Reyburn v The Health Professions Council

MR JUSTICE HOLMAN: This is an appeal by Mrs Cristina Reyburn from a decision and order of a Conduct and Competence Committee of the Health Professions Council given on 4 May 2007 after a hearing, the substantive part of which took place on 30 April 2007. That Committee is established pursuant to the Health Professions Order 2001, SI 2002/254. Article 3 (4) of that Order in Council provides that:

On 30 April and 4 May 2007 the committee was engaged on a review of an earlier Conditions of Practice Order. The review took place pursuant to Article 30 of the Order in Council. Article 30 (10) provides that the registrant may appeal, on the facts of this case, to this court against an order or decision made on a review. Article 38 (3) of the Order in Council provides that on such an appeal this court may dismiss the appeal, or allow the appeal and quash the decision appealed against, and substitute any decision that the committee might have made or remit the decision to be disposed of in accordance with the directions of the court.

The essential factual background is that the appellant qualified in 1981 with a diploma in speech and language therapy. I am told that she has been in continuous practice as a speech and language therapist ever since then until her suspension last May, which is the subject of this appeal. She is also a member of the Royal College of Speech and Language Therapists, and has been required to be registered with the Health Professions Council since the Health Act 1999 and the Health Professions Order 2001 came into force.

It is quite clear that for a number of years there has been considerable concern about aspects of her professional competence. As a generalisation, these relate more to issues of management, record keeping and organisation of her professional work than to her actual clinical competence when in direct professional work with a client or patient.

After a hearing in October 2003, the committee found proved a number of charges (pages 130 and 131 of the present bundle). At the time she was working in a hospital with adult patients of whom most, probably, had suffered strokes or similar impairments. The proven charges amounted to nine, and most of them refer to failures of record keeping. I do not overlook that charge No. 24 related to proposing to continue food trials with a certain patient who was clearly unwell. Charge No. 27 related to the giving of inappropriate advice to, or in relation to, a patient. Charge No. 28 related to a culpable failure to consult with other health care professionals in relation to a certain patient. Most, if not all, of those charges related to issues connected with swallowing difficulties of adult patients.

After finding the charges proved, the committee in 2003 imposed certain conditions of practice. The first, which has been maintained ever since, is that she shall not assess, diagnose or treat any person of any age with dysphagia. That, as I understand it, is a reference to persons with swallowing difficulties. Pausing there, that condition necessarily meant that she had to obtain and engage in some different area of practice as a speech and language therapist. The second condition was that she must make arrangements for a minimum of quarterly clinical supervision and case note audit by a registered speech and language therapist, and must provide written evidence of the outcomes of the supervision and audits. That was in October 2003.

Shortly after that, she began employment in a school called Glebe School at West Wickham in Kent. I mention that in his letter dated 12 March 2007 (bundle page 247) the head teacher of that school, Mr K Seed, stated that she has been employed by Glebe School since January 2003. That does appear to be an error and it may be that the correct reference is to January 2004. At all events, for a number of years she was employed by, and worked in, Glebe School.

There were then a series of review hearings in relation to the conditions. At a hearing in November 2004 the frequency of the required audit was reduced from quarterly to three times year. At a review hearing in August 2005 the frequency was further reduced to twice a year. There was a further review hearing on 15 May 2006. The decision and order made on that occasion is at bundle pages 195 and 196. Broadly, the conditions continued the previous requirements for supervision and audit, with reports at six-monthly intervals. There was also a requirement that by April 2007 Mrs Reyburn had to submit a copy of her CPD log covering the 12-month period from 1 April 2006 to 31 March 2007. As I understand it, it is not in issue that all the relevant conditions in that order were complied with in the sense that the required supervision and audits did take place and that reports were supplied substantially in accordance with the timetable set by the conditions.

