Ireland & Anor v Health and Care Professions Council [2015] EWHC 846 (Admin)

Case No CO/1901/2014[2015] EWHC 846 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 27 th March 2015
Before
MR JUSTICE JAY
Between
(1) Professor Jane IrelandClaimant(2) Mr Phillip MaClaimantHealth and Care Professions CouncilDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Fenella Morris QC and Robert Lazarus (instructed by Berrymans Lace Mawer LLP) for ClaimantsVictoria Butler-Cole (instructed by Bircham Dyson Bell) for DefendantHearing Hearing date: 17 th March 2015
Judgment

Introduction

[1]This application for judicial review raises a short, albeit fairly intricate, point as to the scope of the power of the Health and Care Professions Council (“the Council”) to supplement an allegation which had already been referred by the Investigating Committee (“the IC”) to the Conduct and Competence Committee (“the CCC”), both being Practice Committees of the Council. The parties are not in agreement as to the exact formulation of the issue, and at this stage I should not be understood as preferring one expression of it over another.[2]The two Claimants, Professor Jane Ireland and Mr Phillip Ma, are practitioner psychologists who are the subject of disciplinary proceedings before the Council. The sole connection between them is the common legal issue which lies at the heart of these proceedings.

The Essential Factual Background: Professor Jane Ireland

[3]In February 2013, Professor Ireland promulgated her report, ‘Evaluating Expert Witness Psychological Reports: Exploring Quality’ (“the report”). The Council received at least two complaints about it from fellow academics. In line with its usual practice, the Council determined that the allegation comprised in or constituted by these complaints met its “standard of acceptance”, in other words, was not obviously ill-founded. A Case Manager was then appointed, and again in consonance with standard practice Professor Ireland was invited to make written representations on the allegation. She did so, and the matter was referred by the Case Manager to the IC in order for it to determine whether there was a case to answer. This Committee had before it an allegation, or charge, which extended to thirteen paragraphs, and was designed to encapsulate the gravamen of the case against Professor Ireland. It is clear that the allegation contained a number of elements, but its sole focus was the report. The IC determined that there was a case to answer in relation to all the pleaded heads, and on 24th September 2012 the allegation was referred to the CCC.[4]There was a period of delay, partly explained by the need to obtain expert evidence. Operating under resource constraints, it is not the Council’s practice to obtain expert evidence at an earlier stage. On 29th July 2013 there was a preliminary hearing before the CCC. The CCC granted the Council permission to rely on the expert evidence of Professor Davidson at the final hearing. Permission was also granted(i) to discontinue five particulars of the Notice of Allegation, and(ii) to amend the Notice in other respects. Professor Ireland did not oppose either course, and in relation to (ii) the CCC observed that “such amendments neither vary nor extend the allegation to a material degree”. Professor Ireland was also granted permission to rely on expert evidence of her own.[5]On 30th October 2013 the Chief Executive of the Council, and not its Case Manager, wrote to Professor Ireland notifying her of what were described as “the Council’s allegations”. The letter informed Professor Ireland as follows:
“Article 22(6) of the Health and Social Work Professions Order enables the Council to ask for an investigation to be undertaken into your fitness to practise as a registered health or care professional if it appears such an investigation should be made. Such an investigation is treated as if it were an allegation made under Article 22(1) of that Order. The Council’s allegations can be found on a separate page annexed to this letter.”
[6]The Council’s allegations were four in number, and continued to relate to the report. However, whereas the original allegation centred on Professor Ireland’s data, the Council’s allegations introduced an attack on her methodology: see head 1 (the stem) and particular (iii). Moreover, head 2 alleged that Professor Ireland “failed to declare a conflict of interest”. It seems clear that the Council has taken the view that its “allegations” (I deploy the plural only because the Council has done so) could not be said to be implicit in the original allegation, otherwise this procedural step would have been entirely supererogatory. At this point I might add that the conflict of interest allegation appears less proximate to the original allegation, as formulated, than does the complaint about methodology.[7]The Chief Executive’s letter invited Professor Ireland to make written representations on the Council’s allegation, which representations would be placed before the IC for consideration. On 2nd January 2014 Mr Ekstein of Berrymans Lace Mawer made detailed representations on her behalf, the main thrust of which were that the IC would have no power in these circumstances to refer a matter, or allegation, which had already been referred to the CCC.[8]It is unnecessary to examine the legal arguments advanced by Mr Ekstein because these have been duplicated, or reflected, in these proceedings, but in the light of the submissions of Ms Fenella Morris QC for Professor Ireland I should examine some of the factual points he raised. The direction of Ms Morris’ submissions changed during the course of her Reply, but I have done my best to do justice to her case.[9]The first complaint against Professor Ireland was sent to the Council on 17th April 2012. The complaint, from a chartered psychologist, did not make an express criticism of her methodology, although it did allege that “no one has checked that the conclusions drawn are based on sound evidence, and some are not”, and concluded with a generalised concern “about her methodology”. The second complaint (undated, but received by the Council on 20th April) alleged that the “limited information available within the report does not provide sufficient evidence to substantiate these claims”. On 29th June 2012 the first complainant sent to the Council an article published in the New Law Journal that day, alleging that the report was “methodologically flawed”. It is unclear exactly when, but it must have been on or after 2nd July 2012, the Case Manager prepared a bundle for onward transmission to the IC. This contained the “allegation”, extending to the thirteen paragraphs I have already mentioned, and a 181 page bundle of “documents and other materials”, including the article published in the New Law Journal. The “allegation” represents the Case Manager’s diligent attempt to encapsulate the complaints in his own language, and in a form no doubt more familiar to the IC. However, in performing that exercise it is apparent that he has not included any specific head of allegation as regards methodology.[10]On the other hand, the reference to “flawed methodology” in the New Law Journal article was somewhat generalised, and the Council’s allegations, no doubt prepared with the benefit of expert advice, possess far greater precision. Further, I have not found a specific reference to a “conflict of interest” in the original material transmitted to the IC.[11]On 27th January 2014, the IC met to consider the fresh allegation regarding the report, including Professor Ireland’s representations. It determined that there was a case to answer in relation to the vast majority of heads 1-4 of what it called “the amended allegation”, and accordingly referred it to the CCC. The IC’s determination referred to “the legal advice to the HCPC in relation to its jurisdiction in this matter”. It gave no reasons in support of its implicit conclusion that it did possess jurisdiction. The present application for judicial review formally challenges this decision, and in the circumstances the fresh allegation awaits joinder with the original allegation.

