Case Update: High Court considers the power of a regulator to refer back to its Investigating Committee fresh allegations arising from the same facts as allegations already considered and referred by that Committee

22 May 2015

R (Ireland and another) v Health and Care Professions Council [2015] EWHC 846 (Admin)

This was a judicial review of a decision by the Investigating Committee (“IC”) of the Health and Care Professions Council (“HCPC”) in which the IC concluded that they had jurisdiction to consider “new” allegations referred to them by the HCPC where those “new” allegations arose out of the same or substantially the same facts as those from which a previous set of allegations arose where those previous set of allegations had already considered by the IC and referred to the Conduct and Competence Committee of the HCPC (“CCC”). The judicial review was brought by two Claimants.

Claimant 1

Claimant 1 is a psychologist who had written a report in relation to which the HCPC had received complaints. The HCPC determined that the complaints met its standard of acceptance and referred the matter to the IC in order for it to determine whether there was a case to answer. The IC had before it an allegation consisting of thirteen paragraphs designed to encapsulate the gravamen of the case against Claimant 1. The IC determined that there was a case to answer in relation to the thirteen paragraphs and referred the allegations to the CCC on 24th September 2012.

On 30th October 2013 the HCPC wrote to Claimant 1 notifying her of a number of additional allegations that it proposed to refer to the Investigating Committee pursuant to Article 22(6) of the Health and Social Work Professions Order 2001 (“the 2001 Order”). Some of these new allegations were different in character to those had previously been considered by the IC and referred to the CCC on 24th September 2012 (“the 24th September 2012 allegations”) whilst others, were more closely connected those allegations. All of these new allegations that formed the subject of the re-referral arose out of the same or substantially the same facts as the 24th September 2012 allegations.

Claimant 1’s lawyers made representations to the HCPC in response to their letter of 30th October 2013 contending that the IC had no power to refer a matter, or allegations which had already been referred to the CCC.

Claimant 2

Claimant 2 was being investigated by his employer following concerns relating to two patients. He was suspended pending the investigation and “self-reported” these matters to the HCPC. An allegation went before the IC on 6th September 2012, who found that there was a case to answer and referred the matter to the CCC accordingly (“the 6th September 2012 allegations”). On 11th September 2013 the Council wrote to Claimant 2 notifying him that an additional allegation relating to the same two patients as the 6th September 2012 allegations would be referred to the IC. This additional allegation raised new matters from those that had previously been considered by the IC but arose out of the same or substantially the same facts as the original allegations. Many but not all of them were discernible from the material that had been before the IC when it had made its decision in relation to the 6th September 2012 allegations.

The Claimants challenged the jurisdiction of the IC to reconsider matters which it had already referred to the CCC; Mr. Justice Jay phrased the ground in a slightly different way, as a challenge to the Council’s decisions to refer the relevant allegations (which arose from the material previously considered by the IC) back to the IC under article 22(6) of the 2001 Order.

The issue to be determined by the court was whether article 22(6) permitted the Council to make an article 22(5) referral back to the IC in relation to allegations arising out of the same or substantially the same material as that which had previously been considered by the IC.

Claimants 1 and 2 contended that the HCPC could not refer a case to the IC a second time with substantially or materially different drafted particulars of allegation on the basis of a complaint or matter the contents of which had been before the IC on the first occasion. The Claimants contended that this was because the allegation considered by the IC on that first occasion was everything which had been received by the Council in the form of the complaint. It was asserted that the IC’s decision, when faced with an allegation therefore had two limbs: first, a decision to refer those elements in respect of which a case to answer was deemed to exist, to the CCC and secondly, a decision not to refer the remainder of the complaint. Analysed in this way, in the case of the two Claimants, all relevant issues had been before the IC at its first meetings. On a proper analysis, anything that was not referred to the CCC first time round was in effect the subject matter of a binding decision not to refer it to the CCC; having made that decision the Claimants contended the IC was functus officio and its decision could not be re-visited.

