Controlling and Coercive Behaviour: Widening the Net
Janet Redmond v Health and Care Professions Council  EWHC 2490 (Admin)
Ms Redmond (the Appellant) is a registered social worker. She worked between 2009 and 2012 for Nottingham City Council as a case manager in the Youth Offending Team. Her duties included carrying out assessments of young offenders and providing subsequent reports. In June 2012 the Appellant was dismissed from her employment following allegations of persistent failures of social work practices. The thrust of the concerns was that she had repeatedly failed to produce reports and assessments in accordance with the National Standards for Youth Justice Services, in spite of support, monitoring and supervision.
The matter was referred to the Health and Care Professions Council (HCPC) and on 9 March 2016, a panel of the Conduct and Competence Committee (the Panel) considered an allegation of impairment of the Appellant’s fitness to practise.
The Panel found the majority of the facts proven, found that those facts amounted to misconduct and/or lack of competence, and the Appellant’s fitness to practise impaired. The Panel imposed a sanction of nine months’ suspension of her registration, subject to review. In coming to its conclusion the Panel considered the Appellant’s failure to produce assessments and reports in a timely manner resulted from her deliberate choice to work in a certain way. It further found she had demonstrated an unwillingness to change despite management interventions and support.
The Panel commented that although the Registrant had the requisite knowledge, experience and skill for managing an average workload, and notwithstanding her appreciation of the importance of her public protection work, by her own choice she failed to manage her time effectively and carry out key parts of her social work role.
The Appellant appealed the Panel’s decision and the matter was heard on 6 September 2016 in the High Court before His Honour Judge David Cooke. The grounds of appeal were, in summary, that the Panel had no proper basis to reach the factual conclusions that it did on the evidence before it, and that the sanction imposed was excessive. Before addressing each specific ground, His Honour Judge David Cooke in his written judgment drew attention to the HCPC appeal process, as governed by part 52 of the Civil Procedure Rules and by Practice Direction (PD) 52D.
He noted CPR52.11 provides that an appeal should be allowed if the court determines a Panel decision to be wrong, or unjust by virtue of a serious procedural or other irregularity in its proceedings. He commented that the court will be very slow to depart from factual conclusions reached by the Panel, particularly where such conclusions are reached as a result of evaluation of the credibility of witness evidence. His Honour Judge David Cooke referred to the cases of Southall v General Medical Council  EWCA Civ 407 and Raschid v General Medical Council  1 WLR 1460 which further demonstrated the rare circumstances in which an appellate court will overturn findings of fact made at the court or tribunal of first instance. Leveson LJ, in Southall at paragraph 47, held “…it is very well-established that findings of primary fact… are virtually unassailable” whilst Laws LJ in Raschid considered at paragraph 19 of the judgment there was a need to pay “special respect to the judgment of the professional decision-making body in the shape of the panel.”
His Honour Judge David Cooke then dealt with each appeal ground.
The Appellant raised concern about the way in which the HCPC had referred to her job description. She had taken issue with the amendment in the HCPC’s allegation from “Social Worker” to “Social Worker employed as a Case Manager/Court Officer”. The Appellant withdrew this concern allegation prior to the appeal however in his judgment His Honour Judge David commented, at paragraph 9, that the point was “plainly unsustainable” in that the amendment had been made in response to the Appellant’s own description of her role.
The Appellant made no objection to the remaining, more substantial, amendments to the allegation.
Particular 2 of the allegation related to a pre-sentence report in respect of Service User 5, who was due in court on 23 November 2011. The report had been due to be submitted to the authority’s court team on 22 November 2011 and the HCPC’s two witnesses gave evidence that the Appellant was responsible for coordinating the report and ensuring it was submitted on time. The Appellant contended she was not responsible for completing the intensive supervision and surveillance assessment, which she maintained was a separate report, and she therefore denied the allegation. The Panel preferred the HCPC witnesses’ evidence and found the Appellant was responsible for collating and submitting the report. The Panel noted HCPC witness SN’s account was fully tested in live evidence. However, it considered the Appellant’s account was partially untested in that she did not attend the entire hearing and elected not to attend when the HCPC witnesses were giving evidence.
