England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD ADMINISTRATIVE COURT
Mr Justice Silber
CO55372007

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/10/2009

Lady Justice Smith:

Introduction

1. This is an appeal from the decision of Silber J sitting in the Administrative Court on 14 November 2008. The judge dismissed the appeal of Stanley Muscat, a radiographer, against the decision of a panel of the Conduct and Competence Committee of the Health Professions Council, which had struck Mr Muscat's name off the register of radiographers, after finding two allegations of misconduct proved against him.
2. In his appeal to the judge, Mr Muscat challenged the finding of the panel that the charges of misconduct were proved against him, on the ground that fresh evidence had become available which, if admitted before the panel, might have caused them to reach a different conclusion as to his guilt. Also, independently of that ground of appeal and assuming that the findings of misconduct were to stand, Mr Muscat sought to argue that the sanction of striking-off had been too severe in all the circumstances. Both limbs of the appeal to Silber J failed and are now renewed to this court with permission granted by Dyson LJ.

The legislative background

3. By Order in Council pursuant to Section 60 of the Health Act 1999, the Health Professions Order 2001 (the 2001 Order) was promulgated. This Order created the Health Professions Council (the Council) and gave it the power to regulate certain health professionals including radiographers.
4. Pursuant to the 2001 Order, where an allegation of misconduct is made against a person on the register of one of the relevant health professions, the Council is required to investigate the allegation and, if it considers it appropriate, to refer the allegation to a panel of the Conduct and Competence Committee (the Committee) for determination. Under article 29(5) of the 2001 Order, if the panel determines that the allegation is well-founded, the panel may impose any of a number of different sanctions, such as the administration of a caution, an order imposing conditions upon the right to practise, an order suspending the health professional from practice for a period not exceeding one year or an order striking the health professional off the relevant register.
5. By article 29(9) of the 2001 Order, the health professional has the right to appeal to the High Court against an order made against him. That was the power under which the appeal went to Silber J. However, there are in addition powers by which the Council may review the panel's order and, on review, vary, replace or revoke it. It will be necessary to consider the power of review later in this judgment.

The factual background

6. The appellant, Mr Muscat, has been a radiographer for many years. In 2003, he was employed by the Royal London Hospital as a Superintendent 3 Radiographer. In that year, a number of allegations of misconduct were made against him and, following investigation by the Council, these were referred to a panel of the Committee for determination. Some of the allegations were dismissed but two were held to be well-founded. These were of a similar nature. First, it was said that, on 13 July 2003, the appellant had conducted an X-ray on a female patient (JB) and had lifted her gown to just below her chest. Second, it was said that, on 23 August 2003, he had conducted an MRI scan on a female patient (NG) and had required her to undress completely so that she was naked during the procedure. The appellant denied both these allegations but he accepted that, if these events had occurred as alleged, there could have been no clinical justification for his requirement that the patients were to be either wholly or partly unclothed.
7. The panel hearing took place on 5 June 2007. In respect of the first allegation, the complainant, JB, was cross-examined on the basis that her evidence was unreliable. It was suggested that, as the events had taken place four years earlier and as at the time she had been under the effect of morphine, prescribed to alleviate pain, her recollection of events was at fault. She accepted that, at the time of the X-ray, she had been drowsy. She also admitted that she had no recollection of another X-ray that had been taken on the same day as the one in respect of which she was complaining. The appellant gave evidence denying that he had raised her gown as alleged. The panel accepted the evidence of JB, saying that they found her to be 'a credible witness with a sustainable and consistent version of events'.
8. NG's allegation was that, once she had been positioned inside the MRI scanner, the appellant had instructed her to remove her hospital gown. This she had done. She was cross-examined on behalf of the appellant on the basis that she had made this allegation up and was deliberately telling lies. Various points were made as to why her account should be disbelieved. The first was that it would have been extremely difficult, indeed well-nigh impossible, for NG to take her gown off once she was inside the scanner. She asserted that it had not been impossible and that she had done it. As well as the allegation that NG was deliberately lying, it was put to her that her evidence was unreliable because of the passage of time since the event and because she too, like JB, had been under the influence of prescribed medication, including analgesia, which had made her drowsy.
9. The appellant denied the allegation in his evidence and called, as a witness, a colleague and friend who had been present in the department for part of the time during the scan and claimed to have been able to see (from a CCTV monitor) what NG had been wearing while inside the machine. The panel rejected the evidence of this witness.
10. The panel accepted NG's evidence, rejected the appellant's and held the allegation to be well-founded. It is worth noting that the panel considered the two allegations quite separately, notwithstanding that the two allegations were of a broadly similar nature. They did not treat the one as supportive of the other.
11. The panel then considered sanction. It recorded its view that the appellant's misconduct was serious, that it constituted a serious breach of trust and had not been acknowledged by him. The panel considered the available sanctions in ascending order of severity. The appellant's representative submitted that the appropriate sanction was an order imposing conditions on his right to practise but the panel rejected this, saying that it was not appropriate in a case of deliberate and unacknowledged acts of misconduct. It also rejected an order of suspension because, it said, that would not address the problem identified by the findings. Nothing would be served by it and, at the end of the suspension period, Mr Muscat would present exactly the same risk as now. That left a striking-off order, which the panel thought was appropriate because no other sanction would 'adequately protect patients or ensure confidence in the regulatory process.'

