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

Indicative sanctions guidance which is expressly non-prescriptive does not create a tariff or confine a panel to its examples. A professional disciplinary panel must have proper regard to it, apply it on its stated terms, and give adequate reasons for any true departure. A caution order may therefore be lawful for serious misconduct where meaningful conditions are impracticable, repetition is assessed as low, and suspension would be disproportionate.

Insight is a fact-sensitive evaluative question. It may be established by relevant oral, written, objective and third-party evidence; oral evidence from the registrant after adverse factual findings is not invariably required. A late amendment to charges is permissible but not compulsory. It is material only if the amended allegation could significantly affect the findings or sanction.

The Authority referred to the High Court, under section 29 of the National Health Service Reform and Health Care Professions Act 2002, a decision of the Health and Care Professions Council’s Conduct and Competence Committee. The Panel had found that Benedict Doree, a registered prosthetist, had bullied one colleague and sexually harassed another. It found his fitness to practise impaired and imposed a five-year caution order.

Lang J dismissed the Authority’s appeal in the Administrative Court: [2015] EWHC 822 (Admin). The Authority’s second appeal challenged the Panel’s use of its Indicative Sanctions Policy, its assessment of insight, its treatment of the absence of patient interaction, its failure to amend certain allegations, and the conclusion that the sanction was not unduly lenient.

1. Appeal dismissed. Lindblom LJ, with whom Sharp LJ agreed, held that the High Court was right to uphold the five-year caution order. Under section 29, the question was whether the sanction was one a reasonable disciplinary tribunal could impose, having regard to public protection and the reputation of the profession. The caution was not manifestly inappropriate.

2. The Indicative Sanctions Policy was guidance published under article 3(15) of the Health and Social Work Professions Order 2001. It was deliberately indicative, imposed no fixed tariff, and required each case to be decided on its merits. It differed fundamentally from the statutory code considered in R. (on the application of Munjaz) v Mersey Care NHS Trust [2006] 2 A.C. 148. The Panel had properly regarded and applied the guidance. Its reasons showed why a maximum caution order, rather than conditions or suspension, was proportionate.

3. A panel’s assessment of insight is a matter of fact and judgment on all relevant evidence. It may consider the registrant’s conduct, written material, remedial work, and evidence from colleagues. It is not bound to find an absence of insight merely because the registrant did not give further oral evidence after the factual findings. Here, the Panel cautiously found only limited insight and assessed the risk of repetition against the later evidence. Its conclusion was coherent and open to it.

4. The absence of issues with patient interaction was not treated as mitigation for the misconduct. It was relevant to the proportionality of a sanction directed to public protection. The Panel had fully considered the public component, professional standards, deterrence and confidence in regulation.

5. A late amendment to allegations may sometimes be justified to prevent undercharging. It was not required here. The unamended allegations were not under-prosecuted, and the proposed additional findings would not materially change the established misconduct, impairment, or appropriate sanction. No serious procedural irregularity arose.

• Court of Appeal (Civil Division): Dismissed the Authority’s second appeal and upheld the five-year caution order.
• Administrative Court: Lang J dismissed the Authority’s section 29 appeal against the Panel’s sanction: [2015] EWHC 822 (Admin).
• Conduct and Competence Committee: Found misconduct and impaired fitness to practise, and imposed a caution order for five years.