Ruscillo v Council for the Regulation of Health Care Profesionals& Anor

Section 29 of the National Health Service Reform and Health Care Professions Act 2002 permits the Council to refer a disciplinary acquittal to the High Court where the statutory criteria are satisfied. An appeal concerns the final decision on disciplinary measures. Inadequate findings justify intervention where they produce an unduly lenient outcome. Undue leniency means a sanction which the disciplinary tribunal could not reasonably have imposed, having regard to the relevant facts, public safety and the profession’s reputation. Weight should be given to the tribunal’s expertise where its process was sound and all material evidence was considered. The protective purpose of the jurisdiction takes precedence over considerations of double jeopardy. A preliminary decision made within a statutory appeal is subject to the requirements governing second appeals, even where the particular issue first arose in the High Court.

Two appeals concerned the Council for the Regulation of Health Care Professionals, the statutory body supervising professional self-regulation. The General Medical Council’s Professional Conduct Committee had acquitted Dr Ruscillo, a general practitioner, of serious professional misconduct arising from a relationship with a patient. The Council referred that decision to the High Court under section 29 of the National Health Service Reform and Health Care Professions Act 2002. Leveson J ruled on 29 March 2004 that the Council could appeal against an acquittal. Dr Ruscillo appealed that jurisdictional ruling.

Steven Truscott, a paediatric nurse, admitted misconduct through accessing sexually explicit or offensive websites while on duty. The Nursing and Midwifery Council’s Professional Conduct Committee imposed a five-year caution. Collins J dismissed the Council’s appeal against that sanction on 31 March 2004, and the Council appealed with permission from Laws LJ.

The appeals raised the scope of section 29, the applicable appellate standard, the significance of double jeopardy and tribunal expertise, and permission requirements. The court also considered how under-prosecution and additional evidence should be addressed.

Both appeals were dismissed. The court granted Dr Ruscillo permission to appeal against the preliminary jurisdictional ruling, but upheld that ruling. It also upheld the dismissal of the Council’s appeal concerning Mr Truscott.

1. A preliminary ruling made in proceedings which were themselves an appeal was subject to CPR 52.13 and section 55 of the Access to Justice Act 1999. The particular issue’s having arisen for the first time in the High Court did not remove that requirement. Permission was granted because the scope of section 29 raised an important point of principle.

2. A disciplinary acquittal constituted a final decision to take no disciplinary measure within section 29(2)(a). A purposive construction reflected the protective statutory scheme and avoided anomalies between professions whose disciplinary bodies had discretionary or mandatory powers to impose sanctions. The reopening of concluded proceedings involved an element of double jeopardy, but public protection took precedence.

3. Section 29 concerned the final decision on disciplinary measures. Inadequate findings could justify a reference where they resulted in an unduly lenient sanction. They did not permit an appeal solely to revise findings where the sanction was appropriate. The contrary allocation of acquittals to subsection (1), and decisions against commencing proceedings to subsection (2), in Council for the Regulation of Health Care Professionals v General Medical Council and Dr Anthony Leeper [2004] EWHC 1850 (Admin) was erroneous.

4. CPR Part 52 governed the reference. In determining whether a sanction was wrong, the court asked whether a disciplinary tribunal could reasonably have imposed it, having regard to the relevant facts and the protective purpose of disciplinary proceedings. Public safety and the profession’s reputation were central. The court qualified the criminal sentencing analogy and expressed reservations about measuring disciplinary sanctions against general sentencing norms.

5. Weight should be given to the tribunal’s expertise where all material evidence had been presented and the relevant factors properly considered. In Mr Truscott’s case, deliberate access to child pornography had not been established. The committee had considered the implications of his conduct for his suitability to nurse vulnerable adolescents. No error of principle, procedural shortcoming or error of primary fact justified intervention.

6. As further guidance, disciplinary tribunals should take a proactive role in ensuring proper presentation of the case. Suspected under-prosecution should first prompt inquiries of the regulator. Additional evidence could be admitted under CPR 52.11(2) where its introduction was truly in the public interest. The principles in Ladd v Marshall [1954] 1 WLR 1489 did not apply. Witness protection arrangements should receive careful consideration. A serious procedural irregularity could justify allowing an appeal and remitting the case where the appropriateness of the sanction could not be determined.

Both High Court orders stood. Costs were reserved for written submissions.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 1356 , granted permission for Dr Ruscillo’s appeal against the preliminary ruling and dismissed both substantive appeals. Both High Court orders were upheld.
• High Court, Administrative Court: Leveson J ruled on 29 March 2004 that section 29 of the National Health Service Reform and Health Care Professions Act 2002 permitted the Council to appeal against Dr Ruscillo’s disciplinary acquittal. He granted permission to appeal, although permission from the Court of Appeal was required.
• High Court, Administrative Court: Collins J dismissed the Council’s appeal against Mr Truscott’s caution on 31 March 2004. Laws LJ subsequently granted permission to appeal.
• General Medical Council: Its Professional Conduct Committee found Dr Ruscillo not guilty of serious professional misconduct. The Council referred that decision to the High Court.
• Nursing and Midwifery Council: Its Professional Conduct Committee found Mr Truscott guilty of admitted misconduct and imposed a caution to remain on his record for five years. The Council appealed against that sanction.