Professional Standards Authority for Health And Social Care v Health And Care Professions Council & Anor

An appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002 should ordinarily be independently determined before a regulatory decision is quashed by consent. The court may intervene where serious undercharging or another procedural irregularity prevents it from assessing whether the sanction was insufficient for public protection. In particular, a case involving sexual misconduct towards a vulnerable patient should not be confined to later communications if the consultation formed part of a connected course of conduct. A healthcare professional’s knowledge of vulnerability, the motivation for the conduct, the response when misconduct is discovered, and the adequacy of the tribunal’s reasons may all be material to sanction and public confidence. Deference to a specialist tribunal depends on all material evidence having been placed before it.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a Conduct and Competence Committee decision concerning a registered paramedic, Christopher Wood. The Committee had found misconduct arising from sexually motivated messages to a vulnerable patient and imposed a six-month suspension, which had expired by the time of the appeal.

The Authority alleged that the case had been seriously undercharged, that Mr Wood’s misleading initial account had not been charged, that expert evidence had been lacking, that the Committee had failed properly to assess insight, and that its reasons were inadequate. The regulator accepted serious procedural irregularities, but Mr Wood opposed the appeal in substance. The central question was whether the Committee’s decision could safely be assessed as sufficient for public protection and the public interest.

1. Appeal allowed and case remitted. The decision of the Conduct and Competence Committee was quashed and the matter was remitted to a fresh Committee.
2. Under section 29, the court applies the test identified in Ruscillo v Council for Regulation of Healthcare Professionals [2005] EWCA Civ 1356: whether a reasonable tribunal, having regard to the relevant facts and the object of disciplinary proceedings, could reasonably have imposed the decision. Intervention is also justified where serious procedural irregularity means that the court cannot determine whether the sanction was unduly lenient.
3. The charges should not have been confined to the messages sent after the consultation. The consultation and subsequent messages were capable of forming a connected course of conduct. There was an evidential basis for allegations concerning Mr Wood’s knowledge of Patient A’s vulnerability, his conduct during the consultation, and whether the conduct was sexually motivated or improper. Using a professional position to pursue a sexual or improper emotional relationship with a vulnerable patient is an aggravating feature likely to require more serious regulatory action.
4. The failure to charge the consultation constituted significant undercharging. It deprived the Committee of the opportunity to determine material facts and to assess the true seriousness, motivation, future risk and required sanction. The Committee’s receipt of the full bundle did not cure the defect.
5. The failure to charge Mr Wood’s misleading account to his employer was also material. A registrant’s reaction when misconduct is discovered informs the assessment of attitude, insight, aggravating factors, future risk and public protection. Lack of candour may indicate failure to understand professional responsibilities and may affect fitness to hold a position of trust.
6. The challenge based solely on failure to obtain expert evidence was not pursued after evidence indicated that the 12-lead ECG and personal questions were clinically justified. The challenge to insight failed because the more serious predatory conduct had not been put before the Committee. The reasons challenge succeeded: the Committee did not adequately explain why continued registration would not threaten public confidence or how aggravating and mitigating factors justified six months’ suspension.

• High Court (Administrative Court): The appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002 was allowed. The regulatory decision was quashed and the case was remitted to a fresh Committee.