Mr Kieran McDermott v The Health and Care Professions Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 15 November 2017 |
| Neutral Citation | [2017] EWHC 2899 (Admin) |
| Date | 15 November 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3272/2017 |
[2017] EWHC 2899 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Yip
Case No: CO/3272/2017
Ms Althea Brown (instructed by Thompsons Solicitors) for the Appellant
Mr Tom Cross (instructed by Bircham Dyson Bell) for the Respondent
Hearing dates: 7 th November 2017
This is an appeal by Kieran McDermott, a registered physiotherapist, against a decision (dated 16 th June 2017) of the Health and Care Professions Tribunal, sitting as the Respondent's Conduct and Competence Committee ("the Panel"), that allegations of lack of competence were proved; that his fitness to practise was impaired and that he should be subject to a suspension order for a period of 12 months.
The Appellant raises a procedural challenge, contending that a significant number of the allegations against him were vague and lacked particularity. He also contends that each of the decisions as to lack of competence; impairment and sanction were substantively wrong.
The Respondent contends that the hearing was fair and that the Panel's decision at each stage was one that was properly open to it so that this appeal should be dismissed.
Factual background
The Appellant is now aged 44. Having worked for about twelve years in the airline industry, he decided to pursue what he described in his statement to the Panel as a "long held ambition" to become a physiotherapist. He qualified in 2009 and joined the University Hospitals Birmingham NHS Foundation Trust ("the Trust") in a rotational role as a Band 5 physiotherapist. Between 2009 and 2012, he worked in various different departments, apparently without incident. In May 2012, he commenced a musculoskeletal rotation based in the physiotherapy gym at the Royal Orthopaedic Hospital ("ROH"). By the end of June 2012, concerns had been raised about the Appellant including in relation to the accuracy of patient assessments. Some patients were said to be unhappy with the treatment they had received from him. These issues were raised with the Appellant and he responded by saying that he was having trouble using the record system at the ROH. In July 2012, he sent an email to Catherine Elliott, Head of Physiotherapy at the Trust, indicating that he felt he was struggling at ROH. After discussion of the concerns, the Appellant was told that his performance would be managed using the poor performance procedure ("PPP").
It is not disputed that the Appellant has dyslexia. Evidence before the Panel suggested that this impacts on his processing speed and working memory and may cause difficulty with note-taking. It was, and remains, the Appellant's case that the Trust did not adequately support him to manage his dyslexia. However, they maintain that they gave him a great deal of support. The Panel found "extensive measures taken by the employer over time to assist the Registrant within a planned programme to facilitate improvement in performance and practice" (see paragraph 109 of their decision). Further, they expressly confirmed (at paragraph 124) that they were not of the view that the Appellant's dyslexia explained the competence issues or that his lack of clinical competence was related to dyslexia.
The Appellant continued to work for the Trust and concerns continued to be expressed. In February 2013, he was moved from Stage 1 to Stage 2 of the PPP on the basis that he had not met the standards set out for him. In March 2014, he moved to the neuro-outpatients service. Concerns continued such that in December 2014 it was recommended that he move to Stage 3 of the PPP. On 15 th December 2014, the Appellant commenced long term sick leave. He did not return to work and resigned from the Trust in March 2015. It is apparent, on any view of the facts, that the relationship between the Appellant and the Trust had wholly broken down. The Trust had serious concerns about his safety and considered that he required a high level of support which was not sustainable. The Appellant complained that he was being "micromanaged" and that this was increasing his stress levels and, in turn, exacerbating his dyslexia-related disability.
The disciplinary proceedings were commenced in or about June or July 2015 and the first interim order was made in October 2015, imposing Conditions of Practice. That order was not before me (or the Panel) but I was told that it included a requirement for direct supervision.