Essential Factual Background: Mr Phillip Ma

[12]Mr Ma was being investigated by his employer following concerns relating to two patients. He was suspended pending the investigation. In such circumstances, on 18th May 2011 Mr Ma quite properly “self-reported” these matters to the Council, which adopted the same procedure it pursued in the case of Professor Ireland – subject to one refinement. The Council took the view that Mr Ma’s “self report” was not an allegation made against the registrant for the purpose of Article 22(1), and therefore applied Article 22(6) to his case. The significance of this, if any, I will examine later.[13]In short, Mr Ma’s written representations were sought; he in fact provided none (he was not legally represented at the time); and, on 6th September 2012 the IC determined that there was a case to answer. The allegation was referred to the CCC accordingly.[14]On 11th September 2013 the Chief Executive of the Council wrote to Mr Ma notifying him that an additional allegation relating to the same two patients would be referred to the IC, and inviting representations. This additional allegation was, as in Professor Ireland’s case, described as “the Council’s allegation”, and the same rubric was deployed to justify this course of action. The Council has accepted that the additional allegation raises “new” matters. As before, I would interpolate that it arises out of the same or substantially the same facts as the original allegation.[15]Mr Ekstein raised the same jurisdictional objections to the Council’s proposed course, and on 14th March 2014 the IC made the same decision as it had given in Professor Ireland’s case.[16]Ms Morris did not undertake the same forensic exercise in Mr Ma’s case as she had done in relation to Professor Ireland, although her Skeleton Argument had made the point that the Council’s allegations were in fact embedded (my word, not hers) in the material referred to the IC in 2012. Following the hearing, I have undertaken a brief comparative exercise without the benefit of the parties’ submissions. In my view, the Council’s allegations were “new” in the sense that they did not form part of the Case Manager’s formulation of the allegation which was put before the IC, although many, but not all, of them were discernible upon a close examination of the underlying material.

The Applicants’ Grounds

[17]Ms Morris advanced a three-pronged attack against the IC’s decisions, dated respectively 27th January and 14th March 2014. First, she submitted that the IC simply had no power in these circumstances to reconsider matters which it had already referred to the CCC (see paragraph 30 of the Grounds of Claim and paragraph 4 of the Claimants’ Skeleton Argument). I will return to the exact formulation of this first ground in a moment. Secondly, she submitted that the decisions under challenge are objectionable because they display no reasons which grapple with the jurisdictional issue. Thirdly, it is said that there was procedural irregularity in Professor Ireland’s case because the IC took into account legal advice upon which she was given no opportunity to comment.[18]I can say at once that I discern no merit in the second and third grounds (on my numbering of them). It was not incumbent on the IC to explain the basis of its implicit conclusion that it did possess jurisdiction under the relevant subordinate legislation. In any event, it must be clear that the second ground cannot logically add to the first: either, Ms Morris’ main point is good, in which event no plethora of reasons may avail the Council; or, alternatively, her main point is bad, in which event a complete dearth of reasons is irrelevant.[19]In my view, the same sort of riposte provides a complete answer to the third ground; but as it happens, I am bound to accept Mr Barwick’s evidence that no legal advice was seen by the IC.[20]In my judgment, this application for judicial review really turns on the first ground, and the remaining grounds have proved to be a very brief distraction from it. The exact formulation of the first ground merits some attention. Strictly speaking, it seems to me that the Claimants’ attack is as much directed to the Council’s decisions to refer its allegations under Article 22(6) of the 2001 Order as the IC’s reconsiderations of the cases and subsequent referrals of the Council’s allegations under Article 26(6)(b)(iii). Indeed, it will become apparent that the fate of this application for judicial review hinges on the correct approach to Article 22.[21]In order to do proper justice to Ms Morris’ first ground, I need to set out the legislative terrain.

