog the avoidance of risk to patient safety was inevitably a matter of good luck rather than judgement.
149. There are other aspects concerning Dr. Chyc’s insight that caused us concern.
In our view there is clear evidence that Dr. Chyc rebuffed the efforts
of Dr. Grimm to help him. At a time when his practice was, on any objective
analysis, in chaos he took on additional paid work for NEEDAS. Although this
was only three hours a fortnight it was time that he could ill afford. He
accepted that this time would have been enough for him to keep up with his
referrals. He was not pro-active in
seeking help from the PCT. When, as a result of the endeavours of Drs Grimm and
Kreis, Mr Priest became involved he told Mr Priest that referrals were an issue
“although not a major problem”. We
heard evidence from Dr Murray the consultant psychiatrist who saw Dr. Chyc
periodically during the relevant period.
It was clear from her evidence that she had been unaware of the true
extent of Dr. Chyc’s inability to cope with his workload. Dr. Chyc told her that he was behind in his
paperwork. She had no idea as to the
volume of delayed referrals or the length of delay involved. In the autumn of 2002 Dr. Chyc had told her
that the PCT had provided help and that the administrative backlog “seemed to
be alright”. This, of course, was very far from the reality. It was evident to us that Dr Murray was
visibly shocked when she learnt about the true extent and nature of the problem
for the first time as she gave evidence.
She told us that the fact that Dr. Chyc had not coped with the backlog
was a symptom of his depression. She
considered that not telling her about it was “not entirely responsible”.
150. We were also concerned that when cross-examined in relation to his inefficiency Dr. Chyc made the observation that the problem was “not as bad as some people would like to suggest.” Dr. Chyc in his evidence suggested that it was reasonable to deal with urgent referrals within one week and non-urgent referrals within four weeks. By definition any referral for specialist opinion should be made as soon as possible, not least given the ordinary delays endemic in the National Health Service. We heard evidence from Drs Grimm, Kreis and Nabarro, all of whom managed to write routine referral letters within one week and urgent letters either immediately or within a day or two of consultations. Ms. K confirmed that there is now no delay, all letters being dealt with within a few days. In our view this evidence is significant when put in the context of the many reasons (apart from his illness) that Dr. Chyc asks us to consider as contributory to his failure. The stark fact is that since Dr. Chyc’s suspension Dr. Grimm has been running the practice as sole partner with only locum support and yet has managed to clear the backlog and keep up with referrals. Somewhat unattractively, Dr. Chyc attempted to deal with this by telling us that some patients are not satisfied with the services Dr. Grimm provides.
Generally, in so far as there is any conflict, we prefer the evidence of Drs. Grimm. Kreis and Nabarro and that of Ms. K and Mr. Priest, to that of Dr. Chyc.
151. In short, whilst we accept that some of the lack of past insight shown by Dr. Chyc is attributable to his illness we are concerned by the fact that, even now, his insight into what constitutes efficient practice is so limited. In our view this is particularly significant given that he is now on optimal drug treatment and is, on his own evidence, not depressed.
152. We have examined a number of the documented cases before us in relation to failure to refer and have cross- referred these to the evidence in relation to Dr. Chyc’s depression:
Patient LL [4/878 et sec] attended Dr Chyc in November 2001 when he recorded her symptoms and noted these as a probable basal cell carcinoma. He noted the need to refer on that date. On 8th April 2002 a note was made in relation to patients concern as to whether or not the referral had gone through. Dr Chyc noted “lesion now bleeding + + +” on this date. The referral letter made by Dr Chyc was eventually written on 15th May 2002, nearly six months after the need to refer had first been noted. Although the referral letter was marked urgent, no mention was made by Dr Chyc of the fact that the lesion was bleeding. [4/878]
During the period between November 2001 and May 2002 Dr Chyc was not taking Seroxat although on his evidence he was fairly depressed.
