England and Wales Care Standards Tribunal

Mahfouz v Commission for Healthcare Audit and Inspection [2004] EWCST 277(EA) (22 May 2004)

Dr F Abu-Mahfouz v Commission for Healthcare Audit and Inspection (The Healthcare Commission) [2004] 277. EA The London Cosmetic Laser Centre Ltd v Commission for Healthcare Audit and Inspection [2004] 278. EA FINDING ON PRELIMINARY POINT -before- His Honour Judge David Pearl (President) Dr C Treves Brown Ms C Joffe Heard at the Care Standards Tribunal on May 20^th 2004.
1. The Appellants applied on the 28^th February 2002 for registration under Part II of the Care Standards Act 2000 to carry out Intense Light Sources (IPL) and class 4 laser treatment on the premises at 122, Harley St.
2. The applications were rejected on the 3^rd February 2004 and the Appellants have appealed against the refusal of the Respondent to grant registration on form B1 dated 1^st March 2004.
3. The Respondent sought a Preliminary Hearing for the purposes of giving a ruling on the correct interpretation and application of Schedule 1 paragraphs 15(1)(a) and 15(4) of the Care Standards Act (Commencement No. 9 (England) and Transitional and Savings Provisions) Order 2001 [TO9].
4. At the hearing before us, the Appellants were represented by Miss A Robinson of Counsel and the Respondent was represented by Mr R McCarthy QC.
5. Miss Robinson submitted that the Care Standards Tribunal has no jurisdiction to determine the issue, but that if it has jurisdiction, it was not appropriate for it to exercise its jurisdiction. Miss Robinson submitted that the issue the Commission sought a ruling on was whether the Appellants should be able to carry out laser treatment whilst awaiting a decision of the Tribunal under section 21 of the Care Standards Act 2000. She argued that the combination of paragraph 15(4) of TO9 and section 11(1) of the Care Standards Act 2000 meant that the matter was the proper preserve of the criminal courts, and it was not one that could be dealt with by the Tribunal.
6. Section 11(1) of the Care Standards Act 2000 states: "Any person who carries on or manages an establishment or agency of any description without being registered under this Part in respect of it…shall be guilty of an offence."
7. The TO9 paragraph 15(4) states that section 11 shall not apply to an unregistered provider in respect of the establishment (a) until such time as the application is granted, either unconditionally or subject only to conditions which have been agreed in writing between him and the Commission; or if an appeal is brought, until it is determined or abandoned ((b) is not relevant for present purposes).
8. It is common ground that IPL was not registrable under the Registered Homes Act 1984. Thus the application to register IPL (which is registrable under the Care Standards Act 2000) within the time frame set out in paragraph 15(1) provides an immunity from section 11 proceedings, unless there is a successful application under paragraph 15(5) to a justice of the peace for paragraph 15(4) to be disapplied on the grounds of "serious risk to a person's life, health or well-being."
9. Class 4 laser treatment was registrable under the Registered Homes Act 1984, and the question therefore is whether paragraphs 15(4) and (5) apply in the same way as activities that were not registrable. Miss Robinson submits that that is a matter that should be dealt with by the magistrates court under section 11 if a prosecution is brought, and it forms no part of our statutory function as set out in section 21 of the Care Standards Act 2000.
10. It is argued by Mr McCarthy QC that the carrying out and management of a laser clinic, at the present time, could be a breach of either or both of section 13(2)(a) and (b) of the Care Standards Act 2000. He submits therefore that on appeal, the Tribunal would have to consider the issue within the statutory powers in section 21. We agree with him that this is indeed the case as regards section 13(2)(a), namely the need to comply with the regulations made under section 22. The relevant regulations in this case are the Private and Voluntary Health Care (England) Regulations 2001.
11. If we understand him correctly, he says that section 13(2)(b) applies as well, because the reference to "any other enactment" in that subsection can include a reference to section 11 of the Care Standards Act 2000.
12. Section 13(2) states; "If the registration authority is satisfied that - (b) the requirements of any other enactment which appears to the registration authority to be relevant, and are being and will continue to be complied with (so far as applicable) in relation to the establishment…it shall grant the application; otherwise it shall refuse it."
