Estephane v Health And Care Professions Council, Court of Appeal - Administrative Court, September 06, 2017, [2017] EWHC 2146 (Admin)

Issuing Organization:Administrative Court
Actores:Estephane v Health And Care Professions Council
Resolution Date:September 06, 2017
 
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Neutral Citation Number: [2017] EWHC 2146 (Admin)

Case No: CO/2145/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 6 September 2017

Before :

MR JUSTICE WARBY

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Between :

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The Appellant in person

Cleon Catsambis (instructed by Bircham Dyson Bell) for the Respondent

Hearing date: 17 August 2017

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Mr Justice Warby :

  1. In these appeal proceedings Desmond Estephane, a health professional, challenges decisions of the Conduct and Competence Committee Panel of the Health and Care Professions Council dated 10 September 2013 and 6 April 2017. I shall use the abbreviations ``Panel'' and ``HCPC'' to refer to these entities.

  2. By training and experience Mr Estephane is a biomedical scientist. The Panel's decisions of 2013 and 2017 both concerned his fitness to practise in that capacity. They were made in the exercise of regulatory functions conferred on the HCPC and the Panel by the Health Professions Order 2001 (SI 2002 No 254), which I shall call ``the 2001 Order.''

  3. As will become apparent from the account that follows, this is not the first time that this Appellant has been before this Court seeking to overturn decisions of the Panel and the HCPC.

    The factual and procedural background

  4. By its 2013 decision the Panel found three allegations proved against Mr Estephane:

    (1) First, that he had failed to disclose on his application to the HCPC for registration a conviction for driving whilst disqualified. An allegation that this non-disclosure was dishonest was rejected by the Panel.

    (2) Secondly, that he had failed to inform his employer NHS Trust and the HCPC of the fact that on 2 April 2012 he was convicted of common assault. This conviction had been quashed on appeal, as the Panel was aware. It found, nevertheless, that Mr Estephane's failure to disclose the fact of this conviction to his employer and the HCPC had been deliberate and dishonest.

    (3) Thirdly, that Mr Estephane had made discriminatory remarks to a colleague. This allegation upheld by the Panel arose from a complaint about things he was alleged to have said about a colleague ``AB'', who suffered from repetitive strain injury. The allegation was that he had said words to the effect that he was fed up of working with disabled people, that AB could not even streak plates, and that he had been given two disabled people.

  5. The Panel found that the proved facts amounted to misconduct; and that Mr Estephane's fitness to practise was impaired. Those being the circumstances as they found them to be, the Panel imposed a Suspension Order for a period of twelve months.

  6. Mr Estephane exercised the rights of appeal conferred on him by the 2001 Order. Those rights, as I shall explain in more detail, entitle a person to appeal to the High Court without requiring permission. The appeal is in the nature of a re-hearing, though not one which involves re-hearing all the evidence afresh.

  7. Mr Estephane's grounds of appeal sought to challenge the following six findings of the Panel:

    (a) allegation 2: that he failed to disclose details of his conviction for driving whilst disqualified in paragraph 1 of his application form;

    (b) allegation 3: that he did not disclose his conviction for common assault;

    (c) allegation 4: the finding of dishonesty on allegation 3;

    (d) allegation 5: that he made discriminatory remarks;

    (e) the finding that these matters amounted to misconduct;

    (f) the finding that his fitness to practise was impaired.

  8. The appeal was heard by Carr J, DBE, on 5 March 2014. After hearing from Mr Estephane in person and from Counsel for the HCPC, the Judge delivered a detailed reasoned judgment dismissing the appeal: [2014] EWHC 1209 (Admin). At paragraph [17] of her judgment, Carr J observed that Mr Estephane faced an ``uphill challenge'' when one considered the nature of the Panel's findings, which were factual conclusions arrived at by ``a specialist tribunal which had and deployed its advantage of hearing the evidence from live witnesses''. That advantage, as she said, was ``particularly relevant in relation to the finding of dishonesty and the finding that Mr Estephane made discriminatory remarks''.