Patient CW [4/893] was a young child. Dr. Chyc noted a possible lipoma on the left upper arm on 1st March 2001. Dr Chyc eventually made the referral on 31st January 2002 some ten months later. In his comment to the schedule Dr Chyc accepted that the patient should have been referred sooner and stated, “there was no concern on either his part or the consultants that this was in any way dangerous.” This observation somewhat overlooks the point that the consultant, by reason of Dr Chyc’s inactivity, was unable to give his specialist advice for some ten months. As it turns out the lump was benign. In our view, the fact that this was so was due to luck rather than judgement. In dealing with this patient’s case in cross-examination Dr Chyc implied that there was no urgency about this referral and it was an example of one of those referrals that, “like ironing got left at the bottom of the basket”. He further implied that it was not a matter that would have caused distress to the patient or her mother. Significantly in this regard Dr Chyc had entirely overlooked a statement from the child’s mother [1/896] which related that Dr Chyc had told her that he thought “it was a benign cyst and to be on the safe side he would refer her to hospital.” The mother stated that she had returned to the surgery four or five times because she had not heard anything from the hospital. She had also had to telephone and leave messages. When Dr Chyc eventually said that he would do the referral he did not apologise for his failure to do it before. The mother also stated that she had been worried about the growth and that was why she had continued to contact the practice about the referral.
We note that, on Dr Chyc’s evidence, he was on Seroxat as at 1st March 2001. Within a few weeks of that date, on his evidence, he stopped taking Seroxat because he felt better.
Patient KS [4/1032] presented in May 2002 with a recurrent nasal polyp. Dr Chyc noted the need to refer but never did so. This referral was eventually made by Dr Grimm, on 21st March 2003, some ten months later. By this stage the polyp was so big that it almost protruded from the nasal cavity and the patient was complaining of persistent difficulty in breathing through the nose. When seen at the hospital the patient was placed on the waiting list for an operation. In his evidence Dr Chyc suggested that a three to four week delay would be his usual practice for such a complaint. In our view this is entirely unacceptable. Dr Chyc’s attitude to this case in cross-examination was illuminating. He had said in his schedule that the delay might have caused inconvenience. In cross-examination he would only say, somewhat grudgingly, that it may have been a “great” inconvenience. In our view this attitude reflects very poorly upon Dr Chyc’s insight into the needs of his patients.
We note that when referral was first indicated Dr Chyc was, on his evidence, depressed but not taking Seroxat. During the remainder of the period of delay he was taking Seroxat and was also receiving help form the PCT to enable him to catch up.
Patient LB [4/1097] was a sixty-year-old patient who had a previous history of two episodes of skin cancer. He attended Dr Chyc on 20th October 2002 complaining of pain in the left testicle. Dr. Chyc diagnosed an infection and noted the need to refer to an Urologist. Three days later the patient re-attended and Dr Chyc prescribed further antibiotics and again noted the need to refer. This was eventually undertaken on the 26th February 2003 by Dr Grimm.
In cross-examination Dr Chyc relied on the
fact that he had obviously thought the patient had an infection which was
resolving on antibiotics. He said that
on the basis of his two consultations he felt able to be 99.9% sure in
discounting the possibility of cancer. We note, however, that this seems quite
inconsistent with the fact that he had twice noted the need to refer for
specialist opinion.
At the time of this complete failure to refer Dr Chyc was taking Seroxat and was receiving significant support from the PCT.
We should say that amongst the sixteen
documented cases of failure to refer admitted by Dr Chyc there are instances of
delays where Dr Chyc was not receiving treatment because he considered that he
was not depressed. We accept, of
course, that lack of insight is a symptom of depression and we further accept
that his drug treatment may not have been optimal. We consider, however, that these admitted cases demonstrate Mr
Forde’s submission that even when treated and supported Dr Chyc failed to deal
with necessary referrals.
