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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Goodwin v Health and Care Professions Council [2014] EWHC 1897 (Admin) (20 June 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/1897.html Cite as: [2014] EWHC 1897 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/06/2014

Mr Justice Nicol :

1. This is an appeal against the decision of the Conduct and Competence Committee ('CCC') of the Health and Care Professions Council ('HCPC') of 17^th October 2013.
2. The Appellant is a Biomedical Scientist ('BMS'). He qualified in December 2008 having undergone postgraduate studies at the University of Wolverhampton and achieved an Institute of Biomedical Science ('IBMS') Certificate of Competence. His first job was at Warrington and Halton Hospitals Foundation Trust ('Warrington Hospital') where he worked from June 2009 until his dismissal in January 2012.
3. The HCPC is the regulatory body for BMSs. The Appellant referred himself to the HCPC as, according to the Panel, did Warrington Hospital. This led to a hearing before a panel of the CCC over a total of 8 days in July and October 2013. The Panel found all the allegations against the Appellant to be proved. These were that the Appellant had not demonstrated the required competency levels in 9 specific areas, had not demonstrated appropriate time management skills, had not prioritised tasks appropriately and had not demonstrated an appropriate awareness of health and safety issues. The Panel found that he had fallen significantly below the basic level of BMS practice across all areas of clinical bench work in the laboratory, time management and health and safety over a considerable period of time. The errors had the potential to put many patients at risk. They constituted several serious fundamental breaches of the standards of the profession. He had a profound lack of insight and an inflated perception of his professional skills. Warrington Hospital had spent over 2 years trying to help him but he had been resistant to change. By his conduct he had put the public at risk and continued to do so. He had brought the profession into disrepute and his fitness to practise was impaired. The panel imposed a sanction of suspension for 12 months from the date the order came into effect. Since the Appellant has appealed, the sanction will not come into effect until the appeal is disposed of or withdrawn.
4. One member of the panel was Mr Allen Brown. The Appellant issued an application notice seeking disclosure of Mr Brown's specific area of expertise. At the beginning of the hearing of the appeal, I considered this application but refused it. I gave my reasons orally. In brief the Health Professions Council (Practice Committees and Miscellaneous Amendments Rules) Order in Council 2009 SI 2009 No. 1355 provides at Article 3(6),

'The quorum for a Practice Committee (that is, for a panel of members invited in accordance with paragraph (2)) is 3, of whom at least one must be – (a) a registrant from the same part of the register as any registrant who is the subject of the proceedings….'

There is no dispute that Mr Brown was registered on the same part of the register as the Appellant. The Appellant was entitled to that, but no more. Accordingly, it was not necessary for the disclosure which the Appellant sought to be ordered and I refused it.

5. The Appellant argued before the Panel and on the appeal that he had been disadvantaged because of the length of time which the matter had taken to come before the CCC. He had referred himself in August 2011. This was 5 months before his dismissal. Because he was no longer employed when the hearing began in July 2013, he could not afford legal representation. What was at issue was his ability to pursue his profession as a BMS. This was a 'civil right' for the purposes of Article 6 of the European Convention on Human Rights and that provision guaranteed that his civil rights would be determined within a reasonable time. Because of the delay his right under Article 6 had been violated. The HCPC had not sought an interim order in his case. Had they done so, while he was still in employment, he would have been able to obtain legal representation and to oppose more effectively the allegations against him.
6. The Panel rejected the Appellant's submissions that the passage of time meant that the proceedings should be stayed as an abuse of process. It said that the period of time from 2011 to July 2013 had not been excessive, particularly given the complex nature of the investigations which had to be completed and the need as well to give the Appellant a fair opportunity to respond to them. There was no procedure for funding legal assistance for those facing allegations before the HCPC or any of the other regulatory bodies. There was no evidence of racism in the case.
7. I agree with the Panel that the period of time between the Applicant's self-referral in August 2011 and the hearing in July 2013 was not excessive. It did not exceed the 'reasonable time' requirement in Article 6. There was a need to investigate both the matters raised by the Appellant and those raised a little later by Warrington Hospital. Certainly, the Appellant had no entitlement for these matters to come to a CCC hearing before he was dismissed in January 2012. Those who face such proceedings are entitled to be accompanied by a representative whether legally qualified or not – see The Health Professions Council (Conduct and Competence Committee) (Procedure) Rules Order in Council 2003 SI 2003 No.1575 Article 6(3). There is no public funding for such representation, but Article 6(1) of the ECHR does not require the state to provide representation for civil, as opposed to criminal, matters. The Appellant commented that when he faced disciplinary proceedings in Warrington Hospital he was told that he could bring a trade union representative but not a lawyer. He argued this was unlawful and referred me to Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2010] ICR 101 CA. There is no evidence from the Hospital on this point and I do not know whether the Appellant had the same contractual right to legal representation in internal disciplinary proceedings which Dr Kulkarni was found to have. More fundamentally, I am hearing an appeal against the decision of the HCPC, not a claim for breach of contract against Warrington Hospital.
8. The Appellant is wrong to believe that he was disadvantaged because no interim order was sought in his case. At that stage, the issue would have been whether the nature of the allegations were such that some interim measure, in advance of a full investigation of the merits, was necessary in order to protect the public or the good standing of the profession. Thus, if there had there been an application for such an order, the merits of the Council's allegations would not at that stage have been investigated (at least, not fully). The Appellant agreed that his allegations of race discrimination were being litigated in the Employment Tribunal and Employment Appeal Tribunal. He did not rely on them for the purpose of the present appeal.
9. In summary, the Appellant's grounds of appeal against the HCPC's decision were as follows:

