Council for the Regulation of Health Care Professionals v General Medical Council, Nursing and Midwifery Council, Truscott and Ruscillo

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date20 Oct 2004
Neutral Citation[2004] EWCA Civ 1356
Docket NumberCase No: C1/2004/0781 & C1/2004/0930

[2004] EWCA Civ 1356

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)

(COLLINS J & LEVESON J)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Phillips of Worth Matravers, Mr

Lord Justice Chadwick and

Lord Justice Hooper

Case No: C1/2004/0781 & C1/2004/0930

Between:
Dr Giuseppe Ruscillo
Appellant
and
(1) The Council for The Regulation of Health Care Profesionals
Respondent
and
(2) The General Medical Council & Anr
Respondent
and
Council for The Regulation of Health Care Professionals
Appellant
and
(1) The Nursing and Midwifery Council
Respondent
(2) Steven Truscott
Respondent

Phillip Havers QC & Neil Sheldon (instructed by RadcliffesLeBrasseur, Solicitors) for Dr Ruscillo

John Howell QC & Kate Gallafent (instructed by Baker & MacKenzie, Solicitors) for the "Council"

Roger Henderson QC & Jemima Stratford (instructed by Field Fisher Waterhouse, Solicitors) for the GMC

Dr Karen Johnson (instructed by The Director of Legal Services for the Royal College of Nursing) for Mr Truscott

Alison Foster QC & Robert Lawson (instructed by Penningtons, Solicitors) for NMC

Lord Phillips, MR:

This is the judgment of the court.

Introduction

1

These two appeals, which have been heard together, raise issues in relation to a novel jurisdiction of the High Court. That jurisdiction is conferred by section 29 of the National Health Service Reform and Health Care Professions Act 2002 ("the Act") .

2

Section 29 falls within Part 2 of the Act. Part 2 is concerned with the regulation of health care professionals. Each group of health care professionals operates under its individual statutory regime. Each has its own self-regulatory body. Part 2 of the Act has created a new council to supervise the manner in which self-regulation operates in the field of health care. It is called the Council for the Regulation of Health Care Professionals ("the Council") . Section 29 gives the Council the right, in prescribed circumstances, to appeal to the High Court against the decision, in disciplinary proceedings, of a self-regulatory body.

3

The Ruscillo appeal arises out of disciplinary proceedings brought against Dr Ruscillo, a general practitioner, by the General Medical Council ("GMC") . The charge against him was of serious professional misconduct. The Professional Conduct Committee ("PCC") of the GMC acquitted him of that charge. The Council has appealed to the High Court against that decision. Dr Ruscillo contends that section 29 of the Act gives no right to the Council to appeal against an acquittal. He contends that the right of appeal only arises in relation to a decision as to the appropriate sanction, if any, after conviction. Leveson J, the judge seised of the appeal, dealt with the question of the ambit of section 29 as a preliminary issue going to his jurisdiction. On 29 March 2004 he ruled that section 29 gives the Council the right to appeal against an acquittal. Dr Ruscillo appeals against that decision. The GMC took a neutral stance before the judge but now supports Leveson J's decision.

4

Mr Truscott is a nurse. Disciplinary proceedings were brought against him by the Nursing and Midwifery Council ("the NMC") . He admitted that he had committed professional misconduct. The NMC decided that the appropriate sanction was a caution. The Council considered that this sanction was unduly lenient and appealed to Collins J against the NMC's decision. Collins J dismissed that appeal on 31 March 2004. The Council appeals against his decision, with permission given by Laws LJ. Both Mr Truscott and the NMC support Collins J's decision.

Part 2 of the Act

5

Before turning in more detail to the facts of each appeal it will be helpful to draw attention to the relevant features of part 2 of the Act.

6

The origin of the Council can be traced to the report of Professor Ian Kennedy following a public inquiry into heart surgery carried out on children at the Bristol Royal Infirmary. Professor Kennedy referred to a public perception that a system of regulation of health care professionals which involves the determination of disciplinary allegations by a panel or committee largely comprising members of the profession in question was not necessarily in the best interests of patients. He recommended an overreaching body for the regulation of health care professionals. The Secretary of State announced that he would act on this recommendation. The result, after consultation, was Part 2 of the Act.

