Levett v Health And Care Professions Council

LORD JUSTICE RICHARDS: The Applicant is a chartered psychologist. In November 2013, after a lengthy disciplinary hearing, a Panel of the Health and Care Professions Council ("the Council") found that her fitness to practise was impaired and directed that her name be struck off the Council's register of practitioner psychologists, the effect of which, as I understand it, is to stop her doing her previous job as a clinical psychologist.

The allegations found proved were that she had conducted an inappropriate relationship with Miss A, a patient, and had failed to maintain appropriate boundaries, that she had conducted inappropriate relationships with two former patients and that she had breached Miss A's confidentiality by revealing personal information about her.

An appeal to the High Court was dismissed by Haddon-Cave J, save as regards the finding of breach of confidentiality, in relation to which the appeal was allowed. The judge upheld the sanction of striking off.

An application for permission to appeal against his order was refused on the papers by Bean LJ, though permission was granted for the grounds of appeal to be amended. The application for permission to appeal on the amended grounds is now renewed before me by Mr Hyams on the Applicant's behalf.

Since this is a permission application, I am not going to attempt to summarise the Panel's decision or the judgment below, nor is it practicable to go into the detail of the 11 grounds contained in the 8 page amended grounds of appeal or the supporting submissions advanced by Mr Hyams in his 27 page skeleton argument and 7 page renewal statement. I have, however, read all that material. I have also read, but likewise do not intend to go into, substantial written submissions lodged by the Council in response to the amended grounds of appeal.

Mr Hyams opened this morning with eloquent submissions as to the importance of the case, submissions to which I will return. Since, however, he pursues all the grounds of appeal, I think it right to consider them briefly in turn.

Ground 1 alleges that the Panel's decision was tainted by the appearance of bias because, as has been discovered since the judgment below, the chair of the Panel has carried out paid work for the Council as a visitor inspecting education programmes, and the practitioner member of the panel was appointed as a registration assessor for the Council (not a registrant assessor as originally contended). It is suggested that those individuals had a financial incentive to please the Council, creating at least the risk of subconscious bias in the Council's favour, or that the situation is one where an informed observer would have considered there to be a risk of bias. Like Bean LJ, however, I think it unarguable that the matters relied on gave rise to any bias, whether actual or apparent.

Ground 2 is essentially a reasons challenge relating to the way the Panel resolved a conflict of evidence between Miss A and the Applicant herself, and to the conclusions reached as to whether Miss A was a patient of the Applicant. The ground is developed at length in the written material and has been summarised by Mr Hyams this morning. In my view, however, the matter was properly considered by Haddon-Cave J and he was right to reject the reasons challenge and the related arguments concerning the status of Miss A as a patient.

Ground 3 is probably the central ground in the case. It challenges the correctness or rationality of the panel's conclusion that the Applicant was guilty of misconduct, that is to say in finding that she had conducted an inappropriate relationship and failed to maintain appropriate boundaries.

Mr Hyams lays particular stress in his submissions today on the contention that this body is not a professional disciplinary body of the usual sort. He had said in his written submissions that the Council does not set professional or clinical standards for the professions it regulates, but that appears to be an erroneous or overstated assertion. The Council's solicitors have drawn attention to the fact that the Council does set general standards of performance and ethics for all registrants, as well as specific standards of proficiency for practitioner psychologists. It has also drawn attention to the fact that the decision here in question was made by reference to the British Psychological Society Code of Ethics and Conduct and to the Professional Practice Guidelines 1995.

Mr Hyams submits, however, that the three member Panel included only one member of the Applicant's own profession and that that member was a child psychologist whereas the Applicant is an adult psychologist. He says that the Panel was simply not in a position to make an assessment, or did not properly make an assessment, by reference to the underlying principles governing the relevant profession. He submits that the Panel paid only lip service to the relevant codes and guidance and that there was nothing in those codes and guidance prohibiting the conduct which occurred. He pointed out in his written material that the British Psychological Society, the body which conferred professional standing on the Applicant before the Council took over that regulatory function, had taken a different view as to whether Miss A was a patient of the Applicant and had dismissed a complaint by Miss A's father.

The submission comes close, as it seems to me, to one that a panel constituted in the way this Panel was constituted did not have the expertise at all to decide whether something was inappropriate or amounted to misconduct. Mr Hyams does not, however, put the matter in quite such extreme terms. He puts it in terms of a failure to have regard to material considerations and/or irrationality in the decision made.

I have given consideration to the way the case is put and to the material on which it is based. I take the view, however, that the point does not have any real prospect of success. I note too, and I think this is material, that there was relatively little dispute before Haddon-Cave J as to the extent to which the Panel's findings of fact were capable of founding a finding of misconduct. I refer in particular to paragraphs 40 and 53 to 54 of Haddon-Cave J's judgment.

Ground 4 alleges a serious procedural irregularity in that it is said that the Applicant was not able to hear all the evidence of Miss A, which was given from behind a screen. Like Bean LJ, I consider the point to be a bad one for the reasons given by Haddon-Cave J at paragraph 51 of his judgment.

Ground 5 alleges that the Panel was wrong and unfair to find that the Applicant's actions had harmed Miss A, which did not form part of the charges and had not been put to her. This does not appear to have been a ground of appeal to the High Court, but in any event I consider there to be no substance to it, in that I take the view that the Panel was entitled to have regard to the consequences of the Applicant's actions in assessing the seriousness of her conduct.

Grounds 6 to 8 challenge the reasoning in support of the sanction and the proportionality of the sanction. Bean LJ referred to the great difficulty of challenging on appeal the decisions on sanction in professional disciplinary cases and expressed the view that the decision that the Applicant be struck off was properly open to the Panel on the evidence before it. Mr Hyams seeks to strengthen his case on these grounds by reference to the matters relied on under ground 3 concerning the make up of the Panel and the matters taken into account and not taken into account by the Panel in reaching the findings that are challenged under ground 3. He submits that it was incumbent on the Panel in the circumstances to analyse the evidence with considerable care and state the result of that analysis in more detail than it did. He also submits that the judge, having found that the finding of breach of confidentiality should be set aside, ought to have remitted the matter to the Panel for reconsideration of the whole question of sanction.

The fact is, however, that the sanction was examined very carefully by Haddon-Cave J, who found that the Panel's reasoning was sufficient and held that the Panel would have reached the same conclusion even without the finding of breach of confidentiality. Moreover, really as a precautionary measure, he decided in the exercise of discretion - an unassailable exercise of discretion, in my view – to conduct his own thorough review of the matter, reaching the conclusion that the only appropriate sanction in the circumstances of the case was that the Applicant be struck off. Again, I see no real prospect of a successful appeal against that conclusion.

Grounds 9 to 11 relate specifically to errors alleged to have been committed by the judge. To the extent that they are not covered by what I have already said, it is sufficient to say that I see no force in any of them.

In conclusion, I take the view that this case does not qualify for permission to appeal even on first appeal criteria, let alone when account is taken of the additional hurdle of the second appeal criteria. As to that additional hurdle, I agree with Bean LJ that, notwithstanding the way the case has been presented by Mr Hyams in his written and oral submissions, the case does not raise an important point of principle or practice. It seems to me that the alleged unlawfulness of the decision is grounded in the specific and very unusual features of this case, not in the constitutional position or function of the Panel or the Council or any matters that can properly be called important points of principle or practice; nor does the bias argument raise any issue of principle, in my judgment.

For all those reasons, whilst acknowledging the very clear and cogent way in which the case has been presented by Mr Hyams this morning, I must refuse the application for permission.