England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		23rd October 2009

1. MR JUSTICE KENNETH PARKER: This is an appeal against the decision of the Conduct and Competence Committee ("the Committee") of the Health Professions Council ("the HPC") on 6th October 2008 in which it found that certain allegations against the appellant were well founded and struck him off the Register of Operating Department Practitioners.

The decision under challenge

2. The appellant is an operating department practitioner who at the material time, December 2006, was employed as an anesthetic practitioner by King's College Hospital NHS Trust. The allegations against him were that on 12th December 2006, during the course of his employment, he (a) physically assaulted, (b) verbally abused another member of staff, Mrs Banumathy Natarajan, and (c), following these episodes, he left work early and without permission.
3. A hearing took place before the Committee on 6th October 2008. The appellant did not attend and the Committee decided to proceed in his absence. The Committee heard oral evidence from four witnesses: Mrs Soo, Mrs Julie Fleming, Mrs Banumathy Natarajan and Ms Jennifer Marshall. Two of those witnesses — Mrs Fleming and Mrs Natarajan, the complainant — gave evidence directly as to the alleged assault and verbal abuse. They also considered a witness statement from a further witness, Miss Odette Ferrrao, as well as an undated, unsigned witness statement from the appellant, that had been submitted by his former representatives.
4. The Committee concluded:

"On the first particular, the Panel was satisfied that on the day in question Mr Subner physically assaulted Mrs Natarajan by throwing a box of 10 one-litre units of intravenous fluids at her...

On the second particular, the Panel was satisfied that Mr Subner swore at Mrs Natarajan in the course of the incident when he threw the box. He called her a 'fucking bitch'...

As to the third particular, the Panel was satisfied that, as a matter of fact, Mr Subner left the operating theatre at about 4.40 pm or 4.45 pm when his working day did not end until 5.00 pm and he had not been given permission to leave early. There was no evidence before the Panel as to where he went after that, or as to whether he remained on the hospital premises."

5. Having made these factual findings, the Committee went on to consider whether the matters it found proved amounted to misconduct. It was satisfied that particulars (a) and (b) — that is the physical and verbal assault — amounted to misconduct. It was not satisfied that the facts found with regard to particular (c) — leaving work early without permission — amounted to misconduct.
6. The Committee then considered whether the appellant's fitness to practise was impaired and was satisfied that it was. I quote their statement:

"... behaviour of this nature is entirely unacceptable and would cause members of the public to lack confidence in a professional who committed it."

7. Finally, the Committee considered the question of sanction and decided to make a striking off order.

The legal framework

8. The HPC is established pursuant to the Health Professions Order 2001 ("the 2001 Order") and its principal functions are to establish standards of education, training, conduct and performance for members of the relevant professions and to ensure the maintenance of those standards (Article 3 of the 2001 Order).
9. Pursuant to Article 5 of the 2001 Order, the HPC establishes and maintains a register of members of the relevant professions. The relevant professions are identified in Schedule 3 to the 2001 Order and include operating department practitioners.
10. Part V of the 2001 Order sets out the Council's function in respect of fitness to practise. By virtue of Article 27(b)(i), which falls within Part V, the Conduct and Competence Committee should consider any allegation referred to it that a registrant's fitness to practise is impaired by reason of, inter alia, misconduct or lack of competence.
11. The principal powers of the Conduct and Competence Committee are set out in Article 29. Insofar as material, these provide as follows:

"(3)If, having considered an allegation, the Health Committee or the Conduct and Competence Committee, as the case may be, concludes that it is well founded, it shall proceed in accordance with the remaining provisions of this article.

(4) The Committee may -

(a) refer the matter to Screeners for mediation or itself undertake mediation, or

(b) decide that it is not appropriate to take any further action.

(5) Where a case does not fall within paragraph (4), the Committee shall -

(a) make an order directing the Registrar to strike the person concerned off the register (a 'striking-off order');

(b) make an order directing the Registrar to suspend the registration of the person concerned for a specified period which shall not exceed one year (a 'suspension order');

(c) make an order imposing conditions with which the person concerned must comply for a specified period which shall not exceed three years (a 'conditions of practice order'); or

(d) caution the person concerned and make an order directing the Registrar to annotate the register accordingly for a specified period which shall be not less than one year and not more than five years (a 'caution order')."