The essence of the case against Mrs Reyburn was not a failure to comply with the letter of the conditions; rather it was that the reports based on the supervision and audits indicated a lack of sufficient improvement and a still unacceptable level of performance in certain respects. The key reports were supplied by a registered speech and language therapist, Mrs Rachel Littlejohn, who had been engaged by Mr Seed to provide the necessary clinical supervision reports; and also a report from Mr Seed himself. So far as auditing of her clinical notes was concerned, this was undertaken by another speech and language therapist, Mrs Fiona Bates. By a report dated 25 October 2006 Mrs Bates recorded that Mrs Reyburn "fully meets the requirements for standards of care" in 10 out of 12 sections of her record keeping. In relation to two aspects, namely the extent to which the notes were comprehensive and the extent to which the notes demonstrated clinical evidence relating to care, her record keeping was described as "mostly" or "partly" satisfactory. Overall, Mrs Bates concluded that she fulfilled 83 per cent of the audit.

I mention that at the hearing in April Mrs Reyburn produced a further report dated 20 April 2007 (bundle pages 325 and 326) from Mr Robert Kellard, who is the head of Art at Glebe School. That report is broadly supportive of Mrs Reyburn but does not, in my view, add significantly to the case. So the key evidence was clearly that of Mrs Littlejohn and Mr Seed.

As required by the previous conditions, Mrs Littlejohn had produced two earlier reports dated July 2006 and 23 October 2006 (bundle pages 274 and 275 respectively). The first of those reports is brief, and Mrs Littlejohn says she has had a shortness of notice. She says however that Mrs Reyburn -

The second report, dated 23 October (bundle page 275), is fuller. It refers to a meeting with Mrs Reyburn on 13 October 2006. It identifies a number of targets which were set. Clearly, the report identifies areas of continuing weakness and concern, but overall reads as a relatively positive indicator of progress and improvement. It says that Mrs Reyburn -

The report concludes:

As I understand it, Mrs Littlejohn has never met Mrs Reyburn again since the date of that report, nor indeed communicated directly with her save to send her a brief covering letter of 5 February 2007 (bundle page 247). However, other information apparently reaching Mrs Littlejohn clearly caused Mrs Littlejohn to have heightened concern about aspects of Mrs Reyburn's work and practice. As Mrs Littlejohn explained in her shorter letter of 5 February 2007 (bundle page 246), she sought advice from the Royal College and was advised to write a report immediately to the Health Professions Council.

She did this by a report dated 5 February 2007 (bundle pages 243 to 245). That begins by stating:

Overall, the main body of the letter of 5 February may be summarised as saying that Mrs Reyburn has made little progress. That letter was sent by Mrs Littlejohn to Mr Seed who himself, at the request of the Health Professions Council, wrote a letter dated 12 March 2007 (bundle pages 247 and 248). He said in that letter -

His letter concluded by saying:

Overall, it is left particularly unclear whether, if left to himself, Mr Seed would continue to employ Mrs Reyburn or not. As I understand it, since her suspension he has kept her on full pay although she has not actually worked within the school for many months.

That was the broad state of the written evidence when this further review came before the committee on 30 April 2007. Mrs Reyburn represented herself but was assisted by a union official, Mr Richard Munn.

It is clear from the transcript that at a relatively early stage Mrs Reyburn was indicating that there were a number of points on which she disagreed with the report in particular of Mrs Littlejohn. This led to the question of whether or not Mrs Littlejohn, and indeed Mr Seed, should be required to attend the hearing (which would no doubt need to have been adjourned for the purpose) in order to give oral evidence.

The committee, assisted by their legal assessor, positively raised the possibility of having an adjournment; but Mrs Reyburn said that she would rather they continued with the hearing on the basis that they would attach such weight as they considered appropriate to the reports of Mrs Littlejohn and Mr Seed in the light also of her own evidence at the hearing. Thus it is that early in their written reasons the committee said:

Clearly it is difficult for Mr Grant, on behalf of Mrs Reyburn, to mount any effective criticism of the committee for proceeding without oral evidence from Mrs Littlejohn and/or Mr Seed in light of the exchanges which had taken place. Nevertheless, it does seem to me that much of the problems in this case do flow from the almost impossible task which the committee then faced of how to evaluate and balance, on the one hand, what was said in the letters from Mrs Littlejohn and Mr Seed and, on the other hand, the oral accounts being given by Mrs Reyburn. I illustrate that point by reference to a quite pivotal passage in the letter of Mrs Littlejohn that I have already quoted.

