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Challenging Unduly Lenient Penalties in Professional Disciplinary Tribunals

The Kennedy report into heart surgery carried out at the Bristol Royal Infirmary concluded that there was a public perception that disciplinary regulation by committees largely composed of members of the profession in question was not necessarily in the best interests of patients. The result was the creation of an overarching body for the regulation of healthcare professionals, the Council for the Regulation of Health Care Professionals, under s25 National Health Service Reform and Health Care Professions Act 2002 ("the Act"). In the first Court of Appeal case involving the new body it has been held that an unduly lenient penalty could include an acquittal, and therefore that an acquittal could be the subject of an appeal: Ruscillo v The Council for the Regulation of Health Care Professionals [2004] EWCA Civ 1356; The Times, 7 February 2005.

The Ruscillo Case Dr. Ruscillo was a General Practitioner who had been involved in a sexual relationship with a patient for 3 months. The patient had a history of psychiatric problems. The relationship was ended by Dr. Ruscillo when he told his partners, who then suspended him. The Professional Conduct Committee ("PCC") of the GMC found that the facts did not support a finding of serious professional misconduct. The Council wished to appeal this acquittal.


The Truscott Case Mr. Truscott was a paediatric nurse who, whilst on night duty at an adolescent unit of a hospital, used a computer on the unit to access pornographic websites. He admitted misconduct and was given a caution by the Nursing and Midwifery Council (NMC). The Council wished to appeal, on the basis that removal from the register was the only appropriate penalty.

The Act The Act stated as follows (in relation to the GMC):

"29 (1)

Reference of disciplinary cases by Council to court This section applies to ­ ... (c) a direction by the Professional Conduct Committee of the General Medical Council under section 36 of the Medical Act 1983 (c.54) (professional misconduct and related offences)...


This section also applies to ­ (a) a final decision of the relevant committee not to take any disciplinary measure under the provision referred to in... [paragraph (c)]


The things to which this section applies are referred to below as "relevant decisions".


If the Council considers that ­ (a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional 2

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, or (b) a relevant decision falling within subsection (2) should not have been made, and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court."

Section 36 Medical Act 1983 reads: "Where a fully registered person ­ ...(b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not; the Committee may, if they think fit, direct [erasure/suspension of registration/conditional registration]."

Dr. Ruscillo argued that it was a precondition of jurisdiction under s29 that a finding of professional misconduct had been made, so that there could be a decision not to take any disciplinary measure. The word "decision" implied the exercise of discretion. The Court of Appeal commented that "As a matter of the natural use of language we consider that there is force in Dr Ruscillo's contention. A decision to do or not to do something naturally suggests the exercise of an option." (para 39)


However the court went on to decide that there was jurisdiction to appeal against an acquittal: "It is not, however, an abuse of language to say that a disciplinary tribunal `decided not to take any disciplinary measure' because it concluded that no case was made out on the facts which would permit it to do so. Thus the natural meaning of the language cannot be determinative of the point. It is appropriate to adopt a purposive approach to resolving the issue as to the true construction of section 29..." (para 39) Lord Phillips MR gave two reasons for this decision. First, "the mischief against which section 29 is aimed occurs just as much where a disciplinary tribunal wrongly concludes that conduct does not amount to professional misconduct as where the tribunal imposes too lenient a penalty." (para 45) He went on to comment that the interpretation of s29 suggested by Dr. Ruscillo "produces a result which is at odds with the purpose of giving the Council the power to refer decisions of disciplinary bodies to the High Court." (para 50) Second, it would otherwise be inconsistent with the remainder of section 29. Section 29(2) applies to decisions not to take any disciplinary measure under the relevant subsection of section 29(1). However, the legislation relating to medical professional performance, osteopaths, and chiropractors, require some disciplinary penalty once a finding of misconduct has been made; so the interpretation suggested by Dr. Ruscillo which would give s29(2) no content.

The criteria to be applied Are the criteria which the High Court must apply in determining whether to allow an appeal the same as those applied by the Council in deciding whether to appeal? The 4

Council sought to argue that the High Court could allow an appeal without needing to satisfy requirements that the original penalty be "unduly lenient" and that it be desirable to interfere for the protection of the public (within s29(4)); and that a court could interfere with the factual findings if they did not adequately portray the gravity of the professional misconduct even where it left the penalty unchanged. The court disagreed, stating that s29(7) of the Act and CPR 52.11 are to be read together. It also stated that "If the court decides that the decision as to the penalty was correct it must dismiss the appeal, even if it concludes that some of the findings that led to the imposition of the penalty were inadequate." (para 70) On the other hand, a decision of the High Court subsequent to Ruscillo has held that a finding of fact can be reviewed if it is manifestly wrong, and would lead to an increase in penalty: Council for Health Care Regulatory Excellence v (1) General Medical Council (2) Basiouny [2005] EWHC 68 (Admin) at para 42. As to the test for undue leniency, the court in Ruscillo stated: "whether... [the penalty] is one which a disciplinary tribunal, having regard to the relevant facts and to the object of the disciplinary proceedings, could reasonably have imposed." (para 76)

Adduction of Evidence not before the Tribunal What is the High Court to do when asked to consider evidence which was not before the tribunal? The Court of Appeal refused to apply the Ladd v Marshall test, and stated that the fact that the evidence could have been put before the tribunal "can have no bearing on whether it should be admitted by the Court" (para 83). The body will need to cooperate with the Council and make available any material that was not before the disciplinary


tribunal. However the court will be concerned that the introduction of such evidence is truly in the public interest.

Discussion There are three interesting points which emerge from the case. First, the purposive construction of s29 which the court chose to apply when deciding whether an acquittal could be an unduly lenient penalty. Such a decision is readily comprehensible in the light of the purpose of the Council: the proper regulation of healthcare professionals. The mischief inherent in unduly lenient penalties is potentially most threatening where the decision is an acquittal, and the legislation could be plausibly argued to be defective were acquittals unreviewable. Second, the dictum relating to further evidence (applied in Council for the Regulation of Health Care Professionals v (1) Health Professions Council and (2) Jellett [2005] EWHC 93 (Admin) ­ which also held that Respondent professionals could also adduce further evidence) is likely to be of great practical importance. In many cases it will be of relevance to an argument that the penalty is unduly lenient if further evidence of the practitioner's misconduct (or proper conduct) is adduced. Third, it is clear that the High Court will exhibit deference towards the professional disciplinary tribunal, depending on the circumstances: "In any particular case under section 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public." (para 77, emphasis added) "Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the Council and the Court should place weight on the expertise brought to bear in evaluating how best the 6

needs of the public and the profession should be protected. Where, however, there has been a failure of process, or evidence is taken into account on appeal that was not placed before the disciplinary tribunal, the decision reached by that tribunal will inevitably need to be reassessed." (para 78, emphasis added) The court therefore dismissed the appeal in the Truscott case, accepting the argument of Alison Foster QC for the NMC instructed by Penningtons, holding that the tribunal was to be shown due deference. On the other hand, it should be noted that in all three of the subsequent High Court cases (Basiouny (supra), Fleischmann [2005] EWHC 87 (Admin), and Jellett (supra)) the appeal has been allowed.

Vikram Sachdeva, Barrister, 39 Essex Street Nicole Curtis, Associate, Penningtons



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