McDermott v The Health and Care Professions Council [2017] EWHC 2899 (Admin)

Case No CO/3272/2017[2017] EWHC 2899 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/11/2017
Before
Mrs Justice Yip
Between
MR KIERAN MCDERMOTTAppellantTHE HEALTH AND CARE PROFESSIONS COUNCILRespondent
Ms Althea Brown (instructed by Thompsons Solicitors) for AppellantMr Tom Cross (instructed by Bircham Dyson Bell) for RespondentHearing Hearing dates: 7 th November 2017
JudgmentMrs Justice Yip :
[1]This is an appeal by Kieran McDermott, a registered physiotherapist, against a decision (dated 16th June 2017) of the Health and Care Professions Tribunal, sitting as the Respondent’s Conduct and Competence Committee (“the Panel”), that allegations of lack of competence were proved; that his fitness to practise was impaired and that he should be subject to a suspension order for a period of 12 months.[2]The Appellant raises a procedural challenge, contending that a significant number of the allegations against him were vague and lacked particularity. He also contends that each of the decisions as to lack of competence; impairment and sanction were substantively wrong.[3]The Respondent contends that the hearing was fair and that the Panel’s decision at each stage was one that was properly open to it so that this appeal should be dismissed.

Factual background

[4]The Appellant is now aged 44. Having worked for about twelve years in the airline industry, he decided to pursue what he described in his statement to the Panel as a “long held ambition” to become a physiotherapist. He qualified in 2009 and joined the University Hospitals Birmingham NHS Foundation Trust (“the Trust”) in a rotational role as a Band 5 physiotherapist. Between 2009 and 2012, he worked in various different departments, apparently without incident. In May 2012, he commenced a musculoskeletal rotation based in the physiotherapy gym at the Royal Orthopaedic Hospital (“ROH”). By the end of June 2012, concerns had been raised about the Appellant including in relation to the accuracy of patient assessments. Some patients were said to be unhappy with the treatment they had received from him. These issues were raised with the Appellant and he responded by saying that he was having trouble using the record system at the ROH. In July 2012, he sent an email to Catherine Elliott, Head of Physiotherapy at the Trust, indicating that he felt he was struggling at ROH. After discussion of the concerns, the Appellant was told that his performance would be managed using the poor performance procedure (“PPP”).[5]It is not disputed that the Appellant has dyslexia. Evidence before the Panel suggested that this impacts on his processing speed and working memory and may cause difficulty with note-taking. It was, and remains, the Appellant’s case that the Trust did not adequately support him to manage his dyslexia. However, they maintain that they gave him a great deal of support. The Panel found “extensive measures taken by the employer over time to assist the Registrant within a planned programme to facilitate improvement in performance and practice” (see paragraph 109 of their decision). Further, they expressly confirmed (at paragraph 124) that they were not of the view that the Appellant’s dyslexia explained the competence issues or that his lack of clinical competence was related to dyslexia.[6]The Appellant continued to work for the Trust and concerns continued to be expressed. In February 2013, he was moved from Stage 1 to Stage 2 of the PPP on the basis that he had not met the standards set out for him. In March 2014, he moved to the neuro-outpatients service. Concerns continued such that in December 2014 it was recommended that he move to Stage 3 of the PPP. On 15th December 2014, the Appellant commenced long term sick leave. He did not return to work and resigned from the Trust in March 2015. It is apparent, on any view of the facts, that the relationship between the Appellant and the Trust had wholly broken down. The Trust had serious concerns about his safety and considered that he required a high level of support which was not sustainable. The Appellant complained that he was being “micromanaged” and that this was increasing his stress levels and, in turn, exacerbating his dyslexia-related disability.[7]The disciplinary proceedings were commenced in or about June or July 2015 and the first interim order was made in October 2015, imposing Conditions of Practice. That order was not before me (or the Panel) but I was told that it included a requirement for direct supervision.[8]In December 2015, the Appellant secured an honorary contract with the Birmingham Community Healthcare NHS Trust (“the Community Trust”), allowing him to undertake unpaid voluntary work at Moseley Hall Hospital as a Band 5 physiotherapist but subject to the conditions of practice imposed under the interim order. He began this work in January 2016, working seven hours a day on four days a week. Save for some time off after his brother died suddenly and to recuperate from surgery, the Appellant maintained that voluntary employment up to the time of the Panel’s decision. In March 2016, the Respondent’s Interim Orders Panel lifted the requirement of direct supervision although the Appellant remained subject to indirect supervision. Again, I have not seen the conditions of practice that remained in place. However, there is no suggestion other than that the Appellant fully complied with the conditions.[9]The Appellant’s honorary contract was initially for a period of three months but was repeatedly extended so that by the time of the Panel’s decision, he had been in that voluntary post for about seventeen months. The feedback from the Community Trust was, as Mr Cross accepts, positive. I will have to return to consider that in more detail but for present purposes I simply note that in a letter dated 7th November 2016 Deborah Skerrett, Physiotherapy Lead at the Community Trust, said “I have continued to receive regular updates and feedback from the therapy teams on his progress. All feedback has been positive and complimentary in all aspects of his work.”[10]The Panel hearing took a significant amount of time. It commenced in December 2016 and over the course of six days received evidence from six witnesses from the Trust. It was then adjourned to May 2017. Unfortunately, the original Panel chair was unable to continue. A decision was taken to proceed with a new chair and to provide written transcripts of the evidence heard in December 2016. The Appellant makes no criticism of this approach. To the extent that anything turns on the evidence given in December 2016, I bear in mind that I am in no worse position when assessing that evidence than the new chair was. However, I do not think this is particularly relevant to this appeal. The newly constituted Panel heard from the Appellant over the course of two-and-a-half days in May 2017 and had a bundle of evidence presented by him, which included testimonials and records from his voluntary post. After the Panel had announced its decision in relation to competence and impairment, and I believe in light of the reasons given by the Panel in relation to the decision on impairment, the Appellant called five witnesses from the Community Trust to give oral evidence (by telephone) as to his work since January 2016 before submissions were made in relation to sanction.[11]The decision of the panel is 129 paragraphs long. A total of 46 charges were found proved. The Panel concluded that the facts proved disclosed a lack of competence. They went on to find that the Appellant’s fitness to practice remained impaired and then decided to suspend the Appellant for twelve months.[12]In the course of argument, I suggested to Mr Cross that the decision to suspend the Appellant at that stage, when the Interim Orders Panel had imposed conditions which had been complied with and where the Appellant had done a substantial amount of work under those conditions and had produced positive testimonials was a surprising one. Mr Cross did not demur although he stressed, as I very readily acknowledge, that the fact that a decision is surprising is far from enough for it to be overturned on appeal.

