Lovett v Health And Care Professions Council

An appellate court reviewing a professional disciplinary decision must determine whether it was wrong or unjust because of a serious procedural or other irregularity. It should respect the specialist tribunal’s assessment of witnesses and primary facts.

A regulatory hearing may continue in the registrant’s involuntary absence where the tribunal has carefully balanced fairness against the public interest, and can determine the allegations fairly. Poorly drafted particulars constitute an irregularity, but do not invalidate the proceedings where the registrant understood the substance of the case and suffered no material prejudice. An opinion may be false where it is knowingly expressed without any genuine or justifiable foundation.

Dr Steven Lovett appealed against a decision of a Conduct and Competence Committee of the Health and Care Professions Council dated 4 April 2017. The Committee found that he had failed to provide two former service users’ health records, had made unjustified and knowingly false statements about their psychological conditions, and that those matters amounted to misconduct impairing his fitness to practise. He was struck off.

The appeal challenged the Committee’s treatment of psychological evidence, its approach to the allegations of false statements, and its decision to continue the proceedings after Dr Lovett became unable to participate because of serious illness and cognitive impairment. The central issues were whether the findings were wrong, whether the proceedings were unfair, and whether the Committee should have permanently stayed them.

1. Appeal standard. The appeal was by way of rehearing, but the Court did not hear the case afresh. It had to determine whether the Committee’s decision was wrong or unjust because of a serious procedural or other irregularity. Particular respect was owed to the specialist tribunal’s assessment of witnesses and primary facts: [2016] EWCA Civ 319; [2010] EWCA Civ 407.
2. Psychological evidence. The Committee had not improperly conflated diagnosis and formulation. The relevant question was whether Dr Lovett had a genuine professional and justifiable basis for the views expressed, not the label attached to the documents. Nor had it substituted its own clinical diagnosis. It assessed whether Dr Lovett’s explanations were genuine and whether the evidence supported them.
3. False statements and particulars. An opinion can be false where it is knowingly expressed without any foundation. The Committee was entitled to find that the formulations were not genuine professional views and that the statements to the general practitioners were both unjustified and knowingly false. The burden remained on the HCPC, and the seriousness of the allegation required cogent evidence. That standard was met.
4. Fairness and absence. The proceedings were not rendered unfair by Dr Lovett’s illness. The Committee had considered his capacity, the evidence already given, the opportunity to provide a written statement in re-examination, the representation available to him, the interests of the complainants, public protection and the need for finality. His later complete loss of capacity did not alter the position because he had previously had the opportunity to engage and had chosen not to do so. The principles in R v Jones required careful caution, but professional regulation also engaged the public interest identified in Adeogba v General Medical Council.
5. Disposition. Defects in the drafting of the particulars were criticised, but they caused no material prejudice. The appeal was dismissed.

1. High Court (Administrative Court): the appeal against the HCPC Conduct and Competence Committee’s decision dated 4 April 2017 was dismissed.
2. Administrative Court: an earlier judicial review challenge to the Committee’s decision to continue the hearing was dismissed by Cheema-Grubb J on 8 July 2016. No permission to appeal was sought.