Case update: R (on the application of Alami & Botmeh) v Health and Care Professions Council [2013] EWHC 1985 (Admin)

5 August 2013

The High Court declines to quash the HCPC Investigating Committee decision that a psychologist, Dr Young, had no case to answer in circumstances whereby there had been expert opinion criticising the assessment that she conducted on the risk of violent reoffending by two prisoners convicted of terrorist offences.

The two claimants, Mr Alami (A) and Mr Botmeh (B), had in 1996 been convicted of conspiracy to cause explosions in relation to a device that had exploded outside the Jewish Philanthropic Organisation for Israel and the Middle East in London. Extensive damage and some injury had been caused, although no-one had been killed. Each was sentenced to twenty years’ imprisonment.

After both parties had served half their sentence, they applied to the Parole Board to be released on licence. The Home Office determined that the Parole Board, whose duty it was to assess the risk the Claimants posed to the public were they to be released, were to be provided with a report from a psychologist who had expertise in assessing the continuing risk of violent offenders.
The first report obtained was from Professor Silke, who assessed B and concluded that he was at low risk of reoffending. This was based upon his excellent behaviour in custody and his denouncement of a previously expressed view that violence could properly be used in furtherance of his political views. The Home Office decided to seek another report from Professor Gudjonsson, who had experience of dealing with terrorist cases.

Professor Gudjonsson did not have capacity to compile such a report but recommended Dr Young (Dr Y), who only had limited experience in dealing with terrorist cases but who nevertheless was to be supervised by Professor Gudjonsson in conducting her assessments.

Dr Young assessed that there was a moderate to high risk that A would engage in acts of terrorism in the future and a moderate risk that B would do so. The Parole Board, in refusing to grant parole to A & B, stated that they were not materially assisted by the psychologists’ reports but based their decision on the fact that they did not believe there had been any real change of heart by both parties. A subsequent judicial review of this decision failed.

A & B subsequently, in 2008, formally complained about Dr Y to the British Psychological Society (BPS) on the basis that her reports were unfair and biased. Two investigatory panels were convened and the second decided to refer the matter to the BPS’s Conduct Committee, concluding that Dr Y acted outside her competence in agreeing to accept instructions and to prepare reports. The HCPC took over the matter from the BPS and an Investigatory Committee (IC) was convened to consider Dr Y’s case.

The allegations faced by Dr Y centred largely around her use of a particular risk assessment called the HCR-20. The test had been developed by Professor Hart and dealt with violent offenders, particularly those suffering from mental disorders. Dr Y had emailed Professor Hart for advice prior to completing the reports and when responding, Dr Hart had not indicated that the test would be inappropriate to use in relation to those convicted of political violence. Criticism was also made that Dr Y had insufficient knowledge of Middle Eastern Politics for her to be able to reach a valid conclusion. By the time the IC was held many reports from other psychologists had been obtained, including Dr Hart, which contained “trenchant” criticism of Dr Y’s report in relation to her methodology and lack of experience, amongst other matters. 

The IC, when considering Dr Y’s case, had before it all of the expert reports, a case investigation report, letters from Dr Y’s solicitor and a letter of support from Professor Gudjonsson. The IC was not provided with a copy of the BPS’s report.

The IC concluded that Dr Y had no case to answer and A & B sought through the High Court to have that decision quashed. In support of their application they relied to the greatest degree on the proposition that the IC had exceeded its proper role by deciding between the conflicting evidence in circumstances whereby expert opinion from a number of very experienced psychologists criticised Dr Y’s report in stringent terms. 

They also relied upon a number of errors within the case investigation report, a number of errors in the IC’s reasons and the fact that the IC were not provided with the fairly damning BPS report, amongst other matters.

A and B’s claim was dismissed by the High Court. It acknowledged that the threshold test at IC stage was relatively low; that of whether there was a realistic or genuine prospect that the HCPC would be able to prove impairment. Further, it was clearly the law that misconduct must be such that might justify a sanction.

The Court acknowledged that the case investigation report was somewhat favourable to Dr Y; however it noted that IC was able to read all of the expert reports in full and had been given adequate reading time. Additionally, the decision not to include the BPS report could not be criticised as it contained an important error, leading to a potentially flawed recommendation. 

As to the reports; it was held that the IC was entitled to reach a conclusion taking an overall view of the reports. It was not erroneously deciding between expert opinion but taking a view, as it was entitled to do, of the evidence as a whole. Although the IC’s reasons may not have adequately reflected the criticism set out by the experts, the Court was satisfied that the IC was entitled to conclude that the case should go no further.

Dr Y had prepared reports for a Parole Board and so must have anticipated that there might be a challenge to them and that she might be cross-examined regarding their contents. Further, although the use of the HCR-20 was clearly erroneous, there was no doubt that Dr Y had acted in good faith and had sought advice from Professor Hart and Dr Gudjonsson, the latter of which had supervised her and had read and approved her report and her use of the HCR-20 tool.

The reports had by this time been prepared over 7 years ago. The case of Meadow v GMC [2007] QB 462 was applied which stated that absent bad faith or recklessness, it would only be in a very rare case that a finding of serious professional misconduct should be made. In those circumstances the Court concluded that it was not necessary to quash the decision and require a reconsideration. This was because it did not believe that a different conclusion need be reached as the misconduct was not at a sufficient level as to justify sanction.

This case underlines judicial reluctance to interfere with decisions reached by the IC except in the most clear-cut of circumstances. It further reaffirms the proposition laid down in Meadow v GMC that only very exceptionally will a finding of serious professional misconduct be made in the absence of bad faith or recklessness. Lastly, it outlines that the IC is able to reach conclusions based on an overall view of the evidence without deciding between conflicting evidence.

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