i) His university course and the IBMS certificate had involved an element of practical training. Consequently on graduation he had been awarded a degree in Applied Biomedical Science. The IBMS certificate of competence followed a series of externally verified assessments. It meant he was certified fit to practise as a BMS. However, the Warrington Hospital had not accepted this and expected him to undergo further basic training and assessment which, in his case, was superfluous.

ii) He was subjected to an excessive degree of supervision.

iii) The Warrington Hospital failed to follow its own procedures. It had not maintained his 'log book' of tasks as it should have done. He had been disadvantaged as a result, but the Panel had not given proper weight to this.

iv) There were factual errors in the Panel's decision. In some of the forms, his initials appeared but they had been put on the forms by someone other than him. This led to matters being wrongly attributed to him.

v) The Panel failed to consider the significance of any alleged errors which he had committed by comparison errors with made by others in the department. Others, who made similar errors to him, were not subjected to similar allegations before the HCPC.

vi) The Panel erred in the weight which it gave to the evidence of the witnesses from the Hospital. They were at odds with the assessments which he had achieved in his studies and for the work that he had done to gain his IBMS certificate.

10. The power of the High Court to hear appeals from the CCC is conferred by the Health and Social Work Professions Order 2001 SI 2002 No. 254 Article 38. This does not specify the nature of the appeal, but, as a statutory appeal, it is governed by Part 52 of the Civil Procedure Rules. Rule 52.11(3) provides that the appeal court will allow an appeal if the decision of the lower tribunal was '(i) wrong; or (ii) unjust because of serious procedural or other irregularity in the proceedings in the lower tribunal.'
11. I have already referred to the two procedural matters on which the Appellant relied. He complained of the delay in holding the hearing. He also argued that neither Mr Brown, nor any other member of the panel had expertise in the specific fields in which the Appellant's competence was in issue. In my judgment, neither of these complaints is well founded. Thus the Appellant will only succeed if he can show that the decision of the panel was 'wrong'.
12. The role of the Court when hearing such an appeal as this was summarised in Azzam v General Medical Council [2008] EWHC 2711 (Admin) at [25]- [26]. As the title of the case shows, it concerned an appeal from the GMC, but the principles apply as much, in my judgment, to appeals from the HCPC. The Court noted that the judgment of the panel deserved respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession. Their judgment was also to be afforded particular respect concerning standards of professional practice and treatment. The court's function was not limited to a review of the panel decision but it would not interfere with a decision unless persuaded that it was wrong. It would therefore exercise a secondary judgment as to the application of the principles to the facts of the case before it.
13. As part of his argument, the Claimant referred me to ML (Nigeria) v SSHD [2013] EWCA Civ 844 for the proposition that a material error of fact can constitute an error of law. That principle is undoubtedly correct. However, in the present context, the court's jurisdiction is not limited to deciding whether the panel erred in law. It is not necessary, therefore, for the Appellant to invoke this principle. An appeal of the present nature can be allowed because the panel was 'wrong' in its assessment of the facts. That said, I have already noted the respect which the court should pay to the opinions of the panel on matters within their expertise and in relation to the practice and standards of their profession. There is another important limiting principle which any appellate court must observe. The court will be slow to characterise as 'wrong' any finding which depends on the assessment of the credibility of a witness who has given live evidence before the lower court or tribunal and whom the appellate court will not have seen – see among the many authorities to this effect Duthie v Nursing and Midwifery Council [2012] EWHC 3021 (Admin) at [171].
14. Bearing these principles in mind, I am not satisfied that the panel's decision in this case was wrong.
15. The Panel had evidence from Alan Wainwright, the Executive Head of Education and IBMS as to the position of someone, like the Appellant, who had achieved a coterminous degree. Even so, Mr Wainwright said, there would usually be a period of induction which would include competency checks to ensure the capability of the individual with regard to autonomous practice. This was independent evidence which supported the views of the witnesses from whom the Panel heard and who also said that, even a person who had been awarded the qualifications which the Appellant held, could expect to be assessed as a newly qualified and newly recruited member of staff before being allowed to work unsupervised.
16. The Panel then heard from a number of witnesses who between them had carried out the assessments which the charges against the Appellant alleged he had failed. It was not clear to me how the Appellant said the Panel was wrong to accept their evidence. But, in any case, these are examples of findings which were heavily based on the oral testimony of witnesses from whom the Panel heard. As I have already said, in such circumstances an appellate court will be slow to characterise a lower tribunal's findings as 'wrong'. There is no basis on which I could do so.