The first appeal

12. By notice of appeal dated 3 July 2007, the appellant sought to challenge the panel's findings on a wide variety of grounds, including perversity and an allegation that one of the panel members had been biased. The appellant also appealed against the imposition of the striking-off order. However, four days before the hearing, which had been fixed for 20 October 2008, the appellant applied to admit two items of fresh evidence. The first was a report from a pharmacologist, Dr Peter Taberner, dated 19 March 2008, who opined as to the probable or possible effects on the complainants of the drugs which they had been given shortly before the incidents in question. The second was a document entitled 'Guidelines on Memory and the Law' published by the British Psychological Society. This had only recently been published and had not been available at the time of the hearing in June 2007. I do not think that the notice of appeal was ever formally amended but the hearing proceeded on all grounds including the recent additions. Silber J refused to admit the fresh evidence and dismissed the appeal on all grounds.

The Appeal to this Court

13. In this court, only two aspects of Silber J's decision are challenged. First, it is said that he ought to have admitted Dr Taberner's report and to have remitted the case to the Committee for rehearing. Second, it is said that he ought to have held that the striking-off order was too severe a punishment in all the circumstances.

The admission of fresh evidence

14. Silber J summarised the effect of Dr Taberner's opinion as to the effect of the prescribed drugs on JB and NG.
15. At the time of the X-ray, JB had had a single intravenous injection of 5mg of morphine for analgesia. Dr Taberner expressed the view that this would be likely to have produced some degree of sedation and mental clouding lasting for 'up to one to two hours at least' after the injection. The drug would not have caused loss of memory or amnesia. He noted that JB had said in her statement that she had felt 'groggy' as a result of the morphine. Dr Taberner added:

"It is possible, though much less likely, that she experienced delusional behaviour as a consequence of the morphine, although she may well have found it more difficult to understand detailed instructions."

16. NG had taken three drugs, Diazepam, pethidine and Tramadol. Dr Taberner said that these would be very likely to produce a state of mental clouding, confusional behaviour with some loss of memory and recall. He said that pethidine has `delusional and possible hallucinatory side-effects which could alter the perception of events which took place while under the influence of these drugs'. He opined that the significant cognitive-impairing effects of these three drugs should be taken into account when considering NG's evidence.
17. In considering whether this report should be admitted as fresh evidence, Silber J referred to Ladd v Marshall [1954] 1 WLR 1489 and cited the well-known passage at page 1491 from the judgment of Denning LJ in which he set out the test for the introduction of fresh evidence on appeal:

"..to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed or in other words, it must be apparently credible although it need not be incontrovertible."

18. Silber J noted that the principles there outlined pre-dated the introduction of the Civil Procedure Rules (CPR) and cited a passage from the post-CPR case of Hamilton v Mohamed Al Fayed (unreported 21 December 2000) where Lord Phillips MR said:

"11. We consider that under the new, as under the old procedure, special grounds must be shown to justify the introduction of fresh evidence on appeal. In a case such as this, ….. we do not consider that we are placed in the straightjacket of previous authority when considering whether such special grounds have been demonstrated. The question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless remain powerful persuasive authority, for they illustrate the attempts of the court to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should receive the right results".

