Acting to stop harm: the FCA and Appointed Representatives
PSA v HCPC & Doree  EWCA Civ 319
This is the second appeal. We previously covered the first appeal which can be accessed here.
In short, in the first appeal, the Professional Standards Authority (PSA) exercised its power of appeal by way of referral under Section 29 of the National Health Service Reform and Health Care Profession Act 2002 (the Act) in relation to a decision of the Conduct and Competence Committee (the Committee) of the Health and Care Professions Council (HCPC) made on 24 July 2014, in respect of Benedict Doree (the Registrant). The PSA stated that:
(1) some of the factual particulars were drafted in a manner that was not supported by the evidence, and that an application should have been made to amend or the Committee should have amended the particulars of its own volition;
(2) the sanction imposed was unduly lenient; and
(3) the Committee failed to give adequate reasons for its decision.
To clarify, the Committee had imposed a caution order on the basis that:
“given the time period since the events in question and the positive testimonials from current colleagues, the Panel is of the view that a caution order would be an appropriate sanction to mark such conduct and to address the wider public policy issues. Such an order would serve as an appropriate reminder to the Registrant of the need to maintain high standards of behaviour in his professional life. The Panel is aware that a period of three years is the benchmark for a caution order. The Panel considers that a period of five years would be sufficient to address the severity of the conduct and the wider public interest”.
The Court rejected the PSA’s appeal, but Lady Justice Hallett granted permission for the PSA to appeal against Lang J’s decision.
This was heard before Lady Justice Sharp and Lord Justice Lindblom.
In paragraph 3 of the judgement, Lord Justice Lindblom summarised the issues as follows:
“First, was the judge wrong to reject the Authority's submission that the Panel should either have adhered to the Council's Indicative Sanctions Policy or given good reasons for departing from it? Secondly, was she wrong to uphold the approach taken by the Panel to Mr Doree's insight into his misconduct? Thirdly, was she wrong to find that the fact that Mr Doree's misconduct had not been witnessed by any patient was a mitigating factor justifying a less severe sanction? Fourthly, was she wrong to conclude that the amendment of an allegation of misconduct to a lesser one after the evidence had been heard would have been “a gross breach of fair hearing procedure”, and to reject the Authority's contention that the failure to amend the allegation was a procedural error? The fifth issue is whether the sanction imposed by the Panel was unduly lenient”
Under section 29(4) of Act (as amended), the PSA can refer a case to the High Court if it considers that ‘a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned…. or as to any penalty imposed, or both’.
The Court noted that the relevant legal principles as to its role are clearly set out in Council for Regulation of Health Care Professionals v Ruscillo  1 W.L.R. 717, which stated at paragraph 73 that the Court’s role is:
“to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty”. And the “test of undue leniency in this context must … involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession”.
Turning to the Committee’s decision, the Court noted that it had two matters before it: that on 4 May 2011 the Registrant had driven his car at a colleague and had bullied that colleague, and that he “demonstrated inappropriate sexual behaviour towards Physiotherapist B …” As to matter one, the Committee found some of the facts proven, and that the Registrant had sought to bully and intimidate his colleague. The Committee also found proven that the Registrant had behaved in a manner towards Physiotherapist B which was sexually motivated. A number of sub-particulars were not found proven.
The Panel found that the facts proven amounted to misconduct and current impairment stating as for the:
“public component….the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…..[the Registrant’s conduct has]….fallen well below the standards expected of a health professional and as such has clearly had a tangible, adverse effect on the reputation of the profession of prosthetists”
In respect of sanction, the Court noted that the Indicative Sanctions Policy (the Policy) is meant to assist Committees in their deliberations, primarily by aiding them to make consistent and clear decisions.
The PSA submitted that on the first appeal Lang J had been wrong to reject its contention that the Committee should have either followed the Policy or given reasons as to why it departed from it. This argument was rejected in the second appeal. The Court stated that as the Policy is guidance, it does not have the force of statute or regulation, neither is it akin to a code of practice. As such, if it is not strictly followed by a Committee, it does not have to set out reasons as to why.
In relation to the Registrant’s insight, on the first appeal, Lang J had rejected an argument by the PSA that the Committee’s conclusions in respect of insight and the potential risk of repetition of the conduct was flawed. This argument was also rejected on the second appeal for three material reasons:
1. The Court did not accept that a Committee can only find that a Registrant has shown insight or remorse after they have given oral evidence to demonstrate it, including making themself available for cross-examination or other questioning. Whether a Registrant has shown insight and the level of that insight are: “matters of fact and judgment for the professional disciplinary committee in the light of the evidence before it. Some of the evidence may be matters of fact, some of it merely subjective”;
2. The Committee did not accept without question that the Registrant had demonstrated insight and remorse, and that the risk of repetition was low. In fact, the Committee found that the Registrant’s insight was “limited” and that it emerged in a written statement produced after the facts stage. The Committee took into account other evidence such as online courses on “preventing sexual harassment and workplace harassment”. Taking all the factors into account the Committee concluded that “the risk of repetition has been diminished but still remains”;
3. [at paragraph 40] “Thirdly, therefore, the submission that the Panel's decision on sanction was rendered unduly lenient by an erroneous approach to the question of Mr Doree's insight is, in my view, mistaken. The Panel's approach to this question was correct. There was, again, no serious procedural irregularity. And, as the judge accepted, the Panel were entitled to find and conclude as they did on the evidence before them. Their relevant findings and conclusions are unimpeachable”.
In relation to the absence of complaints from patients as a “mitigating factor”, the Court swiftly dealt with this argument stating that it was untenable. The Court did not find that the Committee’s comments at paragraph 94 [“particularly where there were no issues with patient interaction”] were geared towards minimizing the seriousness of the Registrant’s conduct.
In respect of amendment of the allegation, on first appeal, Lang J had not seen any reason to criticise the fact that neither the HCPC nor the Committee had sought to amend the allegation. Lang J stated: “amending the charge retrospectively after the evidence had been heard and considered, in order to secure a guilty finding, would have been a gross breach of fair hearing procedure”. On second appeal, the Court noted that a Committee is entitled to make necessary amendments to the allegation to avoid undercharging, it also accepted the HCPC’s submission that in the present case the Committee, having considered the evidence: “were not obliged in law to proceed only on the basis of allegations tailored to their findings of fact. It would have been open to them at that stage to canvass the possibility of amendments being made to the allegations to match their relevant findings of fact, and, if satisfied that such amendments could be made without unfairness, to proceed on the basis of the allegations as amended. But this is not to say that they committed any procedural error, let alone a serious one, by neither seeking nor making such amendments, or that their conclusions as to misconduct and fitness to practise were invalidated by their not having done so, or that the sanction they imposed on Mr Doree was for that reason unduly lenient”.
This submission was accepted by the Court, but it did not accept that the Committee had fallen into error in this case. In short, the Committee was “entitled, and right, to proceed as they did”.
Lastly, as to sanction, this ground also failed. The Court opined that the sanction imposed by the Committee was not unduly lenient and that a caution order is not insignificant.
The Court dismissed the appeal.
The comments by the Court as to amending the allegation are interesting. It suggests that the Court’s view is that it will be appropriate in some cases for the Committee to amend, or invite the regulator to amend the allegation, even at a late stage, where the amendments may be material as to findings on misconduct, impairment or sanction. Clearly, the Committee will have to consider prejudice to the Registrant, but temper this with its duty to ensure that cases are not under-prosecuted.
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