EWHC 2146 (Admin) 17 August 2017
This case involved an appeal to the High Court by Mr A, a Biomedical Scientist challenging the decisions made by the Conduct and Competence Committee (the Panel) of the Health and Care Professions Council (HCPC) dated 10 September 2013 and 6 April 2017.
The relevant background to this appeal is set out below.
Decision of 10 September 2013
Mr A appeared before the Panel in September 2013, at which point
three allegations were found proven;
1) A failure to disclose a conviction for driving whilst disqualified on his application to the HCPC for registration. An allegation that this non-disclosure was dishonest was rejected by the Panel.
2) A failure to inform his employer and the HCPC that he had been convicted of common assault. It was found that this failure was deliberate and dishonest.
3) That he had made discriminatory remarks to a colleague.
The Panel found that the proved facts amounted to misconduct and that Mr A’s fitness to practise was impaired. The Panel imposed a Suspension Order for a period of twelve months.
Mr A lodged an appeal against the decision of the Panel and the appeal was heard on 5 March 2014. He cited six grounds of appeal. It was noted by the Judge that Mr A faced an “uphill challenge” given the nature of the Panel’s findings, which were factual conclusions arrived at by “a specialist tribunal which had and deployed its advantage of hearing the evidence from live witnesses”. That advantage, it was said, was “particularly relevant in relation to the finding of dishonesty and the finding that Mr A made discriminatory remarks”.
The Court concluded that none of the grounds of appeal were made out and that the Panel’s decision was not wrong. Mr A’s appeal was therefore dismissed.
Following this decision, the Suspension Order imposed by the Panel in September 2013 came into effect, commencing on 5 March 2014
The Suspension Order was reviewed on a number of occasions pursuant to Article 30(1) of Health and Social Work Professions Order 2001.
The first review occurred on 2 February 2015, and the Panel decided to extend the suspension by a further 6 months. At the end of that period, in August 2015, there was a further review. The Panel were satisfied that Mr A had shown some insight into his failings but were concerned that he had been out of practice for around 18 months and had not provided evidence of Continuing Professional Development. The Panel concluded that his fitness to practise was impaired, and replaced the Suspension Order with a Conditions of Practice Order for a period of 12 months. In August 2016, a further review was held. On this occasion, the Panel imposed a Conditions of Practice Order for a period of 9 months.
On 29 December 2016, Mr A filed a judicial review claim. He sought to challenge the 2013 decision, the Conditions of Practice Order of August 2016 and a decision regarding publication made by the HCPC and recorded in a letter dated 27 October 2016. His asserted that the HCPC had behaved illegally and irrationally in its conduct and raised five specific issues namely;
1) that the first finding against him involved an incorrect application of the meaning of the word “conviction” for driving whilst disqualified as he had been given a conditional discharge, which is not a conviction;
2) that the HCPC had incorrectly applied the legal meaning of the term “dishonesty”;
3) that it had misapplied the legal meaning of “no case to answer”;
4) that the HCPC was guilty of “spoliation of evidence”; and
5) that the HCPC’s evidence in respect of the alleged discriminatory remarks was unsatisfactory, and inconsistent, and that it was “clear that the supposed comments were not made and the informant was not present at the time”.
Mr A’s claim was considered on the papers on 29 December 2016. The application for permission was refused on the basis that Mr A was out of time to challenge the September 2013 decision and the 5 August 2016 Order, and that there was no good reason to extend the time for a challenge.
On 1 February 2017, Mr A renewed his application at an oral hearing. Permission was again refused.
HCPC Review Hearing
On 6 April 2017, a mandatory review was undertaken of Mr A’s Conditions of Practice Order. During the review, the Panel were clear that their function was not to review the original factual findings of 2013. The Panel imposed a Conditions of Practice Order for a period of 9 months on the basis that, although Mr A had made some progress he had not, in the Panel’s judgment, achieved the level of retraining and practice in his profession that was required for him safely to return to work without restrictions. The Panel did, however, amend the conditions in order to remove the more onerous supervision conditions and replaced these with a more straightforward requirement that Mr A submit evidence of his competence and progress in advance of the next review hearing.
Grounds of Appeal
In May 2017, Mr A lodged an appeal in which he stated that he was appealing against the original order of September 2013 and the order of 6 April 2017. He set out three grounds of appeal as follows;
1) that the original Panel decision of 2013 was wrong because, as a matter of law, there had been no conviction in respect of the driving offence;
2) that the Panel’s decision was wrong in fact, because Mr A had kept the HCPC fully informed in respect of the conviction for common assault; and
3) that the Panel’s decision was wrong in fact, because he has an alibi for the time at which the alleged discriminatory comments were made.
The Court noted that the grounds of appeal related solely to the decision made by the Panel in September 2013, some four years previously.
When considering this appeal, the Court noted that the appeal raised an important threshold question namely ‘does this Court have jurisdiction to entertain this appeal, or is it an illegitimate attempt to pursue a second appeal against the same decisions, before the same appellate tribunal?’. The Court also considered a further question raised by the appeal which was whether Mr A’s appeal was an abusive or improper attempt to challenge, for a third time, the original decision of 2013. Mr A’s position was that he had been the victim of a long-standing and long-running injustice which he had just been able to unmask and challenge, on the basis of new information as to the relevant legal principles, and fresh evidence of fact.
During the appeal proceedings, reference was made by Mr Justice Warby to the decisions of the Court of Appeal (Civil Division) in Taylor v Lawrence  EWCA Civ 90  QB 528 and the Court of Appeal (Criminal Division) in R v Yasain  EWCA Crim 1277  QB 146. In Taylor v Lawrence, the Court of Appeal held that it had an implicit jurisdiction to do what was necessary to achieve its two principal objectives of correcting wrong decisions and ensuring public confidence in the administration of justice; to that end it could, in exceptional circumstances, reopen proceedings which it had already heard and determined. In the more recent decision of Yasain, the Court held that the same overall principles applied to the exercise of the criminal appellate jurisdiction.
In relation to Mr A’s attempt to appeal the September 2013 decision, it was held that the HCPC’s statutory regime permits only one appeal to the High Court against any decision of the Panel. Mr A had exhausted the rights of appeal conferred on him in relation to the 2013 decision. He had brought an appeal against that decision which was heard and dismissed in 2014. Procedurally, there was a possibility of appealing to the Court of Appeal but this was not attempted by Mr A. In any event, the time limit for any such appeal had passed.
Mr Justice Warby stated that he was “willing to assume” that the High Court did have jurisdiction to re-open a decided appeal, in the circumstances specified in Civil Procedure Rule (CPR) 52.30, namely where;
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
It was, however, determined that none of the points made by Mr A fell within the scope of CPR 52.30. Mr Justice Warby stated that he was not persuaded that there had been any injustice or that the circumstances were exceptional. He therefore concluded that Mr A’s appeal was a third attempt to litigate essentially the same issues by way of appellate or review proceedings and was thus a misuse, and an abuse of the Court’s process. Mr A’s appeal was accordingly dismissed. In addition, a civil restraint order was made in respect of Mr A.
In this case, the High Court considered a number of important issues in relation to the right to appeal. It was apparent during these proceedings that the appeal related solely to a decision made by a Panel of the HCPC’s Conduct and Competence Committee in 2013, some four years previously and that the appellant had already sought to appeal against this decision. In dismissing the appeal and issuing a civil restraint order, this case can be seen as a cautionary tale for appellants seeking redress where it is clear that they have already exhausted all available options. Although it was intimated that there may be occasions where a decided appeal could be re-opened, it is clear from the rules that there must be exceptional circumstances for the Court to consider this.