Judgment date: 21 September 2012

High Court refuses to interfere with factual findings of first instance tribunal and dismisses appeal.

The appellant radiographer (A) sought to challenge the decision of the Conduct and Competence Committee Panel (the Panel) of the Health Professions Council (HPC) that his name be struck from the relevant Register on the basis that his fitness to practise was impaired by virtue of his misconduct. The Panel heard three separate complaints against A.

It was agreed as between the parties that the appeal was subject to CPR Part 52 and therefore that an appeal would only be allowed where the decision was either wrong or unjust because of serious procedural or other irregularities (R v James Rice v The Health Professions Council [2011]). The approach as outlined by Langstaff J in the case of Bhatt v GMC [2011] EWHC 783 was rehearsed; although the court will correct errors of fact or approach, it will give appropriate weight to the fact that the Panel is a specialist tribunal, who will have had the advantage of hearing live evidence. The court should be slow to interfere with the decisions of fact taken by the first instance body.

The appeal was advanced solely on the basis that the decision in relation to one of the complaints before the Panel was wrong as a result of an error in the assessment of the credibility of the evidence on which it was made. The relevant complaint was essentially that A had carried out an examination on a patient (KD) in 2006, on his own authorisation, without clinical justification, without a chaperone and that his actions were sexually motivated. All but one of the six factual particulars were found proved. It was submitted on behalf of A that the Panel were wrong in their assessment of the credibility of KD.

After a consideration of all the evidence in the case, it was held that although ‘it was perfectly true to say that there were points that could be made, and indeed points that were made concerning the credibility of KD’, it was nonetheless ‘primarily for the tribunal, who had the benefit of seeing the witness, to assess her credibility’. It was accepted that in an appropriate case it would be open to the court to overturn such a finding, however, it was further added that the instances when that will be the case are inevitably rare.

Having outlined the various aspects of the evidence supporting their finding, it was held that there was, in the judgment of the court, ‘more than an adequate amount of material to enable the panel to conclude that the claimant was sexually motivated’. The appeal was accordingly dismissed.

Whilst there will be occasions where the court will interfere with findings of fact made by the first instance tribunal in fitness to practise proceedings, such cases will inevitably be rare, in light of the approach to be applied outlined in Bhatt v GMC.