In December 2015, the Appellant secured an honorary contract with the Birmingham Community Healthcare NHS Trust ("the Community Trust"), allowing him to undertake unpaid voluntary work at Moseley Hall Hospital as a Band 5 physiotherapist but subject to the conditions of practice imposed under the interim order. He began this work in January 2016, working seven hours a day on four days a week. Save for some time off after his brother died suddenly and to recuperate from surgery, the Appellant maintained that voluntary employment up to the time of the Panel's decision. In March 2016, the Respondent's Interim Orders Panel lifted the requirement of direct supervision although the Appellant remained subject to indirect supervision. Again, I have not seen the conditions of practice that remained in place. However, there is no suggestion other than that the Appellant fully complied with the conditions.
The Appellant's honorary contract was initially for a period of three months but was repeatedly extended so that by the time of the Panel's decision, he had been in that voluntary post for about seventeen months. The feedback from the Community Trust was, as Mr Cross accepts, positive. I will have to return to consider that in more detail but for present purposes I simply note that in a letter dated 7 th November 2016 Deborah Skerrett, Physiotherapy Lead at the Community Trust, said "I have continued to receive regular updates and feedback from the therapy teams on his progress. All feedback has been positive and complimentary in all aspects of his work."
The Panel hearing took a significant amount of time. It commenced in December 2016 and over the course of six days received evidence from six witnesses from the Trust. It was then adjourned to May 2017. Unfortunately, the original Panel chair was unable to continue. A decision was taken to proceed with a new chair and to provide written transcripts of the evidence heard in December 2016. The Appellant makes no criticism of this approach. To the extent that anything turns on the evidence given in December 2016, I bear in mind that I am in no worse position when assessing that evidence than the new chair was. However, I do not think this is particularly relevant to this appeal. The newly constituted Panel heard from the Appellant over the course of two-and-a-half days in May 2017 and had a bundle of evidence presented by him, which included testimonials and records from his voluntary post. After the Panel had announced its decision in relation to competence and impairment, and I believe in light of the reasons given by the Panel in relation to the decision on impairment, the Appellant called five witnesses from the Community Trust to give oral evidence (by telephone) as to his work since January 2016 before submissions were made in relation to sanction.
The decision of the panel is 129 paragraphs long. A total of 46 charges were found proved. The Panel concluded that the facts proved disclosed a lack of competence. They went on to find that the Appellant's fitness to practice remained impaired and then decided to suspend the Appellant for twelve months.
In the course of argument, I suggested to Mr Cross that the decision to suspend the Appellant at that stage, when the Interim Orders Panel had imposed conditions which had been complied with and where the Appellant had done a substantial amount of work under those conditions and had produced positive testimonials was a surprising one. Mr Cross did not demur although he stressed, as I very readily acknowledge, that the fact that a decision is surprising is far from enough for it to be overturned on appeal.
The Appeal
In her skeleton argument, Ms Brown suggested that the "primary concern is that the sanction of a suspension order is wholly disproportionate and unwarranted." She confirmed in oral submissions that the real attack is to the end result. However, she maintained that the outcome is underpinned by flaws at each stage of the decision. There are four main grounds of appeal which are sub-divided to give a total of sixteen grounds. In her sensible and focussed oral submissions, Ms Brown identified the real thrust of the appeal as follows:
i) There was a lack of specificity in the charges coupled with a lack of sufficient evidence to support the more general charges.
ii) The decision as to lack of competence was wrong as the Panel a) failed to deal with the issue of the Appellant's dyslexia properly and b) failed to engage in a proper consideration of the question of seriousness.
iii) The decision as to impairment was wrong because it failed to properly reflect the compelling evidence of remediation.
iv) The suspension order was not proportionate, did not properly reflect what the Appellant had done since leaving the Trust and was based on reasoning that was generally flawed in a number of respects.
The legal framework
The functions of the Health and Care Professions Council and its committees are prescribed by Article 3 of the Health and Social Workers Order 2002/254. Article 3(4) provides that:
"The over-arching objective of the Council in exercising its functions is the protection of the public."
Part V of the Order provides for allegations relating to fitness to practice to be considered by...
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