As I have said, Mrs Littlejohn herself does not appear to have had any further direct contact with Mrs Reyburn after her rather more positive letter of 23 October 2006. So when one tries to discern how her later view had become so much less positive, one seeks to identify her sources of information. One source of information was clearly recent telephone contact with Mrs Bates who had undertaken the clinical notes audit. But as I have said, the reports and information emanating from Mrs Bates were essentially fairly positive, showing success in 83 per cent of the audit. So what must have had negative impact on Mrs Littlejohn was what she reported on the first page of her letter of 5 February 2007, namely -

The difficulty for the panel is that Mrs Reyburn addressed that head on, when she said at page 53 of the internal page numbering of the transcript (bundle page 75):

One sees that the committee were faced with a head on clash between, on the one hand, the hearsay report of Mrs Littlejohn of her head of department and head teacher expressing reservations about her and about her practice; and, on the other hand, Mrs Reyburn saying that the same people had essentially been reassuring to her, Mrs Reyburn. It is very difficult indeed to see how that sort of conflict could be reliably resolved without hearing the oral evidence of Mrs Littlejohn and Mr Seed, and probably also going back to the source of Mrs Chris Crawley to find out what she herself truly considers.

At all events, the hearing proceeded and only Mrs Reyburn gave evidence. At the conclusion of the whole hearing, after considering the matter both on 30 April and maybe also on 4 May, the committee gave their reasons. I wish to stress that during the course of today I have read the whole of the reasons several times and, of course, there has been much focus on them during the course of argument. It would be disproportionate, however, to read the whole of the reasons into this judgment. After the passage that I have already quoted - flagging up the difficult situation with which the committee was faced because of the absence of oral evidence from Mrs Littlejohn and Mr Seed - they continued:

The committee then essentially set out the broad headings to be found in the second page of that letter of 5 February 2002 (bundle page 244). Having set out the headings of complaint, the committee continued:

During the course of his submissions today, Mr Grant has demonstrated that it was too simplistic to say that "Nos. 1 and 3 were accepted by Mrs Reyburn." Examination of the transcript of the hearing at pages 76 to 78 clearly demonstrates that any acceptance by Mrs Reyburn of criticisms 1 and 3, which related to organisation and the setting of clear measurable targets, was at best only partially acceptance by Mrs Reyburn. Indeed, internal page 55 of the transcript (bundle page 77) clearly shows Mrs Reyburn, as it were, confessing but avoiding some of the sting of those criticisms.

As to criticisms Nos 4 and 5, Mr Grant submits that there was some appearance, at any rate, that the committee merely considered that as those criticisms were covered in the letters of both Mrs Littlejohn and Mr Seed, somehow that led to their acceptance by the committee even though disputed by Mrs Reyburn. The problem in that part of the reasons really goes back to the almost impossible task of setting the written letters of Mrs Littlejohn and Mr Seed side by side with the oral evidence of Mrs Reyburn, given that there was clearly considerable challenge by Mrs Reyburn to the contents of those letters as a whole.

On the last page of their reasons (bundle page 19) the committee, clearly appropriately, had come to the view that it would not be appropriate to take no further action and nor to give a caution in this case. Manifestly there is far too serious a situation here simply to take no further action and Mr Grant does not suggest otherwise. Equally, this case does not concern the sort of situation where there may be a relatively isolated lapse or piece of misconduct which might be addressed by a caution. So, realistically, of the range of available sanctions, the committee could only consider three, namely a further conditions of practice order or suspension or striking off.

The committee plainly gave consideration to their Indicative Sanctions Policy as to conditions of practice. That provides as follows:

In relation to the sanction of suspension, the Indicative Sanctions Policy states:

Finally, the Indicative Sanctions Policy refers to striking off and makes plain that -

Against that background, the reasoning of the committee was as follows:

It is clear that the process that the committee adopted in that passage was, appropriately, first to consider whether some revised conditions of practice would suffice in this case.

