The Professional Standards Authority v The Health and Care Professions Council and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Sharp,Lord Justice Lindblom
Judgment Date28 April 2017
Neutral Citation[2017] EWCA Civ 319
Docket NumberCase No: C1/2015/1305
Date28 April 2017
Between:
The Professional Standards Authority
Appellant
and
(1) The Health and Care Professions Council
(2) Benedict Doree
Respondents

[2017] EWCA Civ 319

Before:

Lady Justice Sharp

and

Lord Justice Lindblom

Case No: C1/2015/1305

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

MRS JUSTICE LANG DBE

[2015] EWHC 822 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Ms Fenella Morris Q.C. (instructed by Fieldfisher) for the Appellant

Ms Jenni Richards Q.C. (instructed by Bircham Dyson Bell) for the First Respondent

Mr Bryan Cox Q.C. (instructed by Direct Access) for the Second Respondent

Hearing date: 26 January 2017

Judgment Approved by the court for handing down (subject to editorial corrections)

Lord Justice Lindblom

Introduction

1

This is a second appeal. It is an appeal to this court against the dismissal in the High Court of an appeal against the decision of a professional disciplinary committee.

2

With permission granted by Hallett L.J., the appellant, the Professional Standards Authority for Health and Social Care ("the Authority"), appeals against the order of Lang J., dated 31 March 2015, dismissing its appeal against the decision of a panel of the Conduct and Competence Committee ("the Panel") of the first respondent, the Health and Care Professions Council ("the Council"), on 24 July 2014, upholding a number of allegations against the second respondent, Benedict Doree, a registered prosthetist, and imposing on him a caution order for a period of five years. After hearing evidence and submissions on 8, 9, 10 and 11 April 2014, the Panel found that Mr Doree had bullied one colleague and sexually harassed another. When the hearing resumed on 24 July 2014 they concluded that his actions amounted to misconduct and that his fitness to practise was impaired, and they proceeded to impose the caution order. Their decision was referred to the court under section 29 of the National Health Service Reform and Health Care Professions Act 2002 and was accordingly treated as an appeal. Lang J. rejected that appeal on every ground.

The issues in this appeal

3

In the section 29 appeal the Council initially conceded that the reasons given by the Panel for their decision were not wholly sufficient, though not that the Panel's decision on sanction was wrong. It also conceded that some of the particular allegations as drafted were not, in the end, supported by the evidence, though not that the sanction imposed by the Panel might have been different had those allegations been amended and found proved (see paragraphs 17 and 18 of Lang J.'s judgment). However, those concessions were not made in this court. The Authority's grounds of appeal against Lang J.'s order raise four issues, and a fifth arises from those four. First, was the judge wrong to reject the Authority's submission that the Panel should either have adhered to the Council's Indicative Sanctions Policy or given good reasons for departing from it? Secondly, was she wrong to uphold the approach taken by the Panel to Mr Doree's insight into his misconduct? Thirdly, was she wrong to find that the fact that Mr Doree's misconduct had not been witnessed by any patient was a mitigating factor justifying a less severe sanction? Fourthly, was she wrong to conclude that the amendment of an allegation of misconduct to a lesser one after the evidence had been heard would have been "a gross breach of fair hearing procedure", and to reject the Authority's contention that the failure to amend the allegation was a procedural error? The fifth issue is whether the sanction imposed by the Panel was unduly lenient.

The Health and Social Work Professions Order 2001

4

The Council was established under the Health and Social Work Professions Order 2001. Under article 3(2) of the 2001 Order, its principal functions are to establish standards of education, training, conduct and performance for members of the relevant professions and to ensure the maintenance of those standards. Article 3(4) states that "[the] over-arching objective of the Council in exercising its functions is the protection of the public". Article 3(15) requires the Council to "publish any standards it establishes and any guidance it gives". Part V provides its functions relating to fitness to practise. Article 21(1)(a) requires it to "establish and keep under review the standards of conduct, performance and ethics expected of registrants … and give them such guidance on these matters as it sees fit". Under article 22, referrals may be made in respect of allegations that a registrant's fitness to practise is impaired by reason of misconduct. Article 27(b)(i) requires the Conduct and Competence Committee to consider any allegation referred to it. The principal powers of the Conduct and Competence Committee are set out in article 29. Article 29(5) provides that it may make "(a) … a "striking-off order"", or "(b) … a "suspension order"", or "(c) … a "conditions of practice order"", or "(d) … a "caution order"".

5

The relevant principles of law are well established. When a registrant appeals to the High Court against a decision of the Council, the court's function is to determine whether the Council's decision was wrong. In General Medical Council v Meadow [2007] Q.B. 462, Auld L.J. (in paragraph 197 of his judgment, with which Sir Anthony Clarke M.R. and Thorpe L.J. agreed) identified three factors which the court must have in mind and give appropriate weight: first, that "[the] body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect", second, that "[the] tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides", and third, that "[the] questions of primary and secondary fact and the overall value judgment to be made by a tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers".

6

The need for the court to exercise caution when reviewing a disciplinary tribunal's decision on sanction was emphasized by Laws L.J., with whom Chadwick L.J. and Sir Peter Gibson agreed, in Raschid and Fatnani v General Medical Council [2007] 1 W.L.R. 1460 (in paragraphs 16 to 19 of his judgment). Laws L.J. identified (in paragraph 16) two strands in the authorities preceding the change in the appeal system brought into effect in 2003. The first strand, he said, "differentiates the function of the panel or committee in imposing sanctions from that of a court imposing retributive punishment", and the second "emphasises the special expertise of the panel or committee to make the required judgment". He cited (in paragraph 17) the Privy Council's decision in Gupta v General Medical Council [2002] 1 W.L.R. 1691 (see the judgment of Lord Rodger of Earlsferry, in which he referred, at paragraph 21, to the observation of Sir Thomas Bingham M.R., as he then was, in Bolton v Law Society [1994] 1 W.L.R. 512, at p.519, that "[the] reputation of the profession is more important than the fortunes of any individual member"). As to the second strand, Laws L.J. referred (in paragraph 18) to the decision of the Privy Council in Marinovich v General Medical Council [2002] UKPC 36, where Lord Hope of Craighead, giving the judgment of the Board, stressed (in paragraph 28) "… that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct". Laws L.J. went on to say (in paragraph 19) that, as it seemed to him, "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".

The 2002 Act

7

Under section 29(4) of the 2002 Act (as amended), the Authority may refer a case to the High Court if it considers that "a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned …, or as to any penalty imposed, or both … and that it would be desirable for the protection of members of the public for the Authority to take action under this section". Where a case is referred, it is to be treated as an appeal by virtue of section 29(7), and the court's powers on such an appeal are provided in section 29(8).

8

Here too the relevant legal principles are settled and clear. In Council for Regulation of Health Care Professionals v Ruscillo [2005] 1 W.L.R. 717, the Court of Appeal identified the criteria to be applied by the court in deciding whether to allow an appeal under section 29. Giving the judgment of the court, Lord Phillips of Worth Matravers M.R. said (in paragraph 73) that "[the] task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct that gives rise to the right or duty to impose a penalty and, where they do, to impose the penalty that is appropriate, having regard to the safety of the public and the reputation of the profession". The role of the court, he said, is "to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty". And the "test of undue leniency in this context must … involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession".

9

Lord ...

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