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 WC2
		9 December 2009

MRS JUSTICE DOBBS:

INTRODUCTION

1. This is a statutory appeal pursuant to Articles 29 and 38 of the Health Professions Council Order 2001 (SI No. 254 of 2002) and CPR 52.11 against the decision of the Competence and Conduct Committee of the Health Professions Council dated 28th November 2008, by reason of which, Mr Howlett, the Appellant was struck off from the roll of authorised physiotherapists because his fitness to practise was found to be impaired by reason of misconduct. The hearing is by way of review on the papers.
2. This court will only allow the appeal where the decision of the committee was a) wrong; or b) unjust because of a serious procedural or other irregularity in the proceedings. (CPR 52.11.3.)

THE BACKGROUND

3. The Appellant is a Chartered Physiotherapist. He qualified in 1980. He undertook further training and has worked in a number of different clinical environments. In 1987 he opened a private clinic in which he worked a sole practitioner. In July 2006, Miss X was involved in a road traffic accident. She was referred some six months later by her insurers to the Appellant in order to receive physiotherapy for a whiplash injury suffered in the accident. She attended the Appellant's clinic on 20th January 2007. The charge in this case arises out of the complaint made by Ms X following treatment by the Appellant.

THE CHARGE

4. The allegation was that the Appellant's fitness to practise as a registered health professional was impaired by reason of his misconduct in that:

"1 At all material times you worked as a physiotherapist at Mustard Seed Physiotherapy Clinic.

2 During the course of that work in relation to the treatment of patient X on 20 January 2007, you acted inappropriately in that you:

A) Did not inform X prior to the treatment that she would need to remove any clothing;

B) massaged gel into X's breast and chest area with your hands without providing adequate reason for the treating the area;

C) strapped X into a garden chair without providing adequate reasons for this type of treatment."

5. The essence of head 2a of the charge is, that when Miss X phoned the Appellant before her appointment, she asked him whether she should wear any particular clothing for the appointment. He replied in the negative, but failed to tell her that she may be required to remove her upper clothing. Once at the appointment, the complaint is that Mr Howlett massaged Movelat gel into the patient's breast and chest area without properly explaining the purpose of so doing, and when asked, gave a highly technical answer that was incomprehensible (head 2b). Finally, when giving the patient exercises to do on a chair, Mr Howlett strapped Miss X to the chair without explaining properly why she needed to be strapped into the chair (head 2c). The Appellant's case was that he did not tell the patient about the likelihood of her having to remove her upper clothing as that was not his practice to do so. This was in order not to worry the patient unnecessarily beforehand. In respect of the other two allegations, his case was that he had explained everything to the patient and her partner and did not detect any signs of lack of comprehension or distress.

THE GROUNDS OF APPEAL IN SUMMARY

6. There are some 25 grounds of appeal in this case, dealing with all aspects of the Panel's decision. Many of the grounds overlap and are repetitious. Distilled, the grounds assert:

i) that the panel erred at the facts stage in relation to a number of what are said to be erroneous factual findings;

ii) that the panel erred at the misconduct stage by, inter alia, failing to adequately distinguish the nature and breadth of the duty breached and finding misconduct proved in each of the heads of charge;

iii) the panel erred at the impairment stage by finding that the misconduct was sufficient to amount to evidence of impairment;

iv) the panel erred in striking off the appellant from the register, a decision which was wholly disproportionate, excessive and unfair.

7. I do not propose to address each ground singly, not least because, as already noted, there is duplication, but because to do so, would require a complete rehearsal of the detail of the three days worth of evidence. This is a review, not a rehearing. Suffice it to say, that this court has read all the papers in the case and the fact that something is not mentioned in the summary of evidence or the submissions, does not mean that it is has not been considered. It has.

STAGE ONE: FACT FINDING

The Panel's decision

8. The decision of the Panel as to the facts alleged in the charge can be found at paragraphs 6-10. The Panel set out its overall impression of the witnesses. Ms X and Mr Y were found to be reflective, responsive and credible. Whilst they may have had difficulties remembering certain facts, they properly made concessions and the Panel could detect no element of exaggeration or embellishment. It was fundamental to the Panel's conclusion that it is accepted that they were both distressed at the time of assessment and treatment. The Panel found that Mr Howlett gave truthful evidence. He again could not remember every detail of what happened but referred to his usual practice.
9. In relation to allegation 2a, the Panel found that Miss X asked the Appellant whether she needed to wear any particular clothing and Mr Howlett accepted in evidence that he did not tell Miss X during the conversation that she might well have to remove her upper garments completely, despite his experience of such cases that she might well need to. His standard practice was not to tell female patients that they might need to remove all of their upper clothing for fear of increasing their anxiety.
10. In relation to allegation 2b, the Panel found that the Council had not proved its primary contention that there was no good clinical reason for the Appellant to use gel on Miss X's breast but found, good clinical reason or not, that Miss X was not given sufficient explanation or reasons for the treatment to her chest- this being particularly important as Miss X had gone to him for treatment to her neck and was unaware of any problem with her chest. In circumstances where the treatment at that appointment was very much more concerned with her chest than her neck - there being no manual treatment for her neck at that appointment - the need to fully explain what was proposed and why, was paramount. The Panel was satisfied that Mr Howlett did tell Miss X what he was proposing to do with the ultrasound before he did it, but was equally satisfied that he gave no meaningful explanation to her for why he believed it to be necessary or why he needed to continue to apply the gel.
11. In relation to the third head, 2c, the Panel accepted that Mr Howlett did explain to Miss X that the use of the chair was to secure the immobilisation of her spine to facilitate neck exercises, but found that there was an inadequate explanation for the use of the strap which was applied around her torso immediately above her breasts, the very area, the treatment of which had, immediately before, resulted in her becoming very distressed.

The grounds of appeal

12. The grounds contend that the Panel erred in finding that Miss X was visibly distressed during the consultation; that too much weight was afforded the evidence of Miss X and Mr Y, whose evidence, it is submitted was internally inconsistent (taking into account the evidence given and the previous statements made) and inconsistent with each other, rendering them unreliable witnesses. It is also submitted that the Panel failed to give sufficient weight to the evidence of Mr Howlett; that it failed to take into account the corrupting/contaminating influence of LS on the evidence of the two main witnesses and that the special measures in place for the giving of evidence by Miss X reinforced her misapprehension that the Appellant's conduct was inappropriate. There is also complaint that the Panel failed to explicitly determine that the Appellant's conduct in charge 2a was inappropriate and it is contended that his behaviour fell within a reasonable body of opinion within the profession which would not find the conduct inappropriate for the reasons given by Mr Howlett.