12. Under Article 29(9) the person concerned may appeal to the appropriate court against an order made under Article 29(5). For present purposes, the appropriate court is the High Court of Justice (see Article 38(4)(c)).
13. Article 38(3) provides that the court may:

(a) dismiss the appeal;

(b) allow the appeal and quash the decision appealed against;

(c) substitute for the original decision any other decision that could have been made by the Committee; and/or

(d) remit the case back to the Committee.

14. CPR Part 52.11 provides that every appeal will be limited to a review of the decision of the lower court unless (a) a practice direction makes different provision for particular categories of hearing or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice for the court to hold a re-hearing.
15. CPR Part 52PD.22.3(1) identifies certain statutory appeals, including appeals by some healthcare professionals which will be by way of re-hearing. Appeals from decisions of the Health Professions Council under the 2001 Order are not included in the practice direction. Accordingly, the present appeal must, by virtue of CPR Part 52.11, proceed as a review of the HPC's decision unless the court considers that in the circumstances of the individual case it would be in the interests of justice for the court to hold a re-hearing.
16. Under CPR Part 52.11 the appeal court will only allow an appeal where the decision of the lower court was wrong. In General Medical Council v Meadow [2006] EWCA Civ 1390, [2007] QB 462 the Court of Appeal, at paragraph 128, referring to the elasticity of meaning in the word "re-hearing", emphasised that "it all depends on the nature of the disciplinary tribunal, the issues determined by it under challenge and the evidence upon which it relied in doing so, how the High Court should approach its task of deciding whether the decision of the tribunal was... 'wrong'".
17. The court continued in paragraph 197 of the judgment as follows:

"On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors:

i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;

ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;

iii)The questions of primary and secondary fact and the overall value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."

18. See on these issues also Threlfall v General Optical Council [2004] EWHC 2683 (Admin) and Gupta v General Medical Council [2002] 1 WLR 1691, particularly at paragraph 10.
19. The principal ground of challenge is that the hearing did not take place within a reasonable time, in breach of Article 6.1 of the ECHR. The chronology is helpfully set out in the witness statement of Kelly Johnson, the Director of Fitness to Practise for the HPC.
20. On 26th March 2007 a letter was received from King's College advising that the appellant's employment was terminated on 3rd January 2007. On 2nd April 2007 a letter was sent by HPC to King's College, requesting further information. On 1st May 2007 further information was received from King's College. On 11th June 2007 a notice requesting observations was sent to the appellant. On 27th July 2007 the Investigating Committee Panel met and decided that there was a case to answer. On 30th July a notice was sent to the appellant informing the appellant of the decision of the Investigating Committee Panel.
21. On 31st July 2007 Kingsley Napley were instructed to act on behalf of the HPC. They were instructed to prepare and present the case at final hearing. That included contacting witnesses to arrange interviews, interviewing witnesses, obtaining documents and preparing statements. On 16th May 2008 Kingsley Napley notified the HPC that the case was ready to fix for trial. On 17th June 2008 the parties were notified of the date and time of the hearing and on 6th October 2008 the hearing took place.
22. Mr Berkin, who appeared for the appellant, submitted, first, in this connection, that the notice sent on 11th June 2007 requesting observations did not comply with Article 26(2)(a), which provides:

"Where an allegation is referred to the Investigating Committee, it shall -

(a) notify without delay the person concerned of the allegation and invite him to submit written representations within a prescribed period".

23. The notice, as indicated by the chronology which I have just rehearsed, was sent just over a month after the HPC received further information from King's College. The HPC plainly needed some time to consider whether the allegations were of such a nature and had such support as merited the next step in the disciplinary procedure. A period of just over a month to satisfy itself is, for relevant purposes, reasonable and the notice was therefore made without delay.
24. Secondly, it is said that the notice sent to the appellant on 30th July 2007 did not comply with Rule 5 of the Health Professions Council (Conduct and Competence Committee) (Procedure) Rules, which provides, under the rubric "Allegations" at 5(1):

"Where an allegation is referred to the Committee it shall without delay -

(a) send to the health professional a notice setting out the allegation".

