Wisson v HPC (2013)

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Mr Wisson, a podiatrist was accused of acting inappropriately towards a female colleague in April 2009 as he discussed matters of a sexual nature with her and showed her a pornographic video on his mobile telephone.

Separately, a patient alleged that Mr Wisson acted inappropriately in August 2009, as he asked her to attend his place of work after hours, asked her to undress and massaged her legs in a sexually motivated manner.

The Health Professions Council’s Conduct and Competence Committee heard the allegations of misconduct together in January 2012 and upheld the facts of both allegations. The panel considered that Mr Wisson’s fitness to practise was currently impaired and Mr Wisson was struck off the register.

Mr Wisson appealed the decision on two grounds; that the panel should not have exercised discretion to hear both allegations together and that the committee received inaccurate advice from the legal assessor in relation to how good character evidence could be considered, which was disadvantageous to him.

The High Court’s decision

The High Court dismissed both grounds of appeal.

The High Court decided that it was appropriate for the Conduct and Competence Committee to exercise their discretion afforded by Rule 5 (4) (a) of the Health Professions Council (Conduct and Competence Committee) (procedure) Rules Order of Council 2003. Rule 5 (4) (a) states "The committee may consider and determine together – (a) two or more allegations against the same health professional". In this case, there were a number of common factors including the sexual nature of the allegations which made it appropriate for the Committee to hear the allegations together.

The High Court acknowledged that the legal assessor provided questionable advice to the panel about good character evidence, having relied on content of the Health Professions Council’s practice note published in March 2011 about character evidence.  The High Court acknowledged that the guidance, and subsequently the legal assessor’s advice failed to make the point that good character evidence could be material when considering impairment. The guidance assumed that good character evidence is a form of mitigation, and is therefore only relevant to the panel when considering sanction.

The High Court considered that it was clear that the panel had dealt with Mr Wisson’s good character evidence appropriately, regardless of the advice provided by the legal assessor. The High Court considered the panel’s judgment and was satisfied that the good character evidence presented had been considered appropriately in relation to impairment as well as sanction. The panel’s summary about the decision reached on impairment clearly refers to the twenty character references presented from patients and colleagues.  After listing the names of all personal references, the panel clarified; "The panel has taken this evidence into account and also had regard to the fact that the allegations relate to events which occurred in 2009".  The High Court considered R (on the application ofCampbell) v General Medical Council  [2005] EWCA Civ 250. In Mr Wisson’s case, whilst the legal assessor’s advice could be criticised, there was no evidence that this was of sufficient significance to invalidate the panel’s decision and his appeal was dismissed.