Davies v Health And Care Professions Council

A regulatory tribunal may proceed in a registrant’s absence where reasonable steps have been taken to give notice. It must then exercise its discretion having regard to all the circumstances, including fairness to the registrant, fairness to the regulator and the public interest in the effective protection of health and safety. A registrant has a responsibility to engage with fitness-to-practise proceedings and to keep the regulator informed of a current address. On appeal, the court will interfere only where the tribunal’s decision was wrong or unjust because of a serious procedural irregularity.

The appellant, a registered social worker, appealed under article 38 of the Health and Social Work Professions Order 2002/254 against a Conduct and Competence Committee decision. The Committee had proceeded in her absence, found allegations of dishonestly falsifying a child’s case record and inappropriate conduct proved, found her fitness to practise impaired by misconduct, and struck her from the register.

The appeal concerned whether the Committee was entitled to proceed without her attendance and whether its findings and sanction were wrong or unjust because of a serious procedural irregularity.

1. Appeal dismissed. Under article 38 of the Health and Social Work Professions Order 2002/254, the court could allow the appeal only if the Committee’s decision was wrong or unjust by reason of a serious procedural irregularity.

2. Rule 11 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 permits a hearing to proceed in the registrant’s absence where the Committee is satisfied that all reasonable steps have been taken to serve notice under rule 6(1). The appropriate approach is two-stage: first determine whether effective notice was given; then exercise the discretion to proceed fairly, considering all relevant circumstances.

3. The principles in R v Jones [2002] UKHL 5 provide a useful starting point, but must be adapted to the regulatory context. The public-protection objective, the need for fair and efficient disposal, fairness to both practitioner and regulator, the absence of compulsory powers over the registrant, and the registrant’s responsibility to engage with the process are material considerations.

4. The Court of Appeal’s guidance in Adeogba v The General Medical Council [2016] EWCA Civ. 162 applies equally to regulatory tribunals. The Committee had been entitled to find that notice was properly served, that the appellant knew of the proceedings, that her absence was voluntary, and that there was no sufficient basis to expect an adjournment would secure her attendance.

5. The Committee’s findings were supported by the evidence. It was entitled to accept the evidence establishing that the record concerning the vulnerable child was false, and to rely on the appellant’s own admission concerning the later visit. There was no flaw in the Committee’s treatment of hearsay evidence or in its reasoning.

6. Once the misconduct was proved, the Committee was entitled to find that the appellant’s fitness to practise was impaired and that removal from the register was justified. No serious procedural irregularity or other error was established.

• Conduct and Competence Committee: proceeded in the appellant’s absence, found misconduct proved, found fitness to practise impaired, and ordered that she be struck from the register.
• High Court (Administrative Court): dismissed the appeal against the Committee’s decision.