Having rejected the possibility of revised conditions of practice, they moved, appropriately, to consider the next sanction in order of severity, namely suspension. Having listened to the cogent submissions of Miss Richards this afternoon, I am quite satisfied that there was no lack of logic in the approach of the committee in this regard. At first blush it may seem that as there was a long history of concern here, and if a further conditions of practice order was not appropriate, then realistically the committee had to move to consider striking off. I am satisfied that that was not the approach that logic required. Rather, in the penultimate paragraph of their reasons and reasoning they correctly considered the less severe sanction of suspension. They decided that that was in all the circumstances "the appropriate and proportionate sanction" and accordingly they never got to the stage of even considering striking off.

As Miss Richards has correctly demonstrated this afternoon, suspension does not take effect merely for one year; rather, it falls to be reviewed before the expiration of the year, and a period of suspension may be extended unless and until the committee are satisfied that it is no longer necessary in order to protect the public.

But although there is no lack of logic in the reasoning process of the committee, it does seem to me that there are still considerable difficulties in their reasoning. First, it is important to separate out two quite discrete matters and issues in this case. One is the level of performance and suitability of Mrs Reyburn for the particular job for which she had been engaged at Glebe School. In the first paragraph of her letter of 5 February 2007, which I have quoted, Mrs Littlejohn is obviously particularly concerned because Mrs Reyburn -

It seems to me that the first paragraph in the passage on the last page of their reasons, which I have quoted, risks considering her suitability for the job rather than her suitability to remain on the register at all. Suitability for the job was not ultimately the issue.

My attention has been drawn to a number of authorities on the approach of courts to appeals of this kind. In particular, Miss Richards has appropriately relied upon the decision of the Court of Appeal in Raschid v General Medical Council, Fatnani v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460. In that case Lord Justice Laws particularly stressed the two "strands" that an appellate court must have very firmly in mind when considering an appeal of this kind. At paragraph 16 Lord Justice Laws said:

I wish to stress as strongly as I possibly can that I have those passages and the thrust of that judgment in the forefront of my mind. I am absolutely clear that the function of the committee is to impose sanctions and not in any way to impose retributive punishment. The focus of the sanctions has to be the protection of the public. I also have very firmly in mind that this is a decision of a specialist committee drawing on its special expertise in the field. Nevertheless, it seems to me that somehow something did go badly wrong in this case.

First, there was a marked shift in the approach and emphasis of Mrs Littlejohn between her position in the report of 23 October 2006 and that of 5 February 2007. Yet it is very difficult to discern with any reliability on what that shift was based. Certainly it was not based on any further contact with, or observation by Mrs Littlejohn of the performance of, Mrs Reyburn. It is difficult to see that her telephone contact with Mrs Bates can have so shifted the emphasis in her reports, and it appears, therefore, to come back to reliance upon things apparently said to Mrs Littlejohn by Mrs Crawley and Mr Seed. The difficulty is that that is very much hearsay and very speculative as to the gravity and content of what was said.

The difficulty was then compounded by the fact - however it arose - that neither Mrs Littlejohn nor Mr Seed did give any oral evidence, and so no opportunity was afforded for the committee to establish and to evaluate what it was that was influencing the report of Mrs Littlejohn. In my view the report contains many very vague observations. For instance, under paragraph 1 on the second page (bundle page 244) Mrs Littlejohn said:

At page 19 of the bundle, in the passage quoted above, the committee stated that they "placed considerable weight on the written evidence from Mr Seed". However, as I have endeavoured to indicate, it is not at all easy to discern what is the overall thrust and balance of that evidence. Clearly Mr Seed has reservations about Mrs Reyburn and her performance, but he does speak of "marked improvement" in some areas. He says that there are "still concerns" in other areas but he does not, to my mind, make at all clear whether overall he considers that her performance falls above or below the acceptable standard for a registered speech and language therapist.

I cannot and do not put my finger on any one amongst these matters which I regard as decisive or representing a fatal error, but it does seem to me that all those matters taken together indicate that somehow something went wrong in this case. I believe that what probably went wrong was the not hearing of oral evidence. At all events, even giving the fullest possible weight to the two strands identified by Lord Justice Laws and especially to the expertise of this Panel, I am quite clear that the evidence before them and the reasoning which they employed did not justify moving to the higher sanction of suspension. It seems to me that this hearing went off on the wrong basis, without properly obtaining and assessing the source material from people such as Mr Seed, Mrs Crawley and Mrs Littlejohn, and the decision to suspend is not reliably based.

