Paul Mginah v Health and Care Professions Council

On an appeal from a professional disciplinary tribunal, the appellate court must respect the tribunal’s advantage in assessing evidence and its professional expertise. It should approach findings of misconduct, impairment and sanction with appropriate diffidence, while correcting errors of law, fact or serious procedural irregularity.

Fresh evidence is admissible only where the applicable criteria are satisfied, including reasonable diligence, potential effect on the outcome, and credibility or reliability. An adjournment may properly be refused where the proposed evidence is unidentified, irrelevant, obtainable earlier, unlikely to be obtained during the delay, or inconsistent with the protection of the public.

Serious misconduct and disproportionate sanction were not established merely by disagreement with the tribunal’s evaluation. Lack of insight, absence of remediation and risk of repetition may justify striking a practitioner from the register.

The appellant, a registered Biomedical Scientist, appealed against findings by the Health and Care Professions Council’s Conduct and Competence Committee that four instances of conduct amounted to misconduct, impaired his fitness to practise and justified striking him from the register.

He argued that the Committee had failed to secure documents from his former employer, relied excessively on the employer’s material, failed to address alleged bad faith and his earlier performance, wrongly found risks to others, and imposed a disproportionate sanction. He also sought an adjournment and permission to rely on further documents, and disputed the use of hearsay evidence.

The central issues were whether the Committee’s decision was wrong or unjust because of serious procedural or other irregularity, and whether the appellate court should admit further evidence or interfere with the findings, impairment decision or sanction.

1. Outcome. The appeal was dismissed. The Committee’s findings, impairment decision and strike-off order were upheld.
2. Appellate approach. Under CPR r52.21(3), intervention required a wrong decision or serious procedural or other irregularity. The court respected the Committee’s advantage in assessing evidence and its professional expertise. Findings concerning misconduct, impairment and public protection were approached with diffidence, applying the guidance in Khan v General Pharmaceutical Council [2016] UKSC 64. The Committee’s factual findings were supported by evidence and disclosed no error of law or fact.
3. Adjournment and disclosure. The requested documents were not shown to be relevant to whether the four findings were correct. The appellant had had ample time to seek them and had not identified effective steps taken to obtain them. The Committee was entitled to refuse a further adjournment. The absence of a free-standing positive duty to gather evidence, described in R(Johnson and Maggs) v NMC [2008] EWHC 885 (Admin), supported that conclusion.
4. Fresh evidence. Applying Ladd v Marshall [1954] 1 WLR 1489 (CA), the proposed documents were either available earlier, insufficiently explained, irrelevant, or of uncertain provenance. They were refused admission.
5. Risk and sanction. Failures to monitor formalin and address laboratory airflow created risks to colleagues even though no injury was proved. The Committee was entitled to treat lack of insight, lack of remediation and risk of repetition as decisive. Its bottom-up consideration of sanctions was proportionate, and striking off was justified as necessary for public protection and confidence, consistently with GMC v Meadow [2006] EWCA Civ 1390 and Bolton v The Law Society [1993] EWCA Civ 32.
6. Hearsay. The Committee could admit the hearsay evidence under rule 10 of the applicable Procedure Rules and give it appropriate weight. Any failure expressly to address that rule was immaterial because the evidence was admissible and the same sanction would have followed even without that allegation.

• Health and Care Professions Council Conduct and Competence Committee: On 23 February 2024, found four allegations proved, constituting misconduct and impairment of fitness to practise, and imposed a strike-off order.
• High Court (Administrative Court): The appeal was dismissed and the Committee’s decisions upheld.