Discussion and decision

13. When conducting its review of the Panel's decision, this court must afford proper respect to the findings of the Panel, in particular when the Panel has made such clear findings as to the credibility of the witnesses which, unlike this court, it had the opportunity to see and hear.
14. So far as the main grounds are concerned, they boil down in essence to a disagreement with the findings of the Panel. There was, in this court's judgement, ample evidence for the Panel to come to its findings of fact on each head of the charge. It is correct to say that there were inconsistencies in the evidence of the witnesses, but the Panel was aware of this and took such matters into consideration. So far as head 2a is concerned, the Appellant himself accepted that he did not advise Miss X on the phone before the appointment, that she was likely to have to remove her upper clothing when she enquired as to what clothing she needed to wear for the appointment. Mr Howlett gave his reasons for not doing so. It is hardly surprising therefore that the Panel found this head to be proved. It is also quite clear, when dealing with the criticism that the Panel did not explicitly find the conduct to be inappropriate, that the Panel did take that view, based on the fact that Mr Howlett, on his own admission, was aware from his previous experience, that it was likely that the patient would have to take remove her upper clothing so that he could treat her chest and breast area.
15. In relation to heads 2b and c, whatever inconsistencies there were, one thing shines through in the evidence, namely, that neither witness understood why Mr Howlett was treating the breast/chest area (2b) given that Miss X had come in for treatment to her neck. It is also apparent that the two witnesses were not clear as to why the strap was necessary for the neck exercises (2c). Whilst it was accepted that there was some explanation given, the Panel, with justification, found that it was highly technical and thus was inadequate.
16. Dealing with the alleged corrupting influence of LS, the chronology shows that on leaving the clinic, Miss X was very distressed about her experience. As a result she phoned the insurers and asked to see a female physiotherapist. It is obvious that she had formed an adverse view as to the conduct of the session with Mr Howlett. LS was the new physiotherapist to whom Miss X was referred. LS had enquired of Miss X about why she had left Mr Howlett. Once she heard the description of the consultation she was concerned and had asked Miss X whether she could consult a colleague and the HPC for advice. This consent was given and following advice received, a complaint was made. The Panel was fully aware of the background and the suggestion as to corruption/contamination was explored at the hearing. It is implicit in the decision that the Panel did consider the issue and found that there had been no exaggeration or embellishment.
17. As for the giving of evidence behind screens - the decision to allow Miss X to give evidence behind a screen was one taken by the Council having received representations from both sides. It is nothing unusual in this day and age for measures to be put in place to allow witnesses to give their evidence freely. The ground that the witness's view that the actions of Mr Howlett were inappropriate would be re-enforced by the use of special measures, does not begin to get off the ground, not least because it is not the witness's view of the inappropriateness of the conduct that counts, but that of the Panel. As already noted, the Panel found, conscious as it was of the issues being raised, that there was no embellishment or exaggeration. The fact that the witnesses did not complain at the end of the consultation, also does nothing to detract from the evidence which the Panel found proved, not least because the same day or very shortly thereafter, Miss X cancelled her follow up appointment with Mr Howlett and asked for a change of physiotherapist. As for the reasonable body of opinion in relation to charge 2a, apart from the evidence of Mr Howlett, counsel concedes that there was no such evidence in front of the Panel.

STAGE TWO: FINDING OF MISCONDUCT

The Panel's decision

18. As to why the facts were found to amount to misconduct, the Panel said at Paragraph 10. "It is necessary for the Panel to consider whether the facts found to be proved amounted to misconduct. The Panel concludes that they did. This is because it is fundamental to the practice of a physiotherapist whose work necessarily usually involves physically touching the patient, that they should be constantly alert to the sensibilities of their patients. The facts found proved demonstrate that Mr Howlett failed to be alert to Miss X situation or sensibilities despite his extensive knowledge and the specific training he had received in this area. Indeed such was his failure to apply the skills he had, that he was completely unaware of the distress that his conduct had caused."

The grounds

19. The grounds allege that the Panel failed to provide adequate explanation of the duty breached and the degree of the severity of that breach; that the Panel should have gone through the heads singly and indicated whether in each case misconduct was made out; that ground 2a was not serious enough to justify a finding of misconduct; that in the absence of visible distress shown by Miss X during the consultation, ground 2b could not amount to misconduct and that 2c alone was not sufficient to amount to misconduct.

Discussion and decision

20. The court does not need to rehearse the reasoning already set out above regarding misconduct. The nature and extent of the breach was set out by reference to the fundamental need of the practitioner to be alert to the sensibilities of the patient; that the findings of the Panel were that Mr Howlett had failed in this fundamental area and such was the extent of his failure, that he was completely unaware of the distress he had caused. If clarification is needed as to whether the Panel found the facts proved to be serious, it can be found in paragraph 28 when it deals with sanction. (See below).
21. The second complaint, is the submission that the heads of charge should be considered separately as to the issue of misconduct. This ground is without foundation. The charge makes it quite clear that the allegation of misconduct is based on the heads set out. It may be that one head could not on its own be considered misconduct, but so long as overall the conduct proved is sufficient to amount to misconduct, then the decision of the Panel is sustainable. In any event, it is clear from the tenor of the findings that the Panel did consider that each individual head amounted to misconduct.
22. The reason why the Panel is said to have erred in its finding of misconduct, turns predominately on the submission that the Panel had to find that the patient was visibly distressed, because, if she was not visibly distressed, the practitioner could not be at fault, not being familiar with the patient. There was evidence on which the Panel could come to the decision that the patient was visibly distressed. For example there was evidence from Miss X that when Mr Howlett was rubbing the gel into her breast and chest area that she was "tearing up" inside and that her eyes were red and teary, although she was not crying in the sense of sobbing. There was also evidence from Mr Y that he could see from Miss X's eyes and her look that she was very upset. However counsel for the Respondent makes the point that the Panel did not refer to visible distress. In any event, the real point, submits the Respondent, is that the Panel's determination was that the conduct of the Appellant was such that he was completely unaware of the distress he had caused and that his failure of recognition is at the heart of the complaint. The continued failure to appreciate that it is not the responsibility of the patient to communicate distress so as to allow him to modify his approach and exhibit sensitivity and tact illustrates his lack of insight. It is his failure to be alive to the need for extreme sensitivity in an intimate situation such as that faced by the patient, making it essential that clear information is given and certainty that the patient understood the reason for the treatment to help put the patient to feel more at ease, that is at the heart of this case. I accept the Respondent's submissions on this aspect.