The Council: Relevant Legal Framework

[22]The Council is a creature of statute, and possesses no inherent jurisdiction: see, by analogy, Jackson J in R (Gorlov) v The Institute of Chartered Accountants in England and Wales [2001] EWHC Admin 220.[23]The relevant statute consists in subordinate legislation in the form of the Health and Social Work Profession Order 2001 [2002 S.I. No.254] (“the 2001 Order”).[24]The IC and the CCC are both “Practice Committees” of the Council: see paragraph 1 of Schedule 3 to the 2001 Order.[25]By Article 3(2):
“The principal functions of the Council shall be to establish from time to time standards of education, training, conduct and performance for members of the relevant professions and to ensure the maintenance of these standards.”
[26]Ms Victoria Butler-Cole for the Council (Ms Jenni Richards QC co-authored the Skeleton Argument, but was unavailable for the oral hearing), relied on this power, and other general powers, in the 2001 Order in support of a submission that one way or another her client had jurisdiction to refer these allegations to the CCC in January and March 2014. I will return to this in due course.[27]This case hinges on Article 22 of the 2001 Order, which provides insofar as is material as follows: “(1) This article applies where any allegation is made against a registrant to the effect that –(a) his fitness to practise is impaired by reason of – (i) misconduct, (ii) lack of competence, … (5) When an allegation is made to the Council or any of its committees, as soon as reasonably practicable after receipt of the allegation in the form required by the Council, the Council shall refer it – (a) where it is an allegation of the kind mentioned in paragraph (1)(b), to the IC;(b) in any other case – (i) to persons appointed by the Council in accordance with any rules made under article 23, or (ii) to a Practice Committee. (6) If an allegation is not made under paragraph (1) but it appears to the Council that there should be an investigation into the fitness to practise of a registrant or into his entry in the register it may refer the matter in accordance with paragraph (5) and this Order shall apply as if it were an allegation made under paragraph (1)” (a) his fitness to practise is impaired by reason of – (i) misconduct, (ii) lack of competence, (a) where it is an allegation of the kind mentioned in paragraph (1)(b), to the IC; (b) in any other case – (i) to persons appointed by the Council in accordance with any rules made under article 23, or (ii) to a Practice Committee.[28]The reference in Article 22(5)(b)(i) to “persons appointed by the Council in accordance with any rules made under Article 23” is to Screeners; and in relation to these individuals Article 26 also applies. Screeners are expressly invested with the function of “considering the allegation and establishing whether, in their opinion, power is given by this Order to deal with it if it proves to be well-founded”: see Article 24(3)(a). I understand that it is not the current practice of the Council to deploy this resource.[29]The powers and functions of the Investigating Committee are set out under Article 26, which provides insofar as is material as follows:
“(1) The IC shall investigate any allegation which is referred to it in accordance with article 22 or 24. (2) Where an allegation is referred to the IC, it shall – (a) notify without delay the person concerned of the allegation and invite him to submit written representations within a prescribed period; … (c) take such other steps as are reasonably practicable to obtain as much information as possible about the case; (d) consider, in the light of the information which it has been able to obtain and any representations and other observations made to it under sub-paragraph (a) or (b), whether in its opinion – (i) in respect of an allegation of the kind mentioned in article 22(1)(a), there is a case to answer … … (5) When the IC reaches a decision under paragraph (2) as to whether – (a) there is a case to answer; … it shall notify in writing both the person concerned and the person making the allegation, if any, of its decision, giving its reasons. (6) Where the IC concludes that there is a case to answer under paragraph (2)(d)(i), it shall – … (b) refer the case – (i) to the CCC, in the case of any other allegation.” (a) notify without delay the person concerned of the allegation and invite him to submit written representations within a prescribed period; … (c) take such other steps as are reasonably practicable to obtain as much information as possible about the case; (d) consider, in the light of the information which it has been able to obtain and any representations and other observations made to it under sub-paragraph (a) or (b), whether in its opinion – (i) in respect of an allegation of the kind mentioned in article 22(1)(a), there is a case to answer … … (a) there is a case to answer; … it shall notify in writing both the person concerned and the person making the allegation, if any, of its decision, giving its reasons. … (b) refer the case – (i) to the CCC, in the case of any other allegation.”