25. The notice, as shown by the chronology, was sent 3 days after the Committee had met on 27th July and was therefore sent, unarguably, without delay.
26. More generally, Mr Berkin submitted that the period between 26th March 2007, when the complaint was received, and 6th October 2008 was not reasonable, having regard, in particular, to the relative simplicity of this case.
27. The leading authority on reasonableness of delay under Article 6 in this jurisdiction is Dyer v Watson [2004] 1 AC 379. At paragraph 52 Lord Bingham said this:

"In any case in which it is said that the reasonable time requirement (to which I will henceforward confine myself) has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive."

See also Lord Hope on this issue at paragraphs 80 and 85.

28. Some indication of what Lord Bingham had in mind is given by paragraph 56, where he deals with the facts of the case and says as follows:

"A period of 20 months elapsed (or would have elapsed) between the charging of the officers at the end of January 1999 and their trial in August or September 2000. They were not in custody. While a shorter interval between charge and trial would obviously be desirable, this is not a period which, on its face and without more, causes me real concern, such as to suggest that a basic human right of the officers may have been infringed. I am aware of no case in which the court has found so short a period to violate the reasonable time requirement, save in Mansur v Turkey 20 EHRR 535, where special considerations were present (see paragraph 45 above). I would not for my part think it necessary to embark on the more detailed inquiry required by the court, but in deference to the Scottish judges who reached a contrary view I shall do so."

29. Given that any case takes some period to prepare witness statements and otherwise make the case ready for trial or hearing, I am not able to find that a period from March 2007 to 6th October 2008 — that is about 16½ months — comes anywhere within the range that would cause me real concern that a basic human right of the appellant had been infringed. The period is significantly shorter than that in Dyer, and shorter by far than the periods that have caused concern to the European Court of Human Rights, to which Lord Bingham referred.
30. In any event, Mr Berkin faces a further insurmountable obstacle. It is now well established by authority that breach of Article 6 is not in itself a ground for striking out proceedings or, after the event, setting them aside or quashing them. It is also necessary to show that the unreasonable delay would not permit a fair trial to take place or, after the event, that a fair trial had not been possible: see Attorney General's Reference (No 2 of 2001) [2004] 2 AC at paragraph 24.
31. The statement of law in that paragraph was applied in the context of professional disciplinary proceedings in R (Gibson) v General Medical Council [2004] EWHC 2781 (Admin) at paragraphs 26, 36 and 37.
32. In my judgment, Mr Berkin has not established that the trial was unfair. The witnesses were available. They had given statements practically contemporaneous with the events, as well as the statements that were taken later. The appellant could have given evidence had he chosen to attend the hearing, and he, or his representative, could have cross-examined the witnesses for the HPC.
33. Mr Berkin referred to three instances in the evidence of the two witnesses who were able to give direct evidence as to the matters in question, namely, the complainant and Miss Fleming. In those instances the witnesses had trouble recollecting specifically the particular point put to them, but those instances plainly related to peripheral and subsidiary matters.
34. It is clear from the transcript that the witnesses had a very clear recollection of the actual assault and the verbal abuse. Furthermore, if the appellant had chosen to attend, he or his representative could have cross-examined those witnesses on those particular instances with a view to suggesting, as far as that was possible, that their recollection of the core elements of the assault were faulty because of passage of time and impairment of memory. He chose not to do that, but the facility to do so may be taken into account in assessing the fairness of this trial. I am entirely satisfied that a fair trial was possible and that a fair trial took place.
