Muscat v Health Professions Council

On an appeal from a professional disciplinary tribunal, fresh evidence is admissible only where the established criteria for receiving evidence on appeal are satisfied, having regard to finality and the overriding objective. Professional disciplinary allegations are proved to the civil standard. Their seriousness may require strong and compelling evidence, but it does not create a separate or criminal standard of proof.

A disciplinary panel may adopt a proactive role. A single unfortunate comment does not establish actual or apparent bias without a real possibility of bias viewed objectively. Panels generally need give only sufficient reasons to explain whether charges are proved and what sanction is imposed. An appellate court should respect the panel’s advantage in seeing and hearing witnesses and its specialist function, particularly on sanction.

The appellant, an experienced radiographer, appealed against findings by the Health Professions Council’s Conduct and Competence Committee that two allegations of inappropriate exposure of female patients during radiographic procedures were proved. The panel found his fitness to practise impaired and ordered that he be struck off the register.

The appeal challenged the admission of fresh evidence, alleged bias by a panel member, the standard and assessment of proof, the absence of corroboration, the adequacy of the panel’s reasons, its factual findings, and the proportionality of the sanction. The central question was whether any established error justified appellate intervention.

1. Fresh evidence. The applications to adduce pharmacological evidence and British Psychological Society memory guidelines were refused. The appellant had not shown that the pharmacological evidence could not have been obtained with reasonable diligence, and neither item would probably have had an important influence on the result. The principles in Ladd v Marshall remained applicable in light of the CPR’s overriding objective.
2. Bias. The factual allegation that the panel member had behaved aggressively was not proved. Even assuming the appellant’s account, the conduct did not create a real possibility of bias for a fair-minded and informed observer. Professional disciplinary panels may take a more proactive role than a judge in a criminal trial. The member’s isolated and unfortunate reference to potentially misleading the panel arose from a misunderstanding, was not repeated, and did not affect the decision.
3. Proof and corroboration. The applicable standard was the balance of probabilities under article 29(3) of the Health Professions Order 2001. The seriousness and unusual nature of the allegations meant that strong and compelling evidence was required, but did not alter the standard. No rule required corroboration of the complainants’ evidence. The panel had considered the effects of medication and treated the two complaints separately.
4. Reasons and factual review. The panel was not required to address every evidential point or explain in detail why it accepted one witness and rejected another. The appellate court owed appropriate respect to the specialist panel’s assessment of witnesses and facts, while retaining appellate scrutiny. The panel’s findings concerning both complainants were open to it.
5. Sanction. The purpose of sanction was protection of the public and maintenance of confidence in the profession, not retribution. The panel had considered lesser sanctions and adequately explained why conditions or suspension would not address the risk. Striking off was proportionate. The appeal was dismissed, with costs to the respondent assessed on the standard basis.

• Health Professions Council Conduct and Competence Committee: on 5 June 2007, found the allegations proved, found the appellant’s fitness to practise impaired, and ordered that he be struck off the register.
• High Court (Administrative Court): dismissed the appeal and ordered the appellant to pay the respondent’s costs, to be assessed on the standard basis.