[30]Pursuant to Article 27, the CCC is required to “consider any allegation referred to it by the Council, Screeners, the Investigating Committee or the Health Committee”.[31]Nowhere in the 2001 Order is the term “allegation” defined. Under the interpretation provisions of cognate subordinate legislation, it is deemed to mean “any allegation of a kind mentioned in Article 22(1) of the [2001] Order or any matter which is treated as an allegation by virtue of action taken under Article 22(6)…” (see, for example, rule 2 of the Health Professions Council (Investigating Committee) Procedure Rules Order of Council 2003 [2003 S.I. No 1574]). It may therefore be seen that these interpretation provisions take the matter no further.[32]The majority of healthcare regulators have ensured that their fitness to practise or conduct and competence committees have the power to amend the particulars of an allegation which has been referred: see, for example, rule 17(2)(c) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 [2004 S.I. No 2606], as subsequently amended.[33]My attention has been drawn to documentation bearing on the practice of the Council in this sort of case: see the internal guidance documents comprising exhibit “JB1” to the witness statement of John Barwick dated 11th September 2014. Mr Barwick refers to resource constraints, to the fact that in 47% of cases the IC does not find there to be a case to answer, and that it is the Council’s practice to instruct an expert post-referral to the CCC.[34]In my judgment, these matters cannot serve to override, supersede or re-write the legislative provisions to which I have already referred – and it is not Ms Butler-Cole’s submission that they may be thus deployed – but they are relevant to the extent that they throw light on the practice of the Council exercised within the four corners of the statutory framework. Re-directing the point against the Claimants, in my view these matters may also serve to defeat any vestigial legitimate expectation argument which appeared to feature in Ms Morris’ skeleton submissions, and which I unhesitatingly repudiate. In the circumstances of the instant case, her clients’ legitimate expectations were that the Council’s functions would be exercised in accordance with the powers conferred on it by subordinate legislation.[35]The “FTP Operational Guidance” is relevant. Under the heading “case investigation”:
“In some cases it will be possible to formulate an allegation solely on the basis of the initial information received from a complainant. However, in many cases a more detailed investigation will need to be carried out before an allegation can be prepared. … It may be necessary in some cases to seek advice from an expert in a particular field during the investigation of an allegation. … Once any investigation has been completed, a case investigation report should be prepared in the standard format which: • summarises the background to, and source of, the allegation; • sets out the allegation in the form it was provided to the registrant; • provides a synopsis of the investigation which has been carried out; and • identifies all of the documents and other materials received by the HCPC relating to the allegation, full copies of which must be attached to the report.” • summarises the background to, and source of, the allegation; • sets out the allegation in the form it was provided to the registrant; • provides a synopsis of the investigation which has been carried out; and • identifies all of the documents and other materials received by the HCPC relating to the allegation, full copies of which must be attached to the report.”
[36]Under the heading “formulating allegations”:
“Careful consideration needs to be given to the formulation of allegations at the very outset of an investigation. The details of an allegation may be amended, in the sense of providing more detail to help the parties understand or answer points raised by the allegation. However, an allegation cannot be extended or varied to any material degree without either the consent of the registrant or the additional elements being subject to the investigative process outlined above, so that the registrant has the opportunity to make representations which can be considered by an IC panel. The requirement not to vary an allegation during the fitness to practise process is a facet of the common law rules of natural justice, which set out the minimum standards of fair decision- making …”
[emphasis supplied][37]Paragraph 17 of the Claimants’ Skeleton Argument draws on this citation but halts at the words “any material degree”. What follows avails the Council more than the Claimants, but ultimately the position remains that the former’s internal guidance cannot furnish jurisdiction if none exists in the 2001 Order.

