Health and Care Professions Council v Walsh [2019] EWHC 3038 (Admin)

Health and Care Professions Council v Walsh [2019] EWHC 3038 (Admin) concerned an application by the Health and Care Professions Council to extend an interim suspension order under Article 31(8) of the Health and Social Professions Order 2001, heard by Mr John Kimbell QC sitting as a Deputy Judge of the High Court in the Administrative Court.

The defendant was a registered radiographer. On 1 February 2018 the HCPC received a referral from Manchester University Foundation Trust raising concerns about Mr Walsh’s fitness to practise. On 24 January 2018 Mr Walsh had been admitted to Manchester Royal Infirmary and had admitted using controlled drugs allegedly taken from Wythenshawe Hospital where he was employed. He was suspended from his position the following day. The Trust conducted an internal investigation and held a disciplinary hearing on 21 June 2018, at which Mr Walsh was summarily dismissed. On 1 March 2018 he had pleaded guilty to the theft of medical drugs and associated items belonging to the Trust. The HCPC obtained a memorandum of conviction on 19 July 2018 and a copy of Mr Walsh’s Police National Computer record on 7 November 2018. Following a signed consent form from Mr Walsh dated 26 January 2019, the HCPC received his medical records on 15 March 2019.

Having gathered that information, the HCPC applied for an interim order under Article 31(2) of the 2001 Order. At a meeting of the Investigating Committee on 17 April 2018, in which Mr Walsh participated by telephone, a panel imposed an interim suspension order. The panel considered the order necessary for the protection of the public, in the public interest and in Mr Walsh’s own interests, on the grounds that there would be a risk of repetition of his conduct if he were permitted to work in an environment with ready access to controlled drugs and that confidence in the profession would be undermined if no restriction were placed on his practice.

The order was scheduled for review in October 2018 but an adjourned hearing took place on 16 November 2018. Mr Walsh was neither present nor represented, but he had emailed the HCPC on 15 November inviting them to continue the order and had provided a statement setting out his personal and professional circumstances. The panel determined that the order should continue. There were a number of subsequent reviews, the final one being on 29 July 2019, at which the panel again determined that the order ought to be continued.

The HCPC instructed solicitors to prepare the case for a final hearing, which was listed for 14 and 15 October 2019. The Deputy Judge was informed that the hearing had commenced on 14 October and was expected to continue on 15 October. Mr Walsh had not taken part in those proceedings. The HCPC applied for an extension of the interim order for a further twelve months until 16 October 2020.

The Deputy Judge applied the principles set out in General Medical Council v Stephen Hiew [2007] EWCA Civ 369, which established that the criteria for extending an interim order are the same as for the original order, namely the protection of the public, the public interest or the practitioner’s own interests. At paragraph 28 of that decision the Court of Appeal identified five relevant matters: the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued. The burden of satisfying the court fell on the applicant, on the civil standard.

The Deputy Judge considered that the gravity of the allegations was at the higher end of the scale, having led to a criminal conviction for theft of controlled drugs. The nature of the evidence was such that Mr Walsh did not appear to be disputing any of the material facts and had indeed made an application at one stage that an interim order be continued in his own interests. The seriousness of the risk of harm to patients was high. The reasons why the case had not yet been concluded were reasonable: the delay had resulted from the heavy workload of the HCPC and the fact that crucial information such as medical records had not been received in time for a full panel to convene until recently. The full panel had now convened and had been carrying out its hearings, expected to conclude that day. The prejudice to Mr Walsh was minimal, not least because he himself had at one stage sought the continuance of the interim order for his own reasons.

The Deputy Judge granted an order extending time but declined to grant a further twelve months. Given what he had heard about the progress of the hearing, he granted an order for six months expiring on 16 April 2020. In short, the court extended the interim suspension order for six months rather than the twelve months sought, having regard to the imminent conclusion of the substantive fitness to practise proceedings.

General Medical Council v Stephen Hiew [2007] EWCA Civ 369