Professional Standards Authority for Health and Social Care v Health and Care Professions Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffiths |
| Judgment Date | 15 January 2021 |
| Neutral Citation | [2021] EWHC 52 (Admin) |
| Docket Number | Case No: CO/4777/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 January 2021 |
[2021] EWHC 52 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Griffiths
Case No: CO/4777/2019
Fiona Patterson (instructed by Field Fisher LLP) for the Appellant
Victoria Butler-Cole QC (instructed by BDP Pitmans LLP) for the First Respondent
The Second Respondent did not attend and was not represented
Hearing date: 8 December 2020
Approved Judgment
This is a disciplinary appeal in relation to the Second Respondent, Mr Leonard Ren-Yi Yong (“Mr Yong”), who was a social worker employed by the London Borough of Lambeth.
The Appellant is the Professional Standards Authority for Health and Social Care (“the PSA”). The PSA is an independent body, accountable to Parliament, which has oversight over various health and social care regulators.
The regulators overseen by the PSA include the First Respondent, the Health and Care Professions Council (“the HCPC”) which is the regulator of many health and care professionals, including (at the material time) social workers.
The appeal is a referral by the PSA under section 29(4) of the National Health Service Reform and Health Care Professions Act 2002 (“the Act”) which provides:
“Where a relevant decision is made, the Authority may refer the case to the relevant court if it considers that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.”
The decision in question is the written decision of the HCPC's tribunal service Conduct and Competence Panel following hearings in September and October 2019 (“the Decision”). The Decision was made by a panel of three, advised by a legal assessor.
The case against Mr Yong was presented by Counsel instructed by solicitors acting for the HCPC. Mr Yong was not present or represented. He has played no part in this appeal either and he does not appear before me, although he has been served with the proceedings and notified of the hearing. This has been proved to me by evidence.
The appeal
I will consider the Decision in detail below but, in summary, the Decision upheld allegations of misconduct by Mr Yong against a number of colleagues, referred to as Worker 1 and Workers 3–7. There is no appeal against the findings against Mr Yong. However, the Decision made a number of findings favourable to Mr Yong and this appeal challenges some only of those favourable findings, namely:
i) Findings that, although the conduct proven against Mr Yong meant that he had “behaved inappropriately…towards female Colleagues”, it did not in any case mean that he had behaved “in a harassing manner” towards them.
ii) Findings, in respect of the same conduct, that none of it was “sexually motivated”.
The ambit of the appeal has been narrowed as a result of discussion between the PSA (as Appellant) and the HCPC (as First Respondent). They both invite me to allow the appeal on the more limited basis now agreed between them. This is that:-
i) Some although not all of the conduct found proven by the Panel should also be characterised as behaving “in a harassing manner”. This aspect of the appeal is limited to paragraphs 1(a), 1(b), 1(d)(i), 1(d)(ii), 1(e) and 1(f) of the allegations set out on pp 2–4 of the Decision of the Panel.
ii) Some although not all of the conduct found proven by the Panel should be characterised as “sexually motivated”. This aspect of the appeal is limited to paragraphs 1(a) and 1(f) of the allegations.
iii) The matter should be remitted on this revised basis for the question of sanction to be redetermined. The sanction imposed by the Panel was a three-year Caution Order. Due to changes in the regulatory régime since the Decision, any reconsideration which I order will be carried out by a different body.
However, Mr Yong (by taking no active part in the proceedings at any stage) has not joined in this agreement. The proposed appeal, if allowed as suggested, will be to Mr Yong's detriment by making more serious findings against him, and exposing him to greater sanction, than the decision made by the Panel. Notwithstanding the agreement between the active parties, therefore, I must decide the appeal carefully and on its merits, taking nothing for granted.
Applicable legal principles
The approach of the High Court to appeals of this nature has been established in a number of cases. A recent summary is to be found in the judgment of Farbey J in Professional Standards Authority for Health and Social Care v General Medical Council and Dighton [2020] EWHC 3122 (Admin) at paras 16–17, as follows:-
“ Legal framework
The High Court's jurisdiction
16. The PSA may refer a suspension decision of a MPT to the High Court if it considers that the decision is not sufficient for the protection of the public (section 29(4) of the National Health Service Reform and Health Care Professions Act 2002). The protection of the public includes not only matters relating to the health, safety and well-being of the public but also the maintenance of public confidence in the medical profession and the maintenance of proper professional standards and conduct (section 29(4A) of the 2002 Act).
17. The court will treat any such reference as an appeal against the relevant decision (section 29(7) of the 2002 Act). The proceedings will be governed by CPR Part 52. The court's consideration is therefore limited to a review of the decision and is not a rehearing ( CPR 52.21(1)). An appeal will be allowed if the panel's decision is “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings” ( CPR 52.2(3)).”
CPR 52.21 governs a section 29(7) appeal and provides:
52.21—Hearing of appeals
(1) Every appeal will be limited to a review of the decision of the lower court unless—
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive—
(a) oral evidence; or
(b) evidence which was not before the lower court.
(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.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence.”
The principles applying to a statutory appeal against the decision of a professional standards body were summarised by Sharp LJ (sitting with Dingemans J) in GMC v Jagjivan [2017] EWHC 1247 (Admin); [2017] 1 WLR 4438. After referring (in para 39) to the cases of Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462; Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460; and Southall v General Medical Council [2010] EWCA Civ 407; [2010] 2 FLR 1550), Sharp LJ summarised their effect (at para 40) as follows (omitting a passage not relevant to the present appeal):
“40. In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are ‘clearly wrong’: see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).
v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.
vi) However there may be matters, such as dishonesty or sexual misconduct, where the court “is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …”: see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep. Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court “will afford an appropriate measure of respect of the judgment in the committee … but the...
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