Two bites of the apple- limitation in professional negligence cases
Professional Standards Authority and (1) The Health and Care Professions Council (2) Benedict Doree  EWHC 822 (Admin)
The Professional Standards Authority (PSA) referred to the High Court a decision of the Conduct and Competence Committee (the Committee) of the Health and Care Profession Council (HCPC) made on 24 July 2014, in respect of registered prosthetist/orthotist, Mr Doree.
The original hearing
Mr Doree faced a number of allegations that he had bullied a colleague by calling him unpleasant names, driving a car at him in an intimidating manner when he was cycling and belittling him in front of others. It was also alleged that he made inappropriate sexual comments to another colleague, accompanied by inappropriate sexual conduct. The Committee found a large number of the factual particulars proved (with a minority found not proven) and found that his misconduct impaired his fitness to practice. They imposed a Caution Order for 5 years.
The PSA referred the Committee’s decision under Section 29 of the National Health Service Reform and Health Care Profession Act 2002 on the grounds that:
The HCPC was willing to consent to an order remitting the case back for re-determination, but only on the limited basis that the Committee’s reasons for its decision were not sufficiently clear. The HCPC also conceded that charges 1(f), 2(h) and 2(j) as drafted were not supported by the evidence. As outlined below, the High Court held that these concessions were wrongly made, as the allegations had been appropriately drafted.
The Court outlined the appropriate test in cases where the PSA challenged a decision as being unduly lenient as outlined in the case of Ruscillo v Council for Regulation of Healthcare Professionals  EWCA Civ 1356; whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner’s conduct and the interests of the public.
Ground A – drafting allegations
Allegation 1(f) was that Mr Doree ‘publically asked Colleague A if his “arse was sore from Steve” or words to that effect’. Having heard live evidence at the hearing, the Committee were satisfied that those words were indeed said but they were not satisfied that the incident occurred publically and so found the allegation not proved. The PSA criticised the charge.
The Court pointed out that in his witness statement, Colleague A had made it clear that his evidence was that the comments were made in public (which was a key part of his complaint and made the conduct more serious). It was therefore right to include this in the allegation:
‘In all the circumstances, the Council had to make an exercise of judgement, as prosecutor, without being able to predict precisely how the oral evidence would develop at the hearing, or what view the panel would take of it. The [PSA] has the benefit of hindsight, reading the transcript of the concluded hearing, and ought to recognise that the prosecutor is not in such a favourable position. 
The PSA submitted that once the Committee had decided that the public element of the allegation was not made out, the Committee should have amended the wording of the allegation on its own initiative, or invited the HCPC to apply to amend it. Alternatively, argued the PSA, the presenting officer should have applied to amend the allegations. Lang J stated that ‘in my view, amending the charge retrospectively after the evidence had been heard and considered, in order to secure a guilty finding, would have been a gross breach of fair hearing procedure.' The charge was correctly drafted and quite fairly not found proved after the hearing of evidence.
Allegation 2(h) was that Mr Doree ‘frequently entered the therapy office when Physiotherapist B was alone and massaged her shoulders, grabbed her ponytail and started twirling it around with your finger’. The Committee found that whilst this act had taken place, they were unable to find that it had happened frequently, having heard the contested evidence. Again, the Court rejected the PSA’s submission that the ‘frequently’ aspect of the charge was not supported by evidence; it was clearly within the witness statement of Physiotherapist B. Lang J held that:
“[w]hilst any unwanted touching was inappropriate, the Council was entitled to take the view, when formulating the charge, that repeated unwanted touching was significant more serious and ought to be included in the allegations. Frequency was relevant to proving that his conduct was so serious as to amount to professional misconduct resulting in impairment of fitness to practise, and was also relevant to sanction.”
Again, Lang J stated that it would have been inappropriate had the presenting officer applied to amend the allegations to suit the live evidence that had been elicited.
Allegation 2(j) was that Mr Doree ‘took a picture of Physiotherapist B who was acting as a model in a hoist sling demonstration and had her legs apart in a hoist sling’. The Committee found that in fact Mr Doree was only simulating taking photographs of the witness and therefore the allegation was not proved. Again the PSA criticised the charge and said that the presenting offer or Committee should have amended the allegations. The Court again disagreed. The witness’ statement did support the charge and the HCPC was entitled to frame the allegation as they did. At the time the HCPC had to draft the allegation it was reasonable for it to act upon the complaint that the photographs were taken. It was not possible for it to predict how the evidence would develop at the hearing, or the conclusions the panel might reach. Again, to amend the charge retrospectively after hearing the evidence, as suggested by the PSA, would have been a ‘gross breach of fair hearing procedure’.
Ground B - sanction
The PSA argued that:
Dismissing the above, it was held that the Committee was justified, on the evidence before it, in concluding that suspending Mr Doree from practise, or striking him from the register would be punitive and disproportionate and that it was not required in order to meet to the objectives of fitness to practise proceedings.
The reasons for this were that:
It was also held that:
“In my view, the [PSA] may be taking too simplistic a view of Mr Doree’s state of mind. Experience shows that there are multiple reasons why people deny their guilt’. Mr Doree had attended various courses and the effect of the tribunal process on him was said to be salutary.
Ground C – reasons
The Court rejected this ground of appeal, finding that the reasons were sufficient to enable the parties to know why they won or lost and the PSA to consider whether the sanction was unduly lenient.
The PSA’s appeal was therefore dismissed.
The PSA are appealing this decision.
Here the Court has provided some reassurance to registrants that the allegations they face will not be tailored to meet the evidence that emerges against them during the hearing.
Regulators should continue to draft allegations on the basis of the evidence gathered during the investigation and should give careful consideration to the pleading of superfluous facts. Keeping the allegation confined to the gravamen of the conduct will ensure that any minor, inconsequential changes to a witness’ evidence do not have the effect of making the particular unprovable. By way of example it is sensible to plead that; a) a particular action was done b) the action at a) was done publically.
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