The Appeal

[13]In her skeleton argument, Ms Brown suggested that the “primary concern is that the sanction of a suspension order is wholly disproportionate and unwarranted.” She confirmed in oral submissions that the real attack is to the end result. However, she maintained that the outcome is underpinned by flaws at each stage of the decision. There are four main grounds of appeal which are sub-divided to give a total of sixteen grounds. In her sensible and focussed oral submissions, Ms Brown identified the real thrust of the appeal as follows: i) There was a lack of specificity in the charges coupled with a lack of sufficient evidence to support the more general charges. ii) The decision as to lack of competence was wrong as the Panel a) failed to deal with the issue of the Appellant’s dyslexia properly and b) failed to engage in a proper consideration of the question of seriousness. iii) The decision as to impairment was wrong because it failed to properly reflect the compelling evidence of remediation. iv) The suspension order was not proportionate, did not properly reflect what the Appellant had done since leaving the Trust and was based on reasoning that was generally flawed in a number of respects.

The legal framework

[14]The functions of the Health and Care Professions Council and its committees are prescribed by Article 3 of the Health and Social Workers Order 2002/254. Article 3(4) provides that:
“The over-arching objective of the Council in exercising its functions is the protection of the public.”
Part V of the Order provides for allegations relating to fitness to practice to be considered by the Conduct and Competence Committee and for orders to be made including striking off, suspension and imposing conditions of practice. Pursuant to Article 38, an appeal against the Panel’s decision lies to this court.[15]An appeal under Article 38 is a statutory appeal and is subject to CPR Part 52. The principles are the same as for appeals under section 40 of the Medical Act 1983 so that authorities relating to appeals from the equivalent panel of the General Medical Council are relevant. The appeal is by way of rehearing rather than review but without rehearing the evidence. This Court will allow an appeal only where the decision of the Tribunal was "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings" (CPR 52.11(3)). As Hickinbottom J stressed in Siddiqui v GMC [2015] EWHC 1996:
“Because of the important public interest in the finality in litigation, the starting point is that the decision is correct unless and until the contrary is shown.”
[16]It is well established that the court should give proper deference both to the Panel's specialist nature and to the fact that the Panel has the advantage of seeing and hearing witnesses give evidence. The leading case on the nature of the appellate jurisdiction in this context is Meadow v General Medical Council [2006] EWCA Civ 1390 [2007] QB 462. I have in mind the much quoted passage from the judgment of Auld LJ at paragraph 197:
"... it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors: i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; iii) The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
[17]Further guidance as to the approach to be adopted was given by the Court of Appeal in Southall v General Medical Council[2010] EWCA Civ 407 where Leveson LJ said (at paragraph 47) and I omit the references to other authorities here:
"First, as a matter of general law, it is very well established that findings of fact, particularly if founded upon an assessment of the credibility of witness, are virtually unassailable .... more recently, the test has been put that an appellant must establish that the fact finder was plainly wrong ... Further, the court should only reverse a finding on the facts if it "can be shown that the findings ... were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread ...."

Ground 1 – Allegations lacked particularity

[18]The Appellant complains that the allegations were “poorly drafted, frequently vague and repetitive”. It is suggested that evidence of relatively few specific matters was “recycled, reworked and reworded” to produce a large number of allegations.[19]In R (Johnson and Maggs) v Nursing and Midwifery Council [2008] EWHC 885 (Admin), Beatson J considered an application to stay certain charges for want of specificity. He suggested that a two-stage test should be applied. The first stage involved considering whether the charges provided sufficient information to enable those charged to know, with reasonable certainty, the case they have to meet and to enable them to prepare their defences. The second stage was to consider whether a stay was necessary or whether a fair trial could nonetheless take place. Here, no stay was sought, although Ms Brown did contend in submissions to the Panel that the allegations were poorly drafted. I am therefore looking at the position after the hearing has taken place and can see how the charges were approached in the presentation of the evidence and the findings made by the Panel.[20]The Appellant relied on Hutchinson v General Dental Council [2008] EWHC 2896 (Admin). In that case, Blair J accepted that there was a considerable degree of vagueness in one of the charges and that such vagueness was, in principle, undesirable. However, he noted that perhaps some forms of behaviour render charges framed in that more general way inevitable. Given that applications for a stay will rarely succeed he considered that:
“the important thing in cases like this, in my judgment, is that the tribunal should reach its findings on the evidence with possible prejudice to the practitioner caused by factors such as delay and lack of specificity firmly in mind.”
[21]I have looked carefully at the particular charges challenged by the Appellant (1 a); 2 e); 2 g) (i) and (ii); 2 h); 3 c); 3 d); 3 f); 4 a); 4 b) and 8). It is true that some of these charges do not refer to specific events on specific dates. The phrase “did not consistently” is frequently used. The Panel’s findings on some of the charges depended on evidence, findings or admissions relating to other charges so there was some cross-referencing and overlap of charges. However, it was held in Gee v GMC [1987] 1 WLR 564 that the rule against duplicity, necessary in criminal cases where the only answer to a charge is guilty or not guilty, does not apply to disciplinary proceedings where the Panel is required to make a determination indicating which facts are found proved before moving on to consider fitness to practice.[22]Looking both at the evidence presented to the Panel and at their findings in relation to the charges, it is quite clear that any lack of specificity did not produce an unfair hearing. The Appellant was able to respond to the allegations by way of his witness statement, making it clear where he felt vagueness prevented a less than full response. The Panel were addressed by Ms Brown as to the effect of vagueness in the allegations and plainly had this in mind in giving their decision. Perhaps the best example of their careful approach is to be found in their findings on the charges at paragraph 3. Charges 3 a) and b) alleged that the Appellant “inaccurately measured patients [sic] knee range movements” and “misinformed patients of their progress”. The Appellant had admitted a specific instance when this happened. The Panel found the charge not proved as it referred to “patients” in the plural and there was no evidence that it had happened with more than one patient. At 3e)(i), it was alleged that the Appellant did not consistently provide reasoning for subjective assessments. The Panel found that there was insufficient evidence that such reasoning was not consistently provided.[23]In the case of each charge in relation to which complaint is made, the Panel carefully explained the basis on which they had found the allegation proved rather than simply recording that it was proved. In as much as there was any vagueness in the charges, there was none in the findings made. It follows that the Appellant clearly knew the extent to which he had been found to fall below the necessary standard. Further, the Panel clearly had this in mind when they approached the impairment and sanction stages.[24]Ms Brown developed this ground to also assert that there was insufficient evidence to back up some of the charges found proved. She complained about a lack of supporting records. However, it is clear that the Panel had regard to all the evidence, were properly directed and made findings of fact which they were entitled to make. As the authorities make clear, such findings are virtually unassailable. There is one specific criticism which may have some validity. Ms Brown suggested that the reasons given for finding charge 2 h) proved do not necessarily tie in with the charge. The charge said that the Appellant “did not consistently record evidence of clinical reasoning on patient records”. The Panel accepted criticisms contained in a record that suggested that the Appellant’s clinical reasoning skills remained poor. I accept that may not quite answer the charge as drafted. However, even if this was an error, it is quite apparent that when looked at as a whole it made no material difference to the outcome. The fact that I consider this to be the only criticism that might properly be made of the Panel’s reasoning across the large number of charges before them demonstrates the care with which they approached this task.[25]I therefore consider that no proper complaint can be made in relation to the specificity of the charges or the approach taken by the Panel in considering them. Ground 1 accordingly fails.