35. The second ground relates to a challenge to factual findings. At the hearing, in his oral submissions, Mr Berkin confined himself to one alleged erroneous finding. This is a complaint that the Committee's finding was unsafe and against the weight of evidence in the respect that it is said that it was physically impossible to throw such a large, 20 kilogram box. That, of course, relates to the finding that the appellant did throw at least a large box in the course of the assault.
36. The actual evidence before the Committee was that the box weighed 10 kilos (see transcript page 46) and that the appellant would have been physically able to carry the box as described (see transcript page 58). The appellant, of course, did not attend before the Committee to provide any evidence to the contrary and his unsigned witness statement contained no assertion that the box would have been so heavy that he could not have thrown it as alleged.
37. In those circumstances, I find that the Committee, on the evidence as a whole, was entitled to reach the conclusion that it did reach.
38. I should refer to a second complaint that was not developed by Mr Berkin in his oral submissions, but that was relied upon in the skeleton argument and in the grounds. The Committee was satisfied that Mr Subner swore at Mrs Natarajan in the course of the incident and noted that Mrs Natarajan's evidence was corroborated by another witness. In my judgment, there was an obvious evidential basis for this: see, for example, the oral evidence of Mrs Natarajan and Mrs Fleming at pages 33, 34, 48 and 64-66 of the transcript.
39. The third ground is that the appellant argues that the Committee's finding on Count 3, namely that he had left work early and without permission, was ambiguous and/or inconsistent. However, the Committee found, as a matter of fact, that the appellant did leave the operating theatre area early and that he had not been given permission to do so. It also noted that there was no evidence before it as to where the appellant went after that, or as to whether he remained on the hospital premises. The Committee then stated that those facts did not amount to misconduct.
40. In my judgment, it is plain that the allegation of leaving work early played no part in the Committee's decision on sanction. The decision as to sanction was squarely based on the facts, which the Committee was satisfied did amount to misconduct, namely the physical assault and the verbal assault. There was, therefore, no inconsistency or ambiguity in the Committee's findings or in the general approach on this matter.
41. In his skeleton argument Mr Berkin made three further points that he did not elaborate in his oral submission and which he fairly conceded were not his best points.
42. The first matter that he referred to was the Committee's treatment of the appellant's witness statement. In my judgment, the Committee handled the matter of the witness statement impeccably, as is self-evident from the transcript at pages 7-11.
43. The second complaint is that the HPC failed to call two witnesses. In my judgment, there is no substance in this. It is for the HPC to decide what witnesses it wishes to call. If the appellant wishes to call further witnesses, the appellant is free to do so. In any event, having regard to the nature of the assault, it is difficult to see how the evidence of those two witnesses could have borne directly on the allegations because they were not present at the time that the alleged assault took place.
44. Finally, there is a complaint made about the solicitor seeing a witness before that witness gave evidence. Again, I am unable to see the legal basis for any justifiable complaint in relation to that matter.
45. For those reasons, I reject the grounds that relate to the findings of fact and impairment.
46. The final ground of challenge relates to the sanction. The correct approach for the court to adopt on an appeal against sanction is set out in the judgment of the Court of Appeal in Raschid and Fatnani v General Medical Council [2007] 1 WLR 1460 as follows:

