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Useful guidance from the High Court on under-charging by professional regulators

Professional Standards Authority v General Chiropractic Council and Briggs [2014] EWHC 2190In this case the High Court remitted a decision to a freshly constituted PCC where it considered that the Professional Standards Authority v General Chiropractic Council and Briggs [2014] EWHC 2190

In this case the High Court remitted a decision to a freshly constituted PCC where it considered that the Investigation Committee had committed a serious procedural error by failing to refer allegations of dishonesty to the PCC.

A Professional Conduct Committee ("PCC") found B guilty of unprofessional conduct after he provided chiropractic treatment while registered as a non-practising chiropractor without professional indemnity insurance. As a result he was given a six month suspension order without a review. The PSA brought an appeal under s.29 of the NHS Reform and Health Care Professions Act 2002 on the basis that (i) the GCC had erred in not bringing charges of dishonesty, (ii) the sanction was unduly lenient and (iii) the PCC had not given adequate reasons for its decision.

The Court considered the decisions in Ruscillo v CHRE [2004] EWCA Civ 1356, CHRE v NMC & Kingdom [2007] EWHC 1806 (Admin) and R (CHRE) v GMC & Rajeshwar [2005] EWHC 2973 (Admin) and concluded that, when considering whether a regulator had undercharged, the questions to be asked were:

  • on the evidence, and applying its own rules, should the regulator have included the further allegations in the charge; and

  • if so, did the failure to include those allegations in the charge mean that the Court is unable to determine whether the sanction was unduly lenient or not.

Under the Chiropractors Act 1994 the Investigating Committee was required to refer allegations to a PCC where there was a case to answer. The judge considered the Investigating Committee's failure to refer allegations of dishonesty constituted a serious procedural error, particularly given that the allegations of dishonesty arose out of the same episode which formed the basis of the principal allegations and were directly connected to the allegations which were referred. It noted that the PCC was constrained by the GCC's failure to specifically plead dishonesty and the court itself was unable to reach a conclusive view as to the seriousness of B's conduct since it had yet to be considered by the PCC. It therefore remitted the case to a freshly constituted PCC.

The judge also held that, even without the allegations of dishonesty, the original sanction had been unduly lenient because, by failing to order a review at the end of the suspension, B would have been free to return to practise without demonstrating to the GCC that he had acknowledged and understood the seriousness of the risks he had taken by practising when not insured.

This case provides useful guidance on under-prosecution and also acts an extension of the test established by the courts in Kingdom. In Kingdom the facts leading to dishonesty had been part of the allegations pleaded, but had not been specifically referred to as amounting to dishonesty. Here however, Lang J allowed further factual allegations to be put before the new PCC that relate to the evidence, rather than matters that were solely contained in the allegations. Regulators should consider carefully whether the evidence at the pre referral stage has the potential to amount to a finding of dishonesty. An analogous situation is where the actions of the registrant could be said to be sexually motivated. As both findings are likely to lead to removal from the respective register, it is critical they are identified and properly pleaded.

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