19. The judge also cited paragraph 13 from Hamilton where, after setting out the principles derived from Ladd v Marshall, Lord Phillips said:

"These principles have been followed by the Court of Appeal for nearly half a century and are in no way in conflict with the overriding objective. In particular it will not normally be in the interests of justice to re-open a concluded trial in order to introduce fresh evidence unless that evidence will probably influence the result. "

20. Silber J also cited from a more recent authority, Marchmont Investments Ltd v BFO SA [2007] EWCA Civ 677, where May LJ said:

"…the court has a discretion under the rules to admit fresh evidence on an appeal, the discretion to be exercised in accordance with and in the light of the established guidelines. The first Ladd v Marshall principle derives from a clear public policy that litigation should achieve finality; and that normally disappointed litigants should not have a second bite of the litigation cherry by relying on evidence which they ought, if they wanted to rely on it, to have brought forward on the first occasion."

21. Silber J then set out the rival submissions as to the factors to be taken into account. It was accepted on both sides that the third Ladd v Marshall test was satisfied in that Dr Taberner's evidence was 'apparently credible'. However, Silber J was of the view that neither the first nor second test was satisfied and that, taken together, those factors convinced him that the evidence should not be admitted. First, he said that no evidence had been advanced to explain why Dr Taberner's report had not been obtained in time for its introduction at the hearing. He inferred that there was no satisfactory explanation. He laid considerable stress on this, saying that, in his view, this factor was `fatal to the application' to admit the evidence. He repeated the citation from May LJ in Marchmont, stressing the need for finality in litigation.
22. The judge then considered the second test, whether the evidence, if admitted, would 'probably have an important influence on the result of the case'. He noted that the appellant's defence had entailed the suggestion that the complainants' evidence was unreliable inter alia because of the drugs they had taken. The judge considered that Dr Taberner's evidence could not have had an important influence on the evidence because the panel had in any event been aware that the drugs had had some effect. JB accepted that she had been groggy and had no recollection of another X-ray on the day in question. Yet the panel had been satisfied that the witnesses had been reliable. The judge concluded by saying that Dr Taberner's evidence did not take matters much further, 'especially as he had not examined the complainants and this probably explains the cautious nature of his findings in which he explains what is likely to be the position rather than what was the actual position'.
23. Mr William Edis QC for the appellant submitted that, although Silber J had cited the relevant passages of the authorities and had identified the relevant principles, when he came to apply those principles to the facts of the case he had not exercised his discretion in the interests of justice but had considered only the factors in Ladd v Marshall. He had declared that the fact that the first condition was not satisfied was 'fatal to the application'. That demonstrated that he had not exercised his discretion taking all relevant matters into account.
24. Second, Mr Edis submitted that the judge's holding that new evidence would probably not have an important influence on the result was unsustainable and wrong. First, the judge had been wrong to say that Dr Taberner's opinion was 'cautious' because he had not examined the complainants. Dr Taberner was an expert on the effect of drugs and there was no point in him examining the complainants. Nor had his opinion been 'cautious'; his opinion was clearly expressed. Of course he could not say exactly what effect the drugs had had on these individuals because drugs do not affect everyone in exactly the same way. So the judge's perception of Dr Taberner's evidence was flawed. Also, submitted Mr Edis, the judge had been wrong to consider that Dr Taberner's evidence would not have made much difference. The judge had taken that view because the panel had been aware that the complainants had been affected by drugs and yet had still accepted them as reliable witnesses. Mr Edis submitted that this was wrong because the panel had only had in mind the possibility that the drugs might have affected the complainant's memories whereas Dr Taberner's evidence went further and brought into question the possibility that drugs might have caused the complainants (or at least NG) to experience hallucinations.
