Brennan v Health Professions Council

Professional disciplinary sanctions are prospective measures directed primarily to public protection, not punishment for past misconduct. They may also protect the reputation of the profession, deter comparable wrongdoing and maintain public confidence. Where direct patient safety is not in issue, the disciplinary body must explain why those wider interests require the sanction selected and why lesser sanctions would not suffice. Proportionality requires consideration of the registrant’s insight, remorse, rehabilitation, risk of repetition, the effect of other sanctions and the unusual circumstances of the misconduct. A striking-off order may be proportionate, but it cannot be justified by a process of elimination or an unreasoned assertion that the conduct is unacceptable.

The appellant, a physiotherapist, appealed under article 38 of the Health Professions Order 2001 against a decision of the Health Professions Council’s Competence and Conduct Committee. The Committee found that he had participated in fabricated blood injuries during professional rugby matches, helped conceal the conduct and lied during the sporting investigation. He admitted misconduct and did not challenge the finding that his fitness to practise was impaired.

The Committee ordered that he be struck off the register. The central issues were whether the Committee had given legally adequate reasons for selecting striking off, and whether the sanction was proportionate given that there was no identified risk to patient safety, together with the appellant’s claimed insight, remorse and rehabilitation.

1. The appeal was allowed. The Committee’s striking-off decision was quashed and the matter was remitted for a reasoned decision on sanction.

2. Under the Health Professions Order 2001, a sanction following a finding of impaired fitness to practise must serve the statutory and regulatory purposes identified in the Indicative Sanctions Policy. Sanction is prospective. Its primary purpose is public protection, but deterrence, the reputation of the profession and public confidence may also be legitimate objectives.

3. The Committee’s reasoning was legally inadequate. It did not explain whether it accepted the appellant’s remorse, apologies, insight and attempts at rehabilitation, or why those matters would not reduce the risk of repetition or protect the wider public interests. It did not explain why conditions of practice or suspension would be insufficient. Where direct patient safety is not at issue, the reasoning must demonstrate why the selected sanction is proportionate to the wider regulatory objectives.

4. The unusual context required bespoke consideration. The misconduct involved abuse of the appellant’s professional position to facilitate cheating in sport and subsequent dishonesty, but it did not involve clinical incompetence, harm to patients or deception concerning patient treatment. The Committee had to distinguish the punishment imposed by the sporting regulator from the sanction required for impaired fitness to practise.

5. A striking-off order was not necessarily disproportionate. It could be justified if the appellant lacked genuine insight, remained vulnerable to pressure, or if the protection of professional reputation and public confidence required it. Those matters depended substantially on assessment of evidence heard by the Committee, so the High Court should not substitute its own sanction merely because the reasons were inadequate. The case was therefore remitted, with directions that the Committee address the relevant evidence, proportionality, repetition risk, the sporting sanction and the effect of lesser sanctions.

1. High Court (Administrative Court): allowed the appeal against the Competence and Conduct Committee’s decision, quashed the striking-off order and remitted the question of sanction.