Delay in Diagnosis of Bowel Cancer due to NHS Understaffing
McDermott v HCPC  EWHC 2899 (Admin)
Hearing date: 7th November 2017
Before: Mrs Justice Yip
Mr McDermott (“the appellant”), a registered physiotherapist, brought an appeal against the decision of the Conduct and Competence Committee (“the Panel”) of the Health and Care Professions Council (HCPC) on four substantive grounds following a finding of lack of competence, current impairment and the imposition of a suspension order for a period of 12months.
The general basis for the appeal was that the allegations against him were vague and lacked particularity. Further he contended that the decisions as to lack of competence, impairment and sanction were “substantively wrong”.
In accordance with Civil Procedure Rule 52.11, an appeal may be allowed where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity.
The Appellant qualified as a physiotherapist in 2009 whereupon he joined the University Hospitals Birmingham NHS Foundation Trust (“the Trust”) as a Band 5 Physiotherapist. Towards the end of May 2012 the Appellant began a musculoskeletal rotation in the physiotherapy gym at the Royal Orthopaedic Hospital. Between June and July 2012 concerns were raised in respect of the Appellant’s clinical performance and he was placed on a Stage 1 poor performance procedure (PPP) to assist with managing the Trust’s concerns.
In February 2013 this was increased to a Stage 2 PPP as the Appellant had failed to address the concerns. In March 2014 the Appellant moved into the neuro-outpatients service. Issues continued with the Appellant’s practice and in December 2014 the PPP was increased to Stage 3. The Appellant was on long term sick leave from the 15th of December 2014 before resigning from the Trust in 2015. A referral was made to the HCPC.
At the outcome of the hearing the Panel concluded that the proved facts (that is not to say all the facts were proved) constituted lack of competence, there was current impairment and a suspension order for 12 months was necessary.
The Appellant submitted that his “primary concern is that the sanction of a suspension is wholly disproportionate and unwarranted”. However there were four substantive grounds of appeal submitted to the Court:
a) Failed to deal with the issue of the Appellant’s dyslexia properly; and
b) Failed to engage in a proper consideration of the question of seriousness.
Mrs Justice Yip found that “… some of these charges do not refer to specific events on specific dates [and] the phrase “did not consistently” is frequently used.” Ultimately however she concluded that “Looking both at the evidence presented to the Panel and at their findings in relation to the charges, it is quite clear that any lack of specificity did not produce an unfair hearing.” She noted that the Appellant had been able to respond to all particulars in his witness statement, calling into question any vagueness which caused difficulty; and that the Panel had carefully explained its reasoning in relation to its findings for each particular, not all of which were successful. Ground 1 failed.
The Appellant alleged that the Panel failed to engage with issues surrounding his dyslexia and the seriousness of the findings. The Judge found that whilst it was not “spelt out” it was implicit in the decision that the Appellant’s dyslexia did not provide an explanation for his poor performance. Furthermore, the Appellant’s assertion that Panel had failed to conduct a fair hearing and failed to give adequate reasons for their decisions on the facts, lack of competence, impairment and sanction were not upheld. Mrs Justice Yip was “quite satisfied that they [the Panel] gave sufficient prominence to the impact of the Appellant’s dyslexia”, the Panel considered that his dyslexia was a mitigating factor as regards sanction but that it “did not explain the competence issues”.
In relation to arguments made in respect of seriousness the Judge rejected the criticism made of the Panel and found that “The decision as to whether the findings amounted to a lack of competence and were serious was a matter of judgment, falling squarely within the remit of the specialist Panel”.
Ground 2 also failed.
It was argued that the Panel had failed to take account of the Appellant’s evidence of remediation. The Judge found that there was no flaw in the Panel’s reasoning such as to justify interference with its decision on appeal. The Panel had given concise reasons, and was not required to set out in detail its consideration of each piece of evidence. They had identified on-going concerns as to current practice and were required to have regard to public protection and the upholding of proper professional standards. The question of whether the Appellant’s fitness to practise was currently impaired was firmly a matter for the judgment of the Panel and that they had given sufficient reasons for their current finding, those being that there were still on-going issues in respect of performance, regard to public protection and the upholding of proper professional standards. Ground 3 similarly failed.
The Judge found that the Panel had failed to give due weight to the improvements and insight displayed by the Appellant who had “shown extraordinary commitment to his voluntary placement, keeping up a significant number of hours per week in addition to having a paid job to meet his living expenses”. He had complied with the interim conditions imposed, and in that context, had received genuinely positive references. There was no suggestion that public protection had not been maintained. The Judge did not consider that a suspension order was the appropriate or proportionate sanction or that it maintained the balance between the public and private interest. The Appellant had clearly progressed under the interim conditions that had been imposed on him, and had been formulated to offer public protection. Ground 4 was therefore successful. The suspension order was quashed and the matter was remitted for a newly constituted Panel to consider appropriate conditions of practice to be placed on the Registrant.
Whilst the ground of appeal in respect of the allegation was not successful, it does raise that where possible allegations should include a specific date range, with as much particularity and specificity as possible, avoiding, where possible, vague phraseology such as “did not consistently”.
In respect of sanction, Mrs Justice Yip made clear that Panels need to consider very carefully the implication of steps towards remediation when looking at current impairment and its effect on sanction. That is not to say that Panels should be bound by existing interim orders, however it is necessary when balancing public protection, public confidence in the regulatory system and fairness to the Registrant, to consider work done by the Registrant even where it may be considered that s/he has demonstrated a lack of insight as was noted in this case.
The practice note on sanction outlines the difference between insight and remorse, as well as highlighting the way in which insight may be demonstrated. It could be stated that this is a case where the Panel mistook a lack of demonstrable remorse for a lack of insight. Actions of course speak louder than words, and in this case the courts considered that the Registrant’s actions demonstrated his true level of insight and capability for change and was the reason for the successful challenge.
This blog has been written by Alecsandra Manning-Rees, Solicitor Advocate in our Regulatory team
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