Case Update: Professional Standards Authority v General Chiropractic Council and another [2014] EWHC 2190 (Admin)

High Court agrees with PSA that case had been undercharged and that the sanction had been inappropriate

Judgement date: 16 July 2014

Background

The appellant authority (the PSA) appealed against a decision of the General Chiropractic Council’s (the GCC’s) Professional Conduct Committee (the Panel) to impose a 6 month suspension with no review on Mr Briggs’ (the Registrant’s) registration following a finding that his fitness to practise was impaired by reason of unacceptable professional conduct, in that he had provided chiropractic treatment to patients whilst registered as non-practising and without indemnity insurance.

Having found the facts of the charge proved the Panel found that those facts amounted to unacceptable professional conduct for the following reasons:

1.  Rule 6 of the General Chiropractic Council (Professional Indemnity Insurance) Rules Order 1999 states that failure to have insurance automatically constitutes unacceptable professional conduct;
2. The Registrant would have known, and had been specifically reminded by letter on 08 February 2012, that he could not practise as a chiropractor until he received notification that his status had changed;
3. The Registrant misled the public, who would have thought he was entitled to practise and had appropriate indemnity
4. The Registrant’s conduct potentially put patients at risk

On the above basis the Panel imposed a sanction of 6 months suspension (with no provision for a review) and in so doing noted that the Registrant had not presented any mitigation, had failed to attend or give evidence at the hearing, had not shown any insight, remorse or regret and that they could not be sure he would not repeat the unacceptable professional conduct sanctioned.

Appeal

The PSA appealed pursuant to s.29 of the National Health Service Reform and Healthcare Professions Act 2002 on the following grounds:

1. The GCC erred in failing to bring charges of dishonesty against Mr Briggs in respect of representations that he made to his employers concerning his registration and insurance;
2. On the facts found proven the sanction was unduly lenient with regard to the Registrant’s lack of insight, remediation or remorse, and the Committee’s own finding that there was a risk of repetition;
3. The Committee failed to give adequate reasons for its decision

The Court considered the case of Ruscillo v Council for Regulation of Healthcare Professionals [2004] EWCA Civ 1356 which determined that whether a penalty was unduly lenient in the context of s.29 was to be considered by asking whether it was one which a disciplinary tribunal, having regard to the relevant facts and to the object of the disciplinary proceedings, could reasonably have imposed.

The GCC consented to the case being remitted for a full re-hearing by a freshly constituted panel of the PCC, on the basis of the three grounds referenced above.

The Court further noted in Ruscillo that undercharging is a potential serious procedural irregularity which could result in an unduly lenient decision and that in such case the whole investigatory process should be examined, not just the hearing.

Having had regard to the relevant case law the Court determined that it was required to ask two questions:

1.  on the evidence, and applying its own rules, should the GCC have included the further allegations in the charge;
2.  if so, did the failure to include those allegations in the charge mean that the Court is unable to determine whether the sanction was unduly lenient or not.

The PSA submitted a revised charge with additional allegations of dishonesty in the course of its appeal and the Court ultimately held that the charge, as revised by the PSA, was ‘plainly’ supported by the evidence available. The Court noted that the Investigating Committee of the GCC must refer an allegation to the Panel where it concludes there is a case to answer and held that, in failing to refer the additional allegations, as particularised by the PSA, a serious procedural error had occurred.

Further the Court noted that the Panel had expressly rejected the presenting officer’s submission that there had been a breach of C1 of the Code of Practice, duty to act with honesty and integrity, on the basis that dishonesty had not been alleged. The Court was uncritical of the Panel as ‘an allegation of dishonesty ought to be pleaded in the charge if it is to be relied upon’ but noted that if findings of dishonesty were made it was likely that a more severe sanction would have been appropriate.

On this basis the Court held that the matter should be remitted to a fresh panel for re-hearing.

In respect of the PSA’s appeal on the point of unduly lenient sanction, even without the additional allegations of dishonesty, the Court again allowed this ground of appeal and noted that the ‘failure to order a review at the end of the suspension period meant that there would be no opportunity for the GCC to ascertain whether the Registrant acknowledged and understood the unacceptable risks he had taken [30]’.

The Court rejected the final ground of appeal having found the reasons given by the Panel to be intelligible and sufficient in the circumstances.

In light of the above the matter was remitted back to a fresh panel of the PCC for re-hearing.

A case showing that the PSA will actively  intervene if a regulator has apparently undercharged, specifically where they fail to add a serious charge of dishonesty where there is sufficient evidence to do so.  Further, the Court makes clear that where a registrant has not engaged, such that a panel would be unaware of any insight, remorse or remediation, it would be inappropriate for there to be no review at the end of the suspension period.