Emmanuel Okechukwu Nna v Health and Care Professions Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Butcher |
| Judgment Date | 17 October 2018 |
| Neutral Citation | [2018] EWHC 2967 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1835/2018 |
| Date | 17 October 2018 |
[2018] EWHC 2967 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
The Rolls Building
Mr Justice Butcher
CO/1835/2018
THE APPELLANT was not present and was not represented.
Ms V Butler-Cole (instructed by Bircham Dyson Bell) appeared on behalf of the Respondent.
This is an appeal by Dr Nna against the decision of the Conduct and Competence Committee Panel (“the Panel”) of the Health and Care Professions Council (“HCPC”) made on 10 April 2018 that he be struck from the Register of Biomedical Scientists.
There was an application issued yesterday by Dr Nna to adjourn today's hearing but as I have already ruled this morning I rejected that application. At the hearing today Dr Nna was neither present nor represented. The proceedings have therefore taken the form of a consideration of the arguments which were raised in the skeleton argument which was put in on behalf of Dr Nna and which were drafted by Mr Jenkins. To some extent, the arguments advanced in that skeleton argument were narrower than the grounds of appeal, at least as initially formulated.
The allegations which were made against Dr Nna by the HCPC related in a general sense to an agreement that Dr Nna had made with a researcher in Nigeria, who in the hearings before the Panel and in the main documents before me has been referred to as “Person A”, who wished to undertake research in the United Kingdom.
In more detail, the Allegations which were made were as follows:
“1. On dates unknown between April 2012 and July 2013, you, (i.e Dr Nna), entered into an agreement to provide Person A with a Supervised Research Training Programme at Cranfield University Technology Park and accommodation in the United Kingdom via your company Safety Biomedical Limited at a cost of £9,200 and:
a) In doing so, you knew you could not fulfil the agreement because the site did not have any of the necessary facilities; and/or
b) you did not comply with the agreement, in that on or around September 2013:
(i) you did not provide Person A with a Supervised Research Training Programme as agreed; and/or
(ii) you did not provide Person A with accommodation as agreed.
2. In or around November 2013 you did not fulfil your agreement with Cranfield University (…) to facilitate Person A's Academic Visitor position at the University, in that you did not pay the agreed sum of £3,000 resulting in the termination of the agreement by the University.
3. Following your non-fulfilment of the terms of the agreement detailed in (1) above, you did not return all of the monies paid to you by Person A.
4) Your actions as detailed in (1), (2) and (3) above were dishonest.
5) The matters set out in (1) to (4) above amount to misconduct.
6) By reason of that misconduct, your fitness to practise is impaired.”
A hearing before the Panel took place on 17 to 20 October 2017. As a result of that hearing, the Panel found Allegations 1(a), 1(b)(i), 2, 3, and 4 in respect of 1(a), 1(b)(i), and 2 to have been proved. A further hearing was held and it was found that Dr Nna's fitness to practise was impaired and that the sanction should be a striking off order and an interim suspension order. As I have said, Dr Nna has initiated this appeal against that decision by the Panel. Such an appeal is brought under article 38 of the Health and Care Professions Order 2001.
That article provides, in part, as follows:
“38. — (1) An appeal from —
(a) any order or decision of the Health Committee or the Conduct and Competence Committee other than an interim order made under article 31, shall lie to the appropriate court; (…)
(2) In any appeal under this article the Council shall be the respondent.
(3) The court […] may —
(a) dismiss the appeal;
(b) allow the appeal and quash the decision appealed against;
(c) substitute for the decision appealed against any other decision the Practice Committee concerned or the Council, as the case may be, could have made; or
(d) remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff and may make such order as to costs (…) as it, or he, as the case may be, thinks fit.
4) In this article, the “appropriate court” means (…)
(c) in any other case, the High Court of Justice in England and Wales.”
Paragraph 19.1 of CPR PD 52D applies to this hearing. It provides, in material respects, that the appeal should be supported by written evidence and, if so ordered, by oral evidence and will be by way of a rehearing.
The test for the court to apply in determining whether to allow the appellant's appeal is contained in CPR 52.11.3 and is as follows:
“(3) The appeal court will allow an appeal where the decision of the lower court was —
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
As I have said, such a hearing proceeds as a rehearing but “it is a rehearing without hearing again the evidence”, as it was put by Foskett J in Fish v The General Medical Council [2012] EWHC 1269 (Admin).
The guiding principle for a court considering an appeal of this nature was summarised by Lindblom J in Rice v Health Professions Council [2011] EWHC 1649 (Admin) at para.11 to para.17, essentially as follows:
Although the court will correct errors of fact or approach, it must consider and give appropriate weight to the following considerations:
1) That the Panel is a specialist Tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect.
2) That the Tribunal has had the advantage of hearing the evidence from live witnesses.
3) That the court should accordingly be slow to interfere with the decision on matters of fact taken by the first instance body.
4) That findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from.
5) That there may be a range of reasonable judgments as to misconduct and impairment which could be reached in a particular case.
When assessing whether fitness to practise is impaired, the Panel and the court must take into account the need to protect individual patients and the collective need to maintain confidence in the medical profession as well as declaring and upholding proper standards of behaviour. The primary purpose of imposing a sanction is to protect the public not to punish the practitioner.
Against that background, I turn to consider the points which were raised in the skeleton argument which was submitted on behalf of Dr Nna in relation to this appeal.
The essential point taken in that skeleton argument is that the Panel was wrong to conclude that any agreement between Dr Nna and Person A provided for the payment of a sum of £9,200 rather than £12,000. What is said is that that alleged error goes to the so-called “stem”, or in other words the introductory section, of Allegation 1. It is also said that if the stem is wrong in that respect then the allegations in (a) and (b) of Allegation 1 fall away. It is also said that this error affects Allegation 2 and Allegation 3.
I will revert to the question of how far an error in relation to the amount of the payment agreed might affect the various Allegations in due course. Here, however, I consider the complaint of Dr Nna that the Panel was wrong in saying that the agreed sum was £9,200. To understand this complaint, it is necessary to refer to the Panel's decision in somewhat more detail.
At para.19 to para.25 of its decision, the Panel set out what it described as the background as follows:
“19. The Registrant (i.e Dr Nna) is a Biomedical Scientist registered with the HCPC. In around 2010, the Registrant graduated as a PhD student from Cranfield University and Professor S.T. had been his second Academic Supervisor.
20. Person A was employed as a lecturer in Haematology and Blood Transfusion Science at a Nigerian University. In August 2008, he started a PhD in Haematology and Blood Transfusion at that University. In around April 2012, Person A approached the Registrant, when both were in Nigeria, for assistance in facilitating his research to successfully complete his PhD, which involved researching lectins extracted from snails.
21...
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Malik Mohammed Nazeer v Solicitors Regulation Authority
...dated 8 October 2018. Mr Dunlop then drew my attention to the judgment of Butcher J in Nna v Health and Care Professions Council [2018] EWHC 2967 (Admin), which he contended was relevant to the present appeal. That judgment was given on 17 October 2018, but a full transcript was not immedi......