For all those reasons I propose to allow the appeal, to quash the suspension and to remit the case to the Conduct and Competence Committee for a rehearing as soon as one can be set up. It follows from all that I have said that it seems to me that oral evidence from Mrs Littlejohn and Mr Seed - and probably also Mrs Crawley - are likely to be the central ingredients of that hearing.

Is there anything else that arises from your perspective, Mr Grant?

MR GRANT: I simply refer to costs.

MR JUSTICE HOLMAN: What is the application you make?

MR GRANT: I make an application that the respondent pays the applicant's costs of this hearing.

MR JUSTICE HOLMAN: Do you resist that?

MISS RICHARDS: I do.

MR JUSTICE HOLMAN: Provisionally, I am not prepared to order that. I will hear what you have to say. The difficulty is that I think a fundamental problem arose here by not having oral evidence, and that is as much a responsibility of Mrs Reyburn as anybody else. I think she is the author of her own difficulty here. I know she acted in person. If Mrs Littlejohn had come along and Mr Seed and possibly Mrs Crawley I do not think we would be here now. I do not know what the outcome of the hearing would have been.

MR GRANT: We are here now and the appeal has been allowed. The court has the power to make such order as to costs as it thinks fit. In my submission the applicant should be allowed her costs of the hearing. I have a schedule of costs; it is for a very modest sum. Clearly that does not determine the question of principle. I do not know whether a copy has reached your Lordship on the question of costs.

MR JUSTICE HOLMAN: It is a question of principle. The principle is the same whether it is 500 or 5,000 or somewhere in between.

MR GRANT: I fully appreciate that. I can say no more.

MR JUSTICE HOLMAN: I feel things went badly wrong by Mrs Reyburn encouraging them to carry on. She was clearly putting in issue significant amounts of what Mrs Littlejohn was saying and Mrs Crawley was reported as having said. The way to get to the bottom of that would have been to get them there. I do not feel it is right that they should have to pay your costs. I am not going to say you should pay their costs. Both parties share some responsibility here.

MISS RICHARDS: There is one remaining outstanding matter. Mrs Reyburn was subject to an interim suspension order. I do not know if you have the Health Professions Order to hand. Under Article 31 - - - - -

MR JUSTICE HOLMAN: Can I maintain the interim order?

MISS RICHARDS: Yes, and that is what I am asking you to do.

MR JUSTICE HOLMAN: Subject to anything Mr Grant may say, I think I should do that. It could not be right that she can go back into practice tomorrow. But it must be linked with what I have said, namely - - - - -

MISS RICHARDS: As soon as possible.

MR JUSTICE HOLMAN: - - - - - as soon as possible. Do you oppose that?

MR GRANT: I do for this reason: had this appeal not been taking place, as postulated by your Lordship this morning, Mrs Reyburn could have made an application for review in any event. The mere fact that the appeal has been upheld will not automatically mean she will return to her employment. That must be a matter for the school, taking into consideration whatever they wish. My submission is it is not appropriate to make an interim order.

MR JUSTICE HOLMAN: I am not going to make one, but enable it to continue.

MR GRANT: In my submission, it would be inappropriate for it to continue and that should be discharged as well.

MR JUSTICE HOLMAN: I am going to allow to it continue. What I am doing is - - - - -

MISS RICHARDS: You have a broad power to extend for up to 12 months, the period for which the ISO has effect.

MR JUSTICE HOLMAN: I am not going to say 12 months. I think if I am going to extend it, coupled with saying this should be heard as soon as possible, we had better discuss as to how long realistically it will take to set up a further hearing. I will put some definite date on.

What I am doing, for the avoidance of doubt, is allowing the appeal and quashing the decision to suspend; the substantive suspension. On the question of interim suspension order - - the one they imposed probably ends today.

MISS RICHARDS: Unless you extend it, it ends.

MR JUSTICE HOLMAN: What paragraph do you have to go to?

