Siddiqui v Health Professions Council

An appeal against a professional disciplinary decision succeeds only where the decision was wrong or unjust because of serious procedural or other irregularity. The court must respect the specialist tribunal’s assessment of evidence, particularly findings based on live witness credibility. Such findings are ordinarily disturbed only where shown with reasonable certainty to be wrong. The civil standard remains the balance of probabilities, including in serious cases. The seriousness of an allegation affects the inherent probabilities and the evidence required to establish it, but does not create a heightened standard of proof. Where a tribunal is entitled to infer sexual motivation from the cumulative circumstances, the appellate court should not substitute its own assessment merely because competing credibility points can be identified.

The appellant appealed against findings by the Health Professions Council that complaints of misconduct and lack of competence were proved, that his fitness to practise was impaired, and that his name should be removed from the Register. The appeal concerned only the panel’s acceptance of a patient’s evidence in relation to an intimate examination and the finding that the appellant was sexually motivated. The statutory appeal arose under the Health Professions Order 2001. The central issues were the proper appellate approach to factual and credibility findings by a specialist professional tribunal and the application of the balance of probabilities.

1. Appellate approach. The appeal was governed by Civil Procedure Rules 1998, Part 52. It could succeed where the panel’s decision was wrong or unjust because of serious procedural or other irregularity. The court adopted the summary in R (James Rice) v The Health Professions Council [2011] EWHC1649 and the analysis in Bhatt v GMC [2011] EWHC 783 (Admin).
2. Appropriate weight had to be given to the panel’s specialist expertise and its advantage in hearing live evidence. Primary findings of fact, especially credibility findings, were close to unassailable and could be displaced only where shown with reasonable certainty to be wrong. The court could be less deferential where the issue involved judgment or evaluation outside the tribunal’s professional expertise.
3. The applicable standard of proof was the balance of probabilities. The court adopted Re B (Children) (FC) [2008] UKHL 35, including its approval of the reasoning in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and Re U (A Child) [2005] Fam 134. Serious allegations did not require a higher civil standard; their inherent probability was a factor in weighing the evidence.
4. The panel was entitled to accept the patient’s evidence. Delay, absence of corroboration, inconsistencies and the possibility of financial motivation did not make its conclusion unsafe. The panel was also entitled to infer sexual motivation from the cumulative conduct, including direct and inappropriate communications, arranging an appointment with the appellant, lack of clinical justification, and the intimate procedure being undertaken without appropriate safeguards.
5. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs, subject to the terms concerning legal aid and enforcement. An interim payment on account of costs of £4,000 was ordered.

• Health Professions Council panel: found the majority of allegations proved, found misconduct and/or lack of competence, determined that fitness to practise was impaired, and imposed a striking-off order under Article 29 of the Health Professions Order 2001.
• High Court (Administrative Court): the appeal under Article 38 was dismissed.