Muscat v Health Professions Council

In an appeal against professional disciplinary findings, fresh evidence is admitted only where the appellate discretion, viewed in the light of the overriding interests of justice, justifies reopening the case. The Ladd v Marshall principles remain powerful guidance, especially the need for finality and an explanation for evidence not obtained at the original hearing. The public interest in a correct decision does not, by itself, require a different approach where the regulator has a statutory power to review a striking-off order on the basis of new evidence. On sanction, a disciplinary panel need not understand a practitioner’s motive before assessing gravity, risk of recurrence and the effect on patients. Where serious, repeated misconduct is denied and unexplained, striking off may be the only appropriate sanction.

Stanley Muscat, a radiographer, appealed to the Court of Appeal from Silber J’s dismissal of his appeal against a Conduct and Competence Committee panel of the Health Professions Council. The panel had found two allegations well-founded: that he had partly uncovered one patient for an X-ray and required another to be naked during an MRI scan. It struck him off the register.

The renewed appeal challenged the refusal to admit a pharmacologist’s report as fresh evidence and, alternatively, the severity of the sanction. The central issues were whether the report should be admitted on appeal and whether the panel could impose striking off without an established explanation for the practitioner’s motivation.

1. Fresh evidence. The appeal against refusal to admit the pharmacologist’s report was dismissed. Although the judge below had appeared to focus principally on the Ladd v Marshall principles, those principles remained central to the discretion. There was no explanation for failing to obtain the expert evidence before the disciplinary hearing, creating a very substantial impediment to admission.
2. The evidence might have had some significance concerning one complainant’s reliability, but it was not decisive or a sufficient special reason to reopen the proceedings. The public interest in reaching the correct result in a striking-off case was relevant. However, article 30(7) of the Health Professions Order 2001 provided a statutory review mechanism where new evidence relevant to a striking-off order became available. That mechanism adequately protected the public interest and placed the issue before the Committee, which was better able to assess the evidence. The appeal therefore did not require a special approach distinct from ordinary litigation.
3. Sanction. The appeal against erasure was also dismissed. A panel need not establish or infer a practitioner’s motive before deciding sanction. If motive is available, it may affect the gravity of the misconduct and the risk of recurrence. If it is unavailable, the panel must assess gravity and risk from the history of the conduct and its effect on patients.
4. The two incidents occurred within weeks of each other and humiliated the patients. In the absence of an explanation showing insight, the panel was entitled, and correct, to treat the conduct as a serious breach of trust and to conclude that erasure was the only appropriate sanction. Lord Justice Maurice Kay and Lord Justice Longmore agreed.

• Court of Appeal (Civil Division): Appeal dismissed on both grounds: refusal to admit fresh evidence and challenge to the striking-off sanction, [2009] EWCA Civ 1090.
• High Court, Administrative Court: Silber J dismissed the appeal from the Health Professions Council panel on 14 November 2008.
• Health Professions Council Conduct and Competence Committee: Found two misconduct allegations well-founded and ordered that the appellant be struck off the register.