MISS RICHARDS: It is sub-paragraph (5) of Article 31 which provides that, subject to other paragraphs including sub-paragraph (9), the ISO ceases to have effect when the appeal is disposed of. But that is subject to sub-paragraph (9) of Article 31 - (8) and (9) - which says that on such an application (that is reference to sub-paragraph (8) which is an application to the court by the council) the court may extend or further extend for up to 12 months the period of effect.

MR JUSTICE HOLMAN: I am going to extend it because it seems to me that although - for all the reasons I have tried to give - they were wrong to make the substantive suspension, I am now in an intermediate situation where, although I quash the substantive suspension, the fact is that she has been suspended under the interim suspension order for nine months. This must, as soon as possible, get back before the relevant committee and in the meantime, it seems to me, on balance, she should remain subject to the interim suspension .....

MISS RICHARDS: I was going to suggest a period of three to four months.

MR JUSTICE HOLMAN: ..... sorry, I will finish. Stressing, I reach that view essentially for reasons of expediency. It is not going back on my view that they should not have suspended her in the first place, but we are now in a situation where they have. She is temporarily in suspension. No alternative conditions are in place. It would be completely inappropriate for me to start trying to fashion conditions of practice. It seems to me that unless and until the committee considers this again, she ought not to be able to go back out and practice as a fully registered practitioner.

MISS RICHARDS: We understand the basis upon which it is done.

MR JUSTICE HOLMAN: You say three or four months.

MISS RICHARDS: Yes, because there is a minimum of 28 days' notice that has to be given of the hearing. A panel has to be convened and there are issues about witness availability, and whether there is any current up-to-date evidence. Realistically it is not something that can be arranged within the next few weeks. Three to four months ought to be sufficient to enable the hearing to take place.

MR JUSTICE HOLMAN: Mr Grant, given that I am going to continue a suspension order for a period pending a hearing, I am provisionally thinking of saying three months to keep a spur on the committee. Do you think you can sensibly argue for less than three months?

MR GRANT: Yes. Three months, in my submission, will take the interim order beyond the twelve-month period set so no application to appeal can be made. No interim order will be available or review hearing. Three to four months is too long.

MR JUSTICE HOLMAN: I said three months.

MR GRANT: Three months is too long. I ask for six weeks.

MR JUSTICE HOLMAN: They have to give her 28 days' notice.

MR GRANT: I have no doubt that could be waived by the party in whose interest notice is given.

MR JUSTICE HOLMAN: The panel has to be identified. The thrust of all this is that it went wrong last time because key people were not there to give evidence. The idea that you could set the whole thing up for another hearing and get all these people there within six weeks starting now to my mind is not realistic.

MR GRANT: This is something the council should have had in mind before today. In my submission, expediency is of the utmost importance to Mrs Reyburn. Three months is simply too long.

MR JUSTICE HOLMAN: Miss Richards, have you people with you who are administrators who are actually directly involved in this?

MISS RICHARDS: I have with me a Fitness to Practise manager. Although she is not the person who hitherto dealt with this case, but she has been able to give instructions as to the feasibility of doing things.

MR JUSTICE HOLMAN: As Mr Grant says, but for this appeal, there would have to have been a review hearing before 4 May.

MISS RICHARDS: Yes.

MR JUSTICE HOLMAN: You will say, yes, but it all got blown off course by the having of the appeal otherwise it would have been set up.

MISS RICHARDS: That is the problem; it would. Mrs Reyburn was entitled to bring her appeal and has - in part - succeeded. Nevertheless the reality is that it is very unlikely to be able to set something up within six weeks.

MR JUSTICE HOLMAN: Suppose I say to set a cut-off date of 4 May which would be a year, and is from now about ten weeks.

MISS RICHARDS: That may be - - - - -

MR JUSTICE HOLMAN: Mr Grant, they have to have their review by 4 May so they could have done it on the 3rd. So if I were to say that the interim suspension ends on 4 May that gives to them an adequate period and is not, I think, a period about which your client can greatly complain. We will say interim suspension is May - - until 4 May, but stressing that I am not thereby in any way trying to indicate what the final outcome should be. I do not know. It may be that if these people come along and give evidence, the case against Mrs Reyburn will be seen to be so strong that indeed she must be suspended. I am not trying to give a steer on the final outcome; far from it. I am sending it back for them to start from scratch really.

Is there anything else?