STAGE THREE: FINDING OF IMPAIRMENT

The Panel's decision

23. The decision of the Panel on the question of current impairment of fitness to practice is to be found at paragraphs 11-13 of the decision. The decision reads as follows:

"Having reached the decision that there was misconduct the Panel heard further evidence relating to current impairment of fitness to practise. Mr Howlett gave further evidence and called Ms Ledner, a former patient, who gave evidence of her satisfactory treatment by Mr Howlett. At this impairment stage of the proceedings the HPC called a further witness, Ms T, in rebuttal of Mr Howlett's evidence that he had changed the manner in which he practices since becoming aware of the complaint made by Ms X. Ms T made a complaint last week concerning an appointment with Mr Howlett on 14th November 2008. The split decision the Panel was asked to make was to ensure that there was no prejudice to Mr Howlett arising from the reception of this evidence.

The Panel has been careful to remind itself of the proper bounds of the decision it is making in relation to current impairment of fitness to practise. Current impairment could only arise from the misconduct proved in relation to Ms X. The only relevance of the evidence of Ms T is as to whether that misconduct in relation to Ms X is currently impairing Mr Howlett's fitness to practise. It is very important to underline the fact that the Panel has not treated the evidence of Ms T as a free-standing allegation.

The Panel is satisfied that Mr Howlett has made significant changes to the documentation and processes of his practice. However, the Panel's assessment of the fundamental problem underlying this allegation is that Mr Howlett quite simply lacked the ability to appreciate Ms X's sensibilities and her distress when his actions upset her. The evidence of Ms T (which the Panel accepted, as did Mr Howlett) amply demonstrated that in circumstances where another patient was topless a similar reaction was provoked by an inability on the part of Mr Howlett to appreciate the effect he was having on her. The conclusion of the Panel is that a significant lack of emotional intelligence has been demonstrated on the part of Mr Howlett at the time of the Ms X incident and that it continues at the present time. It follows that Mr Howlett is currently impairment. (sic)"

The grounds of appeal

24. A considerable number of the grounds are based on the premise that the findings of fact and misconduct are in error and thus it follows that any finding of impairment is flawed. Given this court's findings on the first two stages, those grounds can be dismissed without more. There are two main aspects of the remaining grounds:- firstly, that the Panel erred in taking into account the evidence of Miss T because it was of a predominately different nature and secondly, that the Panel made no proper assessment of whether the misconduct amounted to impairment of current fitness to practice, having failed to consider whether the impairment was sufficiently serious, was current, had been remedied or was remediable. It is submitted that the Panel misdirected itself when it found that the Appellant had a significant lack of emotional intelligence.

Discussion and decision

25. During the hearing in relation to the impairment stage, Mr Howlett called Mrs Ledner to give evidence. The effect of her evidence was she had been referred to Mr Howlett in September 2007 for injuries to her neck and chest following a road traffic accident. She found Mr Howlett to be an excellent practitioner. From the start she was given a significant amount of information about the proposed treatment. She signed two consent forms, one in relation to the assessment and one in relation to the removal of clothing for the purposes of treatment. She was given exercises to do and clear instructions as to the purpose and how to carry them out. With regard to the use of Movelat gel on her chest area, Mr Howlett had explained very carefully what the treatment was for, why it was needed and made her feel at her ease. She had recommended him to other people. She had been impressed at how thorough his assessment was and how well informed she felt as a result. She was given copies of her notes at the beginning of each session and Mr Howlett would go through them with her at the beginning of each session, being nine sessions in total.
26. The Council called Miss T in rebuttal. Her evidence-in-chief consisted of confirmation of a letter of complaint dated 17th November 2008 in relation to Mr Howlett. Miss T had suffered a RTA accident and was referred to Mr Howlett by the insurers. Mr Howlett asked her to sign an additional form as he needed her to remove her bra for treatment. She signed this and also signed a waiver re the need for a chaperone. There were essentially three complaints:- that for 15-20 minutes whilst she lay topless, Mr Howlett asked about her religious beliefs and there then followed a spirited debate between them during which, Miss T found it difficult to cut short the conversation. Moreover, during the course of defending her beliefs, Mr Howlett learnt considerably more about her upbringing and background than she would normally divulge to a stranger. He also made a series of comments such as "you're handling this very well" which she took to mean that she was coping well with being topless whilst being treated by a male. Additionally, she was not offered any changing room facilities or any covering garments. When she asked for a wash basin to remove the Movelat gel before putting her bra back on, she had to walk through Mr Howlett's office topless to find the wash basin. Although she made another appointment with Mr Howlett, she cancelled it the same day.
27. In cross-examination, Miss T accepted that the majority of her letter was concerned with her objection to Mr Howlett engaging her in conversation about Christianity and religion. Mr Howlett started the conversation; she had defended her views, but would rather that the conversation had not been pursued as far as it had. There was discussion about other issues. She received information before the appointment telling her about her assessment. Mr Howlett explained about the possibility of injury to the chest before the assessment He showed her head and neck exercises and explained that he would treat the chest using ultrasound and anti-inflammatory gel and what the treatment would do. She was asked to sign a further consent form when he asked to take her bra off. She did not see the notice with regard to the changing facilities. No towel or gown was provided for her to cover herself. She did not ask, as nothing seemed to be available. Mr Howlett did leave to type his notes whilst she undressed. She rubbed in the remainder of the gel whilst he was doing that. She asked for somewhere to wash her hands - she did not notice the wipes next to the treatment couch. She had to walk past Mr Howlett in her knickers to wash her hands and then returned to put her bra and top on - she did not feel that there was any alternative.
28. Re-examined, she said that Mr Howlett did not explain why he was rubbing in the gel but she did not question it. The wipes were not drawn to her attention. She showed distress in the witness box when asked about whether she showed any signs of being uncomfortable at the time. She said that she felt very vulnerable when lying on the couch without a bra and Mr Howlett standing over her applying the ultrasound whilst engaging her in conversation. Her reaction was to emotionally distance herself from the situation to cope with it. In answer to the Panel, she said that she understood why the treatment was necessary to the front of her chest but that it was the manner in which it was carried out that caused her distress.
29. Mr Howlett was re-called at this stage. He explained what he had done in his practice since the allegations had been made. Steps taken included providing information in advance about the appointments and what to expect, including a section forewarning potential patients about the possibility of having to remove clothing; producing a supplementary informed consent form which patients sign prior to assessment and/or treatment in the anterior chest, the form setting out what the treatment will consist of. He now keeps a crop top in stock to offer patients when appropriate and has a form which records the patient's explicit consent to removal of underclothing and explains to them that they should let him know if they are uncomfortable with any aspect of the treatment. Patients are advised that they can bring a chaperone, but if the situation arises that one is needed during the consultation, his wife is available nearby to provide that role.
30. With regard to the complaint of Miss T, he accepted that he spoke of religion and Christianity as she lay topless on the table when he was treating her, but had not thought that she felt uncomfortable as she engaged him in conversation. She appeared to him to be relaxed and at ease. He had asked if she minded if he asked a question and she looked as if she was consenting. He asked her if she was a Christian and she told him that she had been confirmed and the conversation moved on from there. He was under a lot of stress because of the outstanding impending hearing and accepted that he may have exercised poor judgment in engaging in such a conversation at such an early stage of the relationship. In his attempt to create a good rapport with Miss T he was blabbing on about something which was inappropriate to talk about. The incident had given him cause for greater thought as to what he should do to ensure that a patient is really happy with the assessment and treatment. The patient had signed the supplementary consent form and was fully aware of why she needed to remove her bra. There were changing facilities available and there was a notice to that effect near the patient. In re-examination, he said that the treatment given to Miss T was almost identical to that given to Miss X. On questioning from the Panel, he said that he had thought of one further measure to make an improvement and that was a towelling gown to help make the patient feel more at ease.
31. Counsel now concedes that the Panel directed itself correctly as to the approach on how to treat the evidence of Miss T, but argues, nevertheless that it should not have been taken into account. The lengthy summary of Miss T's demonstrates that it was relevant to the issues before the Panel. Indeed, counsel representing Mr Howlett at the hearing had rightly conceded as much. The issue revolved, again, around Mr Howlett's insensitivity when treating a patient in a state of partial undress, involving as it did, treatment of an intimate area of the body. The Appellant's submission, that the subject matter was completely different, is patently incorrect.
32. I turn to the Appellant's submission that the Panel erred in finding that Mr Howlett was currently impaired. What is apparent from the decision, is that the Panel considered the severity of the misconduct and came to the conclusion that the impairment was current, (despite the evidence of Mrs Ledner and the evidence of changes to Mr Howlett's practice) in light of the evidence of Miss T, which demonstrated, in the Panel's judgement, a continuing inability to appreciate the sensibilities and distress of a disrobed female. It is submitted by the Appellant that the Panel in their decision confused the distress exhibited by Miss T at the hearing with distress at the consultation. At first blush, given the way in which the last sentence in paragraph 17 is phrased, this criticism is not completely without foundation. Nevertheless, the point is, that there was evidence before the Panel that Mr Howlett was treating a female patient, who was half naked, having treatment to an intimate part of her body for a significant period of time, when engaged in inappropriate conversation with her, a fact which he eventually conceded in front of the panel. There also evidence that Mr Howlett was insensitive to her need for modesty at the end of the consultation when she had to walk to the wash basin, behind Mr Howlett with no form of covering, nothing having been offered. This together with the findings in relation to Miss X justified the observation about the Appellant's lack of emotional intelligence.
33. As for the finding of impairment, it cannot be said that there is no evidence on which this Panel could have reached the conclusion on impairment. The test is not whether another Panel might have reached a different decision. The unchallenged evidence of Mrs Ledner, showed that the Appellant had the ability to adopt the appropriate "bedside manner", but the evidence of Miss T, demonstrated that, at the very least, the Appellant had not yet fully mastered the art. The finding of impairment is sustainable therefore.

