Robert Hawkins v Health and Care Professions Council

When a professional disciplinary decision is quashed for serious procedural unfairness, the court has a wide discretion whether to substitute its own decision or remit the matter. The discretion must balance the purpose of the regulatory regime, the public interest in proper investigation and determination, finality and prompt resolution, fairness to the professional and complainant, and the utility of a rehearing.

Remittal is appropriate where a properly directed panel could reach the adverse finding on the evidence and the procedural defect can be cured by giving the professional a proper opportunity to answer the allegation. The fact that the allegation has remained unresolved, or that a further hearing causes hardship, will not by itself outweigh the public interest in proper regulation.

A registered physiotherapist appealed against a Conduct and Competence Committee decision finding misconduct, impairment of fitness to practise and imposing a 12-month suspension. The allegations arose from a massage during which he admitted attempting to lower the service user’s underwear, but denied attempting to remove it and denied sexual motivation.

The Panel rejected the attempted-removal allegation but found that the admitted attempted lowering was sexually motivated. The Respondent accepted that this issue had not been put to the Appellant in cross-examination or by the Panel, amounting to a serious procedural error. The central issue was whether the sexual-motivation allegation should be dismissed or remitted to a differently constituted panel.

1. Appeal allowed in part. The Panel’s finding on sexual motivation and the consequential findings and sanction could not stand because the Appellant had not been given a fair opportunity to answer the allegation. The matter was remitted to a differently constituted panel.
2. The appeal under Article 38 and CPR Rule 52.21 was by way of rehearing. The court had to allow the appeal where the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity.
3. After quashing a disciplinary decision, the court has a wide discretion whether to substitute its own decision or remit the matter. Relevant considerations include the regulatory purpose and protection of the public, proper determination of allegations, finality and promptness, fairness and justice, the circumstances and nature of the allegation, the reason for quashing, the passage of time, the possibility of a fair rehearing and the utility of remittal.
4. Remittal should not occur where the court is able safely to conclude that no properly directed panel could make the relevant finding. The evidence here did not meet that threshold. Although there were matters supporting the Appellant’s account, several features could properly support a finding of sexual motivation, including the comment about the service user’s body, the extent and circumstances of the lowering, the absence of a towel, the failure to explain the request to raise her hips, the position of the Appellant’s hands, the service user’s contemporaneous perception and the subsequent communications. None was conclusive, and the Appellant had to be questioned about his motivation.
5. Remittal did not give the Respondent an unfair second opportunity. The allegation that the attempted lowering was sexually motivated had been pleaded as an alternative since October 2022 and remained part of the Respondent’s case at the hearing. The failure to explore it orally was an oversight, not abandonment. Fairness required a fresh opportunity for the Appellant to respond, but did not require the allegation to be dismissed.
6. The allegation of sexual motivation, together with misconduct, impairment and sanction, was remitted for determination by a differently constituted panel. The interim suspension issue was academic because the order lapsed on determination of the appeal under Article 31(5).

Health and Care Professions Tribunal Conduct and Competence Committee: found misconduct and impairment of fitness to practise and imposed a 12-month suspension order.

High Court (Administrative Court): allowed the appeal in part, quashed the affected findings and remitted the issues of sexual motivation, misconduct, impairment and sanction to a differently constituted panel.