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

On an appeal against a professional disciplinary sanction, the High Court must respect the tribunal’s expertise but must intervene where the sanction is unduly lenient. The question is whether, having regard to the relevant facts and the purpose of disciplinary proceedings, the tribunal could reasonably have imposed it.

Deliberate dishonesty by a health professional is serious misconduct. Multiple dishonest acts, attempts to avoid responsibility, limited insight and risks to patients or public confidence may aggravate the case. Absence of financial gain, an otherwise good career record and later remorse do not necessarily make a caution order adequate. A sanction may be unduly lenient where it fails to protect the public or maintain confidence in professional regulation.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a five-year caution order imposed by the Health and Care Professions Council’s Conduct and Competence Committee on a biomedical scientist.

The Committee found that Francis Ajeneye had dishonestly provided inaccurate references for two people seeking employment as biomedical scientists. One unqualified person subsequently caused harm to a patient. The Authority argued that the caution was unduly lenient and that the Committee had failed properly to assess insight, the pattern and seriousness of the dishonesty, public confidence and the applicable sanctions policy.

The central issue was whether the sanction was one which a disciplinary tribunal, having regard to the relevant facts and the object of the disciplinary proceedings, could reasonably have imposed.

1. Appeal allowed. The five-year caution order was unduly lenient and the proper sanction was remitted for redetermination.
2. Under section 29 of the National Health Service Reform and Health Care Professions Act 2002 and CPR 52.11(3), the High Court may intervene where the disciplinary decision was wrong or unjust because of serious procedural or other irregularity. Respect is due to the Panel’s expertise, particularly where it has heard the evidence, but disagreement alone is insufficient.
3. Following Ruscillo v Council for Regulation of Healthcare Professionals, GMC & Another [2004] EWCA Civ 1356, the test for undue leniency is whether the sanction was one which a disciplinary tribunal, having regard to the relevant facts and the object of disciplinary proceedings, could reasonably have imposed. The issue is not simply whether the court would have imposed a different penalty.
4. The disciplinary purpose includes protecting patients, maintaining professional standards and preserving public confidence in the profession and regulatory system. The Panel’s expertise did not necessarily give it greater insight into the culpability and public-confidence consequences of dishonesty than the court, a point supported by Council for the Regulation of Health Care Professionals v GMC and Southall [2005] EWHC 579 Admin.
5. Two dishonest references, provided by an experienced blood scientist to enable unqualified people to obtain professional employment, created a manifest risk to patients. The attempt to attribute responsibility to the employment agency, limited insight and delayed acceptance of responsibility materially aggravated the misconduct. The absence of financial benefit, positive testimonials, career history and later remorse did not justify the caution order.
6. It was unnecessary to decide whether the Panel had given adequate reasons for its assessment of future risk, although the court indicated that the reasoning was unlikely to have been adequate. The sanction was to be redetermined in accordance with further written submissions.

• High Court (Administrative Court): allowed the Professional Standards Authority’s appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002, quashed or displaced the five-year caution order and directed redetermination of the proper sanction.