STAGE FOUR: SANCTION

The decision of the Panel

34. The Panel having announced its decision up to this point in public then heard further submissions on the issue of sanction. The findings are set out in paragraphs 15-19. The Panel reminded itself that the purpose of the sanction was not to punish but to protect the public or to maintain confidence in the profession or the regulatory process and that no more severe sanction should be imposed than is required by those legitimate goals of the sanction. The Panel then considered the available sanctions in turn. I quote from paragraphs 17 to 19:

"17. It is important at the outset to state that the Panel is satisfied that Mr Howlett was not motivated by a voyeuristic or sexual motive in relation to the misconduct proved. That said, the distress to a woman who was in a vulnerable position was very real and it is implicit in the Panel's findings that without a fundamental change of attitude there is a significant risk of further distress being caused in the future. The focus of the Panel's consideration has been as to whether there is a realistic prospect of Mr Howlett being able to achieve such a sea change in his attitude. The conclusion of the Panel is that there is no realistic prospect of Mr Howlett being able to change his approach to the extent that the Panel could be satisfied that he presented such a low risk of recurrence that he could be permitted to continue in practice. This is because he has been aware of the allegation concerning Ms X for at least a year and although that knowledge caused him to alter his procedural approach, it did not sufficiently alter the way in which he dealt with patients, as the incident with Ms T only a fortnight ago demonstrates. Indeed before he saw Ms T give her evidence today Mr Howlett said that she had seemed remarkably relaxed and at ease during the appointment. A very short while later after Ms T had given her evidence, and become upset during it, Mr Howlett acknowledged the genuineness of that distress. The Panel could not accept his explanation that he himself had been so anxious as a result of this impending hearing that he was for that reason unaware of Ms T's distress.

The misconduct found proved is far too serious to result in no further action being taken or in a caution order. A conditions of practice order is not, in the judgment of the Panel, appropriate because, any Physiotherapist, and particularly one working as a sole practitioner must be trusted to be able to act appropriately towards all potential patients without unusual or specific restrictions being put in place. The Panel was urged to consider making a conditions of practice order that would require Mr Howlett to undertake self-directed reflective work that would lead him to addressing the problem. The fact that his efforts since becoming aware of the Ms X allegation did not result in a sufficient change in approach leads the Panel to reject the suggestion that a conditions of practice order made now would achieve a different outcome.

It therefore follows that the only remaining options are the making of a suspension order and striking off. In the judgment of the Panel nothing would be achieved by a suspension order because there are no grounds to thinking that Mr Howlett would be able to achieve something while prevented from practising that the Panel finds he has not achieved while practising. It therefore follows that the only appropriate sanction is one of striking-off. The Panel appreciates that this is a very serious step to take, but after very careful consideration it is satisfied that it is the only sanction that will afford a proper degree of protection to members of the public who might otherwise approach Mr Howlett for treatment".

