What needs to be considered for a case to be remitted for a re-hearing?
In an appeal against a Fitness to Practise panel decision, the High Court considered the issue of the correct basis for a case being remitted for re-hearing. This proved to be a helpful case in determining what principles should be considered for a re-hearing. Blake Morgan represented the Health and Care Professions Council at the High Court appeal.
Mr Hawkins (“the Appellant”) is a registered physiotherapist who was subject to allegations of inappropriate behaviour in relation to a patient.
A Panel of the Health and Care Professions Tribunal (“the Panel”) found some of the allegation proved, including that the Appellant’s conduct was sexually motivated. It proceeded to determine that his fitness to practise was impaired by reason of misconduct and imposed a 12-month suspension order.
The Appeal
The Appellant challenged the Panel’s decision by way of an appeal to the High Court (“the Appeal”). In particular, one of the grounds of appeal was the basis for the Panel’s finding that his conduct was sexually motivated.
The HCPC, represented by Delme Griffiths of Blake Morgan, accepted that the panel had fallen into error in relation to that aspect of its decision. Not least, the precise basis upon which the allegation of sexual motivation was found proved was not expressly put to the Registrant.
However, pursuant to the Appeal, there remained a residual dispute regarding the precise basis upon which the case should be remitted for re-hearing.
Approach to remitting the case
The Appellant sought to argue that the allegation of sexual motivation could not be not made out on the facts and that it would be inappropriate for it to be reconsidered by a fresh panel.
The HCPC successfully resisted that argument.
The High Court agreed that the case should be remitted for a full re-hearing. In doing so, it set out the principles to be considered when remitting an appeal.
In particular, the Court highlighted the importance of the public interest in a full and proper determination of serious allegations against a professional.
There was no consideration in relation to either the utility of a further hearing or fairness that outweighed that public interest.
In relation to fairness, the Court held that fairness would be met by the Appellant having the opportunity to respond to the allegation of sexual motivation, properly put, and answering questions in cross-examination.
In summary, it was therefore determined that the allegation of sexual motivation should be remitted for a hearing by a differently constituted panel, which would also determine the questions of misconduct, fitness to practise and sanction as appropriate.
Impact
Notwithstanding the regularity of appeals of this nature, there is a notable lack of authority regarding the issue of the precise basis upon which cases should be remitted.
This is, therefore, a helpful case which sets out the principles to be considered. It confirms that, that whilst there may be some unfairness to a registrant in terms of a re-hearing, that is ultimately outweighed by the public interest in allegations being properly considered.
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