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

A statutory appeal against a professional disciplinary decision is a review. The court intervenes only where the decision is wrong or unjust because of a serious procedural or other irregularity. A disciplinary tribunal may assess related allegations cumulatively when deciding whether conduct amounts to misconduct, provided the charge is read as a whole. In cases involving intimate treatment, practitioners must remain alert to the patient’s sensibilities and provide clear information and explanations. Current impairment may be established by evidence showing continuing inability to appreciate the effect of conduct. Striking off is a sanction of last resort. The tribunal must explain why lesser, workable conditions or suspension would not protect the public, taking account of remediation, practice history, risk, proportionality and the facts actually proved.

Mr Howlett appealed under Articles 29 and 38 of the Health Professions Council Order 2001 against a decision of the Health Professions Council’s Competence and Conduct Committee dated 28 November 2008. The committee found misconduct and current impairment of fitness to practise arising from inadequate explanations concerning removal of clothing and intimate treatment, and from strapping the patient during exercises. It ordered that he be struck off the roll.

The appeal challenged the factual findings, the findings of misconduct and impairment, and the proportionality of the sanction. The central issues were the scope of the court’s review, whether the evidence supported the disciplinary findings, and whether striking off was justified.

1. Review. Under CPR 52.11.3, the court could allow the appeal only if the committee’s decision was wrong or unjust because of a serious procedural or other irregularity. Proper respect had to be given to the committee’s factual and credibility findings, particularly because it had seen and heard the witnesses.
2. Facts and misconduct. There was ample evidence supporting the findings on each head of charge. The committee was entitled to consider the conduct overall when deciding whether it amounted to misconduct. In any event, its reasoning showed that it regarded each head as misconduct. The practitioner’s duty was to remain alert to the patient’s sensibilities, especially during intimate treatment. The patient was not required to communicate distress before the practitioner had to act with sensitivity and tact. Clear information and an intelligible explanation of the proposed treatment were essential.
3. Impairment. The evidence of a further patient was relevant to whether the misconduct concerning the first patient remained indicative of current impairment. It was not treated as a free-standing allegation. The committee was entitled to find a continuing inability to appreciate the sensibilities and distress of a partially disrobed patient. The impairment finding was therefore sustainable, even though another tribunal might have reached a different conclusion.
4. Sanction. The decision to strike off was flawed. The committee failed adequately to explain why significant changes to the practitioner’s procedures, evidence of satisfactory practice, his long practice history and the possibility of remediation did not reduce the risk. It did not properly consider workable conditions, such as supervision, chaperoning, restrictions on treating female patients pending training, or a requirement to undertake training. Suspension could also have allowed remediation and later review. Sanction had to relate to the facts proved or admitted, and the proportionality of the ultimate sanction required express analysis.
5. Disposition. The appeal succeeded to the limited extent that the striking-off decision was quashed. The matter was remitted to the Council for consideration of a lesser sanction, realistically suspension or a conditions of practice order. The court also expressed concern about any general assumption that conditions of practice were unsuitable for sole practitioners.

The appellant challenged the decision of the Health Professions Council Competence and Conduct Committee dated 28 November 2008. The committee had found misconduct and current impairment and ordered striking off. The Administrative Court quashed the striking-off decision and remitted the matter for reconsideration of a lesser sanction.