McDermott v The Health and Care Professions Council

An appellate court hearing a statutory appeal from a professional disciplinary tribunal must respect the tribunal’s specialist expertise and its advantage in assessing evidence. It may intervene where the decision is wrong or unjust because of serious procedural irregularity.

Charges need sufficient particularity to enable a fair answer, but overlapping or general allegations do not necessarily invalidate proceedings where the practitioner understood the case and the tribunal made clear findings. A sanction must be proportionate and represent the least restrictive means of protecting the public. Suspension was plainly wrong where workable interim conditions had been complied with, substantial improvement had occurred, and public protection could be maintained by conditions of practice.

Kieran McDermott, a registered physiotherapist, appealed against a decision of the Health and Care Professions Tribunal’s Conduct and Competence Committee. The Panel found 46 allegations proved, concluded that he lacked competence, found his fitness to practise impaired, and imposed a 12-month suspension order.

The appeal challenged the particularity of the allegations, the findings on competence and impairment, and the proportionality of the sanction. The central issue was whether the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity.

1. Appeal jurisdiction. The appeal under article 38 of the Health and Social Workers Order 2002 was a statutory appeal governed by CPR Part 52. It proceeded by way of rehearing without rehearing the evidence. The court could intervene only where the decision was wrong or unjust because of a serious procedural or other irregularity. Proper weight had to be given to the Panel’s specialist expertise and its assessment of witnesses, applying Meadow v General Medical Council [2006] EWCA Civ 1390 and Southall v General Medical Council [2010] EWCA Civ 407.
2. Allegations and competence. The allegations were not so vague as to make the hearing unfair. The Appellant knew the case he had to meet, was able to respond, and the Panel explained the factual basis of each finding. The rule against duplicity did not apply in the same way to disciplinary proceedings: Gee v General Medical Council [1987] 1 WLR 564. The Panel properly considered the context of dyslexia, but was entitled to conclude that it did not explain the competence issues. Its finding of serious lack of competence was open to it.
3. Impairment. The Panel was entitled to regard supervision records as showing continuing concerns despite substantial positive evidence from the Community Trust. Assessment of impairment and insight was primarily a matter for the specialist tribunal, which had heard the Appellant’s evidence. The approach to insight described in Professional Standards Authority v Health and Care Professions Council and Doree [2017] EWCA Civ 39 supported that conclusion.
4. Sanction. The Panel gave excessive weight to perceived limitations in the evidence and unfairly rejected evidence explaining supervision notes. It also wrongly treated counsel’s submission that no action should be taken as evidence of the Appellant’s lack of insight. The Appellant had complied with interim conditions for a lengthy period, made real progress, and presented no evidence that public protection had failed. Applying the least restrictive and proportionate approach required by the Indicative Sanctions Policy, workable conditions of practice could be formulated. Suspension was therefore plainly wrong and disproportionate.
5. The suspension order was quashed. The matter was provisionally to be remitted to a differently constituted Panel to impose an appropriate Conditions of Practice Order. The findings of proved allegations, lack of competence, current impairment and continuing lack of insight remained undisturbed.

1. High Court (Administrative Court): appeal against the Conduct and Competence Committee’s decision dated 16 June 2017. The findings on allegations, competence, impairment and insight were upheld, but the suspension sanction was quashed and the matter was to be remitted to a differently constituted Panel.