Alami & Anor v Health and Care Professions Council & Anor

In a professional disciplinary investigation, a case to answer requires a realistic or genuine prospect that impairment of fitness to practise will be established at a hearing. The investigating panel may assess the evidence and resolve factual issues, provided it considers evidence on its face unless it is clearly unreliable. Errors in an expert report do not automatically amount to sanctionable misconduct or lack of competence. Where the report was prepared in good faith, with appropriate supervision, and could be challenged in a legal process, serious professional misconduct will be rare absent bad faith or recklessness. Judicial review will not normally quash a decision where the alleged defects would not justify a sanction or make a different outcome necessary.

The claimants sought judicial review of the Health and Care Professions Council’s decision that Dr Susan Young had no case to answer following complaints about psychological risk assessments prepared for parole proceedings. The complaints alleged lack of expertise in terrorist offending, misuse of assessment tools, inadequate methodology, incomplete evidence gathering and failures to address the relevant political, social and cultural context.

The British Psychological Society had previously recommended referral to a conduct committee, but that recommendation was not placed before the Council’s investigating committee. The claimants challenged the Council’s decision on grounds including procedural unfairness, legitimate expectation, inadequate reasons and perversity. The central issue was whether the committee was entitled to conclude that the evidence disclosed no realistic prospect of establishing sanctionable misconduct or impaired fitness to practise.

1. Claim dismissed. The Council’s investigating committee was entitled to decide that Dr Young had no case to answer.
2. The applicable case-to-answer test was whether, on the evidence before it, there was a realistic or genuine, rather than remote or fanciful, prospect that the Council could establish at a hearing that the registrant’s fitness to practise was impaired. Public confidence in the profession and its regulatory powers was relevant.
3. The committee was entitled to consider the evidence as a whole and to resolve factual issues. Unless evidence was clearly unreliable, it had to be considered at face value. The committee was not required to refer a case merely because several experts criticised the practitioner’s methodology.
4. Dr Young’s use of the HCR-20 assessment and her limited experience of terrorist cases could properly be criticised. Nevertheless, she had acted in good faith, had relevant experience in assessing violence, had disclosed the limitations of the tools, and had obtained supervision from Professor Gudjonsson, who had relevant expertise and approved her reports. The committee was entitled to conclude that the errors did not establish misconduct or lack of competence serious enough to justify a sanction.
5. The omission of the British Psychological Society recommendation from the papers was justified because the recommendation contained a serious factual error and had been challenged. Its earlier inclusion did not create a legitimate expectation that it would remain before the committee.
6. The reasoning was imperfect in places and did not fully reflect all adverse expert criticism, but the defects did not render the decision unlawful. Applying the approach in Meadow v GMC [2007] QB 462, serious professional misconduct in relation to reports capable of challenge in a legal process would be rare absent bad faith or recklessness. Quashing the decision was unnecessary, particularly since a different conclusion need not be reached.

First-instance judicial review claim. The judgment refers to earlier judicial review proceedings concerning the Parole Board’s decisions, which had been refused by Keene LJ on 30 April 2008.