The Professional Standards Authority v (1) The Health and Care Professionals Council and (2) Doree [2015] EWHC 822 (Admin)

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The Facts

The charges are set out below in their entirety as it is necessary to show the severity of the bulling and the sexual harassment:

Matter 1

1. Drove your car at colleague.
2. The matters set out in paragraph 1 amounts to misconduct.
3. By reason of our misconduct your fitness to practice is impaired.

Matter 2

Whilst registered as a Prosthetist/Orthotist, between 2009 to 2011:

1. You bullied Colleague A in that you:

(a) drove in an intimidating manner towards Colleague A, on a number of occasions, while he was cycling;
(b) repeatedly stared and/or glared at colleague A;
(c) repeatedly stood close to Colleague A which made him uncomfortable;
(d) called Colleague A various inappropriate names in front of colleagues and/or public
(e) continued to call Colleague A names even though he had expressed to you that that made him uncomfortable;
(f) publicly asked Colleague A if his "arse was sore from steve";
(g) publicly made chicken noises and/or played chicken noises from a mobile phone application at Colleague A; (emphasis added)
(h) said to Colleague A, "You're a fucking cock sucker and would suck anyone's cock to get on that course"
(i) told Colleague A you had obtained a picture of his wife from a social network website and that you would be keeping that picture in your "wank bank" or words to that effect.

2. You demonstrated inappropriate sexual behaviour towards Physiotherapist B in that you:

(a) Said to Physiotherapist B: "My wife's called (removed) and she's a dirty slut, you're called "(removed)" , are you a dirty slut?" or words to that effect;
(b) Ran over to Physiotherapist B whilst she was checking a treadmill, unzipped your trousers, lay on your back on the floor and said, "get on that and ride that baby" or words to that effect, whilst thrusting your pelvis upwards as if simulating sexual intercourse;
(c) On one occasion, opened your legs and pointed at your crotch and said to Physiotherapist B to "suck on that" or words to that effect;
(d) On another occasion, you pointed at your crotch and said to Physiotherapist B to "sit on that" or words to that effect;
(e) Whenever Physiotherapist B yawned or opened to say something, you would say "Do you want something to fill that mouth" or words to that effect;
(f) Continued your actions in 2(e) even though Physiotherapist B told you to stop;
(g) Unzipped your trousers, pushed Physiotherapist B's head into your crotch and thrust your pelvis towards Physiotherapist B as if simulating oral sex, on at least 3 occasions;
(h) Frequently entered the therapy office when Physiotherapist B was alone and massage her shoulders, grab her ponytail and start twirling it around your finger;
(i) On one occasion, in front of office administration staff, you came behind Physiotherapist B while she was bent down and gestured behind her in a sexual manner as if simulating sexual intercourse;
(j) Took a picture of physiotherapist B who was acting as a model in a hoist sling demonstration and had her legs apart in the hoist sling;
(k) Mentioned on at least 4 occasions to Physiotherapist B that when you ejaculate, you have blood in tour seminal fluid;
(l) Discussed your daughter's 18th birthday party with Physiotherapist B and another colleague where you commented how pretty and good looking all the girls were and how they were only 17 and 18 and gestured with your hands, mimicking as if you were holding a pair of breasts.

3. Your actions in paragraphs 1i, 2a to 2l were sexually motivated.

4. The matters described in paragraphs 1a to 1i, 2a to 2l and 3 constitute misconduct.

5. By reason of that misconduct your fitness to practice is impaired.

Grounds of Appeal

The Authority's grounds of appeal were as follows:

(i) The first Respondent drafted allegations 1 (f), 2(h) and 2 (j) in a manner which was not supported by the evidence and so they were found not proven. Alternatively, the Council should have applied to amend these allegations or the CC should have made the amendments on its own initiative.

(ii) The sanction was perverse and manifestly inappropriate. In reaching its decision, the CCC had failed to have proper regard to the relevant factors, gave disproportionate weight to factors of limited relevance, and erred in its application of the 'Indicative Sanctions Policy':

(iii) The Conduct and Competence Committee failed to provide adequate reasons for its decision.

Judgment

Contrary to the Authority's submissions, Lang J found that the Panel in this case had "grappled carefully and conscientiously" with the issues and arrived at a decision that was perfectly open to them.