13. It is our view that section 13(2)(b) does not refer to other sections of the Care Standards Act 2000, and on this point we agree with Miss Robinson. She quoted extracts from the Parliamentary debates during the passage of the Care Standards Bill. It is clear from these extracts that the intention of this subsection is to refer to relevant other legislation, such as Health and Safety legislation. However, falling foul of section 11 would, by way of the Regulations made under section 22, be relevant to the question of fitness, integrity and good character. Accordingly, the question of whether there is a breach of section 11 is a matter within the jurisdiction of the Tribunal when considering a section 21 appeal.
14. We agree with Mr McCarthy QC that as the legislation has expressly provided for these matters to be dealt with as part of the registration and appeal process the fact that the conduct may also constitute a criminal offence does not deprive the Care Standards Tribunal of jurisdiction. We cannot see how a possible failure to comply with section 11, which renders the Appellants liable to criminal penalties, deprives the Tribunal of jurisdiction to determine the preliminary issue. The statutory framework does not require the matter to be dealt with by the criminal courts, and neither does it require that a prosecution be brought before a refusal of registration.
15. Thus, we cannot agree with Miss Robinson that these are matters outside the jurisdiction of the Care Standards Tribunal under section 21.
16. Miss Robinson then sought to persuade us that we should not exercise our jurisdiction as it was inappropriate. She cited R v DPP ex p. Camelot Group Ltd (1997), where Simon Brown LJ laid down a number of general propositions. He stated that the Court would not allow civil proceedings to be utilised as a device to usurp the criminal jurisdiction. He said that criminal disputes, even pure issues of law, are best decided in criminal courts between the parties most directly affected. We do not believe that the Camelot Group case is relevant to the issue we have to decide. Making a decision relating to the question whether or not the continuing laser treatment is unlawful and thus germane to issues of fitness, integrity and character is a registration issue. The fact that the same activity may constitute a criminal offence does not make it inappropriate to take these matters into account. The criminal courts and the Care Standards Tribunal have separate jurisdictions that focus on different questions, albeit stemming from the same activity. The criminal court will determine whether a criminal offence is committed. The Care Standards Tribunal is concerned with regulatory questions.
17. There is an additional reason why we should assume jurisdiction. Section 13 makes no reference to criminal convictions (in contrast to section 14 dealing with cancellation of registration). It is our view that we would be failing in our task to hear the appeal under section 21 if we decided, in our discretion, not to consider arguments relating to whether the conduct of laser activity was unlawful solely on the basis that no criminal prosecution had been brought.
18. The next matter we have to consider is whether we should decide this preliminary issue as a discrete matter prior to the hearing. We have decided that there are strong reasons for considering the matter at the hearing itself rather than in advance of the hearing. We are not persuaded by Mr McCarthy QC's submission that time would be saved by a separation of this kind. Miss Robinson stated that evidence may well be called in relation to this preliminary matter. Thus there is likely to be more rather than less delay if we adopt Mr McCarthy QC's submission. In addition to this pragmatic reason for dealing with the preliminary matter at the hearing, there is in our view an important point of principle. Having decided that we have jurisdiction because we consider these issues to relate directly to regulation, it must follow that the issues should not be separated from the question we have to decide under section 21, namely whether to confirm the decision of the regulator or to direct that it shall not have effect.

Accordingly:

19. We Direct that the issue on which we have decided we have jurisdiction to adjudicate be addressed at the hearing.
20. We Direct that the B5 form (further information) of the Appellants be submitted within five working days of 20^th May 2004.
21. We Direct that either party be at liberty within five working days of 20^th May 2004 to write to the Secretary to the Tribunal to request that the composition of the Tribunal at the final hearing remain the same as the current composition. [It is the intention of the President that the composition shall remain the same, if possible].
22. We Direct that there be a Preliminary Hearing by way of a telephone conference at 3.30pm on Tuesday 25^th May 2004 to agree to the timetable for the exchange of documents and witness statements, and to set the case down for a hearing.
23. For the avoidance of doubt, the two appeals are to be heard together in accordance with regulation 8.

His Honour Judge David Pearl

(President)

Dr C Treves Brown

Ms C Joffe

22^nd May 2004