Grounds of appeal

35. The grounds contend that the Panel erred in imposing any sanction at all in light of its previous erroneous findings; that it failed i) to properly consider and understand the evidence of Mr Howlett; ii) to conduct a proper risk assessment as to future conduct; iii) to follow the Respondents Indicative Sanction guidance; it misdirected itself with regard to the applicability of the lesser sanctions, in particular the conditions of practice order.
36. The Respondent submits that the sanction imposed was appropriate and proportionate in the circumstances and that the Panel properly directed itself as to the principles contained in the Indicative Sanction guidance; it considered each possible sanction and gave sustainable reasons for the decision made, in the light of the very real distress caused to a woman in a vulnerable position. There was a significant risk of repetition without a fundamental change in attitude of the Appellant; and in the light of his knowledge of the allegations, the evidence showed that he had not changed his approach and that time would achieve nothing. Striking off was appropriate where the Registrant has demonstrated lack of insight and his behaviour is irremediable and there is no other way of protecting the patients and the public.

Discussion and decision

37. For sake of completeness, it should be added that the Panel had three other statements in front of it. One from Major Murdoch, a friend of Mr Howlett, who had received treatment from him. He found Mr Howlett to be a meticulous professional who made a full and thorough diagnosis and who always fully explained what he was doing and why. He was surprised therefore by the allegations. There were also two character references from Catherine Hurworth and Nigel Dawson, the former being a physiotherapist herself, both statements being very complementary about Mr Howlett.
38. The first ground can be disposed of simply. In light of this court upholding the decision of the Panel with regard to stages one to three, this ground falls away. I turn to the other grounds.
39. The decision of the Panel revolved around the issue of whether there was a realistic prospect of Mr Howlett being able to change his approach to the extent that the Panel could be satisfied that he presented a low risk of recurrence should he be permitted to continue to practise. The evidence in front of the Panel consisted of two patients who had made complaints. There was no other evidence before the committee of any other complaint in the Appellant's practising history of some 28 years. He treated on average 4 patients a day and worked six days a week. From January 2007 when the letter of complaint was written by Miss X until the second half of November 2008, he had continued with his practice, which was predominantly treating victims of road traffic accidents, without apparent complaint. 17th November, it has to be remembered, was nine days before the hearing, when one could reasonably expect a practitioner facing allegations which could put an end to his career, at least for the foreseeable future, to be experiencing significant stress.
40. There was also evidence in front of the Panel which demonstrated in very similar circumstances, that the Appellant was capable of adopting a manner appropriate to the sensitive situation in which the two complainants found themselves. The unchallenged evidence of Mrs Ledner could not have been more positive. Additionally there was evidence in front of the committee that Mr Howlett had taken significant steps (acknowledged by the Panel) to address the issues raised in the allegations. Moreover, during the course of the hearing and on further reflection, Mr Howlett came up with further measures to improve his practice.
41. The Panel had found Mr Howlett to be a truthful witness, yet in paragraph 17 rejected his evidence concerning the stress he was suffering contributing to his inappropriate behaviour. The way paragraph 17 is phrased, gives some force to the submission, that the Panel had substituted the distress shown at the hearing by Miss T for distress exhibited during the consultation, although as already explained, it does not undermine the finding of impairment. It is arguable therefore that the Panel may have put too much weight on this aspect.
42. Whilst the Panel was correct to find that the failings were serious, in my judgement the Panel at this stage of the proceedings needed to set out precisely why, in the light of all the evidence, it had reached the conclusion it did. There was no mention made of the evidence of Mrs Ledner and Major Murdoch; there appeared to be no allowance made for the fact that the Appellant had made many and significant changes to his practice which did address many of the issues raised in the allegation of Miss X, allegations which were then, as yet, unproven. The Panel criticised the practitioner for not demonstrating sufficient change of attitude, based on as yet, unproved allegations. The evidence showed that the new paperwork provided significant explanation of the procedures that were to take place and the necessity, in certain circumstances for clothing to be removed. Mr Howlett now provides consent forms in relation to assessment and removal of clothing and treatment - all of which featured in the complaint of Miss X. All that was outstanding was the "bedside manner", which, the evidence of Mrs Ledner showed, was capable of remedy. The Panel did not explain why, in the light of the evidence of Mrs Ledner which demonstrated that the Appellant had the capacity to act in an appropriate manner in such delicate circumstances, although he had not mastered this art completely, (as shown by the evidence of Miss T) it found that he could never master the art, given the two relatively isolated cases in front of them. It was perfectly apparent from the evidence, that Mr Howlett had treated a significant number of women for the same problems, all it seems without complaint.
43. It is to be noted, that according to the Guidance, the sanction should only be imposed in relation to the facts found proved or admitted. This was not a case where specimen allegations were involved. The purpose of the evidence of Miss T was limited and was not part of the charge and it was important that the Panel had that clearly in mind. So far as Miss T's evidence was concerned, the Panel relied on it to show that there was little prospect of the Appellant changing his attitude. However, in relation to that evidence, the Appellant did acknowledge the inappropriateness of the topic of conversation in the particular circumstances, and his gaucheness in his attempts to put the patient at ease, showing that he had learnt from that experience. He also indicated that he would ensure that towelling robes were available and the information about changing facilities made much clearer. All this evidence makes it difficult to see how the Panel came to the conclusion that there was no realistic prospect of the practitioner being able to sufficiently change his attitude.
44. The Panel was not addressed at length about sanctions by either side, but Counsel for the Respondent has acknowledged that the Council has wide powers when it comes to conditions that can be attached to practice. It would have been helpful to the Panel if the Appellant's lawyers had come prepared to put some proposed package before the Panel for its consideration. Regrettably Counsel focussed on the lower end sanction and thus did not develop the potential of the two sanctions falling short of strike off.
45. Counsel who appears for Mr Howlett today, who did not appear at the hearing below, submits that there are ways in which a "conditions of practice order" could be imposed on a sole practitioner, including having the practitioner working under the supervision of another one or chaperone during the currency of the order; or not being able to treat female patients until such training as is considered necessary is undergone. This latter condition could be achieved by ensuring that the insurance company did not refer any female patients and that the practitioner made it clear in his information that female patients who needed certain treatments were not accepted by the practice. These are conditions which are achievable and verifiable and would, pending satisfactory conclusion of any training required, protect those members of the public deemed to be at risk, based on the charge proved. They would also fulfill the criterion of maintaining public confidence in the profession. None of these aspects were considered by the Panel when finding that a "conditions of practice order" was not appropriate, not least because they had not been addressed on them.
46. The reasoning for rejecting this sanction was also predicated on the fact that there was no chance of the practitioner changing his ways, a conclusion, in this court's judgement, against the weight of the evidence. The rejection of the imposition of an order of suspension was based on the same reasoning. Here again, an order of suspension could be imposed with the expectation that during the period, the practitioner would undergo relevant training which would be considered at the Review, when the Council could impose further sanctions, including a "conditions of practice" order. This would have the benefit of protecting the public for the necessary period maintaining public confidence and giving the practitioner the opportunity to remedy his failings.
47. As for the sanction actually imposed, the guidance states that a striking-off order may not be made in respect of an allegation relating to competence or health unless the registrant has been continuously suspended or subject to a conditions of practice order for a period of two years at the date of the decision to strike off. The Panel was not addressed on the basis that this was a competence issue, yet on one view of the facts it is arguable that the failures identified fall within the description of competence and that therefore this sanction was inappropriate in any event.
48. Assuming however that this court is wrong, and that issues of competence are not raised, whilst the Panel found that the ultimate sanction was a serious step, it did not really analyse in any detail the question of proportionality, the fact that this is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent clinical failure. There is one charge in this case with one example by way of evidence in rebuttal. There is evidence of lack of insight, but there is also evidence of good practice and no evidence of what can properly be called persistence in relation to all the failures identified. This also has to be set against a background of an experienced and apparently blame-free practitioner of some 28 years standing. The effect of the changes that had been made set against the real risk to the public was not really analysed; the fact that significant changes had been made and more changes were proposed was also not considered in relation to the issues of maintaining public confidence and the risk of repetition; the fact that five years out of the profession, which is the effect of the sanction, would effectively realistically rule out this Appellant from obtaining future employment in the area, given his age, was not addressed. All these factors needed to be expressly addressed, so that the practitioner could understand why the only conclusion was that the ultimate sanction was appropriate. It is difficult to see, given what has been said before, how the Panel could find that the ultimate sanction was the only appropriate one. In the court's judgment the Panel fell into error in so doing.
49. It follows that this appeal succeeds to the limited degree that this court quashes the decision to strike the practitioner from the Roll. It is agreed by both counsel that the appropriate step for the court to take in this event, is to remit the case back to the Council for consideration of the imposition of a sentence of lesser severity, being realistically, suspension or a conditions of practice order.
50. I add a postscript. The reasoning in paragraph 18, if taken at face value, relating to sole practitioners is worrying, because, as I say, if taken at face value, the reasoning appears to be that a "conditions of practice order" is not appropriate generally but particularly in relation to a sole practitioner. This finding could raise issues about the prejudice and discrimination so far as sole practitioners are concerned. It may be that when this matter is reconsidered the position of the Council can be made very clear about the matter namely, that this was not the intended effect.
51. MR GLEDHILL: Mr Howlett has legal aid and seeks an order for costs to be assessed in the usual fashion.
52. MRS JUSTICE DOBBS: Yes, that is fine.
53. MR GLEDHILL: I thank you for your thorough reading of the papers

