The Professional Standards Authority v (1) The General Chiropractic Council (2) Cameron Briggs [2014] EWHC 2190 (Admin)

Following referral to the High Court by the Professional Standards Authority (PSA), it was held that allegations of dishonesty should have been made against the registrant where they arose out of the same events which gave rise to the main allegations which were charged.

Following the Court of Appeal decision in Truscott and Ruscillo1 (a case in which Penningtons was instructed) it was held that in circumstances where there was evidence to support the additional allegations of dishonesty, it was a serious error not to have referred them to the Professional Conduct Committee (PCC) of the General Chiropractic Council (GCC).

The Court also found that the sanction imposed by the PCC was unduly lenient, but said that the reasons given by the PCC had not been inadequate.

Background

A chiropractor, Mr Briggs, was registered as ‘Non-practising’, and so was not allowed to practise. (The retention fee for a practising chiropractor was £1,000, while the non-practising fee was £100.) At the initial hearing, Mr Briggs faced allegations that, despite being on the non-practising register, he had provided chiropractic treatment to patients, and that he had done so without the required insurance. Dishonesty was not alleged.

In November 2013, following a hearing during which Mr Briggs did not appear and was not represented, the PCC imposed a suspension order of six months. It did not require the order to be reviewed before its expiry. In considering sanction, the PCC took account of the following: that Mr Briggs had not presented any mitigation, nor expressed any insight, remorse or regret; his actions had not been an isolated incident, but had continued for two weeks, during which time Mr Briggs was said to have treated between 150 and 180 patients; that the offending behaviour was serious and had damaged the reputation of the profession and had the potential to put patients at risk. The PCC also decided, however, that the misconduct was not of such a serious nature so as to be fundamentally incompatible with continued registration.

Referral by the PSA

Section 29(4) of the National Health Service Reform and Health Care Professions Act 2002 allows the PSA to refer cases to the High Court where it considers that a decision “has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both”.

Any such referral is to be treated as an appeal and should be allowed if the decision is ‘wrong’ or there has been ‘a serious procedural or other regularity’, which includes under-prosecution.

The PSA considered that a referral in this case was appropriate. The GCC agreed to the case being remitted to the PCC for a re-hearing, with the addition of allegations of dishonesty included, and the PSA asked the Court to make an order solely in the terms of the consent order provided. Mr Briggs did not consent to the order.

The additional dishonesty allegations

The proposed additional allegations were that, when Mr Briggs had obtained employment and provided treatment to patients, he knew that he was not on the practising register and that he did not have insurance in place, and yet had held himself out as meeting the regulatory requirements for practise. He had therefore been dishonest, both in relation to patients and to his employer.

The Court’s decision

In relation to the additional dishonesty allegations

The Court noted that there was prima facie evidence to support the additional allegations of dishonesty. It found that, in such circumstances, the Investigating Committee of the GCC had a duty to forward the allegations to the PCC, and that its failure in that regard was serious.

The Court also held that, if there had been a finding of dishonesty by the PCC, it was likely that a more serious sanction, including possibly that of striking off, would have been appropriate. As the matter of dishonesty had not been considered by the PCC, the Court was unable to reach a concluded view on the issue of sanction. It was, therefore, appropriate for the case to be remitted to the PCC, and this was ordered.

Unduly lenient sanction and inadequate reasons

The PSA submitted that, even on the facts found proved by the PCC, the sanction imposed was too lenient. This was upheld, with the Court noting that practising without insurance places patients at risk and, therefore, could justify removal from the register. There was criticism of the failure of the PCC to order a review at the end of the suspension period, which meant there was no opportunity to determine if Mr Briggs had gained insight before being allowed to practise again.

In relation to the PSA’s submissions that the reasons provided by the PCC were inadequate, the Court did not agree. It found the reasons given to be sufficient, noting that the reasons were given by a regulatory panel, not a court.