‘De-risking’ and financial exclusion
Judgment date: 5 March 2013
The High Court upholds findings of Conduct and Competence Committee Panel of the HCP (now HCPC), holding that even where decisions are made almost entirely on the basis of documentary rather than live evidence, the courts will still be slow to set aside the specialist judgement of a FTP panel.
The appellant (S) appealed against an order made by the HPC Conduct and Competence Committee Panel (the Panel) that he was guilty of various acts of dishonesty and, as a consequence, his fitness to practise was impaired in such a substantial way that he should be struck off the register of physiotherapists. S maintains that he did not act dishonestly and that the decision of the Panel should be set aside as being “wrong” within the meaning of that term as defined in CPR Part 52.11(3)(a). The question for the Court was whether the appeal should be allowed because the decision of the Panel was wrong or unjust in the relevant sense.
The appellant faced various charges of misconduct in relation to his employment as a physiotherapist including:
The Panel found that the charges against S of misconduct by him had been made out and that his actions had been dishonest. An order to strike him from the register of physiotherapists was deemed the appropriate sanction.
On appeal, the appellant maintained that he had not acted dishonestly and had not completed nor sent the falsified employment history documentation bearing his supervisors’ forged signatures. In particular, he emphasised that there was no need for him to do so as his supervisors would have provided the documentation willingly, a fact confirmed by those whose signatures had been falsified. It was argued on his behalf that if the Panel was considering making a finding that he had produced these false documents, it was incumbent on them to have sought an expert in handwriting evidence before it could properly make such a finding.
The guiding principle for a court considering an appeal of this nature, as provided by Rice v Health Professions Council  EWHC 1649, is that the High Court should be slow to conclude that a decision of a body such as the Panel was “wrong” in the requisite sense. This is particularly the case where the panel exercised a judgment based on its professional expertise or where it has heard live evidence on some disputed matter of fact.
In the current case, the key findings of the Panel were not based upon specialist judgment, nor were they based upon resolving conflicts of evidence going to the disputed matters of fact. The HPC relied on the evidence of investigators for the South Warwickshire NHS Foundation Trust, who presented a range of documentary evidence, while the appellant did not attend the hearing before the Panel and relied on written submissions.
Notwithstanding the fact that the critical findings of the Panel were based primarily on documentary evidence, the court considered that the proper approach was to “accord significant respect to the judgments arrived at by the Panel after full consideration of all the materials before them’. It was held that;
‘This court should not lightly intervene in order to set aside the carefully considered judgement of a body such as the Panel, even in relation to decisions and findings of fact of the character in issue on this appeal made on the basis of evidential material of the kind described”.
The Court found that in relation to all particulars of allegation, the decision of the Panel was justified on the evidence available to it and there was a legitimate and proper basis for their findings of misconduct and dishonesty in relation to each particular of allegation.
It was held that it was clear without reference to a handwriting expert that the relevant forms had been forged and that the signatures on them were not legitimate;
‘It was properly open to the Panel to conclude that the only person with any interest in, or indeed knowledge about, the application that he was making for employment with Warwickshire was the appellant and to conclude from that, on the balance of probabilities, that it was indeed the appellant who had forged and then submitted those forms in support of his application for employment’.
In relation to the further findings of the Panel, S accepted that if his appeal in relation to the findings of misconduct was unsuccessful, then it was properly open to the Panel to conclude that his fitness to practise as a physiotherapist was impaired by reason of his repeated dishonesty and was entitled to find that the sanction to be imposed be one of striking-off.
The court could therefore not be satisfied that the Panel was “wrong” for the purposes of CPR Part 52.11 and the appeal was dismissed.
Although a case that to a large extent turns on its own facts, it does make clear that even where decisions and findings are made on the basis of mainly documentary evidence, the Courts will still be slow to interfere with the specialist judgement of an FTP panel.
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