Ground 2 – Challenge to finding of lack of competence

[26]There were five sub-paragraphs set out under this heading. However, as noted above the ground was narrowed at the hearing so that the challenge was really to the Panel’s alleged failure to engage with issues surrounding the Appellant’s dyslexia and the seriousness of the findings.[27]In her skeleton argument, Ms Brown had also suggested that the Panel failed to conduct a fair hearing and failed to give adequate reasons for their decisions on the facts, lack of competence, impairment and sanction. Insofar as those arguments were maintained, I reject them.[28]It was suggested that the Panel invited anecdotal evidence amounting to fresh allegations which the Appellant was unable to answer. To the extent that I have considered the transcripts, I have seen nothing to support this contention. Ms Brown indicated that specific examples of the objectionable questioning would be referred to “in due course”. Since that did not happen, I assume this particular argument is not maintained.[29]In relation to the bald assertion that the Panel did not give adequate reasons for the decisions, on the face of it they gave detailed reasons at each stage of the process. As the Court of Appeal made clear in Southall v GMC [2010] EWCA Civ 407, a lengthy judgment is not required. The Privy Council said in Selvanthan v GMC [2001] Lloyd’s Rep Med 1 that all that is needed in most cases is a general explanation of the basis for the determination. In reality, the contention that inadequate reasons were given adds nothing to this appeal.[30]As to the suggestion that the Panel did not engage with the issues and submissions raised in relation to the Appellant’s dyslexia, the Appellant contended that, having made reference to his dyslexia in a total of nine paragraphs dealing with the factual background, there was no discussion within the reasons as to the impact of his disability on his performance.[31]The Panel had a great deal of evidence to summarise by way of factual background. In that context, I am quite satisfied that they gave sufficient prominence to the impact of the Appellant’s dyslexia and the medical and other evidence dealing with that. They reminded themselves (at paragraph 104) that they should seek to examine the context within which poor professional performance was said to have taken place. It is quite clear from the content of that paragraph that they were considering his dyslexia as part of the context. Although they may not have explicitly spelt it out at the stage of giving their decision on competence, it is implicit that they did not consider that dyslexia provided an explanation for the Appellant’s poor performance. Paragraph 109 referred to a worrying lack of improvement despite extensive measures to assist him. If there was any doubt as to how the Panel approached this issue, that is put to rest at paragraph 124 where they refer to the Appellant’s dyslexia as a mitigating factor in relation to sanction but record that “for the avoidance of doubt the Panel are not of the view that his dyslexia explains the competence issues, or that his lack of clinical competence is related to dyslexia”.[32]The Appellant has not identified any material error in the Panel’s treatment of his dyslexia.[33]I also reject the criticism of the Panel’s reasoning in relation to the issue of seriousness. The factual findings which were plainly open to them on the evidence established a significant number of failings. The Panel properly followed the legal directions given to them as to the need to consider whether those findings constituted a lack of competence and highlighted at paragraph 103 that any lack of competence must be serious. The decision as to whether the findings amounted to a lack of competence and were serious was a matter of judgment, falling squarely within the remit of the specialist Panel. The reasons given by the Panel were sufficient for the Appellant to understand the decision and the basis for it. I do not accept that more was required.[34]In the circumstances, Ground 2 fails. The decision in relation to competence was one which the Panel were entitled to reach.

