Tolulope Falodi v Health and Care Professions Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 24 February 2016 |
| Neutral Citation | [2016] EWHC 328 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5120/2015 |
| Date | 24 February 2016 |
[2016] EWHC 328 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/5120/2015
Montclare Campbell (instructed by Direct Access) for the Appellant
Cleon Catsambis (instructed by Bircham Dyson Bell LLP) for the Respondent
Hearing date: 4 February 2016
The Appellant appealed against the decision of the Conduct and Competence Committee Panel ('the Panel') of the Health and Care Professions Council ('HCPC'), on 1 October 2015, that her fitness to practise as a social worker was impaired by reason of her misconduct, and a striking off order should be made, removing her name from the register.
The decision
The Panel found the following allegations proved against the Appellant:
"Whilst registered as a Social Worker:
1. Between January 2009 and March 2010 you claimed a student council tax exemption for Address A from Southwark Council;
a. Using a false student certificate from Kings College London.
2. You held a Council Tenancy with the London Borough of Southwark for Address A from 24 October 2005 to 31 July 2011 and you;
a. Did not declare that you were the sole owner of Address B from 25 November 2003;
b. Did not declare that you were the joint owner of Address C from November 2006.
3. You did not promptly notify the London Borough of Southwark of changes in your personal circumstances at the appropriate time which may have affected your entitlement to Council Tax exemption in that you:
a. Did not inform the London Borough of Southwark that you were no longer a student, having commenced employment with the London Borough of Croydon in August 2009.
b. Did not inform the London Borough of Southwark that your brother had moved into Address A in or about January 2009.
4. On or around 24 May 2011 you submitted a car loan application to Croydon Council for the sum of £12,000 to purchase a car from a company known as Kayz Motors and you;
a. Did not declare that you had an on-going personal relationship with the owner of Kayz Motors, who was your ex-partner and the father of your children.
5. Your actions as described at paragraphs 1 to 4 were dishonest."
6. The Panel went on to find that those matters constituted misconduct, and that by reason of her misconduct, her fitness to practise was impaired. The Panel concluded that the only appropriate and proportionate sanction was to strike her off the register.
The legal framework
The decision of the Panel was made pursuant to Article 29 of the Health and Care Professions Order 2001 ("the 2001 Order").
The appeal is brought under Article 38 of the 2001 Order. By CPR PD52D.19.1(2), such appeals are by way of re-hearing. However, "it is a re-hearing without hearing again the evidence", as Foskett J. explained in Fish v General Medical Council [2012] EWHC 1269 (Admin), at [28].
CPR Rule 52.11 provides, so far as is material:
"Hearing of appeals
52.11
(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.
….
(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 approach to be taken by an appellate court to professional regulatory appeals has been comprehensively considered in a series of appeals from the General Medical Council ("GMC").
In Meadow v General Medical Council [2007] QB 462, Auld LJ said at [197]:
"197. On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors. (i) 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 deserve respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
In Raschid v General Medical Council [2007] 1 WLR 1460, which was an appeal against sanction, Laws LJ said, after reviewing the authorities, at [19] – [20]:
"19. ….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. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:
"the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances."
20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
Laws LJ concluded that the court should not carry out "an exercise in re-sentencing" (at [21]) nor substitute "one view of the merits for another" (at [22]).
In Ghosh, the Privy Council confirmed that this approach gave effect to the appellant's rights under Article 6 of the European Convention on Human Rights.
The Respondent referred me to the judgment of Lindblom J. in Rice v Health Professions Council [2011] EWHC 1649 (Admin), including the following passages:
"14. A useful summary of the relevant approach as outlined in the authorities is to be found in the judgment of Langstaff J in Bhatt v General Medical Council [2007] EWHC 783 (Admin) (in paragraph 9):
"I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:
i) it will give appropriate weight to the fact that the panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;
ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;
iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;
iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;
v) but that where what is concerned is a matter of judgment and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be 'wrong' or procedurally unfair."
15 As to the question of impairment of fitness to practise, I note the observations made by Silber J in Cohen v General Medical Council [2008] EWHC 581 (Admin) in paragraph 62 to 65. As Silber J said (in paragraph 62), any approach to the issue of whether a doctor's fitness to practice should be regarded as "impaired" must take into account the need to protect individual patients and the collective need to maintain confidence in the medical profession as well as declaring and upholding proper standards of conduct and behaviour. The public interest here includes, among other things, the protection of patients and the maintenance of public confidence in the profession. As Cranston J said in Cheatle v General Medical Council [2009] EWHC 645 (Admin) (in paragraph 22):
"In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor's behaviour both before the misconduct and at the present time is such as to mean that his or her fitness to practise is impaired. The doctor's misconduct at a particular time may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or may be at all. On the other hand, the doctor's misconduct may be such that, seen within the context of an otherwise unblemished...
To continue reading
Request your trial