153. At one stage in his evidence Dr Chyc seemed to suggest that most referral letters took a significant amount of time to write. It emerged however that whilst complex cases might require twenty minutes, most referrals could be dictated in a minute or so. Moreover on the evidence of Drs Grimm and Kreis the average referral rate was in the order of two letters per surgery. Dr Chyc was asked why he did not deal with referrals by dictating letters at the end of each appointment. The reason he gave was his depression rather than lack of time.
Dr Murray
154. Dr Murray is a consultant psychiatrist and medical director of the Priory Hospital Chelmsford. She first saw Dr. Chyc in November 1999 and has seen him intermittently since to date. She provided a report dated 14th January 2004 [301/314] in which she expressed the view that Dr. Chyc suffers from a depressive illness that is responding to treatment. She considered that he should continue under the care of a consultant psychiatrist until his present episode of depression has ended and that he should take advice as to when and if he should stop treatment. Dr. Chyc’s depression is treatable. In her view he will suffer from episodes of depression in the future that may or may not render him to unwell to work. She stated that when not suffering from an attack of depressive illness there is no reason why Dr. Chyc should not be fit to practice.
155. In her letter dated 15th April 2004 [314] she stated, “it is more likely than not that his depressive illness, for which I have been treating him, crept up slowly. He did not recognise it and by the time he was severely depressed he did not have the motivation to seek help…he now knows how depression feels and how different it is from normality. He would therefore agree to take his medication (sooner) rather than later and therefore be less likely to become unfit for a significant period of time. There is no reason to suppose that he should not return to full health. He has a good prospect of being well enough to return to work as a doctor if he continues to receive treatment…he would be advised to keep in touch with his medical advisors, especially his competent GP and as necessary with his treating psychiatrist…he has agreed to remain under either my care or the care of another consultant psychiatrist until this episode of depression is over. Dr. Chyc is not subject to the GMC Practice Procedures. I am familiar with these procedures and work for the GMC both supervising doctors… recovering from illness and providing reports. I am aware that when a doctor is unwell, he may not be fit to practice. If Dr. Chyc remains vigilant and accepts treatment there is no reason that when he is not depressed he should not be fit to practice.”
156. The value of this opinion is, of course, underpinned by her assessment of his condition and prognosis based upon the information that she had been given by Dr. Chyc.
When Dr Murray first saw Dr. Chyc in November 1999 he presented with depression, violence towards his wife and a feeling that he was at the end of his tether. He had suffered from depression eighteen months previously when he had entertained suicidal thoughts and wanted to leave his marriage. He was counselled by his vicar and that episode blew over. In November 1999 he was pale, tired, working long hours and irritable with his children. He said he was always irritable with his children and had been worrying that he did not want to continue with his marriage.
157. Dr Murray ascertained that Dr. Chyc’s childhood was appalling. His father drank heavily, was violent, had had a succession of girlfriends and had eventually remarried following his parent’s divorce. He had lived with his father who was violent and volatile. Access arrangements were extremely difficult: if he saw his mother his father would become abusive. He said he told her that he had never been any good at making friends. His father committed suicide when he was a medical student.
158. Dr Murray discussed the need for psychotherapy to work through the many conflicts in his life on this first occasion. It is evident that Dr Murray also discussed with Dr. Chyc the very real difficulties of the depressed doctor coping with other peoples’ problems.
159. When Dr Murray saw Dr. Chyc again on 1st December 1999 he was angry with her because he believed she had suggested that he might be unfit to practice. So far as psychotherapy was concerned Dr. Chyc wanted to see an ex vicar with a counselling qualification (Mr Martin). Dr Murray was keen to refer him to the Tavistock Clinic, which runs a specialist unit for sick doctors. Dr Murray recorded that Dr. Chyc preferred to see someone he knew.
The next appointment on 19th January 2000. Although he still presented as depressed the immediate crisis was over. Dr Murray continued to urge him to allow her to speak with the Tavistock Clinic or to contact Mr Martin. Dr. Chyc assured Dr Murray that he would make contact with Mr Martin. A further appointment was made with Dr Murray that Dr. Chyc did not keep.
