Professional Standards Authority for Health and Social Care v Health and Care Profession Council, Elizabeth Abosede David [2014] EWHC 4657 (Admin) - Popplewell JIn a judgment from November 2014 that
Professional Standards Authority for Health and Social Care v Health and Care Profession Council, Elizabeth Abosede David [2014] EWHC 4657 (Admin) - Popplewell J
In a judgment from November 2014 that has only recently been handed down, the High Court once again considered what the correct test for dishonesty should be in disciplinary proceedings and has offered some practical advice.
Ms David (D) qualified as a social worker in 2005 and registered with the Health and Care Professions Council ("HCPC"). She was also registered with OFSTED as a childminder and ran a child minding business full time from her home between 2007 and 2010.
An inspection by OFSTED took place in August 2010 which revealed several failings that were referred to the HCPC's Conduct and Competence Committee ("CCC"). The CCC concluded that D had left children in the care of adults who had not undergone CCRB checks and that the number of children in her care exceeded the levels permitted by her registration. It also found that D herself had been absent for long periods of time. The CCC concluded that D had not been dishonest in relation to any these allegations.
The CCC did, however, find dishonesty proved in relation to two other allegations. The first was that D had misled the OFSTED inspector by stating that she had no other employment outside of running her child minding business. The second was that she had misled the OFSTED inspector by stating that her registered child minding assistant was on a training course when in fact she had left her employment. The CCC imposed a one year caution on D's registration.
In relation to dishonesty, the CCC said:
"the panel has reminded itself that the burden of proving the facts rest on the HCPC and that the standard of proof is the civil standard…when dealing with dishonesty they should apply the two stage test as in the case of Ghosh. The test required a two stage process, the objective test followed by the subjective test."
The CCC directed itself that in relation to the last two allegations, the particulars would be dishonest if (i) they were found to be "dishonest by ordinary, reasonable people in the community" and (ii) it was satisfied that D had 'necessarily understood' that what she was doing was dishonest by the standards of those people.
The Appeal
The PSA appealed, suggesting that there should have been a finding of dishonesty in relation to the other allegations and that the CCC had applied the wrong test in determining dishonesty. The PSA argued that in holding that D would not necessarily have understood that other people would have found her actions dishonest, the CCC was inappropriately applying the criminal standard of proof to the subjective limb of Ghosh.
Before coming to his own conclusion, Mr Justice Popplewell established that there are two "candidate" tests that could be applied for dishonesty in disciplinary tribunals who are to apply the civil standard of proof on a balance of probabilities. The first is where the disciplinary tribunal is persuaded on a balance of probabilities that "what was done was dishonest by the standards of reasonable and honest people…and that the person in fact realised that what he or she was doing was dishonest by those standards". This is the test in Ghosh modified to remove the criminal standard of proof and the words "must have realised" reducing them to the lesser wording "in fact realised" which could be tested on the balance of probabilities, and also taking into account the Court of Appeal's comments in Hussain [2014] EWCA Civ 2246.
The alternative considered by Mr Justice Popplewell would be to follow a line of authority derived from Twinsectra v Yardley [2002] UKHL 12 where the disciplinary tribunal is persuaded on the balance of probabilities that (i) what was done was dishonest by the standards of reasonable and honest people and (ii) that the person knew the underlying facts which made those acts dishonest by the standards of reasonable and honest people. This is a lower standard because the subjective element does not require conscious dishonesty but only an awareness of the facts which render the conduct dishonest.
Mr Justice Popplewell concluded that the modified Ghosh test was the appropriate one to apply in this instance. In other words, in order for a Tribunal to find that D had acted dishonestly, it only needed to be satisfied that D's conduct was dishonest by the standard of reasonable and honest social workers, and that D realised this on the balance of probabilities.
Comment
There have been a number of recent cases in which the courts have grappled with the issue of the correct test for dishonesty. Hopefully this case provides some clarity to disciplinary panels moving forward.