7

Section 25 of the Act created the Council, which commenced its duties on 1 April 2003. It provides:

"(1) There shall be a body corporate known as the Council for the Regulation of Health Care Professionals

(2) The general functions of the Council are-

(a) to promote the interests of patients and other members of the public in relation to the performance of their functions by the bodies mentioned in subsection (3), and their committees and officers,

(b) to promote best practice in the performance of those functions,

(c) to formulate principles relating to good professional self-regulation, and to encourage regulatory bodies to conform to them, and

(d) to promote co-operation between regulatory bodies; and between them, or any of them, and other bodies performing corresponding functions."

8

A series of specific powers are conferred upon the Council by the sections which follow, for example:

(i) Section 26(2) empowers the Council to investigate and report on the performance of the regulatory bodies and to recommend changes as to the manner in which the body concerned carries out its various functions.

(ii) Section 27 empowers the Council to give directions requiring a regulatory body to make rules governing the manner in which it carries out its functions (subject to the approval of the Privy Council) .

(iii) Section 28 empowers the Secretary of State to make regulations concerning the manner in which the Council may respond to a complaint made to it concerning the manner in which a regulatory body has exercised any of its functions. Specifically, those regulations may provide for the Council to make a recommendation or a report arising from the complaint. No such regulations have yet been made.

9

Section 29 of the Act, insofar as material, provides as follows:

" 29 Reference of disciplinary cases by Council to court

(1) This section applies to-

(a) a direction of the Statutory Committee of the Royal Pharmaceutical Society of Great Britain under section 8 of the Pharmacy Act 1954 (c. 61) (control of registrations by Statutory Committee) or section 80 of the Medicines Act 1968 (c. 67) (power to disqualify and direct removal from register),

(b) a direction of the Statutory Committee of the Pharmaceutical Society of Northern Ireland under Article 20 of the Pharmacy (Northern Ireland) Order 1976 ( S.I. 1976/1213 (N.I. 22)) (control of registrations by Statutory Committee) or section 80 of the Medicines Act 1968,

(c) a direction by the Professional Conduct Committee of the General Medical Council under section 36 of the Medical Act 1983 (c. 54) (professional misconduct and related offences),

(d) a direction by the Committee on Professional Performance of the General Medical Council under section 36A of that Act (professional performance),

[(c) a direction by a fitness to Practise panel of the General Medical Council under section 35D of the Medical Act 1983 (c54) that the fitness to practise of a Medical Practitioner was impaired otherwise than by reason of his physical or mental health,]

(e) a determination by the Professional Conduct Committee of the General Dental Council under section 27 of the Dentists Act 1984 (c. 24) (erasure or suspension of registration for crime or misconduct),

(f) a disciplinary order made by the Disciplinary Committee of the General Optical Council under section 17 of the Opticians Act 1989 (c. 44) (powers of Disciplinary Committee),

(g) any step taken by the Professional Conduct Committee of the General Osteopathic Council under section 22 of the Osteopaths Act 1993 (c. 21) (which relates to action to be taken in cases of allegations referred to the Professional Conduct Committee),

(h) any step taken by the Professional Conduct Committee of the General Chiropractic Council under section 22 of the Chiropractors Act 1994 (c. 17) (which relates to corresponding matters),

(i) any corresponding measure taken in relation to a nurse, midwife or health visitor,

(j) any corresponding measure taken in relation to a member of a profession regulated by the Professions Supplementary to Medicine Act 1960 (c. 66) or, after the repeal of that Act by virtue of section 60(3) of the 1999 Act, by any such Order in Council under section 60 of the 1999 Act as is mentioned in section 25(3) (i) .

(2) This section also applies to-

(a) a final decision of the relevant committee not to take any disciplinary measure under the provision referred to in whichever of paragraphs (a) to (h) of subsection (1) applies,

(b) any corresponding decision taken in relation to a nurse, midwife or health visitor, or to any such person as is mentioned in subsection (1) (j) and

(c) a decision of the relevant regulatory body, or one of its committees or officers, to restore a person to the register following his removal from it in accordance with any of the measures referred to in paragraphs (a) to (j) of subsection (1) .

(3) The things to which this section applies are referred to below as "relevant decisions".

(4) If the Council considers that-

(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or...

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