The success or failure of the Claimants’ argument depended on whether the allegation that the HCPC referred to the IC pursuant to article 22(5) differed in form from the complaint that the HCPC received under article 22(1) (where it is referred to as an allegation). That is, whether the IC when considering the allegation referred to necessarily had to engage in an assessment of the entirety of the case that had been referred to the HCPC by the complainant or whether the IC’s consideration could be confined to the formulation of the facts and matters alleged by the Case Manager presenting the case to the IC.
As one would expect, the wording of article 22 was critical to the learned judge’s decision and it is helpful to set out the relevant provisions of that article here:

(1) This article applies where any allegation is made against a registrant to the effect that –

a) His fitness to practise is impaired by reason of

i. Misconduct,
ii. Lack of competence

(5) When an allegation is made to the Council or any of its committees, as soon as reasonably practicable after receipt of the allegation in the form required by the Council the Council shall refer it

(a) Where it is an allegation of the kind mentioned in paragraph 1(b), to the IC;
(b) In any other case

i. To persons appointed by the council in accordance with the rules made under article 23, or
ii. To a Practice Committee

(6) If an allegation is not made under paragraph (1) but it appears to the council that there should be an investigation into the fitness to practise of a registrant or into his entry in the register it my refer the matter in accordance with paragraph (5) and this Order shall apply as if it were an allegation made under this paragraph (1).

Having analysed article 22 and 26, the latter of which gives the IC the power to require additional information in the course of its investigation into the allegation referred to it under article 25(5), and the HCPC’s internal guidance the learned judge concluded that the form and the content of the “allegation” referred to within article 22(1) and 22(5) were not necessarily the same. At paragraphs 50 – 52 he said this:

50. “… The natural and ordinary meaning of “allegation” in this context is “the facts and matters alleged to impair the registrant’s fitness to practise”. The focus must be on that which is alleged, more than on the corpus of supporting material which impinges on the issue. At the Article 22(1) stage, the complainant usually alleges certain facts and matters against the registrant - comprising what may be conveniently described as the complaint (not that the Article uses that term) - and provides certain material in support. It is the Council’s obligation to assess the allegation for arguability and coherence, and then the Council must refer it under Article 22(5). Moreover, it appears to be common ground in this case that there is implied power to carry out minor and clarificatory amendments. In my judgment, the Council has implied power to reformulate the complaint/allegation to the extent that it considers appropriate (see Attorney-General & Ephraim Hutchings v Great Eastern Railway [1880] Law Rep 5HL 473), and this is what happened in the instant cases. Ms Morris did not appear to contest that such an implied power exists as regards deletion, and in my view it must also exist as regards reformulation, reconstitution and expansion. Further, there is nothing to prevent the Council at this stage from undertaking basic inquiries and collating further evidence.

51. On this approach the form and content of the “allegation” referred to under Article 22(1) is not necessarily the same as the one referred to under Article 22(5). This would be particularly so in the case of a lay complainant who lacks the expertise to formulate the case properly. Further, on this approach an allegation cannot be envisaged in some loose and general way as “the entirety of the case”. In my judgment the term cannot be dissociated from its mode of formulation, because the focus must be on the facts and matters which are alleged.

52. Thus, the “it” which is being referred under Article 22(5) includes, or embodies, a formulation or enshrinement of the facts and matters which are alleged. Article 22(5) specifies that the “allegation” must be “in the form required by the Council”, and the latter insists on a written document. Given that the Council is required to refer something concrete to the IC, I would have reached that conclusion even without this additional clause. The registrant must be able to understand the nature of the case against him or her, in order effectively to address it.

53.The issue arises of whether the “allegation” also includes the supporting material, which in Professor Ireland’s case extended to nearly 200 pages. Arguably, that is implicit in Article 26(1), because the IC is required to investigate something, and needs the bundle of evidence in order to do that. On balance, however, I conclude that the “allegation” does not embrace the supporting evidence. The term is confined to the formulation of the facts and matters alleged. There is implied power in the Council to refer the supporting evidence to the IC, and the latter would clearly have power to call for it under Article 26(1) if it had not already been sent.

Having concluded that the allegation considered by the IC is the formulation of the facts and matters alleged by the HCPC rather than the entirety of the case or paperwork referred to the HCPC by the complainant, the learned judge went on to conclude that in the case of Claimants 1 and 2 the IC did have jurisdiction to consider the second referrals made to it by the HCPC and that the HCPC was able to refer the additional allegations to the IC pursuant to Article 22(6).

This case gives useful clarification as to the nature of the “allegation” considered by the Investigating Committee and puts beyond doubt that the IC is not tasked to investigate or consider allegations other than those specifically formulated for their consideration, in the case of the HCPC by a Case Manager. For those acting for regulators it will be an important decision, particularly where allegations arising from the same or substantially the same facts as those which were before the IC come to light following the IC’s finding that there was a case to answer and its subsequent referral. 

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