Key Facts
- •Robert Hawkins, a registered physiotherapist, was found by a panel of the Health and Care Professions Tribunal (the Panel) to have impaired fitness to practise due to misconduct.
- •The misconduct related to a massage given to a patient (Service User A) where Hawkins allegedly attempted to lower or remove her underwear, an action the Panel deemed sexually motivated.
- •Hawkins admitted attempting to lower the underwear but denied attempting to remove it or that his actions were sexually motivated.
- •The Panel found insufficient evidence to support the attempted removal but concluded the attempted lowering was sexually motivated, a finding not directly addressed to Hawkins during questioning.
- •The Respondent admitted a serious procedural error in not adequately putting its case to Hawkins regarding the sexual motivation of lowering the underwear.
- •The appeal concerns whether to remit the case for rehearing or dismiss the sexual motivation allegation.
Legal Principles
The overarching objective of the Health and Care Professions Council (Respondent) is the protection of the public, encompassing protection of public health, safety, and well-being; promoting public confidence in regulated professions; and promoting proper professional standards and conduct.
Health Professions Order 2021, Article 3(4) and (4A)
Appeals are heard by way of re-hearing, allowing appeals if the Panel's decision was wrong or unjust due to serious procedural irregularity.
CPR Rule 52.21 and paragraph 19.1(d) of PD52D
The court has discretion in deciding whether to substitute a decision for the Panel's or remit for rehearing, considering the regulatory regime's purpose and justice. Factors include public interest in proper regulation, fairness, and the utility of remittal.
Case Law Analysis (sections 43-48)
Remittal is inappropriate if the court can conclude on the evidence that only dismissal of the allegation is proper.
Soni v General Medical Council [2015] EWHC 364 (Admin)
A regulatory body can appeal against an unduly lenient decision by a panel.
Ruscillo v Council for the Regulation of Health Care Professionals [2004] EWCA Civ 1356
Outcomes
The Panel's decision regarding sexual motivation is quashed due to procedural unfairness.
The Respondent failed to adequately put its case to the Appellant regarding the sexual motivation of the admitted act of lowering the underwear.
The case is remitted for rehearing before a differently constituted panel.
The court found sufficient evidence to support a finding of sexual motivation, despite procedural flaws, and that the public interest in proper regulation and determination of allegations necessitates remittal. Although there were factors mitigating against sexual motivation, a rehearing would allow for proper exploration of the appellant's motivation. The Respondent’s case was not abandoned, and remittal does not constitute an unfair second chance.