R (on the application of Lovett) v Health and Care Professions Council [2016] - Judgment not yet released

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In an usual case, the Claimant registrant, Mr Lovett brought judicial review proceedings against the Health and Care Professions Council (HCPC) regarding the decision made to proceed with a conduct and competency hearing in his absence. 

The Claimant was a clinical psychologist and it was alleged that via services he had provided to three of his siblings, he had submitted false invoices and acted outside of his scope of practice.  A disciplinary hearing was scheduled before the conduct and competency committee of the HCPC in November 2013.  During the proceedings the Claimant became unwell (due to a pre-existing medical condition) and he collapsed following cross-examination.  The hearing was adjourned.  It later followed that the resumed hearing was adjourned four times to allow the Claimant sufficient recovery time. 

In March 2016, the Committee considered medical evidence which stated that the Claimant was suffering from mild, yet significant, cognitive impairment.  The Claimant had capacity to deal with the fitness to practise proceedings outside of the hearing environment, but not during the hearing.  The expert suggested that the Claimant gave evidence via video link, the HCPC made submissions for an indefinite adjournment and the Claimant made submissions for the entire proceedings to be dismissed.

The Committee performed a balancing act looking at the public interest against the right of the Claimant to a fair hearing. It concluded that as the majority of the Claimant's evidence had already been delivered, the hearing could resume with the Claimant giving evidence via video link and/or submission of a written statement produced alongside his legal representatives.  The Committee believed that to indefinitely adjourn would pose a risk to public safety, however, in the interests of fairness they permanently stayed the fraud allegations.

The Claimant's judicial review was brought under three grounds:

  1. That the Defendant was obliged under r.23(3) of the Health and Social Work Professions Order 2002 to conduct disciplinary proceedings expeditiously and therefore the outcome of the Committee's decision was unfair. 
  2. The Claimant's right to a fair trial under ECHR art.6 had been breached.
  3. The decision to proceed with the resumed hearing was unfair as the Claimant had not had the opportunity to make submissions about the proposal to continue.

The application was refused (Cheema-Grubb J). 

The Court determined that the amount of time which had passed since the original hearing, with regard to the overall chronology, did not breach the 'reasonable time' requirement. The Committee had been ready to resume on a number of occasions and was adept at dealing with delays such as this.  

Regard was given to the principles of Adeogba v General Medical Council [2016] EWCA Civ 162 (although of limited application in this case), and R v Jones [2001] EWCA Crim 168 provided the starting point for considering the law on proceeding in absence. This particular case was slightly unusual as the Claimant had not absented himself voluntarily, nor was he prevented from playing any part in the resumed proceedings.  The Court concluded that the Committee had struck a proper and reasonable balance between the interests of the public and the Claimant and therefore there was no breach of ECHR art.6.

The Court did not believe that any unfairness had been caused by the Committee by not specifically laying out it proposals for proceeding with the adjourned hearing and welcoming submissions on this.  The Judge said that the proposal was a clear and an obvious option that both parties should have considered ahead of the decision.

Judgment to follow.