Levett v The Health And Care Professions Council ("The HCPC")

An appeal from a professional disciplinary tribunal is by way of rehearing, but the appellate court should respect the tribunal’s specialist expertise, its assessment of live evidence and its evaluative judgments. A person’s status as a patient is determined from the substance of the relationship and the evidence as a whole, not from formal documentation alone. Professional boundaries remain important where a psychologist has a power advantage over a patient or former patient, and the context of any dual relationship matters. A sanction may be reconsidered by the appellate court where an allegation is set aside; remittal is appropriate only where there is a real possibility of a different result. Persistent boundary violations, coupled with profound lack of insight and risk of repetition, may justify striking a practitioner from the register.

Gillian Levett, a chartered psychologist, appealed under article 38 of the Health and Social Work Professions Order 2002/254 against findings and sanctions imposed by the HCPC Conduct and Competence Committee. The Panel found that she had conducted inappropriate relationships with a patient and former patients, breached confidentiality, committed misconduct and had impaired fitness to practise. It directed that she be struck off and imposed an interim suspension order.

The appeal challenged findings concerning confidentiality, patient status, professional relationships, credibility and procedural fairness, together with the sanction. The central issues were the proper approach to an appeal from a specialist disciplinary tribunal, whether the evidence established a clinician-patient relationship, and whether striking off remained proportionate after one confidentiality finding was overturned.

1. Appeal and factual findings. Appeals under article 38 of the Health and Social Work Professions Order 2002/254 were by way of rehearing under CPR Part 52. The Court could dismiss, quash, substitute or remit the decision. It nevertheless gave appropriate weight to the Panel’s specialist expertise and its opportunity to hear live evidence. Primary factual and credibility findings were not to be disturbed unless shown with reasonable certainty to be wrong. Greater scrutiny was appropriate for judgment outside the Panel’s professional expertise (paras [13]-[14]).
2. Reasons. A disciplinary panel generally need not give reasons for a straightforward conflict of evidence. In a complex case, however, its reasons, though capable of being short and summary, had to enable the unsuccessful party to understand why the case was lost (para [15]).
3. Patient relationship. Whether a person was a patient was a prosaic factual question. It did not turn on fine definitions. The Panel was entitled to consider the parties’ conduct, correspondence, clinical language, invoices, witness evidence and the relationship as a whole. The substance of the relationship mattered rather than the absence of notes, a formal contract or other indicia of formality (paras [26]-[38]).
4. Professional boundaries. The Panel was entitled to find former-patient relationships inappropriate where boundary transgressions created a possible power imbalance. Context mattered, including the difference between a large organisation employing a former patient and a sole practitioner doing so (para [44]). The overall relationship, rather than isolated acts such as out-of-hours treatment or home visits, could establish misconduct (paras [52]-[54]).
5. Confidentiality and sanction. The Court upheld the appeal on the confidentiality finding because the Panel had failed to take account of the patient’s letter and the proper inference was that the information came from the patient herself (paras [20]-[23]). The Court could conduct its own sanction review after setting aside an allegation. It should remit only if there was a real possibility that the tribunal would reach a different sanction. Here, the confidentiality finding was relatively insignificant and severable from the central boundary misconduct. The Court independently concluded that the persistent boundary violations, profound lack of insight and continuing risk justified striking off. The appeal was dismissed save in relation to Allegation 3 (paras [59]-[75]).

The judgment does not state a separate lower-court citation. It concerned an appeal from the HCPC Conduct and Competence Committee’s decision dated 1 November 2013.