The Claimants’ Argument Developed

[38]In her written argument, Ms Morris submitted that the CCC is only empowered to consider the allegation referred to it, and not to consider some other allegation not referred to it. She submitted that it followed from this that there is no power in the CCC substantially to amend an allegation which would result in it considering an allegation which was materially different from the one referred to it. Amendments which achieve no material changes and/or are merely clarificatory occupy a different category, and an implied power to amend must exist to avail the parties. The Council has accepted that many of the proposed amendments in the instant cases cannot be regarded as effecting immaterial changes or as merely serving to clarify existing allegations.[39]In further support of her principal ground, Ms Morris submitted that the “allegation” for present purposes is everything which is received by the Council in the form of a complaint. The IC’s decision on that complaint has two limbs: first, a decision to refer those elements, in respect of which a case to answer is deemed to exist, to the CCC; and, secondly, a decision not to refer the remainder of the complaint. Thus analysed, it may be seen that in the instant case, all relevant issues were before the IC at its first meetings. Accordingly, on a proper analysis of what occurred, anything that was not referred to the CCC “first time round” – to use the vernacular – was in effect the subject matter of a binding decision not to refer it to the CCC. The epithet “binding” is a short-hand way of describing a decision in respect of which the IC was/is functus officio; and, by extension, could not be revisited. Furthermore, Ms Morris submitted that, in the absence of some new point which was not prefigured, it would be unfair for the Council to revisit the case and expand the allegation.[40]It was not entirely clear from Ms Morris’ written submissions how “new” the fresh piece of information would have to be before the power arose in the Council to expand the allegation to accommodate it, alternatively to introduce it as a fresh allegation. It seems clear that if the IC is being invited to consider a further allegation based on entirely new facts, then in definitional or categorical terms the second allegation would be qualitatively different from the first, and would not therefore be the same “allegation” for the purpose of Article 22(1). At least when opening her case to me, Ms Morris appeared prepared to accept that a fresh piece of information which it had not been reasonably practicable for the IC to obtain could properly be added to the “allegation”, even if the broad contours of the case remained substantially the same. In her Reply, however, Ms Morris appeared to prefer what I have called the “qualitatively different” formulation. At any rate, the key features of the instant cases are that(i) the Council’s allegations were based on the same or substantially the same facts, and(ii) all relevant material was before the IC “first time round”.[41]The point is crystallised at paragraph 44 of Ms Morris’ skeleton argument, as follows:
“The HCPC cannot refer a case to the IC a second time with substantially or materially different drafted particulars of allegation on the basis of a complaint or matter the contents of which was before the IC on the first occasion. To do so would be no different than a complainant submitting a reworded letter of complaint to the HCPC after his original complaint had been dismissed by the IC.”
[42]During the course of her Reply, her submissions undergoing some reformulation in the crucible of some vigorous interchange between Bench and Bar, it emerged that Ms Morris’ most powerful point proceeds along the following lines. Articles 22(5) and (6) should be seen as complementary or dichotomous provisions (Ms Morris in fact preferred “binary”, but nothing turns on that). Article 22(5) is designed to address the majority of cases which proceed before the Council. Typically, a complaint is made against the registrant, and it is the Council’s duty to refer it (or, more precisely, the allegation constituted by it) to the relevant persons or committee under Article 22(5). Although there may be implied power to exclude matters which are frivolous or vexatious, the clear intendment of Article 22(5) is that the entirety of the complaint/allegation should be taken forward. Article 22(6) is designed as a residual or “sweep up” category for those cases which cannot be accommodated within Article 22(5). These include “self reports” (on the Council’s interpretation of its own regime), and instances where matters are in the public domain and the Council finds out about them without a complaint. Article 22(6) cases are then treated in exactly the same way as Article 22(5) cases. The key point here is that both of these provisions are focusing on the period of time leading up to the reference by the Council to the IC. Thus, the opening words of both sub-Articles may be envisaged as being descriptive of a state of affairs, and temporal. Furthermore, the “it” which is being referred under Article 22(5) is not the draft pleading which the Case Manager may happen to assemble but the entirety of the case, including all the evidence which comes with it.[43]Once referred to it, the IC is required by Article 26 to undertake as full an investigation of the allegation as is reasonably practicable. Accordingly, any matter which is embedded in the paperwork and requires investigation must be addressed, pursuant to the IC’s statutory functions. The IC must then decide whether or not there is a case to answer. A proper construction and application of the regulatory scheme means that, if a case to answer is deemed to exist across the board, the whole of the case must be referred (on these facts) to the CCC. There may be an implied power vested in the IC to amend the allegation (particularly if new facts emerge during the investigation), but what the scheme does not permit is a reversion by the Council to Article 22, in particular (6), in circumstances where the IC has failed to perform its obligations under Article 26 and has abstained from referring the whole case. What in effect is happening here is that the Council is purportedly using Article 22(6) to amend an allegation in the absence of an express power to do so.

