Controlling and Coercive Behaviour: Widening the Net
High Court dismissed Biomedical Scientist’s appeal, holding that the length of time from referral to hearing was not excessive and did not exceed the ‘reasonable time’ requirement in Article 6, given the complex nature of the investigations.
The appellant Biomedical Scientist (BMS), Mr Goodwin, appealed to the High Court against the decision of the Conduct and Competence Committee (CCC) of the Health and Care Professions Council (HCPC) of 19 December 2013. The Panel found all the allegations against Mr Goodwin proved; namely that he had not demonstrated the required competency levels in 9 specific areas, had not demonstrated appropriate time management skills, had not prioritised tasks appropriately and had not demonstrated an appropriate awareness of health and safety issues. The Panel found that he had fallen significantly below the basic level of BMS practice across all areas of clinical bench work and that errors had the potential to put many patients at risk. They also found Mr Goodwin had a profound lack of insight and an inflated perception of his professional skills. The Panel found that his fitness to practice was impaired and imposed a suspension order for 12 months. There was no interim order imposed.
The ‘Quorum Point’
The registrant panel member on the Committee was a Mr Allen Brown. Mr Goodwin issued an application notice seeking disclosure of Mr Brown’s specific area of expertise. Mr Justice Nicol refused that application. The Health Professions council (Practice Committees and Miscellaneous Amendments Rules) Order in Council 2009 provides at Article 3(6);
The quorum for a Practice Committee …is 3, of whom at least one must be – (a) a registrant from the same part of the register as any registrant who is the subject of the proceedings’.
Given that Mr Brown was registered on the same part of the register as Mr Goodwin, it was not necessary for any further disclosure and the application was refused. [4-5]
The ‘Reasonable Time’ Point
Mr Goodwin argued at first instance before the Committee, and again on appeal, that he had been disadvantaged due to the length of time that the matter took to come before the CCC. He had referred himself in August 2011, however was not dismissed until 5 months later. The CCC rejected Mr Goodwin’s submission that the passage of time meant that the proceedings should be stayed as an abuse of process, it being said that the period of time between 2011 to July 2013 had not been excessive. This was particularly given the complex nature of the investigations which had to be completed and the need to give Mr Goodwin a fair opportunity to respond to them. The High Court agreed with the CCC that the period of time between Mr Goodwin’s self-referral in August 2011 and the hearing in July 2013 was not excessive. It did not exceed the ‘reasonable time’ requirement in Article 6. [6-7]
Mr Goodwin went on to make a number of points about the how the CCC had erred in their approach, all of which were rejected by the Court. The Court was not satisfied that the CCC’s decision in this case was wrong and held that the suspension of 13 months was appropriate.
A further useful yardstick from the Court as to what constitutes a ‘reasonable’ time under Article 6 in the context of regulatory proceedings.
The case also includes an interesting obiter comment that registrants are only entitled to a registrant panel member who is in the same section of the register; any points taken regarding the fact that a panellist has insufficient specific expertise in a particular area may be far from fruitful. Regulators may be able to refuse to provide further information about their panellists in advance of a hearing, bearing in mind that the Court here said that the registrant was entitled to a registrant member who was on the same section of the register, ‘but no more’. This fits with the remarks of Leveson LJ in Southall v General Medical Council  EWCA Civ 407 that to recruit registrant panel members who are ‘experts’ in the relevant area runs the risk of decisions being based on unchallenged and potentially unsubstantiated expert views rather than on the evidence of an expert witness which has been tested in the hearing.
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