Mr Lloyd Subner v Health and Care Professions Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 20 February 2018 |
| Neutral Citation | [2018] EWHC 3906 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4893/2017 |
| Date | 20 February 2018 |
[2018] EWHC 3906 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Rolls Building
Mr Justice Walker
CO/4893/2017
Mr M Berkin (instructed by Direct Access) appeared on behalf of the Appellant.
Mr C Catsambis (instructed by Bircham Dyson Bell) appeared on behalf of the Respondent.
A1 Introduction: General
Mr Subner appeals against a decision on sanction (“the sanction decision”) made by a Panel of the Conduct and Competence Committee of the Health and Care Professions Council (“HCPC”). I will refer to this panel as the “Fourth Panel”. As I shall explain, three previous panels had dealt with Mr Subner's status.
Mr Subner qualified as an operating department practitioner (“OPD”) in 1995. He worked as an ODP for 13 years. However, In October 2008, following allegations about his fitness to practise and pursuant to a decision of the First Panel he was removed from the register. Mr Subner made an application to the Second Panel for restoration to the register. That application was rejected by the Second Panel in September 2014.
Just under a year later, a further application for restoration was made to the Third Panel. That application was allowed on 3 rd September 2015. The Third Panel directed that Mr Subner's name should be restored to the register, subject to him paying a restoration fee and providing evidence which satisfied the registrar that he had successfully completed 60 days of updating his professional knowledge and skills. Mr Subner's name was restored to the register in October 2015. The HCPC accepted that he had completed 30 days of updating his professional knowledge and skills by private study. However; the HCPC's case before the Fourth Panel was that the restoration to the register in October 2015 had been erroneous. In that regard, the HCPC observed that Mr Subner had not completed the remaining 30 days of updating his professional knowledge and skills under the relevant provisions. That second period of 30 days had to be completed under supervision in a hospital. It is common ground that this had not happened.
The sanction decision of the Forth Panel imposed a striking off order on Mr Subner. This appeal against that order is brought pursuant to Art.29(10) of the Health and Social Work Professions Order (2001) (“the 2001 Order”).
At the hearing before me, Mr Martyn Berkin appeared on behalf of the Mr Subner, as he did at the hearings before the Second, Third and Fourth Panels. Mr Cleon Catsambis appeared at the hearing before me on behalf of the HCPC, as respondent. I am grateful to both sides for their helpful skeleton arguments and to Mr Berkin for his careful and attractive oral submissions. Despite the attractiveness of those submissions, however, I have not needed to call on Mr Catsambis. For the reasons which I shall now give, I have concluded that the appeal cannot succeed.
A2: Introduction: the CPE standards
At the time of relevant events, registered practitioners were required to comply with the HCPC standards of conduct, performance and ethics (“the CPE standards”). Those standards included the following, taken from para.27 of the Fourth Panel's decision:
“6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible;
6.2 You must not do anything, or allow someone else to do anything which could put the health or safety of a service user, carer or colleague at unacceptable risk;
9.1 You must make sure that your conduct justifies the public's trust and confidence in you and your profession;
9.2 You must be honest about your experience, qualifications and skills.”
A3: Introduction: the ODP standards
At the time of relevant events there were additional provisions prescribed by the HCPC for operating department practitioners (“ODPs”) such as Mr Subner. These were the standards of proficiency for ODPs (“the ODP standards”). Among other things, they prescribed in para.3.1 that ODPs must “understand the need to maintain high standards of personal and professional conduct”.
Background
B1: The First Panel decision
Mr Subner was neither present nor represented at the hearing before the First Panel. The main charges against him were that on 12 th December 2006, during the course of his employment, he physically and orally abused another member of staff, Mrs Banumathy Natarajan. The First Panel concluded:
“On the first particular, the Panel was satisfied that on the day in question Mr Subner physically assaulted Mrs Natarajan by throwing a box of 10 one-litre units of intravenous fluids at her…
On the second particular, the Panel was satisfied that Mr Subner swore at Mrs Natarajan in the course of the incident when he threw the box. He called her a ‘fucking bitch…’”
The First Panel concluded that these matters amounted to misconduct. It then considered whether Mr Subner's fitness to practise was impaired and found that it was. In that regard the First panel said:
“… behaviour of this nature is entirely unacceptable and would cause members of the public to lack confidence in a professional who committed it.”
Turning to sanction, the First Panel decided to make a striking off order. Mr Subner appealed to the High Court. The appeal came before Kenneth Parker J. It was at this stage that Mr Berkin first appeared for Mr Subner, instructed through direct public access. I have the benefit of a report of Kenneth Parker J's judgment. Unfortunately, in at least one instance, it has been reported as if it were a judicial review: “ The Queen on the Application of Lloyd Subner v Health Professions Council”. The proper title, as it was an appeal, is in fact “ Subner v The Health Professions Council [2009] EWHC 2815 (Admin)”.
Kenneth Parker J noted that under the provisions of CPR52.11, as then in force, the appeal was required to proceed as a review of the Health Professions Council's decision unless the court considered that in the circumstances of the individual case it would be in the interests of justice for the court to hold a rehearing. Proceeding by way of review, Kenneth Parker J rejected challenges based on delay. He also rejected challenges as to factual matters and as to the finding of impairment. The final challenge concerns sanction. This too was rejected. At para.50 Kenneth Parker J said:
“In my judgment, the Committee were plainly correct to give considerable weight to the fact that the appellant had not attended, had shown no insight whatsoever into the seriousness of the findings against him and gave no indication whatsoever that he was minded in any way to embark upon remedial measures, insofar as they plainly would have been appropriate in this case.”
Mr Subner's challenge to the First Panel did not end there. He applied to the Court of Appeal for permission to appeal. This was refused. He then took the matter to the European Court of Human Rights. His main contention in that regard was that CPR52.11, as it then stood, was discriminatory. It restricted the right of appeal in the case of certain healthcare professionals such as ODPs in comparison with the provision made for other better paid healthcare professionals. Those better paid healthcare professionals were entitled under CPR52.11 to an appeal be way of rehearing. There was no need for such professionals to demonstrate that it was in the interests of justice for there to be a rehearing. It was asserted by Mr Subner that the difference in treatment was discriminatory, since it had no rational or a logical basis. A decision of the fourth Section of the European Court of Human Rights sitting on 29 th November 2011 (application number 46850/10 Lloyd Subner UK) records that the UK government and Mr Subner had agreed a friendly settlement.
Under the terms of that settlement, the UK government agreed to pay Mr Subner £50,000 to cover any pecuniary and non-pecuniary damage, as well as costs and expenses. The UK government informed the court that it was seeking to amend relevant civil procedure provisions such that appeals from decisions of the Health and Care Professions Council would he heard by way of rehearing. The court stated that it was satisfied that the settlement was based on respect for human rights and that there was no reason to continue with examination of the application.
B2: The Second Panel
Mr Berkin, having represented Mr Subner at the hearing before Kenneth Parker J, and in the proceedings before the European Court of Human Rights, also appeared on behalf of Mr Subner at the hearing before the Second Panel in September 2014. As mentioned earlier, on that occasion, Mr Subner made an application to be restored to the register. That application, however, was unsuccessful.
B3: The Third Panel
As noted earlier, it was after a hearing before the Third Panel on 3 rd September 2015 that Mr Subner successfully applied to be restored to the register. Mr Berkin again appeared on behalf of Mr Subner....
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