160. Dr Murray had no further contact with Dr. Chyc until July 2000 when Mrs Chyc wrote to her. In her letter Mrs Chyc related that her husband had appeared to be willing to undergo in-depth counselling but had done absolutely nothing about it. She stated “the result is that we live in a perpetual cycle of emotional tailspin, with days and sometimes weeks of minimal communication…our marriage is not very satisfactory but what really drives me to ask for your assistance is the appalling relationship which Tony has with our daughters.” Mrs Chyc then related sensitive details in this regard which need not be set out herein. She concluded, “….I think you will understand that these are simply outward signs of a much deeper problem. Last week his surgery partner told me that she has insisted that he seeks help because she cannot continue to work with him in his current emotional state. I am not sure what kind of assistance you can offer but we are in a situation where we desperately need help and the one who needs it most is the one who is least willing to seek it.” [2/632]
161. As a result of that letter Dr Murray saw
Dr. Chyc on 16th August 2000.
She recorded in her report that Dr. Chyc expressed great anger towards
her because she had not previously prescribed an anti-depressant. On 16th
August 2000 Dr Murray wrote to the general practitioner suggesting that she
prescribe Seroxat. Dr. Chyc agreed to
see Dr Hale at the Tavistock Clinic.
162. On 2nd October 2000 Dr Owens telephoned Dr Murray and told her that Dr. Chyc was not taking his anti-depressants although she continued to offer them. There was then a gap of two years before Dr. Chyc saw Dr Murray again. On 3 October 2002 he told her that he had been to the Tavistock on only 2-3 occasions. She then recorded in her contemporaneous notes that he had eventually taken Seroxat but had stopped them in less than six months. He had become more depressed and in June 2002 he began to self-prescribe Seroxat at 30mg (daily). On 3rd October 2002 Dr Murray offered to re-refer Dr. Chyc to the Tavistock. In October 2002 Dr Owens rang Dr Murray to express her concern that Dr. Chyc was not prepared to deal with his depression. She thought that he was finding reasons for not keeping appointments with Dr Murray or the Tavistock. By this time Dr. Chyc’s interview by the Essex police in relation to Ms D was imminent.
.
163. By 18th November 2002 Dr Murray felt that Dr. Chyc was “very well defended” from the enormous problems in his life. Dr Murray considered that he should not be working. On examination that day Dr Murray did not feel that Dr. Chyc was suffering from biological depressive illness. Dr. Chyc told her that he did not need to take any time off work. Dr Murray next saw Dr. Chyc on 16th December 2002. She recommended that he continue with Seroxat 20mg daily.
164. Contact again ceased at this stage until 9th June 2003 when Dr. Chyc requested an urgent appointment. Dr. Chyc informed her of his suspension by the PCT. She reported that Dr. Chyc said that there was only one complaint alleged against him. Dr. Chyc told her he had not considered coming to see her until ten days previously when he had received papers from the PCT. On mental state examination on 9th June Dr Murray felt that Dr. Chyc was “extremely defended. It was as always difficult to assess his mental state as he was only telling me part of the story.” Dr Murray recorded “he feels he would get depressed again if he went back to work as a doctor.” Dr. Chyc told her that he had had a number of sessions at the Tavistock but that any further treatment would be offered privately. He had not continued with the referral and was worried about finances. Dr Murray strongly recommended that Dr. Chyc continued with skilled psychotherapy as recommended by the Tavistock.
165. In her evidence Dr. Murray made it plain that she did not attribute the fact that she never felt that she got the whole story to any deliberate withholding of information by Dr Chyc. She simply felt that Dr Chyc was unable to cope with the enormity of what was happening to him.
The
Appellant’s insight into his illness.
166. In his
evidence Dr. Chyc referred to two significant episodes of depression 1999/2000
and 2002 onwards.
