Levett v Health And Care Professions Council

Permission to appeal requires proposed grounds with a real prospect of success. On a second appeal, the case must also raise an important point of principle or practice. A professional disciplinary panel may consider the consequences of misconduct when assessing its seriousness, even where those consequences are not separate charges. An appellate court may uphold a sanction without remittal where the disciplinary reasoning is sufficient and the same sanction would have been imposed without an invalid finding. Challenges based on panel composition, evidential reasoning, procedure or proportionality will not satisfy the permission threshold where they depend on the unusual facts and disclose no arguable error.

The applicant, a chartered psychologist, challenged a disciplinary decision concerning inappropriate relationships with patients and former patients, failures to maintain professional boundaries, and an alleged breach of confidentiality. The Health and Care Professions Council panel found her fitness to practise impaired and directed that she be struck off.

The High Court allowed the appeal only in relation to the confidentiality finding and upheld the sanction. Permission to appeal was refused on the papers, but permission to amend the grounds was granted. The applicant renewed her application before the Court of Appeal, advancing 11 grounds. The central issue was whether any ground had a real prospect of success and, for a second appeal, whether the case raised an important point of principle or practice.

Application for permission to appeal refused. Richards LJ held that none of the proposed grounds had a real prospect of success, even applying first-appeal criteria. The case also failed the additional second-appeal requirement because the alleged unlawfulness depended on its specific and unusual facts and raised no important point of principle or practice.

1. The alleged financial or professional connections between panel members and the Council did not make an actual or apparent bias argument arguable.
2. The High Court had properly addressed the conflict in the evidence and the question whether Miss A was a patient. The panel’s findings were capable of founding misconduct, and the challenge based on the panel’s professional composition and expertise had no real prospect of success.
3. The panel was entitled to assess seriousness by considering the consequences of the applicant’s conduct, including harm to Miss A, although that harm was not itself charged.
4. The procedural challenge concerning evidence given from behind a screen disclosed no serious irregularity. The High Court had given sufficient reasons.
5. A challenge to sanction in a professional disciplinary case faced substantial difficulty. The High Court found the panel’s reasoning sufficient and concluded that striking off would have been imposed even without the confidentiality finding. The judge also conducted a thorough review and concluded that striking off was the only appropriate sanction. That exercise of discretion was unassailable.
6. The remaining grounds, directed specifically to the High Court judge’s reasoning, disclosed no arguable error.

Permission was therefore refused, notwithstanding the cogent presentation of the applicant’s case.

• Court of Appeal (Civil Division): On 14 May 2015, Richards LJ refused the renewed application for permission to appeal under [2015] EWCA Civ 580.
• High Court of Justice, Queen’s Bench Division: Haddon-Cave J allowed the appeal in relation to the finding of breach of confidentiality but upheld the direction striking the applicant off the register.
• Permission stage: Bean LJ refused permission on the papers, while allowing amendment of the grounds before the application was renewed.