High Court provides guidance on when an appeal should be remitted for a further hearing in fitness to practise cases

In the recent case of Hawkins v HCPC [2023] EWHC 3256 (Admin), the High Court considered the basis upon which a case should be remitted for a re-hearing following a successful appeal. This has provided useful guidance where there was a previous lack of such guidance.

The initial hearing

The Appellant, a physiotherapist, faced allegations which related to a massage he provided to a patient, Service User A. The core of the HCPC’s allegations was that when the Appellant was providing massage to Service User A, he asked her to raise her hips as she was lying on her back and was attempting to lower or remove her underwear and in doing so his actions were sexually motivated.

At the outset of the Final Hearing, the Appellant admitted that he had been attempting to lower Service User A’s underwear but denied that he had been attempting to remove it or that his actions were sexually motivated. Attention at the hearing was placed on whether the Appellant was attempting to remove the underwear. Sexual motivation was not put to the Appellant either in cross-examination or by questions from the Panel.

The Panel found there was insufficient evidence for the allegation surrounding the attempt to remove Service User A’s underwear to be proved, but did find that his attempting to lower her underwear (which he had omitted) was sexually motivated. The Panel further found that the Appellant’s fitness to practise was impaired by way of misconduct and imposed a 12-month suspension order.

The appeal

The Appellant appealed to the High Court against the Panel’s findings. On the determination that his actions had been sexually motivated, his primary point was that the Panel’s approach was procedurally unfair (in that it found sexual motivation despite this never being put to the Appellant either by the HCPC or the Panel). The HCPC accepted that its case was not adequately put to the Appellant, that this was a serious procedural error and that as a consequence the Panel’s determination on sexual motivation could not stand and must be quashed.

The issue for consideration by the High Court was the course it should take having quashed the Panel’s determination. The HCPC asserted the matter should be remitted for consideration before a differently constituted panel, whereas the Appellant asserted that that would be unjust and the Court should have simply dismissed the allegation in respect of sexual motivation.

In determining whether to simply quash the decision or remit the case for a full re-hearing, the High Court set out the following principles:

The Court has a discretion, which is necessarily wide because of the wide variety of differing circumstances in which it must be exercised. The discretion will have to be exercised having regard to both the purpose of the regulatory regime and the interests of justice.
Account must be taken of public interest in the proper regulation of healthcare professionals and in the maintenance of high standards in the healthcare profession.
In order to maintain such high standards, allegations against such professionals must be properly investigated and properly determined once investigated. This is also in the interests of complainants and registered professionals.
Consideration must also be given to the public interest in the finality of proceedings and the prompt determination of allegations against healthcare professionals.
Regard must be had to the requirements of fairness and justice in respect of the particular case and the particular healthcare professional. The fact that the professional will have to undergo a further hearing is unlikely to be of itself a potent factor against remittal. This will involve:
- Consideration of the circumstances of the proceedings in question;
- The nature of the allegation being made;
- The reason why the decision of the original panel has been quashed;
- The time since the events in question; and
- Whether it will be possible to have a fair hearing if the matter is remitted for rehearing by a new panel (and potentially when such a hearing will be possible).
It is necessary to consider the utility or otherwise of remittal for a hearing before a further panel. There will be no point in remitting a matter for a further hearing if on a proper consideration of the evidence the only proper conclusion would be the dismissal of the allegation.

In this particular case, the Court concluded that there was utility to remit the matter for a further hearing. There were factors for and against the finding of sexual motivation, none of which were conclusive by themselves. As such, it was proper and only fair that the Appellant was given the opportunity to respond orally to questioning about his motivation. The Court also stated that the public interest in a proper determination of the allegation against the Appellant outweighs the hardship caused to him as a result of the prolongation of the matter and the fact there will be a further hearing.

Comment

The Court has provided helpful guidance as to when it will be appropriate for a matter that has been successfully appealed should be remitted for a re-hearing. It has confirmed that the main purpose of regulators is protection of the public, and the key consideration is whether the public will be adequately protected and public interest will be properly served if the matter is not remitted for a re-hearing. Although the unfairness caused to registered professionals in having to undergo a re-hearing will be considered, this is unlikely to be sufficient in and of itself to prevent a re-hearing taking place and ultimately the key consideration is the public interest in allegations being properly considered.

If you are a healthcare professional facing a HCPC fitness to practice investigation or disciplinary proceedings, click here to see how Brett Wilson LLP can assist you.