In the first period the depression crept up on him gradually. He could spend hours sitting at his desk just staring. His clear evidence was that this did not provoke in him awareness that he was depressed.
His recollection was that when he saw Dr Murray in November 1999 she had
not suggested that he take Seroxat. Dr.
Chyc’s perception was that his depression had improved significantly by
February/March of 2000 and that he then began to slide back. He understood that Dr Murray had not felt
that his depression warranted an anti-depressant. In cross-examination he said
that between January and August 2000 he thought that he was “ticking
over”. He disputed that he had ever
been angry with Dr Murray but thought that on one occasion in August 2000 he
had been “quite cross” because he had not been prescribed Seroxat earlier. Indeed, he told us that he had suggested
that he should take an anti-depressant but that Dr Murray had advised against
this. We reject his evidence on this issue. It is inconsistent with Dr.
Murray’s records and evidence. Moreover, it is quite inconsistent with the
documented evidence, which plainly suggests that, to say the least, Dr. Chyc
was slow to take up the prescription of Seroxat when it was positively advised
in August 2000. Following this advice, on his own evidence, he did not start
taking Seroxat until October 2000. He stopped taking Seroxat in March 2001
because he felt better.
167. When
asked in cross-examination why he had not seen Dr Murray for a period of nearly
two years he said that he did not think that there was anything else for Dr
Murray to do. In his own words he
thought she had “cracked it” and he felt fine. One has only to read the letter
from Mrs. Chyc to Dr. Murray dated 18th July 2002 [1/632] to see how
extremely limited his perception of his illness and its effect upon others was
at this time. He took Seroxat 30mg from about June 2002.
168. Dr.
Chyc denied the suggestion that he was resistant to psychotherapy treatment but
said that he was, perhaps, unaware of his needs. He said that he had come to
the realisation that past issues in his life were relevant as long ago as 1999.
He did not, however, agree that it had taken some persuasion for him to go to
the Tavistock. He said that it was more a question of fitting it into a busy
schedule. He said that there were
practical difficulties in getting to the Tavistock and he lacked a certain
amount of motivation. He had undergone brief therapy over six sessions. At its conclusion in early 2003 Dr Van der
Tann had recommended long term psychotherapy that Dr. Chyc understood would
take years rather than months. He said
that he did not follow this recommendation because it would be a fairly large
financial undertaking. Dr. Chyc was
pressed on this issue given that he has been on virtually full pay during his
suspension. It was suggested to him
that it might be thought surprising that he had not used his suspension period
to seek necessary treatment. Dr. Chyc
said that he did not know that the suspension would last as long as it had and
psychotherapy would be a long-term financial commitment. He told us, however, that Dr Van der Tann
had advised him in about April 2004 that he could be referred under the NHS
although the waiting list is two years.
Dr. Chyc has yet not made arrangements for NHS referral. It is extremely
difficult to understand why this has not occurred.
169. So far
as his current state was concerned he did not think that he was currently
actively depressed although there had been times when he had felt very low. He
is currently taking 40mg Seroxat daily. He believes that he would recognise
recurrence of his depression. He
considered the suggestion that he was incapable of medical practice as
extreme. He thought that if Dr Murray’s
advice was followed and his return to work was gradual it should be possible to
find a level at which he could operate.
He thought that he could return either as a partner or in a salaried
role. He questioned whether there was a
difference in stress levels between those two options. He thought that he might be better off
working in a part time capacity. So far
as his insight was concerned he considered that he was now much more
aware. He “suspected” that he had
previously been a danger to patients.
170. Mrs Chyc gave evidence
and was asked about her letter to Dr Murray.
She explained that she now felt that her interpretation of what was
happening in relation to the relationship between her husband and his daughters
was wrong and arose from her desperation. Leaving that issue aside, we consider
that her letter was an accurate and perceptive reflection of the turmoil and
distress caused by her husband’s illness and his evident reluctance to accept
advice and treatment.
