The Professional Standards Authority v The Health and Care Professions Council & Anor

Under section 29 of the National Health Service Reform and Health Care Professions Act 2002, a sanction is not unduly lenient merely because it is lenient or less severe than another sanction the court might have imposed. The question is whether the disciplinary tribunal could reasonably have imposed it, having regard to the evidence, the protection of the public, proper professional standards and public confidence.

The court should respect the tribunal’s assessment of witnesses, insight and risk, particularly where the tribunal has considered the available sanctions and relevant guidance. Retrosive amendment of an allegation after the evidence has been heard, to secure a finding of guilt, may breach fair-hearing requirements. Regulatory panels may give reasons in the round, provided their reasoning is intelligible and sufficient to explain the result.

The Professional Standards Authority referred to the High Court a decision of the Conduct and Competence Committee of the Health and Care Professions Council concerning Benedict Doree, a registered prosthetist and orthotist.

The Committee found bullying, sexual harassment and misconduct, determined that fitness to practise was impaired, and imposed a five-year Caution Order. The Authority argued that some allegations had been wrongly drafted or should have been amended, that the sanction was perverse and manifestly inappropriate, and that the Committee’s reasons were inadequate.

The central issues were whether there had been a serious procedural irregularity, whether the sanction was unduly lenient under section 29, and whether the Committee had given adequate reasons.

1. Appeal dismissed. The Authority had not established that the Committee’s decision was unduly lenient or affected by a serious procedural or other irregularity.
2. Under section 29 of the National Health Service Reform and Health Care Professions Act 2002, the court treated the referral as an appeal. Applying Ruscillo v Council for Regulation of Healthcare Professionals [2004] EWCA Civ 1356, the question was whether the sanction was one which a disciplinary tribunal, having regard to the relevant facts and the objects of disciplinary proceedings, could reasonably have imposed. The sanction had to be manifestly inappropriate before intervention was justified.
3. The Committee was entitled to find that the allegations concerning publicity, frequency and actual photography had not been proved as drafted. The Authority’s proposed amendments would have been made after the evidence had been heard and considered, in order to secure guilty findings. That would have been a serious breach of fair-hearing procedure, particularly since the Authority maintained that proof of the allegations would have affected sanction.
4. The Committee had considered the seriousness of the misconduct, public protection, professional standards, public confidence, the available sanctions and the Indicative Sanctions Policy. It was entitled to treat suspension or striking off as punitive and disproportionate, and to conclude that meaningful conditions of practice could not be drafted to address bullying and harassment.
5. The Committee was also entitled to assess the risk of repetition and the registrant’s insight in the light of the evidence, including his subsequent employment record and positive reports. The Indicative Sanctions Policy was guidance, not a fixed tariff. The Committee could impose a five-year Caution Order even though the case did not fit precisely within the usual description of cases suitable for caution.
6. The court accorded special respect to the professional tribunal’s judgment, applying Raschid v General Medical Council [2007] 1 WLR 1460. The Committee’s reasons were lengthy, intelligible and sufficient. A regulatory panel was not required to address every point or itemise separately how each regulatory objective had been met.

This was a statutory appeal to the High Court under section 29 of the National Health Service Reform and Health Care Professions Act 2002 from the Conduct and Competence Committee of the Health and Care Professions Council. The Committee had imposed a five-year Caution Order.