The Appellant’s complaint on appeal was that particular 2 of the allegation 2 had been found proven by the Panel despite the fact that the evidence was “not fully tested”. His Honour Judge David Cooke noted the decision was clear in that the Panel had preferred SN’s evidence, which they described as “fully tested”, over that of the Appellant’s, which was considered “partially untested” as the Appellant had elected not to put her version of events to SN. His Honour Judge Cooke further noted that the Panel were fully entitled to prefer the evidence of SN. This ground of appeal was rejected.
In her written submissions on appeal, the Appellant contended the Panel’s findings in relation to the principal factual allegation were contrary to the evidence of the HCPC’s witnesses. In her oral submissions, however, the thrust of her argument was that the decision was contrary to her own evidence. The Appellant disputed the Panel’s conclusion that she had worked in an entrenched way and deliberately failed to change her practice, pointing out that witness SN had accepted the Appellant’s slowness as part of her natural way of working rather than a deliberate intention to be slow.
His Honour Judge David Cooke noted the Panel’s, and the HCPC presenting officer’s, conscientious efforts to put the Appellant’s case to the witnesses due to the Registrant’s voluntary absence. He found that notwithstanding the witnesses’ partial acceptance of points made in the Appellant’s submissions, their evidence on the whole clearly supported the Panel’s findings. His Honour Judge Cooke commented at paragraph 35 it was “simply unsustainable” to hold the Panel’s conclusions were contrary to the HCPC witnesses’ evidence.
He further reiterated it was open to the Panel to prefer the HCPC witnesses’ evidence over that of the Appellant, and there could be no basis for suggesting the Panel had misunderstood the evidence before them.
The Appellant gave evidence that her workload at the Council had been excessive compared with colleagues and that since leaving her employment there she had continued to work, had taken on board criticisms, and had shown she was able to produce reports quickly when required. His Honour Judge David Cooke found there was nothing in the Appellant’s further evidence to indicate that the Panel could not have accepted the evidence against the Appellant. He noted that on the subject of caseload, the Panel had accepted the evidence of both HCPC witnesses, whose answers to questions put to them were able to be evaluated by the Panel. He therefore found there was no basis for disturbing any of the Panel’s findings of primary fact, and further that the Panel had been entitled to make its evaluative judgment that the Appellant’s failure to change her practice had been deliberate.
The Appellant argued the sanction imposed was disproportionate on the bases that her practice caused no harm, no practice issues had been raised in relation to her work subsequent to the complaint being raised, and suspension was an ineffective sanction as it prevented her from implementing continuing professional development. She disagreed with the Panel’s finding of “limited insight”, noting she clearly recognised the need to change her practice and had done so. The Appellant further contended the Panel had ignored a positive reference from a contract employer when it held that she had “self-reported” good practice. The Appellant argued there was no need for any sanction.
His Honour Judge David Cooke noted the Panel had been correct to consider risk of harm, however he was also of the view that a finding of actual harm to Service user 5 would have been justified in the circumstances. He found the Panel had had the opportunity to hear the Appellant’s evidence and evaluate the extent to which she was being frank and sincere in the changes made to her practice. In respect of the employment reference, His Honour Judge Cooke disagreed with the Appellant’s view that the Panel had ignored this document. Rather, his interpretation was that the Panel had held there was no independent evidence supporting the Appellant’s specific contention that she had been able to meet reporting deadlines under pressure in a subsequent role.
His Honour Judge David Cooke found the Panel’s assessment had been substantially based on the Appellant’s own testimony, and that the passage of time had not resulted in a sufficient change in her practice such that a sanction could be considered unnecessary. He found the Panel’s sanction was not disproportionate or otherwise unjust, bearing in mind the Appellant’s limited insight and failure to show a sufficient change in her entrenched attitudes.
The appeal was dismissed.
This decision reaffirms the role and boundaries of the appellate court, highlighting in detail the need for courts of second instance to exercise real caution when considering departure from the factual findings of the first instance court or tribunal. Appellate courts in the healthcare disciplinary context will give considerable weight to the judgment of a professional panel, particularly regarding the standards required of the profession, whether the facts found show a professional’s conduct fell below those standards and if so, the appropriate sanction.
The decision also serves as a useful reminder of how the question of sanction should be considered; starting with the least restrictive sanction to most, whilst bearing in mind principles of proportionality, the professional’s personal circumstances and of course, public interest.
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