171. Doctor Murray’s evidence was difficult not least because her original views were not based upon accurate information in relation to Dr. Chyc’s admitted inefficiency. We accept her diagnosis of moderate depression in formal diagnostic terms. We accept that the fact that Dr. Chyc substantially caught with his backlog in the spring 2001(as we find) correlates with the evidence that he was somewhat better at that time. We consider, that the fact that the backlog soon built up again to significant levels suggests that any improvement was short lived. In seeking to assess the future risk to the efficiency of services, we have regard to the stark fact that despite the fact that Dr. Chyc started taking Seroxat again in June 2002 the backlog remained constant. Moreover Dr. Chyc was still unable to prioritise and deal effectively with his practice. On the evidence we have heard this remained the position despite continued medication and significant input into the practice on the part of the PCT.
172. Mr.
Garnham cautioned us that the evidence of Dr. Murray in relation to her
assessment of risk had to be carefully assessed in the context of the questions
posed. In answer to a question from Mr. Lloyd in relation to the current scale
of risk if Dr Chyc was working Dr. Murray said, “ I think if he had been working recently the risk would have
been quite high.” [T5/19] As we
understood it Mr. Garnham suggested that this answer related to the risk to Dr.
Chyc’s own health. We do not agree. The earlier questions plainly referred to
the risk of working in the context of reporting Dr. Chyc to the GMC. In our
view this must relate to the risk to patients. In answer to Mr Forde’s question,
“ I think having learned a few more facts about the realities of the practice,
would you agree that Dr. Chyc remains a significant risk to patients?” Dr.
Murray replied, “ given that he is not following through on-yes.” Whilst we
agree that Dr. Murray plainly had in her mind the earlier questions that had
referred to Mrs. Chyc’s view that her husband was not following through in
terms of in-depth therapy, the current reality is that Dr. Chyc still has not
done so. We seriously doubt that he will truly engage in such treatment even if
it were made a condition. Further, although this is a lesser concern, we would
anticipate considerable difficulties in assessing compliance with such a
condition given the likely attitude of, for example, the Tavistock to the
disclosure of records.
Disposal under section49f(2)
173. We agree with Mr Garnham’s submission that
there can be no real doubt as to the diagnosis of Dr Chyc’s condition and its
effect on his ability to work. Mr
Garnham essentially relies upon the fact Dr Chyc’s underlying depression can
and has been treated by antidepressants.
This, however, somewhat overlooks Dr Murray’s view that skilled
psychotherapy is also an essential component to treatment. We will return to this aspect in due course.
174. The important issue is what degree of
confidence the panel can repose in Dr Murray’s views as to prognosis in view of
her evidence as it unfolded. The main
difficulty is that prior to giving evidence Dr Murray was unaware of the true
nature and extent of Dr Chyc’s inefficiency.
175. Dr Murray was well aware of her duty to
protect patients by reporting a sick doctor to the GMC if necessary. She came close to do so in Dr Chyc’s case in
November 2002. She frankly told us that
had she known the true extent of Dr Chyc’s inefficiency she would have viewed
his continued practice as a risk to patients.
She would have advised him to stop working and reported him to the GMC
if necessary. The plain inference is that Dr. Murray would have taken the same
view, had she known the relevant facts, at a far earlier stage. With one
exception the backlog had been a constant theme between since early 2000 at
least. As it was Dr. Chyc did not tell her the true facts at any stage.
Moreover her ability to ascertain the facts was limited given that Dr. Chyc did
not seek treatment from her between January 2000 and August 2000 and between
October 2000 and October 2002. Throughout this time, however, Dr. Chyc’s
inability to make timely referrals was adversely affecting the efficiency of
the services he provided and risk posed to his patients.
176. This seems to us to underlines the
essential risk posed with a general practitioner who is liable to suffer from
recurrent depression. We accept as Dr
Murray said that Dr Chyc’s lack of insight into his own illness was due to his
depression.