"16.In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1st April 2003. First, the Privy Council is of course a source of high authority; but secondly, we are in any event considering an effectively identical statutory regime. As it seems to me there are in particular two strands in the relevant learning before 1st April 2003. One differentiates the function of the Panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the Panel or committee to make the required judgment.

17. The first of these strands may be gleaned from the Privy Council decision in Gupta v the General Medical Council [2002] 1 WLR 169, 1702 at paragraph 21 in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:

'It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] I WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at page 519: "The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price." Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.'

18. The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This as it seems to me engages the second strand to which I have referred. In Marinovitch v General Medical Council, 24th June 2002, Lord Hope giving the judgment of the board said this (paragraph 28, second sentence):

'28.In the appellant's case the effect of the committee's order is that his erasure is for life but it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.

29.That is not to say that their lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This is a case of such a grave nature that the finding that the appellant was unfit to practice was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case while undoubtedly severe was wrong or unjustified.'

19. There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffman giving the judgment of the board in Bijl [2002] UKPC 42 paragraphs 2-3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations at paragraph 34 of Ghosh v General Medical Council [2001] 1 WLR 1915, page 1923G:

'The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner's failing amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances.'"

47. The Committee in this case correctly directed itself as to the approach to be taken and as to the need to consider the sanctions in Article 29 in ascending order. A physical assault of this kind that was found by the Committee and verbal abuse of the nature that was also found by the Committee are plainly very serious matters indeed.
48. The Committee provided coherent and sensible reasons as to why the options of taking no further action, a caution, a Conditions of Practice Order or suspension were not considered to be appropriate.
49. The Committee noted in particular that the appellant had not attended to put forward any explanation as to his conduct, any assurances about future conduct or any evidence that he had reflected on what had occurred, and had not accepted the seriousness of his conduct. As the HPC's Indicative Sanctions Policy notes, a key factor in many cases will be the extent to which a health professional recognises his or her failings and is willing to address them, and, in deciding what, if any, sanction is required, the issue which the Panel needs to determine is whether the health professional has genuinely recognised his or her failings and the steps needed to address them.
50. In my judgment, the Committee were plainly correct to give considerable weight to the fact that the appellant had not attended, had shown no insight whatsoever into the seriousness of the findings against him and gave no indication whatsoever that he was minded in any way to embark upon remedial measures, insofar as they plainly would have been appropriate in this case.
51. Therefore, having regard to the jurisdiction of this court as set out in the leading authorities, I find that there is no legal basis whatsoever for this court interfering with the Committee's decision in relation to the right sanction in this case. For those reasons, I dismiss this appeal.
52. MR BERKIN: (Pause). My Lord, I am sorry about that. That was Mr Subner.
53. MISS RICHARDS: My Lord, I ask for an order that the appellant pay the defendant's costs. Costs would normally follow the event. There is a statement of costs if your Lordship is willing to undertake a summary assessment. I do not know whether my learned friend has any observations on them or any matters I can address. There has been a degree or work required in terms of working through the bundle, taking instructions, preparing a witness statement, having a conference and so on.
54. MR JUSTICE KENNETH PARKER: Yes.
55. MR BERKIN: My Lord, I have had the opportunity to go through it. I have a number of observations. First of all, the number of hours, excluding the attendance at the hearing. I have made it 48.23. It does seem quite a lot of hours for not -- in terms of what it is, in my submission it is disproportionate. What, in my submission, is of concern is that someone is asked to pay a very large sum of money without any proper explanation of what all the work was. It is very vague. There is no detailed explanation. In my submission, the number of hours was very high for what it actually involves.
56. My Lord, that is my first point. The second point is, looking at my defence fees -- there is some law on this. My Lord, it is to be found in the White Book at page 1419. It is paragraph 48(14).5. My Lord, the correct approach is to, first of all, assess whether the fee for the skeleton argument is too high and then see how that relates to the brief fee, because obviously a lot of the work in the skeleton argument means that less work is required for the hearing.
57. My Lord, the fees are set out, as your Lordship will see. It does seem high, in my submission. The way it should be dealt with is set out in that paragraph. In my submission, it is too high. I do not want to criticise my learned friend, but it was me who drew your attention to the Attorney General's case. It was not in my learned friend's bundle or submissions. My Lord, in my submission the figure is too high for a case of this nature.
58. MR JUSTICE KENNETH PARKER: Well, I cannot really descend into that level of detail. It may be that a detailed cost assessment is required in those circumstances.
59. MISS RICHARDS: Yes. My Lord, there are two approaches your Lordship can take. The summary assessment form does not lend itself to the detail that a bill of costs does. So I do not have the detail. Your Lordship can either direct a detailed assessment or your Lordship can fix, by a rough-and-ready approximation, on a figure that your Lordship thinks would be appropriate.
60. In one sense my clients would prefer the latter, because they do not want to have to embark upon the costs of a detailed assessment and incur yet further costs and so on that are unavoidable, but I cannot, I am afraid, in terms of the documents, provide much greater assistance other than to say clearly it is perfectly proper for the solicitors to have worked through the bundle, to have taken instructions, to have formulated the witness statement and so on. In terms of counsel's fees, it reflects, in part, first of all, a separate conference, and not just a skeleton argument, but, secondly, the fact that there was a fairly large amount of legal material that it was felt necessary to put before the court to be of assistance to the court. I cannot take the matter any further. I would be quite happy for your Lordship to do a ready reckoning.
61. MR JUSTICE KENNETH PARKER: I see the strength of the general submission, that it looks on the high side for a case of this nature, because the points were relatively limited and relatively straightforward, but I am reluctant to make any kind of guesstimate of what the proper costs should be. Therefore, I will order that the claimant pay the defendant's costs and there should be a detailed assessment made in this case. I recognise your concerns at the level of costs.
62. Thank you.