25. Ms Jenni Richards for the respondent submitted that the judge's approach had been correct. He had been entitled to conclude that the absence of any explanation (let alone a good explanation) for the failure to obtain an expert report in time for the hearing was a factor of such importance that the judge was entitled to consider that it and it alone was fatal to the application. That was so even though it was clear, in her submission, that the judge had also taken other considerations into account. The judge had also been right to conclude that Dr Taberner's evidence could not have had an important effect on the outcome of the hearing.
26. In my view, the way in which the judge expressed his conclusions in respect of the admission of Dr Taberner's report was, perhaps, a little unfortunate. After directing himself impeccably as to the law and having noted that, since the introduction of the CPR, a decision to admit fresh evidence was not to be confined within the old Ladd v Marshall straightjacket, he did appear to apply his mind only to the Ladd v Marshall principles and did not expressly consider the wider range of factors which were potentially relevant to the exercise of his discretion. However, that said, consideration of the Ladd v Marshall principles would, in my view, place a very great impediment before the exercise of a discretion in the appellant's favour. There was absolutely no explanation for the appellant's failure to obtain expert evidence as to the potential effect of the drugs on the complainants' minds.
27. In my view, it might also be said that the judge underestimated the potential importance of the expert evidence. Although it seems to me that the fresh evidence could not have been of any significance in considering the evidence of JB, it could be said that the possibility that NG had imagined the incident might have affected the panel's view of her reliability. However, the evidence could hardly be described as a 'silver bullet', the admission of which would almost certainly have affected the panel's view. The potential effect would be even more limited if the panel were to take the view that these two incidents were sufficiently similar that the evidence of each complainant could be treated as supportive of the other. It would be most surprising if the minds of two women had imagined two similar events.
28. Thus, it seems to me that, if one took the view that this was ordinary litigation, there would be an overwhelming case against the admission of this evidence because there was absolutely no excuse for the failure to obtain the evidence for the hearing and, when the evidence was considered, it was not of great significance. However, Mr Edis submitted that this was not ordinary litigation. There was a real public interest in the outcome of the proceedings. It was important from the public perspective, that the correct decision was reached. It is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register.
29. I would accept that that is a factor to be taken into account and, in so far as the judge did not mention it, his decision is, in my view, open to review. However, when weighing up the importance of this factor, it is necessary in my view to consider a factor which I mentioned earlier, namely the Committee's power to review its own decision in relation to a strike off order if new evidence becomes available. This was not an issue which was raised before the judge. It was raised by this Court at the outset of the hearing, as it seemed to us that, if there was a power to review, that was the course which the appellant should take to secure the admission of fresh evidence. However, as Ms Richards pointed out, the right of appeal co-exists with the right to seek a review and the appellant had originally taken a number of points on the appeal which would not have been appropriate on review. Accordingly, given the range of issues which the appellant had raised, she did not suggest that review rather than appeal would have been the appropriate course. However, now that the issue was narrowed to the admission of fresh evidence, she invited us to determine the appeal bearing in mind that there was an alternative course for the appellant to take (review), even at this late stage.
30. The power of review is found in article 30 of the 2001 Order, which is headed 'Review of orders by the Health Committee and the Conduct and Competence Committee'. Only article 30(7) is relevant to striking off-orders. It provides:

