Blake Morgan PRT Commentary on the PSA v (1) HCPC and (2) Doree Judgment

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"Leniency is not in itself a vice" is a comment that perfectly sums up this case, and can indeed be found within the body of Lang J's judgment.

In this case a Registrant (Prosthetist) had been referred to the Conduct and Competence Committee (CCC) of the Health and Care Professionals Council (HCPC). The allegations consisted of very serious bullying and sexual harassment against two colleagues (so serious in fact that they were also subject to criminal proceedings). The CCC had found most of the allegations proved, and concluded that such matters amounted to misconduct and current impairment. Despite the aforementioned severity of the bullying/sexual harassment, they imposed a Caution Order for a period of 5 years. This sanction was imposed despite the CCC's findings that the Registrant has showed "limited insight" and that the conduct was not "isolated or of a minor nature" [contrary to what is set out in the Indicative Sanction Policy's section on "Caution Order"].

This triggered an appeal by the Professional Standards Authority on the grounds that there had been (i) poor drafting of the allegations by the HCPC; (ii) failure to apply to amend allegations; (iii) "perverse" sanction; and (iv) inadequately reasoned determination.

Lang J was not impressed by the Authority's grounds and the appeal was dismissed. Instead Lang J provides a robust judgment ultimately defending a Practice Committee's right to be lenient when it sees fit. The judgment even highlights passages from other authorities, including "Mercy should season justice" [Attorney General's Reference (No. 4 of 1989) (1990) 90 Cr App. R. 266]. Lang J explains that leniency should not be confused with undue leniency, the latter being wrong and the former being perfectly acceptable.

The learned judge also reiterates that documents such as the HCPC's Indicative Sanction Policy are just guidance, and the Committee is able to depart from it, again when it sees fit to do so.
Thus it is anticipated that this case will be regularly cited by Registrants and their representatives before Conduct Committees.

The Professional Standards Authority has applied for permission from the Court of Appeal to appeal the decision of the High Court.  Further information can be found on the PSA website by clicking here.

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