PSA v HCPC & Doree  EWCA Civ 319
In this case, the PSA appealed the decision of the High Court in respect of the HCPC's imposition of a five year caution order on a registered prosthetist who was found to have bullied one colleague and sexually harassed another. It is of significance in respect of the approach that panel should take towards their use of the regulator's Indicative Sanctions Guidance (or equivalent), the significance of a registrant not giving oral evidence at the misconduct/impairment/sanction stage of proceedings, and factors which may be relevant to very late applications to amend charges.
In March 2015 the PSA appealed under section 29 of the NHS Reform and Health Care Professions Act 2002 against the HCPC’s decision to impose a five year caution order in respect of a registered prosthetist, Mr Doree, who was found to have bullied one colleague and sexually harassed another.
- The Authority has the benefit of hindsight and ought to recognise that the prosecutor is not in such a favourable position.
- The Council, as prosecutor, had to make an exercise of judgment, without being able to predict precisely how the oral evidence would develop at the hearing, or what view the panel would take of it.
- " The CCC was not required to set out every point, and in fairness, its Decision ought to be read as a whole. The CCC was not required to itemise each objective of the regulatory process, and set out how each objective was met. It was entitled to give its reasons in the round. The reasons were lengthy and detailed. I found them intelligible and sufficient to enable the parties to know why they won or lost, and for the Authority to consider whether the sanction was too lenient."
The PSA sought leave to appeal to the Court of Appeal, which was granted.
The issues before the Court were as follows:
(1) Was the judge wrong to reject the Authority’s submission that the Panel should either have adhered to the Council’s Indicative Sanctions Policy or given good reasons for departing from it?
(2) Was the judge wrong to uphold the approach taken by the Panel to Mr Doree’s insight into his misconduct?
(3) Was the judge wrong to find that the fact that Mr Doree’s misconduct had not been witnessed by any patient was a mitigating factor justifying a less severe sanction?
(4) Was the judge wrong to conclude that the amendment of an allegation of misconduct to a lesser one after the evidence had been heard would have been “a gross breach of fair hearing procedure”, and to reject the Authority’s contention that the failure to amend the allegation was a procedural error?
(5) Whether the sanction imposed by the Panel was unduly lenient.
The Court of Appeal dismissed all the grounds of appeal.
The PSA submitted that Lang J was wrong to reject the PSA's submission before the High Court that the Panel had disregarded the Indicative Sanctions Guidance, and submitted that the panel should either have adhered to the guidance within it or give clear reasons for departing from it. The court considered that there was no obligation on the panel to adhere to the Indicative Sanctions Policy guidance beyond having proper regard to it and applying it as suggested, unless there are "sound reasons" for departing from it, in which case they must be stated.
Before the High Court the PSA had submitted that the Panel's conclusions on insight were flawed. That submission was rejected by Lang J. Before the Court of Appeal, the PSA submitted that, having rejected the Registrant's evidence at the fact-finding stage of proceedings, a Panel is not entitled to rely upon a written statement produced by the Registrant at the misconduct and impairment stage without hearing oral evidence from the Registrant.
The court rejected that submission:
 “I do not accept that, in principle, a professional disciplinary committee may only reasonably find that a registrant has shown insight or remorse after he has himself given oral evidence to demonstrate it, and has made himself available for cross-examination or other questioning on that evidence – even if it has rejected his evidence on some or all of the allegations he faced. Whether a registrant has shown insight into his misconduct, and how much insight he has shown, are classically matters of fact and judgment for the professional disciplinary committee in the light of the evidence before it. … In assessing a registrant’s insight, a professional disciplinary committee will need to weigh all the relevant evidence, both oral and written, which provides a picture of it. This may include evidence given by other witnesses about the registrant’s conduct as an employee or as a professional colleague, and, where this is also relevant, the quality of his work with patients, as well as any objective evidence, such as specific work he has done in an effort to address his failings.”
The PSA argued that Lang J was wrong to regard the fact that no patients had witnessed Mr Doree’s misconduct as a mitigating factor, justifying a lesser sanction. That argument was roundly rejected by the court as "untenable".
At the hearing, the panel found, among other things, that on 4 May 2011 Mr Doree had deliberately driven his car at Colleague A in the hospital car park, as was alleged in paragraph 1 on Matter 1, but not that he had driven towards Colleague A "in an intimidating manner … , on a number of occasions, while he was cycling", as was alleged in paragraph 1a on Matter 2. They found that he had asked Colleague A inappropriate sexual questions, but not that he had done so "publicly", as was alleged paragraph 1f on Matter 2. They found that on more than one occasion he had entered the therapy office when Physiotherapist B was alone and massaged her shoulders, grabbed her pony tail and twirled her hair around his finger in a sexually motivated way, but not that he had done this "frequently", as was alleged in paragraph 2h on Matter 2. They found that he had "simulated" taking a photograph of Physiotherapist B on his mobile phone while she was in a hoist sling in front of colleagues, despite being asked by her to stop, and later that day told her he had deleted the photographs, grabbed her and kissed the top of her head saying "I was only kidding chuckles" – but not that he had actually taken a photograph, as was alleged in paragraph 2j on Matter 2.
During the disciplinary tribunal hearing, the HCPC did not apply to the panel to amend certain allegations which were subsequently found not proved. The submission of the PSA, both before the High Court and before the Court of Appeal, was that it was incumbent on the panel to amend the charges prior to their decision on sanction to conform with their relevant findings of fact, or invited the HCPC to apply to make such amendments. Lang J considered that “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"
Lindblom LJ dealt with the issue as follows:
 “Ms Richards (counsel for the HCPC) did not argue that a retrospective amendment to allegations, after the evidence of a registrant’s alleged misconduct had been heard and considered, would always be procedurally unfair. Nor did she defend the judge’s view that in this case such amendments would have been, as the judge put it, “a gross breach of fair hearing procedure”. She submitted, however, that in this case the Panel, having considered the evidence before them, were not obliged in law to proceed only on the basis of allegations tailored to their findings of fact. It would have been open to them at that stage to canvass the possibility of amendments being made to the allegations to match their relevant findings of fact, and, if satisfied that such amendments could be made without unfairness, to proceed on the basis of the allegations as amended. But this is not to say that they committed any procedural error, let alone a serious one, by neither seeking nor making such amendments, or that their conclusions as to misconduct and fitness to practise were invalidated by their not having done so, or that the sanction they imposed on Mr Doree was for that reason unduly lenient.”
56] “I accept those submissions of Ms Richards. There will no doubt be cases where a late amendment of the allegations faced by a registrant will be justified, even after the evidence has been heard and findings of fact have been made. But in the particular circumstances of this case I cannot accept Ms Morris’s submission that the Panel fell into error.”
In respect of sanction, the court upheld the judgment of Lang J.
The salient points to take from this case are threefold:
- Indicative Sanctions Guidance and similar guidance do not have to be slavishly followed by Panels, nor only departed from in exceptional circumstances. What is required is that it is given due regard, but may be departed from if there are good reasons for doing so.
- It is entirely a matter for the Registrant whether they wish to give oral evidence at the misconduct/impairment/sanction stage of proceedings what evidence they wish to put before the Panel.
- Amendments can be made to the wording of charges very late on in the proceedings and even after the Panel has retired. However, the later on such amendments are made, the more likely it is that some material unfairness will be caused to the Registrant. Moreover, it is not for the Panel to step into the 'prosecutor's shoes' and mould the charges to fit its factual findings.