Postscript
On 5 May 2015 HCPC issued a press release to confirm that D has now been struck off the HCPC Register for dishonesty amounting to misconduct after breaching the conditions of her child-minding registration with OFSTED and misleading an OFSTED Inspector.
In a judgment from November 2014 that has only recently been handed down, the High Court once again considered what the correct test for dishonesty should be in disciplinary proceedings and has offered some practical advice.
Ms David (D) qualified as a social worker in 2005 and registered with the Health and Care Professions Council ("HCPC"). She was also registered with OFSTED as a childminder and ran a child minding business full time from her home between 2007 and 2010.
An inspection by OFSTED took place in August 2010 which revealed several failings that were referred to the HCPC's Conduct and Competence Committee ("CCC"). The CCC concluded that D had left children in the care of adults who had not undergone CCRB checks and that the number of children in her care exceeded the levels permitted by her registration. It also found that D herself had been absent for long periods of time. The CCC concluded that D had not been dishonest in relation to any these allegations.
The CCC did, however, find dishonesty proved in relation to two other allegations. The first was that D had misled the OFSTED inspector by stating that she had no other employment outside of running her child minding business. The second was that she had misled the OFSTED inspector by stating that her registered child minding assistant was on a training course when in fact she had left her employment. The CCC imposed a one year caution on D's registration.
In relation to dishonesty, the CCC said:
"the panel has reminded itself that the burden of proving the facts rest on the HCPC and that the standard of proof is the civil standard…when dealing with dishonesty they should apply the two stage test as in the case of Ghosh. The test required a two stage process, the objective test followed by the subjective test."
The CCC directed itself that in relation to the last two allegations, the particulars would be dishonest if (i) they were found to be "dishonest by ordinary, reasonable people in the community" and (ii) it was satisfied that D had 'necessarily understood' that what she was doing was dishonest by the standards of those people.
The Appeal
The PSA appealed, suggesting that there should have been a finding of dishonesty in relation to the other allegations and that the CCC had applied the wrong test in determining dishonesty. The PSA argued that in holding that D would not necessarily have understood that other people would have found her actions dishonest, the CCC was inappropriately applying the criminal standard of proof to the subjective limb of Ghosh.
Before coming to his own conclusion, Mr Justice Popplewell established that there are two "candidate" tests that could be applied for dishonesty in disciplinary tribunals who are to apply the civil standard of proof on a balance of probabilities. The first is where the disciplinary tribunal is persuaded on a balance of probabilities that "what was done was dishonest by the standards of reasonable and honest people…and that the person in fact realised that what he or she was doing was dishonest by those standards". This is the test in Ghosh modified to remove the criminal standard of proof and the words "must have realised" reducing them to the lesser wording "in fact realised" which could be tested on the balance of probabilities, and also taking into account the Court of Appeal's comments in Hussain [2014] EWCA Civ 2246.
The alternative considered by Mr Justice Popplewell would be to follow a line of authority derived from Twinsectra v Yardley [2002] UKHL 12 where the disciplinary tribunal is persuaded on the balance of probabilities that (i) what was done was dishonest by the standards of reasonable and honest people and (ii) that the person knew the underlying facts which made those acts dishonest by the standards of reasonable and honest people. This is a lower standard because the subjective element does not require conscious dishonesty but only an awareness of the facts which render the conduct dishonest.
Mr Justice Popplewell concluded that the modified Ghosh test was the appropriate one to apply in this instance. In other words, in order for a Tribunal to find that D had acted dishonestly, it only needed to be satisfied that D's conduct was dishonest by the standard of reasonable and honest social workers, and that D realised this on the balance of probabilities.
Comment
There have been a number of recent cases in which the courts have grappled with the issue of the correct test for dishonesty. Hopefully this case provides some clarity to disciplinary panels moving forward.
Postscript
On 5 May 2015 HCPC issued a press release to confirm that D has now been struck off the HCPC Register for dishonesty amounting to misconduct after breaching the conditions of her child-minding registration with OFSTED and misleading an OFSTED Inspector.