Analysis and Conclusion

[44]I propose to deal with Ms Butler-Cole’s points during the course of my discussion of the case.[45]Ms Morris was astute to press the submission that the Council has acted unfairly. However, I entirely agree with Ms Butler-Cole that the subject-matter of the present application is not fairness but jurisdiction. Both Professor Ireland and Mr Ma were given every opportunity to make written representations on the Council’s allegations in their individual cases. The Council’s actions would only be unfair if it acted without jurisdiction. If, on the contrary, the Council was empowered to act as it did, then it seems to me that the Claimants cannot maintain a separate fairness challenge. Further, for the reasons already supplied, they had no legitimate expectation – derived from promises made or practices undertaken - of some different procedure.[46]But, turning the matter on its head, no abundance of fairness, and no obviously sound practical and regulatory justification for what has occurred, would provide adequate succour to the Council if it lacked the requisite power.[47]The draftsperson of Article 22 of the 2001 Order has used “allegation” in the singular of that noun, not the plural. This is commonplace, albeit not necessarily universal, in the regulatory domain. It seems to me that there are a number of possible permutations and combinations. It is unnecessary to examine all of these, but if a singleton patient makes a number of complaints against a registrant on one occasion, the Council’s practice will be to include all of these in one allegation comprising various elements and heads. Similarly, if several patients each make a number of complaints against a registrant at the same time, the Council’s practice will be to include all of these in one allegation. Issues may later arise as to severance, but that is a different matter.[48]It is necessary to examine what is meant by the term “allegation” in the 2001 Order. As previously remarked, it is not statutorily defined. Is it, as Ms Morris contends, the entirety of the case which is referred at various points in the process, or is it the formulation of that case?[49]The Council’s internal documents strongly indicate that it believes that it is the latter, but that cannot be determinative. Some support for Ms Morris’ submission may appear to be derived from(i) the use of the singular of the noun, and(ii) the subject-matter of the “allegation” appearing at various places in Articles 22 and 26 ought, at least on a first reading, to be the same.[50]I prefer Ms Butler-Cole’s submissions on this point, with some refinements. The natural and ordinary meaning of “allegation” in this context is “the facts and matters alleged to impair the registrant’s fitness to practise”. The focus must be on that which is alleged, more than on the corpus of supporting material which impinges on the issue. At the Article 22(1) stage, the complainant usually alleges certain facts and matters against the registrant - comprising what may be conveniently described as the complaint (not that the Article uses that term) - and provides certain material in support. It is the Council’s obligation to assess the allegation for arguability and coherence, and then the Council must refer it under Article 22(5). Moreover, it appears to be common ground in this case that there is implied power to carry out minor and clarificatory amendments. In my judgment, the Council has implied power to reformulate the complaint/allegation to the extent that it considers appropriate (see Attorney-General & Ephraim Hutchings v Great Eastern Railway [1880] Law Rep 5 HL 473), and this is what happened in the instant cases. Ms Morris did not appear to contest that such an implied power exists as regards deletion, and in my view it must also exist as regards reformulation, reconstitution and expansion. Further, there is nothing to prevent the Council at this stage from undertaking basic inquiries and collating further evidence.[51]On this approach the form and content of the “allegation” referred to under Article 22(1) is not necessarily the same as the one referred to under Article 22(5). This would be particularly so in the case of a lay complainant who lacks the expertise to formulate the case properly. Further, on this approach an “allegation” cannot be envisaged in some loose and general way as “the entirety of the case”. In my judgment, the term cannot be dissociated from its mode of formulation, because the focus must be on the facts and matters which are alleged.[52]Thus, the “it” which is being referred under Article 22(5) includes, or embodies, a formulation or enshrinement of the facts and matters which are alleged. Article 22(5) specifies that the “allegation” must be “in the form required by the Council”, and the latter insists on a written document. Given that the Council is required to refer something concrete to the IC, I would have reached that conclusion even without this additional clause. The registrant must be able to understand the nature of the case against him or her, in order effectively to address it.[53]The issue arises of whether the “allegation” also includes the supporting material, which in Professor Ireland’s case extended to nearly 200 pages. Arguably, that is implicit in Article 26(1), because the IC is required to investigate something, and needs the bundle of evidence in order to do that. On balance, however, I conclude that the “allegation” does not embrace the supporting evidence. The term is confined to the formulation of the facts and matters alleged. There is implied power in the Council to refer the supporting evidence to the IC, and the latter would clearly have power to call for it under Article 26(1) if it had not already been sent.[54]A thorough investigation carried out under Article 26(1) may well lead to the “allegation” having to undergo further evolution. It would be odd if the IC did not have power to amend the allegation, and in my view implied power exists, on the same basis as before. Further, the need to amend the allegation is required to achieve basic fairness: the registrant needs to know the case s/he has to meet. Thus, the form of the “allegation” at the end of the investigatory stage, and before a decision is reached under Article 26(2)(d), may be different from(i) its original iteration at the Article 22(1) stage, and(ii) its subsequent iteration at the Article 22(5) stage. This is hardly surprising, because the Council’s understanding of a case may well deepen.