and an excellent judgment. It will help Mr Howlett and other practitioners in the field.

54. MR BRASSINGTON: My Lady, I would like to address the court in relation to costs in this case because of previous orders of this court and offers, as it were, made to Mr Howlett to settle this matter prior to hearing. To that end, may I hand up a chronology that has been prepared which, I hope, will assist the court? May I hand up also what we say should follow in terms of costs in this case. My instructing solicitor has very helpfully prepared a short draft. My friend is digesting it at the moment. (Pause)
55. The order we seek is that, first, the respondent should pay the costs of the appellant from 6 May, the time from which he received legal aid, until 20 November 2009, the point at which, we say, effectively the offer to remit this matter back to the HPC was rejected by the respondent. That is to exclude costs of the application made by the appellant on 19 August 2009. The appellant, we say, should pay the respondent's costs (our costs) in relation to the application issued on 27 July 2009 seeking permission to amend the grounds of appeal which had been prepared and filed.
56. MRS JUSTICE DOBBS: The court has made an order anyway. On 18 August the court made an order.
57. MR BRASSINGTON: The order made on that occasion, which - - I do not know if there is a copy available - - - - -
58. MRS JUSTICE DOBBS: That is an order made so we need to link it to what you put here. I do not want to duplicate something the court has done. Get your instructions first.
59. MR BRASSINGTON: I am told there were two applications on that day: one was to amend and one was to expedite. A costs order was made in relation to the application to amend. In relation to application to expedite no order was made as to costs. I hand up a clip of documentation.
60. MRS JUSTICE DOBBS: Appellant pay the respondent's costs of the application - 27 July. The court has made that order.
61. MR BRASSINGTON: There was a separate order made in relation to the question of expedition and the costs were reserved.
62. MRS JUSTICE DOBBS: Yes. It says 12 August. According to your chronology, the 27 July was the application to file the amended grounds and on 18 August the court made an order that the appellant should pay those costs. So there was then an application on 12 August which was for expedition which you have down here in your draft.
63. MR BRASSINGTON: There are two applications for expedition.
64. MRS JUSTICE DOBBS: You have not made that clear in the chronology. It seems to me that one order for one day is quite enough. That one I will not grant. The chronology is not clear on that as to any event. Given that they were dealing with the related thing, I cannot see that there were any additional costs incurred in relation to that.
65. MR BRASSINGTON: I will not pursue that.
66. MRS JUSTICE DOBBS: 12 August, application for expedition.
67. MR BRASSINGTON: Yes.
68. MRS JUSTICE DOBBS: Then the period from 20 November until just after they rejected the council's offer and made the counter-offer which, on your case, was an unrealistic one, you say, given the decision of the court.
69. MR BRASSINGTON: Yes. It was entirely unrealistic.
70. MRS JUSTICE DOBBS: Mr Gledhill, I have crossed out (a).
71. MRS JUSTICE DOBBS: You have the draft.
72. MR GLEDHILL: Yes.
73. MRS JUSTICE DOBBS: The court has already made an order in relation to the amendments of the original grounds so there is no point my duplicating that. You need to deal with why you should not pay the costs in relation to the application for expedition on which you lost and also from 20 November when your counter-offer was rejected and shown to be unduly optimistic in light of the court's decision today.
74. MR GLEDHILL: In relation to (b), it is reasonable, in my submission, for a practitioner to seek to have an earlier hearing than would otherwise be held.
75. MRS JUSTICE DOBBS: He was not subject to an interim suspension order pending the resolution of this case, was he?
76. MR GLEDHILL: That is correct.
77. MRS JUSTICE DOBBS: Because I can remember reading in the background papers there was a reference to that. Counsel clarified that his strike off was not effective and therefore he was presently at liberty to carry on. Whilst people like things to get on quickly, there are obviously in the court's diary cases that are really pressing. That has to be taken into account.
78. MR GLEDHILL: Perhaps I may move on to (c).
79. MRS JUSTICE DOBBS: Yes, 20 November onwards. But you have lost on that.
80. MR GLEDHILL: In relation to (c) however, it touches on (b) to a degree. As a result of the adverse reporting, the HPC has received additional complaints that are now being examined. The terms of the offer dated 13 November stated, as my friend sets out:

"We are instructed to put forward proposals ..... to consent to an order allowing the appeal, quashing the Conduct and Competence Committee's decision on impairment and sanction on remitting those decisions to the CCC for re-determination."

