Subner, R (on the application of) v Health Professions Council

An appeal from a professional disciplinary decision is ordinarily a review, not a rehearing. The court must respect the specialist tribunal’s assessment of evidence, primary and secondary facts, and professional standards, while intervening where the decision was legally or factually wrong.

A delay breaches Article 6.1 only where the period raises real concern and the circumstances establish a violation. Even then, relief requires proof that a fair hearing was impossible or did not occur. On sanction, the court gives substantial weight to the professional tribunal’s expertise and to the protection of public confidence. A serious assault and verbal abuse, combined with an absence of insight or remediation, may justify striking off.

The claimant, an operating department practitioner, challenged a decision of the Health Professions Council’s Conduct and Competence Committee. The Committee found that he had assaulted and verbally abused a colleague, treated those matters as misconduct, found his fitness to practise impaired, and ordered his removal from the register. It did not treat his unauthorised early departure from work as misconduct.

The claimant argued that the proceedings were delayed contrary to Article 6.1, that the factual findings were unsafe, and that striking off was excessive. The central issues were the proper scope of the High Court’s statutory appeal, whether the hearing was unfair because of delay, whether the factual findings were sustainable, and whether the sanction was legally open to the Committee.

1. Appeal dismissed. Under Article 38(3) of the Health Professions Order 2001 and CPR Part 52.11, the appeal was a review unless the interests of justice required a rehearing. The court could allow the appeal only if the Committee’s decision was wrong.
2. The approach in General Medical Council v Meadow [2006] EWCA Civ 1390 required appropriate respect for the specialist tribunal’s professional expertise, its advantage in hearing witnesses, and the fact that primary facts, secondary facts and overall professional judgments may reasonably admit different answers. The factual findings concerning the assault and verbal abuse had an evidential basis and were open to the Committee.
3. The period from March 2007 to October 2008 did not, on its face, raise the real concern required by Dyer v Watson [2004] 1 AC 379. In any event, Article 6 breach alone would not justify quashing the proceedings. Following Attorney General’s Reference (No 2 of 2001) [2004] 2 AC and R (Gibson) v General Medical Council [2004] EWHC 2781 (Admin), the claimant had to show that a fair hearing was impossible or had not taken place. The witnesses remained available, their evidence was substantially contemporaneous, and the claimant could have attended and cross-examined them. A fair hearing was possible and occurred.
4. The Committee was entitled to find that the claimant had thrown a box weighing 10 kilograms and had sworn at the complainant. Its finding that he left early without permission was neither ambiguous nor inconsistent, because that matter did not contribute to the sanction.
5. On sanction, the court applied the approach in Raschid and Fatnani v General Medical Council [2007] 1 WLR 1460. Professional discipline principally protects the standing of the profession and the public, rather than imposing retributive punishment. The Committee’s specialist assessment of seriousness and sanction therefore deserved particular respect, subject to intervention where there were good grounds. The Committee had considered the available sanctions in ascending order, gave coherent reasons, and was entitled to attach substantial weight to the claimant’s failure to attend, lack of insight and absence of remedial assurances. There was no legal basis for interference with the striking-off order.
6. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment.

Health Professions Council Conduct and Competence Committee — On 6 October 2008, the Committee found assault and verbal abuse proved, found fitness to practise impaired, and ordered striking off. It did not find that leaving work early amounted to misconduct.

High Court (Administrative Court) — The appeal was dismissed under Article 38(3) of the Health Professions Order 2001. The striking-off order was upheld and costs were ordered against the claimant, subject to detailed assessment.