R Lovett v Health and Care Professions Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cheema-Grubb |
| Judgment Date | 08 July 2016 |
| Neutral Citation | [2016] EWHC 2193 (Admin) |
| Date | 08 July 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2042/2016 |
[2016] EWHC 2193 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Cheema-Grubb
CO/2042/2016
Mr M Deacon (instructed by Richard Slade and Company) appeared on behalf of the Claimant
Mr S Kosmin (instructed by Bircham Dyson Bell) appeared on behalf of the Defendant
Introduction
The Health and Care Professions Council is the statutory regulatory body for social workers and a number of healthcare professions (of the type previously referred to as "professions allied to medicine") including psychologists. The powers and functions of this regulatory body are found in the Health and Social Work Professions Order 2001 SI 2002/254. This provides at paragraph 3(4) that:
"The main objective of the Council in exercising its functions shall be to safeguard the health and wellbeing of persons using or needing the services of registrants."
Among its duties is the requirement to maintain the relevant register and to investigate fitness to practise concerns. In order to discharge its functions it has established a number of committees, one of which is the Conduct and Competence Committee (hereafter "the Committee").
The claimant is a registered clinical psychologist. He is the subject of disciplinary proceedings before the Conduct and Competence Committee of the Health and Care Professions Council, the defendant. The proceedings arise after complaints made to the Health and Care Professions Council (hereafter "HCPC") by two sisters, A and B, concerning the services provided by the claimant to them and their brother, C.
The claimant himself has physical difficulties which I will summarise. He was born with a spinal deformity requiring multiple operations during his childhood. His condition has deteriorated in the last few years and has been exacerbated by osteoporosis. He has a history of chronic obstructive airway disease which has also deteriorated over time. He has been prescribed a variety of analgesia and other medication in order to cope with these difficulties. Nonetheless, he is a qualified and registered psychologist.
The substantive hearing before the Committee commenced on 25 November 2013. On 12 December 2013 the claimant collapsed on his way home from the hearing. He was part way through his cross-examination at that time. He had been cross-examined about the allegations made by A, almost in entirety, but not in respect of those made by B. He was thereafter, and remains, unwell and unable to recommence giving evidence at the oral hearing. The defendant has a statutory duty to progress cases expeditiously pursuant to Article 32(4) of the Health and Social Work Professions Order 2001. Postponement of hearings is usually only considered in exceptional circumstances.
The claimant now challenges a decision of the Committee taken on 15 March 2016 to proceed to continue the hearing in his absence; to stay some but not all of the allegations; to enable the claimant to continue his evidence, if he chooses to, by allowing no further cross-examination but his re-examination to be provided in documentary form.
The grounds of challenge are succinctly put as:
i) the decision to condition with the hearing after this lapse of time renders any revival of the hearing manifestly unlawful and unfair
ii) proceeding in the claimant's involuntary absence is contrary to his rights under Article 6 of the European Convention on Human Rights ("ECHR") and/or unfair at common law
iii) the decision was taken in a procedurally unfair manner in that the claimant was not given the opportunity to make submissions about the continuation of a proportion of the allegations, by way of an out of court statement standing as re-examination, and the Committee did not obtain evidence from the claimant's psychiatrist as to whether his cognitive abilities would allow him to take part in the proceedings in the way allowed for by the direction of the Committee.
Background to the decision on 15 March 2016
The claimant provided psychological services to three siblings: two sisters and a brother. Complaints were made to the defendant on 11 November 2010 about the claimant's conduct and performance during 2008 and 2009. The allegations concerned the claimant's treatment of all three siblings. The case was investigated by the defendant Council and in March 2012 a committee of the defendant found a case for the claimant to answer. The disciplinary hearing was initially listed to take place over nine days, starting at the end of April 2013. However, it was adjourned on 31 May 2013 and fixed to take place over 20 days, beginning on 25 November that year and concluding on 10 January 2014.
It is not necessary to set out the detail of the allegations. Suffice it to say they were of a broad range of misconduct, including charging for sessions which did not take place, arriving late for sessions, falsely claiming travel expenses for visits to the siblings, failing to provide health records to other healthcare professions, making false, misleading or unjustified statements about his own standing and about his clients, failing to set goals or provide appropriate treatment, and acting beyond the scope of his practice in providing, for example, advice on personal injury claims.
At the hearing in November 2013, both sisters, A and B, were called to give evidence, as was a witness to financial transactions and an expert witness. The defendant closed its case on 4 December 2013, day 7 of the hearing. A submission of no case to answer was made which resulted in the dismissal of some but not all of the allegations. That ruling was made at the beginning of day 10, 9 December. The claimant was then called to give evidence. His evidence-in-chief began on the afternoon of 9 December and continued until about 3 pm on 11 December. His cross-examination started thereafter and continued until the Committee adjourned at the end of Thursday, 12 December, by which time it had not been completed. The hearing was due to recommence on Monday, 16 December.
During the course of his evidence the claimant had begun to experience discomfort, for which he took prescribed renal pain medication. On 12 December, after leaving the hearing, he collapsed. The Committee was informed on Monday, 16 December and that afternoon a consultant urologist provided an email, shown to the Committee, in which he advised that until the "persistently progressive worsening pain in his left flank" was investigated, the claimant should not attend the hearing. On Thursday, 19 December the Committee was provided with a report from the claimant's general practitioner in which he expressed his opinion that a period of convalescence of at least two weeks was required. Accordingly, the Committee adjourned the hearing to recommence on 8 January, to continue on the two days following, allowing for two additional days to be allocated in the following week and for some additional dates in the subsequent month to be set aside so that the Committee could meet and consider its decision.
In January 2014, the Committee was told that the claimant needed surgery and the remainder of the hearing was then rescheduled for various dates in March, May, June and early July that year. Consideration was also given to moving the hearing to an address closer to the claimant's home. Surgery in February failed to resolve the problem and on 19 March 2014, hearing dates for the period between 1 November 2014 to 18 December 2014 were scheduled (a total of 12 hearing days). The case was kept under review. At such a hearing to review the position and consider evidence from the claimant's consultant orthopaedic spinal surgeon on 3 July 2014, the Committee was satisfied that the prospect of a resumption of the part heard proceedings on 3 November 2014 was a realistic one. Significantly, for the first time, the Committee referred in its directions to the possibility of proceeding in the claimant's absence, the relevant direction being worded as follows:
"Without wishing to suggest that the panel has in any way decided the course to be taken at the time, it is of the view that it should record that in the event of Dr Lovett not being fit to attend or otherwise participate remotely in the hearing on the resumed dates, there is a real possibility that a direction might be made to proceed in his absence. Accordingly, if as the resumed hearing dates approach, there is doubt as to Dr Lovett's ability to participate in the hearing, the panel suggests that consideration is given by him in discussion with his legal team to the making of a statement dealing with any further issues he would wish to deal with evidentially."
The Committee also made reference to the possibility of special measures being put in place to enable the claimant to participate in the hearing.
On 5 November 2014 the Committee refused the claimant's application for an adjournment and directed that the hearing should proceed in his absence. However, on 11 December, the Committee received an email indicating that the claimant had undergone surgery on 24 November, and having been discharged early in December, he had been readmitted as an emergency two days later. An application was made to adjourn the hearing until the New Year, but the Committee directed the case should be reviewed on 17 December, which had been set down on 5 November as the next substantive date.
Unfortunately, the claimant...
To continue reading
Request your trial