Ground 3 – Challenge to decision on impairment

[35]There are four sub-paragraphs under this heading. Essentially, the complaint is about the treatment of the evidence placed before the Panel by the Appellant. It is said that they did not properly take account of the extent to which he had provided evidence of remediation.[36]The first specific complaint is that the Panel based the finding of current impairment on an inference drawn from an entry in a supervision record without due regard to the testimonial from the person who created it or other evidence that contradicted it. The Appellant supplements this complaint by reference to the evidence given by this witness, Shwetha Radhakrishan, at the sanction stage that she had “no concerns around clinical reasoning”. The final two sub-paragraphs appear to relate more to the decision on sanction.[37]Looking at paragraphs 110 to 117 which deal with the decision on impairment as a whole I do not believe there is any flaw in the Panel’s reasoning such as would justify interfering on appeal.[38]The question of whether the Appellant’s fitness to practice was currently impaired was firmly a matter for the judgment of the Panel. The Panel correctly identified the basis on which they were to approach that question. They referred to the work he had done at the Community Trust, noting that he was in a less demanding role than in his previous employment. They then identified that supervision records from March and April 2017 “noted issues in respect of structure of assessments, patient treatment plans, use of SMART goals, clinical reasoning and time management”. They felt that these concerns mirrored those that formed the basis of the allegations found proven.[39]The supervision records referred to were completed by Ms Radhakrishan, clinical lead physiotherapist. A statement from her dated 18th May 2017 said that the Appellant had demonstrated safe clinical practice and was entirely positive about him. However, that statement was brief.[40]It might be said that paragraph 116 of the decision appears rather one-sided. The positive testimonials placed before the Panel created quite a striking picture of improvement, in my view. The Appellant had done a substantial amount of unpaid work at another NHS Trust and had received overwhelmingly positive feedback. However, the panel were giving concise reasons for their finding that the Appellant’s fitness to practise remained impaired. They were not required to set out in detail their consideration of each piece of evidence. They referred to the testimonials and training records and, against that background, identified that there were ongoing concerns about his practice. Even taking the positive evidence at its highest, it cannot be said that the Panel were not entitled to regard the supervision records as evidencing some ongoing concerns.[41]Once it is accepted that they were entitled to that view, their conclusions at paragraph 117 cannot be faulted. They were required to have regard to public protection and upholding of proper professional standards. They were right to identify that their findings demonstrated significant competence issues.[42]Further, where issues are raised relating to the Appellant’s insight or lack of insight, I bear in mind that in the recent case of Professional Standards Authority v Health and Care Professions Council and Doree [2017] EWCA Civ 39, Lindblom LJ said at paragraph 38:
“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 Panel heard the Appellant give evidence over a period of two-and-a-half days. They were accordingly particularly well equipped to consider the extent to which he had insight into his lack of competence. Mr Cross highlighted particular passages in the transcript of the Appellant’s evidence which he relied on to justify the finding that the Appellant “demonstrated a worrying lack of insight into his failings”. I shall have to come back to consider how the Panel dealt with lack of insight at the sanction stage. However, I have no doubt that they were entitled to their view on the Appellant’s lack of insight and to take account of this when deciding whether his fitness to practice remained impaired.[43]Although I consider there was clear evidence of at least some remediation, given the Panel’s identification of ongoing concerns, it cannot be said that they were wrong to conclude that “there remains a current risk of harm to the public”.[44]It follows that the decision on impairment cannot be said to be wrong and Ground 3 also fails.

