Judgement date: 26 March 2013

Decision of Conduct and Competence Committee Panel of HCP (now HCPC) found to be sound, despite ‘unhelpful’ guidance on when good character evidence can be considered.

A podiatrist (W) appealed against the decision of a Conduct and Competence Committee Panel (the Panel) of the Health Professions Council (now Health and Care Professions Council) to strike his name from the register.

W had been the subject of two complaints, made separately to the HCPC. The first involved a colleague of W alleging that he had made inappropriate and sexual remarks to her during work conversations and that he had showed her inappropriate images on his mobile phone. The second was from a patient who alleged that W had invited her to attend his workplace after normal hours, asked her to undress and massaged her legs. It was alleged that this behaviour was sexually motivated. The two allegations were joined and fell to be considered at a single hearing, it being decided that there was a sufficient commonality between the conduct. The Panel noted that both allegations shared a number of common features; both involved first meetings, both complainants expected others to be around but there were not, both incidents lasted for some period of time and both were of a sexual nature. At the joined hearing, the allegations were found proved and W’s name ordered to be struck from the register.

On appeal it was argued on behalf of W that the Panel was wrong in two regards; firstly, it was wrong to join the allegations and secondly, the legal assessor’s advice on how the panel should approach good character evidence was wrong and disadvantageous to him.

The Court held that, in relation to the first point, although the necessity for a single panel to consider the totality of the alleged conduct when determining sanction did not necessarily mean that the same panel had to deal with the two allegations, it was certainly a factor in favour of joinder. Having considered the relevant rules and Practice Note on the issue of joinder, the Panel was entitled to exercise its discretion in the way that it had done. The Court went so far as to that in fact, in the circumstances of this case, it would have been surprising if the panel had not decided to join the matters. This aspect of the appeal was not upheld.

In relation to the good character evidence, the Court held that the legal assessor had based his advice on the council’s guidance which, whilst clearly based on the case of Campbell v General Medical Council [2005] EWCA Civ 250, did not entirely accurately reflect what was said in that case. It was held that while matters going clearly to mitigation were not necessarily material at the impairment stage, good character evidence could be relevant to a decision on conduct, especially where credibility was in issue. Donkin v Law Society [2007] EWHC 414 (Admin) was followed; good character is a factor to be taken into account by a panel when they are assessing whether a registrant’s evidence was to be believed and whether it was likely he had done what was alleged. The error within the guidance was that it had made the assumption that good character was essentially synonymous with mitigation and therefore was only appropriate at the sanction stage. However, the Court held that it was clear from the Panel’s decision that it had taken W’s good character on board with regards to his credibility, even though it had not said so explicitly. The advice of the legal assessor had not been that W’s good character was not to be taken into account at impairment stage. This aspect of the appeal was also dismissed.

The full judgement of this case is yet to be published. The principles in Donkin are confirmed; ‘good character’ evidence can be distinct from mitigation in certain cases and can be considered by panels at stages prior to sanction if the credibility of the registrant is in issue.