The Health And Care Professions Council v Hooijdonk

This is an application by the Health & Care Professions Council (“the Council”) to extend an interim suspension order pursuant to Art.31(8) of the Health and Social Work Professions Order 2001. The respondent practised as a registered physiotherapist providing mobile physiotherapy services to patients with brain injuries. On 4^th March 2013 the respondent attempted to commit suicide and was admitted to hospital the same day. On 19^th March 2013 the Council became aware of an allegation that the respondent had encouraged one of his patients, who was partially brain damaged, to open a bank account and had withdrawn funds for his own benefit in excess of £20,000. There are other allegations of financial impropriety including charging excessive fees for services. The respondent was charged later that month with 19 separate offences of theft.

The Council applied for an interim suspension order on 15^th April 2015. An order was made both due to the risk to the public and the respondent's own interests given his current health concerns. The order was made for a period of 18 months and was the subject of regular reviews. As to the criminal proceedings, these were discontinued as from 1^st September 2015 as the prosecution offered no evidence. It appears that the principal witness in the case, the patient's father, had died and the patient himself was not in a fit state to give evidence. Accordingly, the Crown Prosecution Service decided that there could not be a fair trial. Of course, the Council was entitled to conduct its own investigations to ascertain the respondent's fitness to practise. Unfortunately, there was a delay in getting the papers about the case from the police. The Council obtained the papers on 12^th September 2016 and commenced reviewing the material with a view to formulating its own fitness to practise allegations to be referred to the investigating committee.

In October last year this court extended the interim suspension order for a further 12 months. The order was reviewed on 5^th January and 17^th May this year. On both occasions the order was confirmed, the circumstances not having changed. The investigating committee finally found that there was a case to answer on 26^th July 2017 and the case is now being prepared for hearing, which has been scheduled for 11^th to 14^th December this year. It is in these circumstances that a further extension of 12 months is sought.

The respondent is not present today. There is evidence that he is still badly affected by communications with the Council, to the extent that these make him suicidal. It is for that reason that service was dispensed with on the previous occasion. The position now is that the respondent's medical team have been served with the documents, but these are not likely to be shared with the respondent himself until 19^th October.

I am invited to dispense with the need for service. Under CPR 6.16 the need for service may be dispensed with if there are exceptional circumstances for doing so. In my judgment there are exceptional circumstances here. The respondent has previously attempted suicide; he has said that the proceedings make him feel suicidal; there is evidence that direct service could result in harm to the defendant going far beyond the normal shock or upset at being served with proceedings. He is currently under psychiatric care.

In my judgment, this is one of those rare instances where service may rightly be dispensed with. I note that the respondent's medical advisors will share the proceedings with him in due course, and no doubt they will do so when they judge that it is safe to do so. Furthermore, any order arising out of the claim will not have any immediate impact on the respondent as he is not currently practising. He also has liberty to apply.

As to the order itself, it is disappointing that the period of extension previously granted by the court has not been sufficient to bring this matter to a conclusion. The Council should not let matters drift. However, in my judgment it is appropriate to exercise the power under Art.31(8) of the order to extend time. This is because the allegations are serious. It is necessary for the protection of the public that there is a period of suspension pending the determination of the charges against the respondent. As for the period of extension, I note that the maximum permissible is sought and whilst a shorter period might appear adequate given that the hearing is only 3 months away, there is a possibility of the hearing being delayed or going part-heard and a further hearing being required.

In these circumstances I consider it appropriate to extend for a further 12 months. The prejudice to the respondent appears limited given that the most recent information available suggests that he is not fit to practise in any event due to the state of his health. So, I make an order in terms of the draft with an amendment to include liberty to apply.

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