Ground 4 – sanction was wholly disproportionate and punitive

[45]There are a number of different criticisms made in relation to the decision to impose a suspension order by way of sanction. By way of general assertion, the Appellant says that the basis for imposing a suspension was “deeply flawed”. As I have already noted, following the decision in relation to competence and impairment, the Appellant called oral evidence (by telephone) in relation to his work since the beginning of January 2016. Complaint is made about the treatment of that evidence. It is also argued that the ongoing competence issues were not of such significance as to merit suspension, nor could they be said to be “serious, persistent and ongoing” on the evidence. It is said that the Panel were wrong to reject a Conditions of Practice Order as being unworkable. Criticism is also made of the Panel’s treatment of the issue of insight and the Appellant’s dyslexia. In short, there is a wholesale challenge to the reasoning of the Panel which led to their decision to suspend the Appellant.[46]Given that this appeal is by way of rehearing, it is perhaps unnecessary to break this ground down into quite so many individual complaints. The Appellant’s position is simply that the decision on sanction is wrong. I must look at the decision and the reasoning behind it as a whole to see whether the Appellant has established that it was wrong such as to justify this court interfering.[47]In doing so, I have particular regard to Fatnani and Raschid v GMC [2007] EWCA Civ 46. In that case, Laws LJ said at paragraph 19:
“the fact that a principal purpose of the Panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel.”
[48]I also have in mind what Laws LJ said in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at paragraph 44:
"The burden so assumed [by the appellant] is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. As appellant, if he is to succeed, he must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where an appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category."
[49]In my judgment, it was fair for the Panel to note that the evidence of the Appellant was subject to some limitations. In doing so, they were not blaming the Appellant for the context in which the evidence arose as is perhaps suggested in Ms Brown’s skeleton argument. They were required to put the evidence into context. However, in my judgment the Panel gave too much weight to the perceived limitations. The witnesses were senior NHS physiotherapists with no apparent reason not to give a frank assessment of the Appellant. I do not consider that the Panel were in a better position than this Court is to assess that evidence where it was given by telephone and I have full transcripts of what was said. The overall picture, as properly acknowledged by Mr Cross, was undoubtedly positive.[50]Although some aspects of the context in which the evidence arose were stressed, another important part of the context does not seem to have been put into the balance. The interim order imposed conditions of practice which must have been considered to be appropriate to meet the concerns about the Appellant in light of the allegations made against him. The Appellant complied with those conditions and, within the framework created by them, no significant concerns were identified. The Interim Orders Panel had thought it appropriate to relax the conditions. While this was in no way binding upon the final Panel who had the advantage of hearing all the evidence, I consider that it was a highly relevant part of the context.[51]Further, the rejection of Ms Radhakrishan’s evidence on the basis that she seemed to be keen to underplay or minimise obvious criticisms in her supervision notes seems unfair. This was relied upon by the Panel to uphold their original finding (made before hearing the witness’s oral evidence) that the supervision notes were a source of concern. When the witness explained that the notes were not intended to be read that way but rather were observations for improvement and development, the Panel concluded that she was downplaying her concerns. The sole basis for that finding appears to be that the Panel’s interpretation differed from hers. In my view, the Panel should have accepted her evidence as to what she meant when she wrote the entries. There was no evidential basis to conclude otherwise.[52]I fully accept that the Panel were entitled, having heard the evidence, to conclude that the concerns about the Appellant had not been wholly allayed. They had properly made findings of a lack of competence and found that the Appellant’s fitness to practice remained impaired. They were entitled to find that the Appellant lacked insight into his deficiencies and that his dyslexia was not the cause of his lack of clinical competence. In the circumstances, it would have been inappropriate to take no action or to impose a caution and it is not contended otherwise within this appeal.[53]Following their own Indicative Sanctions Policy (ISP), the Panel then had to consider the remaining options in ascending order of seriousness so as to arrive at the sanction representing the least restrictive means of attaining public protection and one which was proportionate, striking a proper balance between protection of the public and the rights of the registrant.[54]In considering the appropriate sanction, the ISP makes it clear that the extent to which a registrant has insight, in the sense of recognising his failings and being willing to address them, will be a key factor in many cases.[55]The Panel relied upon the Appellant’s lack of insight as one of the reasons for rejecting a Conditions of Practice Order. In doing so, they criticised the Appellant for asserting at the sanction stage that no action should be taken. This was said to further demonstrate a lack of insight. However, the Appellant did not give evidence at this stage and representations were made on his behalf by Counsel. Given the evidence called by the Appellant, I believe that Counsel was entitled to make that submission, albeit the Panel were right to reject it. I do not consider it right for the Panel to rely upon the submission made by the Appellant’s professional representative as further evidence of his lack of insight.