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Wisson v Health Professions Council (2013) EWHC 1036

Sarah Ellson
10/05/2013
W, a podiatrist, was struck off the Council's register in relation to allegations that he had conducted an inappropriate conversation with a member of staff and had shown her pornographic images on W, a podiatrist, was struck off the Council's register in relation to allegations that he had conducted an inappropriate conversation with a member of staff and had shown her pornographic images on his mobile phone, and that he had invited a patient to attend surgery after hours, had asked her to undress and applied a massage to her legs and thighs.

He appealed, arguing that the Panel hearing his case ought to have heard the allegations separately, and that the advice given by the legal assessor in respect of the approach to be taken to good character evidence was wrong.

In considering the appeal, Collins J held that the panel was fully entitled to reach the factual findings it did. In relation to severance, he referred to the Council's Conduct and Competence Procedure Rules and its practice note on joinder, whereby allegations may be joined where they are sufficiently connected in nature, time or by other factors. Collins J noted that the allegations had features of commonality and were of a sexual nature. In the circumstances of the case, he held that any decision other than hearing the allegations together would have been surprising.

In relation to the issue of good character, Collins J noted that the legal assessor had based his advice to the Panel on Council guidance, which stated that 'in deciding whether conduct is easily remediable, has been remedied and is highly unlikely to be repeated, panels may also need to consider character evidence of a kind which in other proceedings might only be heard as mitigation or aggravation as to sanction after a finding has been made'  and further stated, citing the case of Campbell v GMC (2005) 1 WLR 3488 that 'the fact that in some cases there will be an overlap, or that the same material may be relevant to both [culpability and mitigation] does not justify treating evidence which is exclusively relevant to personal mitigation as relevant to the prior question whether the allegation has been established.'

Collins J considered that the guidance did not entirely accurately reflect what was decided in Campbell. Although it was easy to see from Campbell why matters which strictly related to mitigation were not necessarily material when considering impairment, good character was a factor that could be taken into account when assessing whether a registrant's evidence was to be believed ('credibility') and whether it was likely that he had done what was alleged ('propensity'). As such, the guidance failed to make the point that good character evidence could be material at the impairment stage of a Panel's decision; as such, the guidance was not necessarily correct to assert that good character only becomes material at the point where a panel considers sanction.

Notwithstanding this, W's appeal was refused on the basis that it was clear from the Panel's decision that it had taken the Appellant's good character evidence into account in respect of his credibility, even though it had not said so in explicit terms. Accordingly, it could not be said that the panel only referred to character evidence in relation to sanction.

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