  9. The Judge proceeded to consider individually in detail over the next 23 paragraphs of her judgment each of Mr Estephane's six grounds of appeal. She concluded that none of those grounds was made out, that the Panel decision was not wrong, and that the appeal must be dismissed. It is pertinent to record here some of her key findings, so far as the three allegations I have mentioned at [4] above are concerned. She said this:

    ``18. I turn then to the challenge on allegation 2. The fact found was, despite the challenge now brought, admitted on behalf of Mr Estephane before the Panel. That admission is expressly recorded in the Panel's decision. It is also reflected in Mr Estephane's statement before the Panel and in the submissions of Mr Estephane's representative to the Panel. But in any event, for the avoidance of doubt, in my judgment the facts of allegation 2 are made out. The registration form speaks for itself. It is fortunate for Mr Estephane that the Panel did not find that failure to give particulars to be dishonest ...

  10. I turn next to the challenge on allegation 3. As for the non-disclosure of conviction in April 2012, an admission by Mr Estephane as to non-disclosure is initially not so clear as the admission on allegation 2 in the transcript. But it does appear from the transcript as a whole, and the Panel's decision, that certainly by the end of the hearing, Mr Estephane accepted the non-disclosure as a matter of fact (see for example pages 182 and 192). In any event there was clear evidence from Mr Len Kemp of the Trust as to the non-disclosure by Mr Estephane of his conviction at the meeting on 5 April 2012 and by reference to contemporaneous documentation. Mr Estephane's case before the Panel focussed on his state of mind, namely, that he did not understand there to have been any trial or conviction in April 2012. That case is only consistent with non-disclosure.

  11. I turn next to allegation 4. As to the finding of dishonesty on allegation 3, as I have said, the Panel had the opportunity to assess Mr Estephane's evidence. It found that evidence to be both contradictory and unconvincing.

    ...

  12. The Panel took account of Mr Estephane's demeanour. It found that it was inconceivable that he could have gone through the process of court proceedings, attendance at a community service location and then appeal without understanding that he had been convicted and, indeed, sentenced...

    ...

  13. The finding of dishonesty was pre-eminently a finding of fact made by a Panel having had the advantage of seeing and hearing the witness. I have seen nothing that comes close to persuading me to interfere with the finding. Indeed, what I have seen only lends support to the finding.

    ...

  14. The finding of dishonesty is not one that the Panel would have made lightly. It is one to which it was fully entitled to come and with which I am not prepared to interfere.''

  15. Following the judgment of Carr J DBE, the suspension imposed by the 2013 Decision came into effect, commencing on 5 March 2014.

  16. Thereafter, the Panel reviewed its 2013 Decision on a number of occasions, pursuant to Article 30(1) of the 2001 Order.

    (1) On 2 February 2015, the suspension order of September 2013 was reviewed and the Panel decided to extend Mr Estephane's suspension by a further 6 months.

    (2) At the end of that period, in August 2015, there was a further review This time, the Panel was satisfied that Mr Estephane had some insight into his failings and it was persuaded that the misconduct found proved would not be repeated. However, the Panel found that Mr Estephane, having been out of practice for some 18 months, was not able to return to unrestricted work as a biomedical scientist. He had not provided evidence of continuing professional development. The Panel concluded that his fitness to practise was impaired, and replaced the Suspension Order with a Conditions of Practice Order for a period of 12 months.

    (3) A year after that, in August 2016, there was a further review. On this occasion, the Panel was satisfied that a Conditions of Practice Order for a period of 9 was the appropriate sanction, in order to provide Mr Estephane with adequate time to undertake appropriate continuing professional development, and to obtain evidence of the same.

  17. On 29 December 2016, Mr Estephane filed a judicial review claim form by which he sought to challenge the 2013 decision, the Conditions of Practice Order of August 2016, and a decision regarding publication made by the HCPC and recorded in a letter dated 27 October 2016. He sought urgent consideration of the claim. His challenge was, in summary, that the HCPC had behaved illegally and irrationally in its conduct of the previous proceedings. He raised five specific issues, alleging the following:

    (1) that the first finding against him involved an incorrect application of the meaning of the word ``conviction''; for driving whilst disqualified he had been given a conditional discharge, which is not a conviction (he referred to the case of Omenma [2014] UKUT 314);

    (2) that the HCPC had incorrectly applied the legal meaning of the term ``dishonesty'';

    (3) that it had misapplied the legal meaning of ``no case to answer'' (referring to Galbraith [1981] 1 WLR 1039);

    (4) that the HCPC was guilty of ``spoliation...

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