Reyburn v The Health Professions Council

On an appeal from a professional regulatory sanction, the High Court must give substantial weight to the specialist tribunal’s expertise and exercise a secondary judgment. It must nevertheless correct material errors of fact or law and intervene where the sanction is not reliably supported by the evidence or reasoning.

Regulatory sanctions are protective rather than retributive. The question whether a practitioner is suitable for a particular post must be distinguished from whether the practitioner remains competent to stay on the professional register. Vague, hearsay and disputed evidence may be insufficient to justify suspension, particularly where the principal sources have not given oral evidence. The appropriate course may be to quash the sanction and remit the matter for rehearing.

Cristina Reyburn appealed against a decision of the Health Professions Council Conduct and Competence Committee following a review of conditions imposed on her registration. The committee concluded that further conditions would not secure sufficient improvement and suspended her registration for one year.

The evidence concerned reports about her performance as a speech and language therapist in a specialist school. Important adverse material came from written reports by persons who did not attend the hearing, while Mrs Reyburn disputed aspects of those reports. The central issues were whether the committee had reliably assessed the evidence, whether it had confused suitability for the particular employment with competence to remain registered, and whether suspension was justified.

1. The appeal was allowed. The decision to impose the substantive one-year suspension was quashed and the matter was remitted to the Conduct and Competence Committee for a rehearing as soon as practicable.
2. The court applied the approach identified in Raschid v General Medical Council; Fatnani v General Medical Council, [2007] EWCA Civ 46, [2007] 1 WLR 1460. A professional committee imposes protective sanctions, not retributive punishment. The High Court must respect the committee’s specialist expertise and its responsibility for public confidence, but it retains a secondary judgment and must correct material errors of fact or law and assess whether the sanction is properly supported.
3. The committee had correctly considered sanctions in increasing order of severity. It was rational to consider suspension after rejecting further conditions, without necessarily proceeding directly to striking off. Suspension was subject to review and could be extended if continued protection of the public required it.
4. However, the committee had risked conflating Mrs Reyburn’s suitability for the specialist work at Glebe School with the separate question whether she possessed the minimum competence required to remain on the register. The adverse evidence also contained vague and unsubstantiated assertions, much of it derived from hearsay. Mrs Littlejohn and Mr Seed had not given oral evidence, although Mrs Reyburn disputed important parts of their reports. The committee’s treatment of her alleged admissions was too simplistic, and its reliance on Mr Seed’s evidence did not establish clearly whether her overall performance fell below the standard required for registration.
5. Taken together, those defects meant that the evidence and reasoning did not reliably justify the higher sanction of suspension. The rehearing would require proper examination of the source material, with oral evidence from Mrs Littlejohn and Mr Seed and probably Mrs Crawley.
6. The interim suspension order was continued until 4 May 2008, solely for expediency pending the rehearing. That continuation was not an indication of the likely substantive outcome. No order for costs was made because both parties shared responsibility for the evidential difficulties.

• High Court (Administrative Court): The appeal against the Conduct and Competence Committee’s decision of 4 May 2007 was allowed. The substantive suspension was quashed and the matter was remitted for rehearing.
• Conduct and Competence Committee: Following a review of conditions of practice, directed that Mrs Reyburn’s registration be suspended for one year.