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
		5 March 2013

1. MR JUSTICE SALES:
2. This is an appeal against an order dated 19 July 2012 of the Conduct and Competence Committee Panel of the Health Professions Council ("the Panel"), in respect of the appellant's fitness to practise as a physiotherapist. The Panel found the appellant guilty of various acts of dishonesty and as a consequence it concluded that his fitness to practise was impaired in a substantial way and that the appropriate sanction should be that the appellant be struck off the register of physiotherapists. The appellant appeals. He maintains that he did not act dishonestly and that the decision of the Panel should be set aside as being "wrong", within the meaning of that term as used in CPR Part 52.11(3)(a).
3. The decision and order of the Panel now appealed against were made pursuant to Article 29 of the Health and Care Professions Order 2001. The appellant's appeal is brought under Article 38 of that order. The appeal lies to the High Court. CPR Part 52.11 governs the approach to be adopted. It provides:

"Hearing of appeals

52.11

(1) Every appeal will be limited to a review of the decision of the lower court unless –

(a) a practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2) Unless it orders otherwise, the appeal court will not receive –

(a) oral evidence; or

(b) evidence which was not before the lower court.

(3) The appeal court will allow an appeal where the decision of the lower court was -

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission."

The question for me is whether the appeal should be allowed because the decision of the Panel was wrong or unjust in the relevant sense.

4. The guiding principles for a court considering an appeal of this nature were recently summarised by reference to previous authority by Lindblom J in Rice v Health Professions Council [2011] EWHC 1649 (Admin) at paragraphs [11] to [17]. Generally, the High Court, sitting in appeal from a decision of a body such as the Panel, will be slow to conclude that a decision of the panel was "wrong" in the requisite sense. That is particularly the case where the panel has to exercise a judgment based on its professional expertise or where it has heard live evidence on some disputed matter of fact.
5. In the present case, however, the key findings of the Panel in relation to dishonesty by the appellant in relation to various aspects of his employment as a physiotherapist were not based upon specialist judgment, nor were they based upon resolving disputes of evidence on the basis of hearing live evidence from witnesses going into disputed matters of fact. The witnesses heard by the panel were investigators for South Warwickshire NHS Foundation Trust, Julia Dillon and Richard Loydall, who presented a range of documentary material (including signed witness statements from others) which they had compiled as a result of their investigations into allegations of fraudulent conduct on the part of the appellant. They also put before the panel a transcript of an interview which had been conducted by them with the appellant on 25 February 2011, at which the various matters of concern had been put to the appellant and his answers had been recorded.
6. The appellant chose not to attend the hearing before the Panel and the Panel was therefore deprived of being able to listen to his explanations in person and to assess his credibility as a witness in that way. Instead, the appellant put in written representations in relation to each of the charges against him for consideration by the Panel.
7. Notwithstanding that the critical findings of fact by the Panel were based on documentary materials in this way, rather than on live evidence, I consider that the proper approach for this court is nonetheless to accord significant respect to the judgments arrived at by the Panel after full consideration of all the materials before them. This court should not lightly intervene in order to set aside the carefully considered judgment of a body such as the Panel, even in relation to decisions and findings of fact of the character in issue on this appeal made on the basis of evidential material of the kind I have described.
8. The Panel found that seven charges against the appellant of misconduct by him had been made out. The charges were contained in a letter from the Health Professions Council to the appellant dated 21 February 2012, as follows:

"During the course of your practice as a physiotherapist, you:

1. Made false statements that you worked in the Sportwise Clinic at Brighton University between November/December 2006 to November 2007 whilst applying for posts as a physiotherapist at Warwickshire Primary Care Trust and Worcestershire Primary Care Trust.

2. Created and sent false employment history forms to Warwickshire PCT whilst applying for post as a physiotherapist at Warwickshire Primary Care Trust.

3. Forged signatures of your former academic supervisors at Brighton University, Peter Watts and Professor Ann More whilst applying for a post as a physiotherapist at Warwickshire Primary Care Trust ...

5. Made a false declaration to Lagos University that you were ill whilst working in Wolverhampton.

6. Deceived ATOS into giving you compassionate leave in May 2010 when you were working elsewhere in the UK on the same dates.

