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Section 29 appeals

The approach to appeals under Section 29 of the National Health Service Reform and Health Care Professions Act 2002 was laid down by the Court of Appeal in the case of Ruscillo v The Council for the Regulation of Health Care Professionals and the General Medical Council and Another [2004] EWCA Civ. 1356. The effects of this judgment were summarized as follows by Weatherup J. In the case of Council for the Regulation of Health Care Professionals v The Nursing and Midwifery Council & Anor [2005] NIQB 69.




(1) Disciplinary matters that are imposed under the various regulatory schemes do not have the primary object of penalising for misconduct. The primary object is to protect the public and the reputation of the profession in question. The primary object of the creation of the Council was also the protection of the public and Section 29 is only one of a number of provisions under which the Council is empowered to achieve this object. (Para. 60).


(2) Section 29 (4)(a) permits the Council to refer a case to the Court where it would be desirable for the protection of members of the public to take action and "a relevant decision falling within sub-section 1 has been unduly lenient, whether because the findings of professional misconduct are inadequate, or because the penalty does not adequately reflect the findings of professional misconduct that had been made, or both." (Para. 67).


(3) If the court considers that the decision as to penalty was correct it must dismiss the appeal, even if it concludes that some of the findings that led to the imposition of the penalty were inadequate. (Para. 70).


(4) If the court decides that the decision as to penalty was "wrong" it must allow the appeal and quash the relevant decision. It can then substitute its own decision under Section 29(8)(c) or remit the case under Section 29(8)(d). (Para. 70).


(5) It may be that the court will find that there has been a serious procedural or other irregularly in the proceedings before the disciplinary tribunal. In those circumstances the court may be unable to decide whether or not the decision as to penalty was appropriate. In such circumstances the court may allow the appeal or remit the case to the disciplinary tribunal with directions as to how to proceed (para. 72).


(6) What are the criteria to be applied by the court when deciding whether a relevant decision was wrong? The task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct and where they do to impose the penalty that is appropriate having regard to the safety of the public and the reputation of the professions. The role of the court is to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty. That role is no different to the role of the Council in considering whether a relevant decision has been unduly lenient. The test of undue leniency involves considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession (para. 73).


(7) References to the court having regard to double jeopardy when considering whether a sentence is unduly lenient upon an Attorney General's reference as not really apposite where the primary concern is for the protection of the public (para. 75).


(8) The test of whether a penalty is unduly lenient in the context of Section 29 is whether it is one which a disciplinary tribunal having regard to the relevant facts and the object of the disciplinary proceedings could reasonably have imposed (para. 76).


(9) In any particular case under Section 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public (para. 77).


(10) Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the Council and the court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. Where however there has been a failure of process or evidence is taken into account on appeal that was not placed before the disciplinary tribunal a decision reached by the tribunal will inevitably need to be reassessed (para. 78).


(1) Disciplinary matters that are imposed under the various regulatory schemes do not have the primary object of penalising for misconduct. The primary object is to protect the public and the reputation of the profession in question. The primary object of the creation of the Council was also the protection of the public and Section 29 is only one of a number of provisions under which the Council is empowered to achieve this object. (Para. 60).


(2) Section 29 (4)(a) permits the Council to refer a case to the Court where it would be desirable for the protection of members of the public to take action and "a relevant decision falling within sub-section 1 has been unduly lenient, whether because the findings of professional misconduct are inadequate, or because the penalty does not adequately reflect the findings of professional misconduct that had been made, or both." (Para. 67).


(3) If the court considers that the decision as to penalty was correct it must dismiss the appeal, even if it concludes that some of the findings that led to the imposition of the penalty were inadequate. (Para. 70).


(4) If the court decides that the decision as to penalty was "wrong" it must allow the appeal and quash the relevant decision. It can then substitute its own decision under Section 29(8)(c) or remit the case under Section 29(8)(d). (Para. 70).


(5) It may be that the court will find that there has been a serious procedural or other irregularly in the proceedings before the disciplinary tribunal. In those circumstances the court may be unable to decide whether or not the decision as to penalty was appropriate. In such circumstances the court may allow the appeal or remit the case to the disciplinary tribunal with directions as to how to proceed (para. 72).


(6) What are the criteria to be applied by the court when deciding whether a relevant decision was wrong? The task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct and where they do to impose the penalty that is appropriate having regard to the safety of the public and the reputation of the professions. The role of the court is to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty. That role is no different to the role of the Council in considering whether a relevant decision has been unduly lenient. The test of undue leniency involves considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession (para. 73).


(7) References to the court having regard to double jeopardy when considering whether a sentence is unduly lenient upon an Attorney General's reference as not really apposite where the primary concern is for the protection of the public (para. 75).


(8) The test of whether a penalty is unduly lenient in the context of Section 29 is whether it is one which a disciplinary tribunal having regard to the relevant facts and the object of the disciplinary proceedings could reasonably have imposed (para. 76).


(9) In any particular case under Section 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public (para. 77).


(10) Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the Council and the court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. Where however there has been a failure of process or evidence is taken into account on appeal that was not placed before the disciplinary tribunal a decision reached by the tribunal will inevitably need to be reassessed (para. 78).

 

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