Janet Redmond v Health and Care Professions Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeHHJ David Cooke
Judgment Date12 Oct 2016
Neutral Citation[2016] EWHC 2490 (Admin)
Docket NumberCase No: CO/1787/2016

[2016] EWHC 2490 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Birmingham Civil Justice Centre

Bull St Birmingham B4 6DS

Before:

HHJ David Cooke

Case No: CO/1787/2016

Between:
Janet Redmond
Appellant
and
Health and Care Professions Council
Respondent

The Appellant appeared in person

Peter Mant instructed by Bircham Dyson Bell LLP for the Respondent

Hearing date: 6 September 2016

HHJ David Cooke

Introduction

1

Ms Redmond, who is a registered social worker, appeals against the decision of a panel of the Conduct and Competence Committee ("the Panel") of the Health and Care Professions Council made on 9 March 2016 finding that her fitness to practise was impaired and imposing a sanction of 9 months suspension of her registration, subject to review.

2

Ms Redmond had been employed between 2009 and 2012 by Nottingham City Council as a case manager in its Youth Offending Team. A key part of her duties was to carry out assessments of young offenders and prepare reports in relation to them. National standards then in force (the National Standards for Youth Justice Services) required, for instance that "risk of serious harm assessments" be prepared within five days of the need for such an assessment arising, and that core assessments be prepared within 10 working days of a young offender receiving a court order. She was also required to prepare pre-sentence reports as might be required by court order.

3

The thrust of the complaint by her employer that led to the reference to the Panel was that Ms Redmond had persistently failed over a period of some years to produce reports and assessments in accordance with these standards, despite implementation by management of various systems for intensive support, monitoring and supervision of her work. She was dismissed from her employment, following a disciplinary hearing, in June 2012.

4

The Panel concluded that most of the factual allegations against Ms Redmond were made out and that her failure to produce assessments and reports in a timely manner was as a result of deliberate choice by her as to her method of work, which she was not willing to change despite the management interventions and support provided. She regarded such paperwork as inherently less important than other aspects of her work, such as face to face meetings and work with the young offenders concerned. At paragraphs 58 and 59 of its determination, the Panel said:

"58. … The Registrant [i.e. Ms Redmond] had the knowledge, experience and skill necessary in order to manage an average caseload and her time effectively. The Registrant knew the importance of her public protection work. The Registrant failed to manage her time effectively and failed to undertake key parts of her role through choice rather than through shortcomings in her knowledge or skill… The Registrant's philosophy of intervention and quality being prioritised over the timeliness of assessments and the effective management of her practice was unacceptable. The Panel found the Registrant was not willing to change this philosophy despite it being demonstrated to her that assessments needed to be prioritised when there were restricted timescales imposed by National Standards. The need to prioritise assessments [was] specifically highlighted for the Registrant. Despite this she chose not to do so, resulting in significant delays in the completion of assessments. The Panel felt that the Registrant did not implement the training that she had been given on techniques on how to effectively manage her time and practice. She did not use supervision effectively and did not manage her practice properly.

59. Despite an unremarkable caseload and lengthy capability procedures, there was no sustained improvement. The Registrant chose to revert back to not prioritising the assessments that she was required to undertake. It was clear that the Registrant did not at the time reflect on her failings but chose to continue to work in her own entrenched way without taking account of the need to evolve her practice. Therefore the failures to bring about any change were deliberate"

5

In her Grounds for Appeal, amplified in her skeleton argument and as pursued at the hearing, Ms Redmond contends in summary that the Panel had no proper basis to reach the factual conclusions on the evidence presented to it, and that the sanction imposed was excessive.

6

The appeal is brought pursuant to article 38 of the Health and Social Work Professions Order 2001. It is a statutory appeal, governed by the relevant provisions of part 52 of the CPR, and by PD52D. It proceeds on a similar basis to appeals from the equivalent decision-making bodies of the General Medical Council, and authorities relating to those proceedings are therefore directly relevant.

7

CPR52.11 provides that the appeal should be allowed if the court determines that the decision of the Panel was wrong, or that it was unjust by virtue of a serious procedural or other irregularity in its proceedings. Paragraph 19(2) of that Practice Direction provides that the appeal is by way of rehearing, and that the court may order that oral evidence will be given. It is however exceptional to direct oral evidence (no such direction has been given in this case) and in the absence of such an order the appeal proceeds on the basis of the transcript of the hearing below. This means that the court will be very slow to depart from conclusions of fact reached by the Panel, particularly where these are reached as a result of evaluation of the credibility of witness evidence. In Southall v General Medical Council [2010] EWCA Civ 407 Leveson LJ, dealing with the submission that a particularly serious finding of fact was not warranted by the evidence, said as follows:

"47 How is this submission to be approached? First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it "can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread" (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council [1972] AC 217 at 221F more recently confirmed in R (Campbell) v General Medical Council [2005] 1 WLR 3488 at [23] per Judge LJ). Finally, in Gupta v General Medical Council [2002] 1 WLR 1691, Lord Rodger put the matter in this way (at [10] page 1697D):

"In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. .""

8

Further, the court will give due deference to, though not be bound by, the judgment of the professional panel as to the standards required of the profession, whether the facts found show that the conduct of a medical professional fell below those standards and if so what is the appropriate sanction. In Raschid v General Medical Council [2007] 1 WLR 1460 Laws LJ said:

"19. ….the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:

"the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances."

20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case"

The grounds of appeal

Ground 1(a): The allegations and amendments to them

9

Ms Redmond originally alleged that the description of her employment in the allegations was changed from "Social Worker" to "Social Worker employed as a Case Manager/Court Officer" and...

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