7. Gained a salary from ATOS for May 2010 whilst working elsewhere.

8. Your actions at paragraphs 1 to 7 were dishonest."

In relation to the first of these charges, the Panel had before it a range of materials. It had the application form completed by the appellant for employment with Worcestershire PCT. In that form, in the section listing the appellant's previous employers (in a section distinct from information about his educational qualifications and training courses), the appellant listed as one of his employers "University of Brighton Sportswise Clinic", gave as his job title "Senior Physiotherapist" and gave, as reason for leaving, "end of contract". However, in his written representations, the appellant acknowledged that his involvement with the Sportswise Clinic was in the course of collecting data for his PhD study at the University of Brighton rather than employment.

The Panel also had before it various materials in relation to the appellant's application for employment with Warwickshire NHS Trust. These included certain documents, the authorship of which was in dispute, including what purported to be an employment history form completed by Peter Watts in relation to employment of the appellant at the Sportswise Clinic of the University of Brighton. In his written representations, the appellant acknowledged that he had included reference to his Sportswise work experience as part of the details of previous employment given in his job application to Warwickshire, as well as in his application to Worcester PCT.

9. The Panel's findings in relation to this charge were as follows:

"28. Particular 1:

The main evidence for this particular is within the documentary exhibits relied on by the HPC. The Registrant submitted a job application to Worcestershire PCT. Included within the employment history was reference to his employment as a senior physiotherapist at the University of Brighton Sportswise Clinic. He also set out his duties and responsibilities and gave as his reason for leaving 'end of contract'. The Registrant's response to the allegation, and in his interview with JD and RL, was that he was doing a clinical study of spinal stabilisation and spinal pain at Sports Wise and that this was not paid employment. Email correspondence between BJ, office/finance manager, at Sports Wise and JD and RL made it clear that the Registrant has never worked at Sports Wise in any capacity. Accordingly, the Panel finds that the Registrant made a false statement in relation to the work at Sportswise Clinic.

29. In his original job application to Warwickshire NHS Trust, there is no reference to Sportswise. The accompanying CV for that application has not been produced by the HPC. Accordingly the Panel does not have direct evidence as to the statement made to this prospective employer. However the surrounding circumstances are such that the Panel is satisfied on the balance of probabilities that the Registrant referred to the work at Sportswise as part of his employment history. The surrounding circumstances are the conclusions in respect of particular 2 which make it clear that there would be no need at all for a false employment history to be created if there was no mention of Sportswise in the first instance. Further, the clarification emails from Warwickshire asking for gaps to be filled make it clear that there was a request for detail about this work. On the balance of probabilities the Panel are satisfied that this particular is proved."

10. In my view, on the basis of the documentary material which the Panel had before it, it was fully entitled to make the findings which it did in relation to the first charge. Its decision that the first charge had been made out against the appellant is a decision which is a good distance away from being one that I could properly describe as being "wrong" for the purposes of CPR Part 52.11.
11. In relation to charge 2, the Panel had before it a set of what purported to be completed forms from a range of persons dealing with various aspects of the appellant's employment history sent to Warwickshire NHS Trust. These included, along with four other employment history forms, a form relating to employment with Wolverhampton PCT, purportedly signed by Anne Moore, and a form relating to employment with the Sportswise Clinic at the University of Brighton, purportedly signed by Peter Watts. The Panel had before it witness statements from Peter Watts and Anne Moore, confirming that they had never completed nor signed any employment history forms in relation to the appellant.
12. The appellant's case, as set out in his written representations, was that he had not completed nor procured nor sent the false employment history forms which had been received by Warwickshire NHS Trust. In particular, he emphasized, as indeed was confirmed by Anne Moore in particular in her witness statement, that he had no need to forge documentation in support of his application for employment. As Anne Moore had said in her witness statement, the appellant was a brilliant student: "I find all of this very bizarre. If he had asked us for a reference we would have given him one."
13. The submission of Mr Dipré for the appellant before me today was, first, that the appellant plainly had no motive to produce falsified employment history documentation, so the Panel should have concluded that the false documents had nothing to do with him, and secondly, that if the Panel wished to consider making a finding that the appellant had himself produced these false documents it was incumbent on them to have sought out expert handwriting evidence in relation to the signatures on the employment history forms which were submitted before it could properly make such a finding.
14. The findings of the panel in relation to charges 2 and 3 can usefully be set out together. They were as follows:

"30. Particular 2:

TR [Tara Ryan], a Recruitment Assistant for South Warwickshire NHS Foundation Trust, on 23 November 2010 sent an email to the Registrant requiring further clarification of parts of his application form. On 25 November 2010, six false employment history forms were faxed to TR within a one hour time frame. The forms were purportedly sent and signed by people from across the United Kingdom and Lagos, Nigeria, including PW and AM from the University of Brighton. In written statements, submitted by the HPC, AM [Anne Moore] and PW [Peter Watts] stated that they did not create or submit those forms which allegedly came from them. Three of the forms were faxed from the same Coventry phone number, which was in premises in the street where the Registrant lived. The Registrant denied creating and/or sending those documents and in his interview with JD and RL, he indicated that this was the first time that he had seen those documents. The only person who would benefit from the submission of the documents was the Registrant. The Panel finds that it is unlikely that anyone else would fax unsolicited forms in support of his job application. The Panel does not accept the Registrant's explanation. On the balance of probabilities, the Panel finds this particular proved.

