The appellant was a podiatrist - Raymond Wisson - registered with the Health Professions Council (HPC)∗.
It was alleged by a female work colleague that he had made sexually inappropriate comments during a conversation with her at work, and had shown her pornographic pictures on his mobile phone.
It was also alleged by a patient that Mr Wisson had asked her to attend his place of work after hours, asked her to undress and proceeded to massage her legs and thighs in a sexual manner.
The HPC heard the two separate allegations in one hearing, noting the following common factors in deciding to hear the allegations together:
- both complainants expected other people to be around, but found themselves alone with Mr Wisson
- both incidents lasted for some period of time
- both incidents involved first meetings with Mr Wisson
- both incidents were sexual in nature
In accordance with usual procedure at a conduct and competence committee, the committee heard oral evidence and found both allegations against Mr Wisson proved, went on to find his fitness to practise to be impaired, and decided to strike him off the register.
Mr Wisson appealed on the following grounds:
- that the committee had been wrong in deciding to hear the two allegations together; and
- that advice given by the legal assessor to the committee in relation to how they should approach evidence relating to Mr Wisson's good character was wrong and disadvantageous to him
Mr Wisson's appeal was dismissed.
The High Court held that it would always be necessary for the HPC conduct and competence committee to consider all the alleged misconduct when deciding on appropriate sanctions. It went on to state that this did not necessarily mean that the same panel had to deal with both allegations, but it was a factor towards this course of action being taken.
Rule 5 (4) (a) of the Health Professions Council (Conduct and Competence Committee) (Procedure) Rules Order of Council 2003 states:
"The Committee may consider and determine together -
(a) two or more allegations against the same health professional; or
(b) allegations against two or more health professionals,
where it would be just to do so."
The High Court considered the case of Reza v General Medical Council  2 AC 182 in determining that the conduct and competence committee was entitled to exercise this discretion, and went as far as to state that it would have been surprising if the committee had decided to hear the allegations separately.
The High Court then reviewed the HPC's practice note Finding that Fitness to Practise is impaired, and determined that although this guidance largely followed R (On the application of Campbell) v General Medical Council  EWCA Civ 250,  1 WLR 3488, it did not accurately reflect the decision in this case.
The High Court found that the guidance:
- did not address the issue that good character evidence could be relevant at the impairment stage
- incorrectly drew a clear distinction between what Mr Wisson said was evidence that had a direct bearing on the decisions to be made by the committee and general good character evidence
- was incorrect as it assumed that good character evidence was mitigation, and therefore only became relevant to the committee when considering sanction
The High Court held that the legal assessor had relied upon the HPC's guidance, which was incorrect.
Despite this, the High Court found clear evidence in the committee's determination on impairment that it had taken evidence of Mr Wisson's good character into account in relation to his credibility, even though this was not expressly indicated. This meant Mr Wisson's assertions that the committee had only considered character evidence in relation to sanction was unfounded.
As such, although the guidance produced by the HPC was held not to be entirely accurate, the advice provided by the legal assessor to the committee had not informed them that Mr Wisson's good character could not be taken into account when the committee was deciding whether or not his fitness to practise was impaired by reason of the allegations found proved against him.
It is important that practitioners deciding whether or not to appeal a decision by a regulatory body consider carefully the grounds of any possible appeal before deciding to proceed. Just because grounds of appeal exist, it does not necessarily mean proceedings should be issued.
Wisson highlights the importance of getting legal advice before setting off on along a time consuming and costly route.
* On 1 August 2012, the HPC changed its name to the Health and Care Professions Council (HCPC).
If you are being investigated by the HPC or any other regulatory body for alleged impairment of fitness to practise on the basis of misconduct, performance or ill health, please contact our regulatory team.
Follow us on twitter @Shoosmiths