81. What Mr Howlett's case has been is that it was the earlier issues, depending on how the facts are found by this court, that will have a significant impact on the later stages. We submit it would be unfair therefore, in light of the fact that we had to explore all of the issues, for there to be an order for costs in relation to this offer.
82. MRS JUSTICE DOBBS: The offer that was made by the council is permissible. They have powers to deal with it in that way, and from my experience of these kinds of cases when at the Bar, where at all possible - it is like drawing an indictment - it is preferable to deal with matters together if they are part and parcel of a similar course of conduct. If they were completely different applications you might not do; then again, you might do. So, in principle, what they were offering was not wrong.
83. MR GLEDHILL: But in the light of your robust language, particularly in relation to the evidence of Miss Ledner which comes at the impairment stage, we say we have beaten that offer. We have achieved - on the wording of this court's judgment - a better outcome.
84. MRS JUSTICE DOBBS: Yes, but let us put it this way: if it goes back to the council now what is to stop the council from dealing with all matters together in any event?
85. MR GLEDHILL: We would seek at that stage to raise an abuse of process.
86. MRS JUSTICE DOBBS: Why would it be an abuse of process if Miss P's case appeared and featured as part of the evidence in any event, and so they had been entitled to take that into account as it stands now? The only issue is Mrs B. I can see that you might have rejected their offer in relation to Mrs B but your counter-offer was that the appeal be allowed in whole, on the facts and everything. You have lost on that.
87. MR GLEDHILL: Did we beat the HPC's offer? That is the issue to be determined.
88. MRS JUSTICE DOBBS: It is not the only issue to be determined. One has to look at what your counter-offer was. If you had said, "We accept that but we do not think that they ought to be considered alongside the case of Mrs B for instance," they might have given way but you went all the way and said the whole lot. So you did not beat them in a way.
89. MR GLEDHILL: On the face of the counter-offer it does not deal with other matters in the background. The appellant had lodged a judicial review.
90. MRS JUSTICE DOBBS: Yes, he may well have done, but the fact of the matter is to say that the appeal will be allowed in full on every single aspect, that there be no further reliance on the evidence of Miss X or Mr Y in any matters and in any other proceedings; you cannot get the council to tie their hands to something like that. The outcome of earlier proceedings is very relevant when considering the issue of sanction in relation to cases and to seek to tie council's hands like that would be wrong.
91. MR GLEDHILL: In brief reply, if we leave to one side the consideration of the counter-offer, which was not obviously accepted by the HPC, we say that this costs issue turns on our rejection of their offer to remit back to the court on impairment and sanction.
92. MRS JUSTICE DOBBS: No, it is not. It turns on the fact that you want the appeal allowed completely. That is what it says: the appeal is allowed; the HPC decisions on facts, misconduct, impairment and sanctions are quashed. That is what your counter-offer says.
93. MR GLEDHILL: Yes. I do not seek to quarrel with that. What I draw the court's attention to is it is our submission that we have beaten the offer on which the costs issue should turn here.
94. MRS JUSTICE DOBBS: Why have you beaten it? They were offering to reconsider impairment as well. I have said that the decision was sustainable although it may well be - - I cannot remember the phrase I used, but I indicated that the test was not that another tribunal would have come to a different decision. On the evidence their decision was sustainable but somebody else could have come to a different decision. They were offering you impairment and sanctions, and this court has said go away and reconsider sanctions.
95. MR GLEDHILL: The robust language that this court has used in relation to disposal - - - - -
96. MRS JUSTICE DOBBS: Sanction. Yes, but they offered you impairment and sanction. This court has said go back and consider sanction. So they were offering more than this court has found. (Pause)
97. MR GLEDHILL: My instructing solicitor obviously made the counter-offer on behalf of Mr Howlett. It was - - - - -
98. MRS JUSTICE DOBBS: Then he takes the risks of bearing the costs.
99. MR GLEDHILL: On the instructions of Mr Howlett.
100. MRS JUSTICE DOBBS: You said he did it on Mr Howlett's behalf. Did he do it on instructions or did he do it on behalf of Mr Howlett?
101. MR GLEDHILL: Forgive me. He did it on instructions of Mr Howlett to seek - - because of other matters in the background, we were not aware as to the nature of the evidence that was going to be relied upon. It is for that reason that the counter-offer was made in the terms - - of course, they were privy to conversations between the HPC and my instructing solicitor about those matters so we say there is more to this than appears on the face of these papers.
102. MRS JUSTICE DOBBS: There may have been conversations, but it does not seem to me that there is any conversation about taking a middle course or anything like that. Are there are any letters or any counter-offers that suggest a middle course?
103. MR GLEDHILL: Thank you. I am asked to apply for an order that legal aid costs or costs against legal aid not be enforced without permission of the court.
104. MRS JUSTICE DOBBS: Where are we? This is against the appellant, not the legal aid fund.
105. MR GLEDHILL: The first part of the order is detailed assessment in the usual fashion.
106. MRS JUSTICE DOBBS: The first part of the draft.
107. MR GLEDHILL: I have not seen this before today.
108. MRS JUSTICE DOBBS: That is the respondent paying the appellant's costs. The second is the appellant pay the respondent's costs. I have taken out (a). Application 12 August and from the period of 20 November such costs to be subject to detailed assessment if not agreed and to be set off against costs therefore by the respondent to the appellant. In essence, this will be a balancing accountancy exercise as to what is left.
109. MR GLEDHILL: I am instructed to ask for an order that the costs order against the appellant not be enforced without permission of the court. The appellant is legally aided at this time.
110. MR BRASSINGTON: In relation to the question of whether or not they have out-gunned the HPC with their offer, they clearly have not. We have offered to remit the matter back for re-determination in relation to impairment as well as sanction. They have not achieved that before this court. Your ruling is in relation to sanction only. My friend makes mention of the fact that they were not aware of the evidence that was the basis for the additional cases that are to be proceeded with.
111. MRS JUSTICE DOBBS: It is Mrs B.
112. MR BRASSINGTON: I would observe that there was an interim order based upon the registrant's registration. An interim order hearing has taken place and all of the material was put before the Interim Orders Panel. So I am surprised to hear my friend say they were not aware of the evidence that was available before the HPC or to the HPC. My friend has also said that judicial review proceedings have been lodged; not to the best of my knowledge. My instructing solicitor is aware there has been a letter.
113. MRS JUSTICE DOBBS: I do not know what the judicial review would be upon.
114. MR BRASSINGTON: It is on the abuse point. My friend says they will run before the HPC should this matter be - - - - - Can I briefly mention now - if I need to - that the question before an HPC and any regulatory body is whether the registrant is fit to practise having regard to all the circumstances of their practice, and to suggest that any new case should be looked at in isolation from this is fanciful.
115. MRS JUSTICE DOBBS: I have already made that point.
116. MR BRASSINGTON: Forgive me. I was not sure to what I had to respond.
117. In relation to the suggestion by my friend that there should be no order enforced without the leave of this court, I am told by those who know better than me that that is an old regime that does not apply anymore, that the assisted person's protection arises under Section 11 of the Access to Justice Act and the fact we have offered set-off gives them protection. Mr Howlett will not be required to pay an amount to us. What he owes in terms of costs will be off set against that owed by the HPC. My friend's application is without merit.