177. In our view Dr Chyc still lacks true insight into his illness as well as the impact of his inefficiency upon the provision of services and the potential risk to patients posed by his inefficiency. Further, we consider that he lacks this insight even though he is not currently suffering from active depression.
178. In our view, there is a clear and present risk that, if allowed to practice even in a limited way, Dr Chyc would fail to recognise a recurrence of his depression with consequent impact upon the efficiency of the services that he would be expected to provide and with risk to the safety of patients.
179. As indicated above Dr Murray was clearly of the view that
skilled psychotherapy is a necessary component to the effective treatment of Dr
Chyc’s illness. She formed the view
that Dr Chyc needed psychotherapy as long ago as November 1999. Dr Chyc was very slow to accept that advice
and did not undergo brief therapy until late 2002. We are struck by the fact that Dr Chyc despite his apparent
insight into his need for prolonged treatment has not taken further steps to
undergo therapy either privately or under the NHS. It is plain to us that lack of finances or uncertainty about his
future are not the real reasons that Dr Chyc has not obtained the treatment
that he has long been advised he needs.
We consider that, albeit for very understandable and human reasons, the
reality is that Dr Chyc is reluctant to embark upon this part of his treatment.
180. We have considered the guidance set out in paragraph 6.2.3 of “Delivering Quality in Primary Care” which provides as follows:
“when considering whether or not action is to be taken against a doctor, for
reasons of inefficiency, unsuitability or fraud, a Primary Care Trust is advised to consider what complementary supportive initiatives might be used to avoid having to resort to the removal of a doctor from the list… this is particularly critical where health is seen as a contributory factor. Many Primary Care Trusts will already have well established local mechanisms for dealing with ill health amongst doctors, for example through the LMC and professional support groups. They are advised to continue these. These mechanisms are likely to be of use within what could be a two way process. The doctor in difficulty over poor performance that has its root cause in ill health being referred to the LMC or the professional support group (or similar body) with that group/body accepting a responsibility to alert the Primary Care Trust if a sick doctor is refusing help and placing patients at risk.”
181. We accept Mr Garnham’s submissions that this guidance covers the whole process, including the decision of the PCT panel, and, that it is guidance that we should take into account in our redetermination of the PCT’s decision.
182. Mr Garnham submitted that removal from the list “would mean the end of Dr Chyc’s practice and of his career.” As Mr Forde pointed out however, a doctor (if not nationally disqualified) can reapply for admission to the list from which he has been removed or can apply for admission to the list maintained by other PCTs. Further, even if nationally disqualified, a doctor can apply to the FHSAA for review of a national disqualification under section 49N (7) and (8) of the Act after a period of two years. We accept, of course, that there may be considerable practical hurdles to overcome in terms of a doctor having become deskilled. It is, however, by no means inevitable that a doctor removed from the List faces the permanent end of his practice as a general practitioner in the NHS. Further quite apart from his ability to apply or reapply for admission to a list (or apply for review if nationally disqualified) a general practitioner removed from an NHS list can (subject to any decision of the GMC) practice his profession outside the NHS or, indeed, within the NHS in a hospital setting. Having made these points, however, we accept that an order for removal under section 49F(1) and (2) will very probably result in the end of Dr Chyc’s ability to practice his profession.
183. We start from the premise that, subject to being reasonably satisfied as to prognosis, if conditions can be devised to seek to remove the prejudice posed to the efficiency of services that is the course we should adopt. At our request the Appellant formulated a number of proposed conditions that we set out below.
1. Dr Chyc to limit his practice to a substantive, non-principal post in a practice with at least three principals.
2. Dr Chyc’s post to be expressly approved by the Post Graduate Dean.
3. Dr Chyc to consult with his own general practitioner in relation to mental health problems at least once every six months unless his general practitioner advises that less frequent consultations are necessary.
4. Dr Chyc to consult at least once every six months with his consultant psychiatrist, unless his consultant psychiatrist advises that less frequent consultations are required.