31. Particular 3:

There is written evidence from PW and AM that they did not sign and submit the employment history forms. Both indicated that they would have given him a reference if he had asked for one. The Panel accepts that it does not have hand writing expertise, but the signatures of PW and AM on the relevant forms do not resemble the signatures on their witness statements in any way. The Registrant denied that he forged the signatures. There was no need for the Registrant to forge the signatures because PW and AM would have given him references but there is no evidence to suggest that the Registrant asked them to do so. It is apparent that the only person who would benefit from these forms was the Registrant. It is highly unlikely that anyone else would have the relevant information to complete the forms. Therefore the Panel finds this particular proved."

In my judgment, again, in relation to both charge 2 and charge 3, the decision of the Panel was justified on the evidence available to it. Again, I cannot conclude that their decision on either of these charges was "wrong", for the purposes of CPR Part 52.11. There was a legitimate and proper basis for the Panel to conclude in each case that it was indeed the appellant who had compiled the false employment history forms and had sent them in. Quite apart from anything else, it is very difficult indeed to see who else would have done such a thing. In this regard the case has a bizarre and indeed tragic aspect since, in certain respects at least, it seems that the appellant would not have needed to have forged any such documents and could have approached previous supervisors and employers in a straightforward away in order to obtain the relevant reference forms. However, what concerned the Panel was that, in their judgment, the appellant had himself forged the relevant forms and sent them in knowing them to be false. In my judgment, on the basis of the materials that the Panel had before it, its decisions in relation to both charge 2 and charge 3 cannot be impugned.

15. In relation to charge 5, the Panel had before it a letter from Lagos University explaining that, in the relevant period, the appellant had sought leave from his employment in the Department of Physiotherapy at the University upon grounds of his ill-health. The Panel also had before it the account given by the appellant in his interview with Mr Loydall and Ms Dillon, explaining how his illness disabled him from working for Lagos University. The Panel also had evidence, however, that during the period when he had told Lagos University that he was ill and unable to work, he had in fact been working as a physiotherapist in the United Kingdom on a full-time basis.
16. The decision of the Panel on charge 5 was as follows:

"33. Particular 5:

On 17 December 2010, a letter was sent to NHS Warwickshire from the University of Lagos. That letter stated that in November 2008 they had stopped the Registrant's salary because he was absent from the University without leave. The letter also stated that on 2 December 2010, the Registrant's wife had written to them informing them that her husband had had a stroke and needed to recuperate abroad. On 16 December 2010, the Registrant submitted his resignation to the University, on medical grounds. There is evidence in the form of invoices and time sheets from Alexander Leigh Consulting Ltd to show that the Registrant worked for them from 30 November 2008 to 31 May 2009 on a full time basis. The Panel finds that whatever the nature of his illness, it did not prevent him from working in the United Kingdom, so it should not have prevented him from working in Lagos. Therefore the Panel finds that the facts of particular 5 are proved."

Again, in my judgment, the decision of the Panel on this charge cannot be impugned as "wrong" for the purposes of CPR Part 52.11. The Panel had a range of documentary evidence before it which could legitimately justify it in making the finding that it did.

17. So far as concerns charges 6 and 7, the position was that the appellant, whilst working as a physiotherapist for ATOS, had asked for compassionate leave in relation to the death of his mother in May 2010. He was granted compassionate leave between 5 and 24 May 2010 by ATOS, but the Panel also had before it evidence that in that period he had worked for another organisation, RIG. He had been paid by ATOS for the same period and had therefore been paid by both ATOS and RIG in the period in question.
18. According to the written representations by the appellant, he had agreed with his manager at ATOS that, as events transpired, he did not need to travel to Lagos for his mother's funeral, but would continue to take the leave granted to him, but to be deducted from his annual leave entitlements. Thus, in substance, his case was that compassionate leave was converted into an ordinary annual leave. However, the investigators for the Warwickshire NHS Trust obtained information from ATOS which was also before the Panel, in which ATOS said this:

"Upon approaching his probation review meeting [the appellant] requested leave to deal with the death of his mother between 5 May 2010 with an expected return date of 24 May 2010. He did not however return to work and breached the reporting procedures. Therefore he was dismissed from our employment on 9 July 2010, following company policies and procedures."

