Estephane v Health And Care Professions Council

An appellant may bring only one appeal to the High Court against a particular decision of a Conduct and Competence Committee under the Health Professions Order 2001. A later review decision cannot be used indirectly to reopen the original findings. Any reopening of a final appeal is subject to the exceptional requirements of CPR 52.30.

Such an appeal is by way of rehearing, but substantial deference is owed to the specialist tribunal’s findings of primary fact, particularly where it heard live evidence. A later quashing of a criminal conviction does not alter the fact that the conviction existed during the period when disclosure was required. Fresh evidence will not justify reopening where it could have been relied on earlier and does not satisfy the applicable requirements.

The appellant, a biomedical scientist, challenged decisions of the Conduct and Competence Committee of the Health and Care Professions Council concerning his fitness to practise. The original 2013 decision found failures to disclose convictions, dishonesty in relation to non-disclosure of a common-assault conviction, and discriminatory remarks. A suspension order was imposed.

An earlier appeal against that decision was dismissed by Carr J: [2014] EWHC 1209 (Admin). Later review decisions imposed conditions of practice. The appellant then purported to appeal against both the original decision and the April 2017 review decision, relying on legal points, case notes and fresh factual evidence. The central issues were whether the High Court had jurisdiction to entertain a further challenge to the 2013 decision and whether the 2017 decision was independently open to challenge.

1. Disposition. The purported appeal was dismissed for want of jurisdiction, as an abuse of process and, in any event, on its merits. The 2017 review decision was not arguably wrong because the appellant’s grounds challenged only the original 2013 findings.
2. Articles 29, 30 and 38 of the Health Professions Order 2001 permit one appeal to the High Court against a particular Panel decision. The appellant had exercised that right in relation to the 2013 decision, and the appeal had been dismissed. The possibility of a further appeal to the Court of Appeal did not confer a right to bring a second appeal to the High Court.
3. An appeal under the Order is a rehearing without hearing the evidence again. The court must show substantial deference to the specialist tribunal and give appropriate weight to its advantage in hearing live evidence. Findings of primary fact should not be disturbed unless shown with reasonable certainty to be wrong.
4. The court was prepared to assume that CPR 52.30 could permit reopening of a final appeal in an appropriate case. That power required real injustice, exceptional circumstances and no alternative effective remedy. The appellant’s points could have been raised earlier, disclosed no injustice and had no sufficient merit.
5. The conditional discharge point was immaterial. The issue for the Panel was whether the appellant had failed to disclose the fact that a criminal court had adjudicated that he had driven whilst disqualified. The statutory characterisation of the conditional discharge did not undermine that conclusion.
6. The later quashing of the common-assault conviction did not alter the fact that it existed and was in force between conviction and appeal. The Panel was entitled to find that the failure to disclose it during that period was dishonest.
7. The alleged fresh evidence concerning the discriminatory remarks was available too late, did not reliably identify the relevant date and could not satisfy the requirements for admission on an appeal, still less on a reopened appeal. A civil restraint order was to be made; costs and the precise terms of the order were left for written submissions.

• High Court (Administrative Court): An earlier appeal against the 2013 Panel decision was dismissed by Carr J in [2014] EWHC 1209 (Admin).
• Administrative Court: A later judicial review claim was refused on the papers and permission was refused on renewal.
• High Court (Administrative Court): The present purported appeal against the 2013 decision and the April 2017 review decision was dismissed.