A “serious procedural error” by a Health and Care Professions Tribunal has resulted in the HCPC losing an appeal and the case being remitted.
In Hawkins v Health and Care Professions Council  EWHC 3256 (Admin), following a hearing on 15th – 19th May 2023 a panel of the Health and Care Professions Tribunal (“the Panel”) sitting as the Conduct and Competence Committee of the Respondent found that the Appellant’s fitness to practise was impaired by reason of misconduct and imposed a twelve-month suspension order.
The allegations against the Appellant related to a massage which he gave to a patient (“Service User A”) on 26th October 2021. For current purposes, the core of the case against the Appellant was that at a time when he asked her to raise her hips as she was lying on her back, the Appellant was attempting to lower or to remove Service User A’s underwear and that his action in doing so was sexually motivated.
The Panel had concluded that there was insufficient evidence to establish that the Appellant had been attempting to remove Service User A’s underwear, but did find that he had been attempting to lower it and that this action was sexually motivated.
At the outset of the hearing (in a move which had been foreshadowed earlier) the Appellant had admitted that he had been attempting to lower Service User A’s underwear but denied that he had been attempting to remove it and denied that his action was sexually motivated. Attention at the hearing had then been focussed on the allegation that the Appellant was attempting to remove the underwear. The contention that the admitted attempt to lower Service User A’s underwear (as opposed to the disputed attempt to remove it) was sexually motivated was not put to the Appellant either in cross-examination or in questions from the Panel.
The Appellant contended that in finding that the attempted lowering of the underwear was sexually motivated, the Panel had adopted an unfair procedure. This was because a finding adverse to the Appellant was made on a matter which had not been put to him by way of questioning when he gave his evidence (namely the alleged sexual motivation for the attempted lowering of the underwear). 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 in this regard cannot stand and must be quashed.
The HCPC said that the matter should be remitted for reconsideration before a differently constituted panel. The Appellant said that this course would be unjust and that the court should not remit the matter, but should instead dismiss the allegation as to sexual motivation.
Mr Justice Eyre ultimately concluded that:
” … the remaining issue between the Respondent and the Appellant is and was whether the Appellant’s admitted conduct in attempting to lower Service User A’s underwear was sexually motivated. Fairness requires the Appellant to be given an opportunity to respond to that allegation by answering questions in cross-examination. However, it does not require that the Respondent be precluded from pressing the allegation. Putting it slightly differently there is no unfairness in there being a fresh hearing at which the allegation which was before the earlier Panel but which was not properly addressed is considered.
“As a consequence there is no consideration in respect either of utility or fairness which can operate against the public interest in a proper determination of the allegation against the Appellant. Similarly, that public interest outweighs the hardship to the Appellant flowing from the prolongation of the matter and from the fact that there will be a further hearing. In those latter regards it is relevant to note that the allegation is not stale and that the remaining issue is a narrow albeit important one.
“The allegation that the Appellant was sexually motivated when he attempted to lower Service User A’s underwear is, therefore, to be remitted for hearing by a differently constituted panel which is also to determine the questions of misconduct, impairment of fitness to practise, and of sanction in light of its conclusion on that issue.”
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