Bryce v Health & Care Professions Council

An appellate court reviewing a disciplinary panel must apply the statutory appeal test and should give appropriate weight to the panel’s specialist expertise and its advantage in hearing live evidence. Findings of primary fact based substantially on witness credibility should be disturbed only where the court is reasonably certain that they are wrong. A panel need not address every document or argument in detail. In a straightforward case, its statement that it considered the evidence may suffice, unless the decision reveals a material failure to consider a salient issue or evidence.

The appellant, a registered occupational therapist, appealed against a Health & Care Professions Council panel’s finding that she had engaged in consensual sexual intercourse with a colleague in a service user’s home, amounting to misconduct affecting her fitness to practise. She contended that the intercourse was non-consensual because she was subject to a coercive and abusive relationship, and argued that the panel had failed to consider relevant documentary evidence and the effects of abuse on her evidence.

The panel preferred the colleague’s evidence and imposed a three-year caution. The appeal concerned whether that decision was wrong or unjust because of serious procedural irregularity.

1. Appeal test. The appeal was brought under article 38 of the Health and Social Professions Order 2001. Under CPR 52.21(3), the court could allow the appeal only if the panel’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. Factual findings and deference. The panel’s conclusion that the sexual relationship was consensual was principally a finding of fact based on its assessment of witnesses whom it had heard over approximately two days. Appropriate weight had to be given to the panel’s specialist status and its evidential advantage. Such credibility findings were close to unassailable and should be overturned only where the court was reasonably certain that they were wrong.
3. Documentary evidence and reasons. The panel’s decision could have been fuller, but it was not necessary for it to discuss every document or argument. The court was not satisfied that the panel had failed to consider the documents concerning the alleged coercive relationship. The panel’s express statement that it had considered the documentary evidence could not be treated as a mere platitude.
4. Abusive relationship. The absence of specific reference in the panel’s decision to the possible effects of a coercive controlling relationship did not establish that the panel had approached the evidence on the wrong basis. The relevant matters had been raised in the evidence and submissions, and non-reference did not prove non-consideration.
5. The argument that the appeal had impermissibly been extended beyond the pleaded grounds was academic. The appeal failed even if the additional submissions were treated as a development of the pleaded grounds. The appeal was dismissed.

The judgment describes an appeal from the Health & Care Professions Council panel’s decision dated 17 August 2018. The panel found that the appellant’s fitness to practise was impaired and imposed a three-year caution. The High Court dismissed the appeal.