RULING

118. MRS JUSTICE DOBBS: This is an application by the respondent council for costs in the terms of a draft order that has been put before the court. The draft reads as follows:

"1 The respondent pay the costs of the appellant from 6 May 2009 to 20 November 2009 though excluding those costs of the appellant's application issued on 19 August, such costs to be subject to detailed assessment if not agreed.

2 The appellant pay the respondent's costs -

(a) of the application issued by the appellant on 27 July 2009;

(b) of the application issued by the appellant on 12 August 2009; and

(c) for the period from 20 November 2009, such costs to be subject to detailed assessment if not agreed to be set off against the costs payable by the respondent to the appellant pursuant to paragraph 1 above.

3 There be a detailed assessment of the appellant's CLS public funding costs."

119. In relation to 2 (a), this application apparently relates to an application issued by the appellant on 27 July for expedition of the hearing. Mr Brassington provided a chronology to the court which indicated on 27 July that the appellant's solicitors made an application for permission to file and serve the amended grounds of appeal. On 18 August the court made an order permitting amended grounds of appeal to be filed and ordered that the respondent's costs incurred consequential on the service of the original grounds of appeal and prior to the date of the appellant's public funding certificate should be paid by the appellant to be the subject of a detailed assessment if not agreed.
120. Mr Brassington tells me now that there was a second application by the appellant on 27 July for expedition. However this does not feature in the chronology and it seems to me it is not appropriate to make a second and separate order for costs in relation to that application, (if such an application was issued) in the light of the fact there has already been an order made in relation to the main application of 27 July.
121. As to (b), that was in the chronology - an application by the appellant's solicitor for expedition of the hearing. It is accepted that Mr Howlett, like any practitioner, wanted his case heard as soon as possible. In the background documentation that this court has read, Mr Howlett made a point that he was unable to practise as a result of his being struck off in this case. The Council responded by indicating that, pending his appeal, the sanction was suspended and therefore he was not prevented by virtue of the decision in this case from practising. It transpires in fact, that his being prevented from practising was in relation to an interim order in the case of a Mrs B, this case not being before the hearing in the tribunal below, nor indeed in the knowledge of this court when considering the appeal. It is quite clear therefore that there was no pressing need for this case to be disposed in the light of the very heavy case load that this court has to deal with and cases which have precedence. The application was rejected by the court at the time and it seems to me that (b) reflects the appropriate situation.
122. The outstanding application is for the respondent's costs from 20 November 2009. That related to a time when there was a rejection of an offer made by the Respondent. On 13 November - once the court had ordered that the appeal be listed for 7 and 8 December - the respondent made an offer to the appellant that that appeal should be allowed to the extent of quashing the committee's decision on impairment and sanctions and remitting those decisions to the council, the Conduct and Competence Committee, for redetermination along with the case of Miss T and Mrs B if there were found to be a case to answer in respect of these cases.
123. On 20 November this was rejected and a counter-offer was made by the appellant. The terms were that the appeal be allowed, that the decisions on facts, misconduct, impairment and sanctions are quashed, that there be no further reliance on the evidence of Miss X or Miss Y in any matters before the committee or other proceedings and that the respondent to pay the appellant's costs to be subject to detailed assessment and there be detailed assessment of the appellant's public funding.
124. I am told that there was communication behind closed doors, so to speak, in relation to the new matter that arose as a result of the adverse publicity that Mr Howlett faced in relation to the finding in this case with the case of Mrs B coming into being and the interim order made by the council.
125. It is also suggested that judicial review proceedings may have been considered - it is not quite clear on what basis - in relation to an abuse of process.
126. The one thing that has to be said about the counter-offer is that it is totally unrealistic. It requires a complete overturn of the appeal on all aspects of the appeal. And moreover it requires that the Council tie its hands by placing no further reliance on the evidence of Miss X or Mr Y in any future proceedings. As anyone knows, working in this regulatory framework where the protection of the public is paramount, it is important when considering whether a practitioner is fit to practise, that all circumstances are taken into account. To suggest that the Council tie its hands by not seeking to put before the Conduct and Competence Committee relevant information was totally unrealistic. Mr Howlett was aware of the material in relation to the other case because an interim order has been made in that case, and because the appellant although he has won on one aspect - the aspect of sanction - he was in fact offered impairment and sanction by the council.
127. It seems to me that it is appropriate that he pay the costs of the period from 20 November onwards. Mr Gledhill had asked that the court make an order that it not be enforced without leave of the court. That - Mr Brassington says - is the old regime. The effect of the order is that there will be an accountancy exercise carried out and that the costs the respondent is due to pay the appellant will be set off against those owed by the appellant, and that gives the appellant sufficient protection.
128. So the order will read as follows: (1) the respondent pay the costs of the appellant from 6 May 2009 to 20 November 2009 (excluding those costs of the appellant's application issued on 19 August 2009), such costs to be subject to detailed assessment if not agreed; (2) the appellant pay the respondent's costs (a) of the application issued by the appellant on 12 August 2009 and (b) for the period from 20 November 2009, such costs to be subject to detailed assessment if not agreed and to be set off against the costs payable by the respondent to the appellant pursuant to paragraph 1 above; (3) there be detailed assessment of the appellant's public funding costs.