[55]It is necessary to examine the nature of the decision made under Article 26(2)(d) and (5). Ms Morris’ submission, on the facts of the instant cases, is that the IC decided not to refer those elements of the allegation which were included in the paperwork albeit had not been reduced to writing as part of the formal charge. Her corollary submission is that, once it has decided not to refer elements – say, X, Y and Z - the Council is functus officio and cannot revisit the matter, unless (possibly) new evidence subsequently emerges which it had not been reasonably practicable to obtain. In my judgment, this submission fails at first base. If the allegation bears the narrower meaning which I have preferred, then on the facts of these cases it cannot be said that the IC made any decision on matters which were not included in the formal charge, including for example the allegation about methodology (in relation to Professor Ireland). On this approach, it is unnecessary to consider the extent of the application of the functus principle in a disciplinary context: see R(oao Demetrio) v IPCC and others [2015] EWHC 187 (Admin). Ms Butler-Cole drew this authority to my attention, but reserved her position on it.[56]Ms Morris’ submission confronts this further difficulty. Let us assume, for the purposes of argument, that Ms Morris is correct about the meaning of “allegation”. On such a premise there seem to me to be two possibilities. If the entirety of the “allegation” was in fact referred by the Council to the IC at the first bite of the cherry, it is difficult to understand why the Council’s allegations were required at all. The logic of the position must surely be, in the absence of an express decision that there was no case to answer as to certain components of this notional whole, that the entirety of the case was referred by the IC to the CCC. Nothing has happened to trim the case back. If, on the other hand, the entirety of the allegation was not in fact referred to the IC, because the Council erroneously trimmed it back, it is impossible to hold that in some mysterious way the IC remained seized of “the whole case”. The logic of the position must be that the IC’s decision that there was a case to answer applied to the allegation before it (comprising thirteen heads of charge, in Professor Ireland’s case), and to nothing else. On this premise, the IC’s decision on the allegation before it does not preclude the subsequent advent of the Council’s allegations. The “it” which was referred to the IC under Article 22(5) was not the same allegation that the Council now seeks to advance via Article 22(6).[57]Thus, it may be seen that the Claimants’ case is in danger of possessing a somewhat oscillating, elusive character, which it is proving to be difficult to pin down. On the one hand, the “allegation” is “the entire case”; on the other, it cannot be. This, it seems to me, is another reason for rejecting Ms Morris’ submissions.[58]Once the IC has referred the allegation to the CCC, the latter has no power to amend it. Further, the IC cannot revisit the case unless it is in receipt of a further reference from the Council. This is a potential lacuna in the statutory scheme, and the question arises of whether it is somehow filled by Article 22(6), which is Ms Butler-Cole’s primary refuge. As she puts it in paragraph 15 of her Skeleton Argument:
“Article 22(6) contains a broad and unrestricted power which enables the HCPC to fulfil its overarching obligation to safeguard persons needing the services of registrants (Article 3(4)). It enables, and, indeed, requires, the HCPC to take an active role in ensuring that fitness to practise concerns are properly investigated. Whether construed literally or purposively, it is clearly capable of providing a statutory basis for the HCPC to implement the system it has in place enabling matters to be referred back to the IC, and enabling the IC to refer amended allegations to the CCC. There is no justification, whether in terms of the language of Article 22(6) or in terms of the statutory scheme overall, for the narrow construction of Article 22(6) for which the Claimants contend.”
[59]I agree with the broad sentiments underpinning the Council’s submissions, but even an expansive purposive interpretation requires some regard to be paid to the legislative wording. The rule of law requires no more, and certainly no less, than that.[60]The issue I have to resolve is not free from difficulty because the apparent focus of Article 22(6), read in conjunction with Article 22(5) as it must, is the point in time before and simultaneous with a reference by the Council to the IC. In other words, Article 22 appears to be concentrating on a stage or phase in the process which does not accommodate post-referral to the IC. The more comfortable reading of the opening words of Article 22(6), “if an allegation is not made under paragraph (1)”, rather bears this out. Furthermore, the IC is enjoined to undertake a thorough investigation, it has implied power to amend, but once the allegation is referred to the CCC under Article 26 it appears to be somewhat odd that Article 22(6) may be recruited for the purpose of amendment. This, in substance, is what has occurred in the instant cases.[61]I see the force of these submissions, and at one stage I was troubled by them. I invited Ms Butler-Cole to respond to what I have called Ms Morris’ best point, as it emerged during the course of her Reply, and I am grateful for her further submissions.[62]Ultimately, however, I cannot accept Ms Morris’ submissions on this issue, for the following reasons. It is necessary to work through the logical possibilities. First of all, if an entirely new allegation emerges against the registrant post-referral to the CCC (e.g. the original allegation related to patient A, the new one to patient Z), it seems to me that there is no difficulty. As previously explained, the new allegation is not the allegation that was referred to the IC under Article 22(5) or (6). Secondly, what is the position if a new fact emerges after the IC has referred the case to the CCC? Imagine that this new fact could not with reasonable diligence have been discovered during the IC’s investigation, but it does relate to the allegation in the sense that we are still talking about patient A. Ms Morris would no doubt say that, even on her wide construction of “allegation”, this new fact was not part of the initial allegation and Article 22(6) may properly be deployed to bring it into play. However, it seems to me that Article 22(6) should also apply if, as I have found, the term “allegation” bears a narrower and more specific meaning. The new fact, leading to a new head or element of charge, was not part of the “allegation” at the initial Article 22(5) or (6) stage. On this approach, the natural and ordinary meaning of the opening words of Article 22(6) in particular permit the introduction of this allegation, even if what in substance has occurred is an amendment.