17. The Appellant demonstrated that the log book which the Hospital should have completed had a grading system. Grade 1 was poor. It appears to be common ground that, for some months, no grade was placed next to tasks which the Appellant had been given. The explanation given by the witnesses from the Hospital to the Panel was that they did think he had done the tasks incompetently, but they were reluctant to mark the log book with a Grade 1. This was in part because they did not want to discourage him. In part it was because he had an abrasive manner and they wished to avoid confrontation. The Appellant argued that, whatever the Hospital's motives, the failure to mark up the log book appropriately meant he did not have the learning opportunities which he should have had.
18. Ms Daly, for the Respondent, observes that, even though the log book was not completed there were very many occasions on which the Appellant was given feed back as to his performance and suggestions made as to how he might improve. Evidence of these matters was before the Panel. The Appellant, was, though, resistant to change and unwilling to accept advice. The Panel heard from the Hospital's witnesses. They also heard the Appellant give lengthy evidence and were in a very good position to make their own assessment. The Panel found that the Appellant had been aggressive towards those members of the Hospital's staff who gave him advice, training and counselling. The Appellant was intense, excitable and lacking in humility. He lacked and continued to lack any insight. Ms Daly submitted that I should be slow to characterise their findings in this regard as wrong. It is sufficient to say that I agree with Ms Daly's submissions.
19. The issue of the meaning of the Appellant's initials on certain forms was fully debated in the course of the hearing before the Panel. It was the Hospital's case that these were meant to identify the Appellant. They were not meant to indicate his endorsement of that opinion or criticism. It is implicit in the Panel's decision that it accepted the Hospital's case and rejected the Appellant's allegation that his initials had been forged. The Panel was not wrong to come to this conclusion.
20. The Panel did refer to the comparative audit which the Appellant had produced in an effort to show that the performance of others was worse than his. The Panel did not consider this evidence assisted the Appellant. The reason is plain. It was the Appellant's conduct and competence which was in issue. The Panel was obliged to make findings as to the allegations which were made against him and then, based on those findings, decide whether his fitness to practise as a BMS was impaired and, if it was, determine the appropriate sanction. The performance of others was beside the point. The Panel was entitled to say that his approach showed a total lack of understanding and insight into his practice, his failings and poor response to help. They were not wrong to do so.
21. The Panel was well aware of the Appellant's achievements in the course of his degree and studies. They knew his performance then had been externally assessed. But they also had the very detailed reports from the Hospital and heard evidence from those who had assessed him critically in the course of his employment. It was not wrong for the Panel to find the later evidence the more compelling. The Panel could look to their professional experience in deciding the significance of the findings of fact which they made and in reaching the conclusion that those findings did mean the Appellant's fitness to practice was impaired. As I have previously observed, the Court is obliged to accord respect to such judgments. I do. I do not find the Panel was wrong to make them.
22. When I circulated this judgment in draft I said that the Appellant did not argue that the Panel was wrong to impose the sanction which it did (assuming its findings fact and finding of impairment could not be challenged). The Appellant commented that he had submitted that the Panel was wrong to impose the sanction which it did. He referred to the omission on the part of the HCPC to seek an interim order against him. A disagreement with the sanction (assuming, as I said above, that the findings of fact and finding of impairment could not be challenged) was not obvious from either the Notice of Appeal or the Appellant's skeleton argument or from his oral submissions. However, I should make allowance for the fact that the Appellant represented himself and have therefore considered whether the Panel was wrong to impose a suspension of 12 months in view of its findings.
23. In my judgment, they were not. Its criticisms of the Appellant were scathing. It considered the mitigating circumstances (including, importantly, that no patient had been actually harmed by the Appellant's actions) and the aggravating factors. It directed itself to consider in ascending order the sanctions available to it. It considered the case to have been serious, but it bore in mind that the Appellant was at an early stage of his career and he was hard working. In all the circumstances, it thought it would be unfair and disproportionate to strike the Appellant off. The authorities to which I have referred require me to accord respect to the Panel's judgment as to what is necessary to protect the public and preserve the reputation of the profession. I do so and I do not conclude that the Panel was wrong to impose the sanction which it did. While the HCPC had not sought an interim measure against the Appellant, the Panel reached its conclusion after a lengthy hearing which included several witnesses (among whom was the Appellant) giving live evidence before it. The sanction of suspension was one which was open to the Panel in the light of its findings. It was not wrong to make that choice.
24. For all of these reasons, the appeal is dismissed.