"Where new evidence relevant to a striking off order becomes available after the making of the order, the Committee which made the order …… may review it and article 33(4) to (8) shall apply as if is were an application for restoration made under that article.

31. Article 33 is headed 'Restoration to the register of persons who have been struck off'. The relevant parts of article 33 provide as follows:

"33(1) Where a person who has been struck off the register by virtue of an order made by a Practice Committee or the court wishes to be restored to the register, he shall make an application for restoration to the Registrar.

(2) Subject to article 30(7), no such application may be made –

(a) before the end of the period of five years beginning with the date on which the order …. took effect.

(b) ….."

32. Articles 33(3 and 4) make procedural provisions which are not relevant to the present appeal.
33. Article 33(5) provides:

"The Committee shall not grant an application for restoration unless it is satisfied, on such evidence as it may require, that the applicant …. having regard in particular to the circumstances which led to the making of the order under article 29…, is also a fit and proper person to practise the relevant profession. "

34. Accordingly, it is clear that, when a practitioner has been struck off the register, he or she may not apply for restoration until the expiry of 5 years unless he or she is seeking a review under article 30(7), which, as I have said, provides a power or review where 'new evidence relevant to a striking off order' has become available. Where such evidence has become available, the application for a review may be made at any time.
35. During the hearing, there was some discussion as to the scope of the review under article 30(7). It is an unusual provision; we were told that only two regulators in the medical field operate a review of this nature: the Health Professions Council and the Nursing and Midwifery Council. It appeared to us that the provision was rather generous to the practitioner, if it permitted him to seek a review at any time if new evidence became available. So generous did it appear to us that we wondered whether it was intended to encompass any new evidence including that which related to the question of guilt and innocence or was intended only to relate to evidence relevant to sanction. Ms Richards assured us that the Council considered that it permitted the practitioner to seek a review of the finding of guilt as well as the imposition of the sanction. The Council had previously considered conducting such a review in another case. We accept what she says. We do not know how the Council would construe the expression 'where new evidence becomes available' in article 30(7). We do not know whether the Council restricts the right of review to cases where the evidence could not with reasonable diligence have been obtained for the first hearing, or whether it is willing to conduct a review to consider the effect of any new evidence which was not in fact produced at the hearing.
36. Ms Richards submitted that the existence of the right of review (which is available to the appellant at any time) provides an additional reason why we should dismiss the appeal to this Court. As the only issue in the appeal (as to liability) is the admission of fresh evidence, the appropriate course is let the Committee decide whether the evidence should be admitted.
37. Mr Edis submitted that we should consider the appeal on its merits regardless of any right of review by the Council. His submission is that, because of the public interest in assuring that the strike-off was warranted, the interests of justice require a broader approach to admissibility of fresh evidence than that applied in ordinary party and party litigation.
38. In my view, the existence of the right to a review is a factor to be taken into account when exercising the discretion as to whether this Court should admit the fresh evidence on appeal. The 2001 Order provides for review of a finding that an allegation has been proved in cases where fresh evidence might make a difference. It seems to me that that provision recognises the importance, in the public interest, of the Committee making the right decision. In my judgment, this review provision meets that public interest.
39. In my view, the existence of the power of review greatly diminishes the importance of the public interest point relied on by Mr Edis. The review provision safeguards the appellant from the risk that an unjustified finding of guilt might go uncorrected in the light of fresh evidence. The appellant does not need this court to direct its admission. The Committee will consider the fresh evidence and will take whatever action it considers appropriate. It is in a far better position to assess the potential importance of Dr Taberner's opinion than this court could ever be. Accordingly, I would reject Mr Edis's submission that this appeal should be treated quite differently from 'ordinary litigation'.
40. Against that background it seems to me that the force of any criticism of Silber J's decision is much reduced. The Ladd v Marshall principles were indeed at the heart of the exercise of discretion. Even if Silber J was too dismissive of the potential relevance of the evidence, he was entitled to say that the appellant had provided no excuse for failing to obtain the evidence in time for the hearing and had shown no special reason why that failure should be overlooked. Taking all the factors into account, (that is the first and second Ladd v Marshall principles, the public interest in the correct outcome in a striking off case and the existence of the Committee's power of review) I have no hesitation in saying that I would exercise my discretion against the admission of this fresh evidence. I would dismiss the appeal on the first ground.

Sanction

41. On the sanction issue, the argument is that the sanction of erasure was too harsh given that the appellant's motivation was not understood. It is said that unless his motivation is understood, the panel cannot assess the degree of risk which the appellant poses and cannot properly conclude that strike-off is necessary and appropriate.
42. I can deal, with this submission quite briefly. I reject it. The fact that the motivation is not understood is a situation which may well arise where the charge is found proved but the practitioner continues to deny it and so does not provide an explanation for his conduct. It may be possible to infer a motive from the circumstances or it may not be. If that is possible, of course motive will be important in considering sanction. It may affect the gravity of the offence and also the risk of recurrence. But where there is no evidence from which the motivation can be understood or inferred, the panel has to do its best to assess the gravity of the conduct and the risk that the practitioner presents. The panel will consider the risk of recurrence from the history and will consider the effect of the misconduct on patients.
43. Here, the panel's assessment was not assisted by any explanation from the appellant. His conduct could be sexually motivated but that was not alleged and could not safely be inferred from the circumstances. Another possibility would be a desire to humiliate the patient. Again that could not safely be inferred. However, it was clear that there was a risk of recurrence. The appellant had done something similar on two occasions within a few weeks of each other. It was also clear that the effect of the conduct on the patients was to humiliate them. In my view, that is a serious matter particularly in the absence of any explanation which might show that the appellant has some insight into his own conduct. The panel was entitled to describe the conduct as a breach of trust and in my view was right to take the view that the only appropriate sanction was erasure. I would dismiss the appeal against sanction.

Lord Justice Maurice Kay :

44. I agree.

Lord Justice Longmore :

45. I also agree.