Proper regard to Indicative Sanctions Guidance and the amending of allegations
PSA v HCPC + Doree [2017] EWCA Civ 319. The Court of Appeal was recently asked to consider a number of important principles involving adherence to a Regulator's Indicative Sanctions Guidance, the assessment of mitigation and insight, and the duties on a Panel to consider amending an allegation. The decision confirmed that whilst only "guidance" a regulatory panel must pay proper regard to the Indicative Sanctions Guidance published by the regulator and must apply it as its terms suggest, unless there are sound reasons given for departing from that guidance. In relation to assessing insight, in this case the Court of Appeal focussed on weighing up all the evidence in the round and did not consider the Panel had given undue weight to written and untested statements made by the Registrant as to his insight and regret. The Court also recognised that a regulatory panel is entitled to make necessary amendments to the allegations before it, to avoid undercharging, and there may be circumstances 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, although the facts of this case did not require such a step.
The case had attracted the attention of the Professional Standards Authority given the nature of the allegations against Mr Doree, a registered prosthetist which involved "a prolonged and sustained pattern of behaviour" in 2009-2011 involving bullying, deliberately driving a car at a colleague and continued explicit and often physical sexual harassment of colleagues which fell "well below the standards expected of a health professional and as such had clearly had a tangible, adverse effect on the reputation of the profession". In July 2014 the case resulted in the imposition by the HCPC Panel of a 5 year caution order but no other regulatory sanction or restriction. The first appeal was dismissed by Lang J in March 2015.
Influential in the Panel's decision and subsequent appeals was very positive evidence about Mr Doree's conduct in a new role in the 3 years since the events in question. The Court of Appeal was satisfied that, despite the proven nature of the misconduct in this case, the Panel had had proper regard to the HCPC's Indicative Sanctions Guidance and that its decision sufficiently demonstrated it was conscious of the Guidance even though the case did not fit precisely within the paragraph which focused on cautions. The Court endorsed the idea that the Guidance was to aid deliberations and to assist Panels to make fair, consistent and transparent decisions and affirmed that a Panel is not at liberty to disregard it. Arguments that the Guidance had been misapplied were rejected and the Court found the Panel had not departed from the Guidance and had given clear adequate and cogent reasons to explain how they had applied it in this case.
The PSA was concerned that Registrant's written statement provided at the misconduct stage was relied upon by a Panel who had earlier rejected his evidence when factual allegations had been strenuously denied. In addition, the Panel made reference to training the Registrant had undertaken, before continuing to deny the allegations, as evidence of his insight. The Court of Appeal rejected this submission and indicated that “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. Some of the evidence may be matters of fact, some of it merely subjective. 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." The Court suggested the relevant evidence might 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 Court did indicate that "there will be cases in which the registrant’s own evidence, given orally and tested by cross-examination, will be the best evidence that could be given, and perhaps the only convincing evidence. And such evidence may well be more convincing if given before the findings of fact are made. But this is not to say that in the absence of such evidence a professional disciplinary committee will necessarily be disabled from making the findings it needs to make on insight, or bound to find that the registrant lacks it.”
This of course echoes the recent comments in Kimmance v GMC [2016] EWHC 1808 “There was indeed no evidence of insight and remediation in this case. I do not much like those jargon words. They do not do much to illuminate the reality, which is that a doctor or other professional who has done wrong has to look at his or her conduct with a self-critical eye, acknowledge fault, say sorry and convince a panel that there is real reason to believe he or she has learned a lesson from the experience. Nine times out of ten, you cannot do that if you do not turn up to the hearing. The panel will want to ask questions.”
On the issue of amending the allegation the Panel had found not proved a number of factual particulars because the entirety of the statement could not be proved. For example something may have happened on more than one occasion but not "frequently" as was alleged, or an offensive statement was made but not "publicly" as alleged. Lang J had suggested 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 a fair hearing procedure". The Court of Appeal confirmed that a professional disciplinary committee is entitled to make necessary amendments to the allegations before it (as confirmed in cases including Gangar v GMC, R (Ireland) v HCPC and PSA v NMC (Jozi). However in the particular circumstances of this case the Court of Appeal did not consider the Panel had fallen into error or had been obliged to make amendments which in the Court of Appeal's view would not have "changed the picture" or impacted on the appropriate sanction.
This decision may at first seem unfavourable to regulators who wish to hold their panels to their indicative sanctions guidance as a way of ensuring consistency. However, while this decision does reiterate the deference given to panels when considering the allegations, it is important to note that the key findings of the Court of Appeal turned on the specific circumstances of the present case. As such, while it is important to note the principles highlighted in this case, we do not consider that it demonstrates a fundamental shift in those principles.