5. Dr Chyc to comply with all treatment and follow-up advice by both his GP and consultant psychiatrist.
6. Dr Chyc to consent to the occupational health physician appointed by the relevant PCT reporting into Dr Chyc’s mental health at least annually (unless consultant occupational health physician advises that less frequent reports are indicated)
7. Dr Chyc to cease immediately any medical practice if advised so to do by his GP, consultant psychiatrist or the occupational health physician.
8. Dr Chyc to meet with a mentor appointed for this purpose by the Postgraduate Dean at least once every three months, unless the mentor advises that less frequent meetings are indicated.
9. Dr Chyc to advise any practice in which he works, together with his GP, consultant psychiatrist, mentor, the relevant occupational physician and the Postgraduate Dean of the terms of these conditions.
184. We consider that paragraphs 3,4, and 5 would have been observed by a doctor with any degree of insight into the nature of his condition and the risk that his illness posed both to himself and his patients long before now. The fact that Dr. Chyc did not take these basic precautions in a sustained way is, of course, due to the fact that his past lack of insight was profound. The sad fact is that although he sought psychiatric treatment from time to time he has repeatedly failed to follow through. We have considered Dr. Murray’s evidence carefully. In so far as she suggested that Dr. Chyc is currently fit to practice, we do not consider her evidence to be reliable. Further, we are not satisfied that her views on prognosis are a sufficiently reliable basis upon which to take the risk of allowing Dr Chyc to practice subject to conditions. Further, we are not satisfied that an appropriate or adequate “safety net” can be provided by conditions: to greater or lesser extent a treating and/or supervising psychiatrist and/or supervising colleague is dependent upon the information provided to him by his patient/supervisee.
185. We have considered whether a pre-condition of examination by two independent psychiatrists to determine, as a starting point, whether the Appellant is fit to practice. It is, in our view, however plain that:
i. The difficulties that Dr Murray encountered are likely to still be operative
ii. The Appellant still lacks true insight in relation to
a) the nature of his illness and
b) its effect upon the services he is expected to provide
c) its potential and actual effect upon patients
d) the ordinary requirements in relation to efficient practice
iii. Sustained psychotherapy treatment, which Dr Murray always saw as a component of effective treatment, has not even begun. The risks of a recurrence of active depression if and when this is undertaken are plain even to the layman. As Mrs Chyc said the problems are likely to get a lot worse before they get better.
186. We
have taken into account the fact that an order for removal will prevent Dr Chyc
from practicing his chosen profession as a general practitioner for the
foreseeable future. We further
appreciate that the probable outcome of such an order is that it may bring Dr
Chyc’s medical career to an end, with consequent effect upon his
livelihood. We have weighed the
prejudice to the Appellant as against the potential prejudice to the efficiency
of the NHS should Dr Chyc remain on the List. In all the circumstances we have come to the clear and unanimous view
that the direction that we should make is that Dr. Chyc’s name should be
removed from the Medical list maintained by the Respondent under Section 49F(2)
of the Act. In the light of all the evidence in this case we consider
that removal from the List is reasonable and proportionate.
National
Disqualification
187. At the request of Counsel for the Appellant
we did not hear submissions on this potential order pending our decision on the
facts under the case on unsuitability and a decision on disposal re
inefficiency. The Panel are content to determine this issue upon the basis of
written representations alone. If the parties wish, an oral hearing will be
held on a date to be agreed.
188. The attention of both parties is hereby drawn to the provisions of Rule 33 of the Family Health Services Appeal Authority (Procedure) Rules 2001.
Finally, in accordance with Rule 42(5) of the Rules, we hereby notify the Appellant that he may have rights of appeal from this decision under section 11 of the Tribunals and Inquiries Act 1992.
Dated: 17 December 2004
Siobhan Goodrich – Chair
Dr Howard Freeman
Mr Allan Lloyd