She rejected, one by one, the Authority's contention that the HCPC had drafted allegations 1(f), 2(h) and 2 (j) in a manner which was not supported by the evidence, and resulted in their failure. This rejection came despite Counsel for the HCPC conceding on this issue. Lang J noted that such concession was made "in haste, without sufficient analysis". She then set out the relevant evidence that was before the HCPC when the charges were being drafted and it was clear that each charge was supported by evidence. In each case she noted "In all the circumstances, the Council had to make an exercise of judgment, as prosecutor, without being able to predict how precisely the oral evidence would develop at the hearing, or the view the panel would take of it. The Authority has the benefit of hindsight, reading the transcript of the concluded hearing, and ought to recognise that the prosecutor is not in such a favourable position" (para. 25).

The Authority had contended that the mischief of the poorly drafted allegations could be dealt with by either the CCC amending the working of its own initiative, or inviting the HCPC to apply to amend it (or that the HCPC should have done so even without any invitation). Lang J was even more unimpressed with this contention, and stated "In my view, amending the charge retrospectively after the evidence had been heard and considered, in order to secure a guilty finding, would have been a gross breach of fair hearing procedure" (para 28).

In respect of the sanction, the Authority submitted that it was "perverse" because instead of a caution being imposed, the (i) seriousness of the allegations; (ii) prolonged nature; (iii) lack of insight; and (iv) risk of repetition, necessitated a harsher sanction of either suspension or erasure. Lang J rejected this, and highlighted the autonomy of Practice Committees and the noted the following:

(a) There is a need to have regard to the principle of proportionality as per the ISP;
(b) The Registrant's unblemished and lengthy record prior to the incident/allegations, and after his dismissal. His post incident work was described as "exemplary" and he had even been promoted by his new employer;
(c) Lang J had had special regard to the context in which the Registrant's misconduct took place "… it is relevant to note that Mr Doree's behaviour towards his female colleague occurred in the context of a workplace culture of teasing and banter, sometime sexual, which in his case, crossed the line into unacceptable harassment. Mr McMeechan, the manager, said that staff who had been there a long time had a "Carry on film sense of humour" (para.55);
(d) Dismissing the Authority's reliance on the Registrant's denial of guilt during the criminal proceedings. She stated "In my view, the Authority may be taking too simplistic a view of Mr Doree's state of mind. Experience show that there are multiple reasons why people deny their guilt" (para.58);
(e) Lang J highlighted the need to have regard to the impact on the Registrant "Mr Laverick's description of the effect of the tribunal process upon him is credible" (para.58);
(f) Crucially she concluded "I cannot accept the Authority's submission that the CCC disregarded the ISP. It seems much more likely that, after considering the ISP and seeking to apply it to the instant case, it concluded that a Caution Order was the only suitable sanction. Even though Mr Doree's case did not fit precisely within the guidance at para.19" (para.66);
(g) Within the same paragraph, Lang J reminds herself that guidance is just guidance, and cites para. 2 of the ISP which states "This policy is only guidance and Panels must apply it as such".
(h) She also remained herself of authorities such as Raschid v General Medical Council [2007] 1 WLR 1460 where Laws LJ stated at para. 19 that "special respect" must be given to the professional decision making Panel;
(i) She also deals with "leniency" and notes "Under section 29 [of the National Health Service Reform and Health Care Professions Act 2002], it is not enough for the Authority to show that the sanction was lenient – leniency may well be appropriate in the circumstances of the case. The sanction must be shown to be unduly lenient. In my judgment, the sanction imposed by the CCC was not unduly lenient, applying the guidance in Ruscillo. The CCC reached a reasonable decision, having regard to the evidence, the objectives of disciplinary proceedings, and the sanctions available to it" (para.68).

Having dismissed the Authority's "sanction ground", Lang J moved onto the final ground of appeal, namely that the Panel had not provided adequate reasons for their decision. In addressing this ground, She referred to the case of Council for the Regulation of Health Care Professionals v General Dental Council & Marshall [2006] EWHC 1870 (Admin), where a failure to provide adequate reasons was found to be a "serious irregularity" necessitating the matter to be remitted for reconsideration. However Lang J concluded "… in this case, I do not find the reasons to be inadequate" (para.71) and that Regulatory Panels, by their very nature are "… not expected to give reasons to the same standard as a court". Thus this final ground was also rejected.

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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