[63]I have considered whether section 12 of the Interpretation Act precludes this approach, because it permits only one bite of the metaphorical cherry. In my judgment, it does not, because the contrary intention appears in Articles 22(5) and (6). The “allegation” which is being referred to the IC at round 2 is not the same allegation as had been referred at round 1. This position obtains regardless of whether the initial exercise of power was under Article 22(5) (Professor Ireland) or Article 22(6) (Mr Ma).[64]The third possibility is as follows: what is the position if the IC has failed to discharge its obligations under Article 26 to undertake as full an investigation as possible? For present purposes I am prepared to accept that this was the case as regards at least some of the Council’s allegations in both these cases. I do not accept Ms Butler-Cole’s submission that because the Council’s practice is not to obtain expert evidence until the case has been referred to the CCC, it was not reasonably practicable for the IC properly to have delved into the matter. Ms Morris submitted that the statutory scheme is such that Article 22(6) may not be deployed in these circumstances.[65]The problem with that submission is that it is difficult to see why a failure by the IC fully to discharge its functions should lead to the consequence that Article 22(6) cannot be deployed – if, as I have found, it may be deployed where the IC has fully discharged its functions. The issue of vires cannot in my judgment pivot on this happenstance. Ultimately, Ms Morris’s point only has force if(i) she is right about what the term “allegation” means, and(ii) the IC should be regarded as functus. But I have found that Ms Morris is wrong about these matters.[66]I agree that using Article 22(6) in this fashion has the appearance of being somewhat contrived, given the location of this provision within the statutory scheme, and given too that there is no express power to amend. Even so, I agree with Ms Butler-Cole that the wording of Article 22(6) does not preclude its deployment in this manner: if “allegation” bears her suggested meaning, then a different or expanded formulation of the case is apt to be accommodated by the regulatory wording, because this formulation was not the “allegation” originally referred. In truth, a purposive interpretation is not required. What I have characterised as the “descriptive and temporal” point (see paragraph 42 above) carries some weight, but this is limited inasmuch as it cannot override the natural and ordinary meaning of Article 22(6), and is in any event counteracted by the more general policy and objects of the 2001 Order. Indeed, insofar as it is necessary or appropriate to consider the Council’s broader functions, it is consonant with the objectives of this regulatory scheme as a whole that Article 22(6) be construed and applied in this way. Furthermore, enabling the Council to use Article 22(6) in this fashion establishes a fair procedure inasmuch as the IC is required to undertake a further investigation during the course of which the registrant’s representations will be solicited. Overall, the result attained may have the feel of being slightly uncomfortable, but that is the extent of the difficulty.[67]I am able to reject the remainder of Ms Butler-Cole’s defence of her client’s position quite briefly, because it was not pressed particularly firmly in oral argument, and in my judgment adds nothing to her case on Article 22(1). If that case cannot succeed, the fall-back arguments cannot prevail independently. In short, Article 21(1) cannot save the day for the Council because it is worded in far too general terms. It may avail a purposive construction of other Articles, but it cannot achieve more than that. The same sort of objection may be raised against paragraph 16(1) of Schedule 1, which provides:
“Subject to any provision made by or under this Order, the Council may do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the performance of its functions.”
[68]The true context for paragraph 16(1) is the remaining provisions of this paragraph, in particular sub-paragraph (2). In my judgment, a brief review of these provisions reveals the relatively limited scope of paragraph 16(1). This provision cannot be used to correct or disapply the effect of Articles 22(5) and (6), and the opening clause makes that clear. For Ms Butler-Cole’s submission to work, the “anything” which is contemplated by paragraph 16(1) must be taken to mean the reference of an allegation to the IC, but if on the true construction of Article 22 that course is simply not permitted, because it runs counter to the statutory scheme, I cannot see how and why it may be ordained by this provision.[69]I reject Ms Butler-Cole’s submission based on implied power because in my view that cannot escape the toils of Gorlov.[70]Finally, I should say that I do not believe that either party’s case is advanced any material distance by the subsidiary arguments which were addressed. Put shortly:(i) whether or not the Council has power to discontinue elements of an allegation (see paragraph 4 of the decision of Lord Marnoch in Peace v General Teaching Council for Scotland [2003] SC 299), the same result may be achieved by offering no evidence before the CCC;(ii) the decision of the Privy Council in Gangar v GMC [2003] UKPC 28 was more about fairness than jurisdiction, and involved a different regulator operating within a different statutory regime; and(iii) the jurisprudence involving the Professional Standards Authority for Health and Social Care does not assist because it presupposes the existence of a power to amend.

Conclusion

[71]Article 22(6) of the 2001 Order falls to be interpreted in such a way as to permit “the Council’s allegations” to be referred by the Council to the IC as a composite entity, in which circumstances Article 26(2) and (5) were validly deployed to make a further reference to the CCC.[72]This application for judicial review must be dismissed.

Cited in 1 later judgment