In a number of previous articles we considered the relevance of interim or immediate orders for suspension to the determination of an appropriate and proportionate sanction fitness to practise cases which do not raise patient safety concerns, sometimes referred to as public interest only cases. Those articles can be accessed here and here.

McDermott v The Health and Care Professions Council [2017] EWHC2899

The recent High Court decision considered the relevance of an interim order of conditions in a case where a finding of current impairment, based on established lack of competence, resulting in an order for suspension for a period of 12 months.

Panel’s finding on sanction

In the 17 months prior to the panel hearing Mr McDermott had been the subject of an interim order of conditions. He had worked throughout that period on a voluntary basis as a Band 5 physiotherapist. There were not concerns about his compliance with the conditions and the Panel received positive feedback in relation to that work from a number of senior NHS physiotherapists. Despite that evidence the Panel determined that it could not formulate workable, practicable and verifiable conditions.

The appeal

Mr McDermott’s appeal, which raised a number of grounds, succeeded in respect of the challenge to the sanction imposed. The Court upheld the finding of a lack of competence but quashed the sanction observing that the Panel had overlooked the reality of what had happened since the commencement of the HCPC investigation. The matter was remitted back to the Panel with a direction that an order of conditions be imposed.

The Court noted that Mr McDermott had:

  • Shown extraordinary commitment to his voluntary placement
  • Complied with his conditions
  • Had received genuinely positive feedback
  • Demonstrated willingness to improve his clinical skills
  • Had taken constructive criticism on board

The Court also noted that there was no suggestion that public protection had not been maintained. Referring to the interim conditions, the Court observed:

‘Conditions which were considered to offer public protection had been formulated at the interim stage and it was clear that progress had been made under such conditions.’

Addressing the issue of proportionality the Court went on to note the counter-productive effects which would be likely to flow from a 12 month period of suspension:

‘In my judgment, taking the Appellant out of practice for a period of 12 months after he has displayed a real commitment to maintain his skills through the long interim period and produced evidence of improvement is not a proportionate sanction. Further, that court is likely to worsen rather than improve the Appellant’s performance and I do not consider that it can be said to maintain the balance between public and private interests.’

Determining sanctions

In the absence of substantive adverse findings engaging the public interest, the fact that interim conditions have been complied with and allowed a practitioner to practice and progress their remediation are important evidential factors which must be considered by the Panel in determining sanction.

The fact that a Registrant has already begun to demonstrate improvements in practice will be relevant to the assessment of proportionality. The impact which a proposed sanction will have on progression of that remediation will need to be carefully considered.

However, there is no automatic relationship between the nature of any interim order and the final sanction imposed.

Counsel’s submissions as evidence of insight

At the sanction stage before the Panel, Mr McDermott’s representative had submitted that no action should be taken. The Panel not only rejected those submissions but relied upon them as evidence of a lack of insight on Mr McDermott’s part, even though he had not given evidence at those stages of the hearing.

The Court was critical of that approach noting that the submissions were ones which could properly be made on behalf of the registrant in light of the evidence which had been called. Although Yip J agreed the Panel was correct to reject them, she observed:

‘I do not consider it right for the Panel to rely upon the submission made by the Appellant’s professional representative as further evidence of his lack of insight.’

Whilst that should not be read as establishing a legal prohibition, it is likely to serve as a useful reminder to panels in future cases that it is not improper for a registrant, through counsel, to seek the best possible outcome amongst the range of outcomes reasonably available.

It goes without saying that registrants will not be well served by submissions which do not reflect the reality of the evidential position. There will undoubtedly still be cases where the nature and content of submission will serve as evidence of a lack of insight.