Case Update: R. (on the application of Levett) v Health and Care Professions Council [2013] EWHC 3330 (Admin)

11 November 2013

High Court gives guidance on the test to be applied where a witness complains of intimidation and by virtue of this claims to be vulnerable.

Judgement date: 08 August 2013

Background

The claimant Psychologist (P) faced proceedings before the Conduct and Competence Committee (CCC) of the Health and Care Professions Council (HCPC) where it was alleged that she had failed to maintain appropriate professional boundaries between herself and a patient, Miss A, and, further, that she had inappropriate employed her patients or former patients and disclosed confidential information about Miss A to them.

The matter came before the court as a rolled-up hearing in respect of both permission and substantive grounds of judicial review. The application was directed at two decisions of the CCC, namely that:

  1. Miss A was to be treated as a vulnerable witness, and need not give evidence in the presence of P;
  2. The particulars of the allegation could be amended to add a reference to ‘and former patients’ in addition to the previous wording of simply ‘patients’.

CCC Decision – Vulnerable witness

Miss A was said to have stated previously, during a vulnerable witness assessment carried out by a HCPC case manager, that she felt intimidated by the claimant due to their previous relationship and the manipulation and control she alleged characterised it. Miss A went on to say that she would be more relaxed and find it easier to speak honestly and openly if she did not have to have direct contact with the claimant.

The CCC in making its preliminary findings was directed to the relevant part of Rule 10A(1)(f) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, which states:

‘Rule 10A(1) n proceedings before the Committee, the following may, if the quality of their evidence is likely to be adversely affected as a result, be treated as a vulnerable witness… (f) any witness who complains of intimidation’.

The CCC was invited by the legal assessor to consider whether ‘feeling intimidated’ is sufficient to amount to complaining of intimidation. Following this advice the CCC determined that Miss A was a vulnerable witness and that she should not give evidence in the presence of the claimant.

CCC Decision – Amendment to allegations

The CCC was advised by the legal assessor that it had discretion to amend allegations only if those matters which were subject to amendment had been considered by the Investigating Committee (IC).

On this basis the CCC allowed the addition of the words ‘former patients’ to the existing allegations reference to ‘patient’ taking the view that the term ‘patient’ was used by the IC panel as a collective term including former and current patients and that the addition of the words ‘and former patients’ merely added clarity.

Judicial Review

The Court’s judgement on the application of Rule 10A(1)(f) to the immediate case sought a middle way between slavishly clinging to a literal interpretation of the rule and importing the approach of criminal procedure. It was felt that literal application of the rule would mean that the simple fact that a witness complained of intimidation was, in itself, sufficient to pass the threshold required to qualify for special measures, regardless of the reality of the situation. By contrast it was felt to adopt the criminal approach would mean that a Panel would have to be satisfied on evidence discharging the relevant burden of proof that intimidation had occurred, something the legislation clearly had not envisaged and which might be said to prejudge the later substantive hearing.

The Court drew attention to the reality that intimidation can mean both from the perspective of the intimidator, i.e. where they commit an act or omission designed to cause intimidation, and from the perspective of the recipient, i.e. were a person feels intimidated due to circumstance but there is no intention to intimidate on the part of another person.

The Court also noted that, whilst there must be some proper basis upon which it could be suggested the background circumstances could give rise to feelings of intimidation, that, especially in view of the type of proceedings before the CCC where witnesses may have particular characteristics which may make them more susceptible to feelings of intimidation, this basis could not usefully be thought of in terms of reasonableness. In respect of this, the Court rejected the view that there should be a test of the objective reasonableness of the intimidation complained of that that rather the test was  whether, from the perspective of the witness they felt intimidated and that the ultimate question to be applied was one of ‘genuineness’.

In respect of the substantive issue the Court ruled that the committee had not erred in determining that the circumstances of this case fell within the parameters of Rule 10A(1)(f) and that the Court was satisfied that, if Miss A‘s statement was correct, that the circumstances were capable of justifying feelings of intimidation and that this was not inconsistent with the other evidence Miss A put forward.

P raised two further issues in respect of the special measures, these being that she would be prejudiced as a result of the special measures, in that her accuser would not have to face her and that there was a risk that hearing panel would prejudge the case upon seeing the special measures. Both of these submissions were rejected by the Court.

In respect of the amendment the Court asked itself whether the inclusion of the words ‘and former patients’ was merely a clarification of what had been intended all along and found that the documentary material before the IC had made it evident that two individuals referred to as patients were no longer patients at the time of the matters complained of and that therefore it was open to the panel to conclude the term patients had been used as an umbrella term.

As a rolled-up application permission was granted in deference to the weight of the arguments but ultimately the application failed on both grounds.

An illuminating case charting the correct course in assessing whether a witness is ‘vulnerable’ within the meaning of Rule 10A(1)(f), by virtue of complaining of intimidation. The test to be applied is whether, with regard to the particular circumstances of the witness and the case, the complaint is ‘genuine’.

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