[56]It was fair for the Panel to conclude that the Appellant showed a tendency to blame others or his dyslexia rather than taking responsibility for his lack of competence. Two particularly relevant points in his evidence, to which Mr Cross took me, are his responses to direct questioning from Ms Brown, the lay panel member. At pages 892 to 894 of the Respondent’s Bundle, he is asked what he thought had changed in relation to his practice compared to the issues raised in 2011 to 2012. His lengthy response focused on the change of environment and the difficulties he had experienced with the system at the Trust. At pages 903 to 904 he was asked specifically “I just wanted to ask you, clinical reasoning has obviously been an issue that has been raised as part of this hearing. Do you see any areas of your clinical reasoning that with hindsight and now you think actually could have been better?” His response again focused on the previous environment he was in and then highlighted what he had done well in his new placement. It is fair to say he did not reflect on his own deficiencies.[57]On the other hand, there was some evidence of a greater insight into problems now than had been there previously. It is clear that there was a complete breakdown of the relationship between the Appellant and the Trust. His relationships at the Community Trust were better and there was evidence of him taking criticism more constructively. A record of a review in March 2016 (page 1069 of the Appellant’s Bundle) described him as being “open and clear about the areas of practice that he needs to develop.” In October 2016, Joanne Cartmell described him as being “open to feedback” and “focused on improving his practice” and said: “He appears to respect constructive criticism”. (Page 1100-1101 of the Appellant’s Bundle)[58]Although the Panel said that they gave ‘anxious consideration’ to the possibility of imposing a Conditions of Practice Order, I conclude that the reasons given at paragraph 126 of their decision did not, in reality, justify the rejection of that sanction.[59]In my judgment the Panel overlooked the reality of what had happened since 2015. It had been considered appropriate to make the Appellant subject to a Conditions of Practice Order in the interim period. He had shown extraordinary commitment to his voluntary placement, keeping up a significant number of hours per week in addition to having a paid job to meet his living expenses. He had complied with the conditions imposed, and in that context, had received genuinely positive references. There was no suggestion that public protection had not been maintained. Although the Appellant continued to lack insight into his lack of competence, he had clearly demonstrated a willingness to improve his clinical skills and had taken constructive criticism on board.[60]I agree with the Panel’s finding that the Appellant needs to develop his insight. It is fair to observe that he could have pursued more relevant training specifically to address his competency. However, it is not clear why the Panel concluded that insight could not be developed under a Conditions of Practice Order having regard to the particular circumstances of this case.[61]I also consider it wrong to say that conditions that were workable, practicable and verifiable could not be formulated. Conditions which were considered to offer public protection had been formulated at the interim stage and it was clear that progress had been made under such conditions.[62]Where the Appellant had complied with conditions over a lengthy period and, on any view of the evidence, had made real improvement, it was inappropriate to then suspend him while allowing for his return to practice at the end of the period of suspension. The work which the Panel suggested at paragraph 129 is likely to be much harder to achieve while suspended, if possible at all. In my judgment, taking the Appellant out of practice for a period of 12 months after he has displayed a real commitment to maintain his skills through the long interim period and produced evidence of improvement is not a proportionate sanction. Further, that course is likely to worsen rather than improve the Appellant’s performance and I do not consider that it can be said to maintain the balance between public and private interest.[63]It follows that, while I afford due respect to the Panel’s particular expertise, particularly in deciding upon the appropriate sanction to maintain public confidence, I consider this to be an exceptional case where the sanction was plainly wrong and should be quashed.

Disposal

[64]In my judgment, a Conditions of Practice Order should be imposed in place of the suspension. I will consider any submissions Counsel wish to make as to disposal. However, my provisional view is that the matter ought to be remitted to a differently constituted Panel with a direction that they impose a Conditions to Practice Order on such terms as they consider appropriate in all the circumstances.[65]It will be noted that, although I consider that the final outcome should not be upheld, I have accepted that the majority of the findings made by the Panel were properly open to them. In particular, it is to be noted that I support the Panel’s findings: i) On the specific allegations ii) That lack of competence was made out iii) That the Appellant’s fitness to practice remains impaired iv) That he continues to lack insight into his deficiencies. These findings will need to be reflected in the conditions imposed on his practice.[66]I am grateful to both Counsel for the efficient way they conducted this appeal and invite them now to seek to agree an appropriate order to reflect my findings and provide for the disposal of the matter.

Cited in 1 later judgment