The account given by the appellant in his written representations was therefore in conflict with the account given by ATOS itself of what had happened.

The decisions of the Panel on these charges were set out at paragraph 34 of the decision as follows:

"34. Particulars 6 and 7:

The Registrant had worked for Atos Healthcare between December 2009 and July 2010. He requested and was granted compassionate leave between 5 and 24 May 2010. The reason for the leave was the death of his mother and the intention that he was going back to Nigeria for the funeral. In fact, he did not go back to Nigeria but instead sought and gained work with another organisation, RIG, for that period. This is supported by invoices and time sheets. The Registrant admitted that he did not go back to Nigeria and admitted that he sought locum work because he needed money for his mother's grave. The Registrant said he told Atos what he did and that Atos agreed to deduct the money he was paid by them from his annual leave entitlement. There is evidence from Atos that they paid him for the period 5-24 May 2010. There is also evidence that RIG paid him for the same period. The Panel does not accept the Registrant's explanation and found no evidence that the leave had been converted, as the Registrant suggested. The Panel finds the facts proved."

19. In my judgment, this again is a charge which it is not possible for me to impugn as "wrong" for the purposes of CPR Part 52.11. The issue of what the appellant had told ATOS, and the basis on which he had sought leave from ATOS, had been carefully investigated by the investigators for the Warwickshire NHS Trust and they had put before the Panel the material which could legitimately justify it in arriving at the conclusion that it did. In my judgment, therefore, the appeal in relation to charges 6 and 7 also fails.
20. Finally, in relation to charge 8, which was a compendious charge alleging that there had been dishonesty by the appellant in the making of the various false representations referred to at various stages relating to his employment as a physiotherapist, the Panel said this in its decision:

"35. Particular 8:

To make false statements to obtain employment, to create and send false employment history forms and to forge signatures of colleagues on the said forms in support of the application would be considered dishonest by the standards of normal, reasonable people. Further the Registrant himself would be aware that his actions were dishonest by those standards.

36. The making of a false declaration to an employer to enable work to be undertaken for another employer would be considered dishonest by the standards of normal, reasonable people. Furthermore the Registrant himself would again be aware that his actions were dishonest by those standards.

37. To deceive an employer into giving compassionate leave and then to work elsewhere and be paid by both employers would be perceived as being dishonest by the standards of normal, reasonable people and the Registrant himself would again be aware that these actions were dishonest as it relies on the deceit. The Panel finds this particular proved."

21. In my view, on the basis of the findings made by the Panel in relation to charges 1 to 3 and 5 to 7, the Panel was again properly entitled to reach the conclusion that it did in relation to charge 8. I do not accept the submission of Mr Dipré that, before arriving at the conclusion that the appellant had deliberately falsified the employment history forms (including those from Peter Watts and from Anne Moore), it was incumbent upon the Panel to obtain expert handwriting evidence. It was clear without reference to such evidence that the relevant forms, in particular those which purported to have been completed by Peter Watts and Anne Moore, had been forged and that the signatures on them were not their own. It was properly open to Panel to conclude that the only person with any interest in, or indeed knowledge about, the application that he was making for employment with Warwickshire was the appellant and to conclude from that, on the balance of probabilities, that it was indeed the appellant who had forged and then submitted those forms in support of his application for employment. In my judgment, therefore, the appeal in relation to charge 8 also falls to be dismissed.
22. So far as concerns the other parts of the Panel's decision, Mr Dipré realistically accepts that if the appellant's appeal in relation to the findings by the Panel in relation to charges 1 to 3 and 5 to 8 is unsuccessful, then it was properly open to the Panel to conclude that the appellant's fitness to practise as a physiotherapist had been seriously impaired by reason of his repeated dishonesty in relation to his employment as a physiotherapist and was properly entitled to conclude that the sanction to be imposed should be the sanction of striking-off the register. I have reviewed with care the decision of the Panel in relation to those matters and confirm my view that there is no part of that aspect of the decision by the Panel that could be impugned as "wrong" for the purposes of CPR Part 52.11.
23. Therefore, for the reasons I have given, this appeal is dismissed.
24. [There was then a discussion about and ruling on costs]