Hostile panel questioning causes High Court to overturn a regulator's decision

High Court overturns a regulator's decision on the basis that hostile panel questioning of the registrant amounted to a serious procedural…

Summary

In Beard v General Osteopathic Council [2019] EWHC 1561, the registrant appealed, under section 31 of the Osteopaths Act 1993, a GOstC Professional Conduct Committee (PCC) finding of unacceptable professional conduct and decision to impose a 12-month condition order on her registration. She argued that the fairness of the proceedings and findings was fatally undermined by ‘protracted, inappropriate and hostile’ questioning of her by a legally qualified PCC member.

Details

The case before the PCC related to Ms Beard’s treatment (at two attendances) of a patient for a foot injury about which the patient subsequently complained at length and in a manner described by Kerr J as ‘undoubtedly aggressive and bullying in its tone and content’ and ‘obviously inappropriate and wrong’. Allegations of inadequate consenting, assessment and treatment were coupled with alleged unprofessional communication (described as ‘rants’ ) in response to the complainant. The substantive allegations were denied necessitating close consideration of the rival accounts.

PCC questioning of the registrant focused upon the accuracy of her contemporaneous records, the differences in the accounts of the treatment, her qualifications and professional history (which was unblemished), her reaction to the patient when he raised concerns, as well as close analysis of the complaint letters she received and her reaction to them. The PCC asked more than 200 questions in a lengthy ordeal (far in excess of the GOstC prosecution questioning) which caused the registrant considerable distress necessitating a lengthy break.

In a judgment which warrants close reading, Kerr J carefully considered (using written and tape transcripts) the PCC questioning of the registrant. The court sought to do so through the prism of the six principles set out in Galea v Galea (1990) 19 NSWLR 263, subsequently endorsed in the Privy Council case of Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44, itself examined, most recently in the regulatory arena by Banerjee v GMC [2017] EWCA Civ 281.

These principles, when considering the appropriateness/fairness of judicial questioning/intervention, are:

  • Did excessive intervention/pejorative comment create real danger of unfairness?
  • There is greater latitude where a judge sits alone than when with a jury.
  • Do the interventions indicate denial of a fair trial because the judge ‘closed his or her mind to further persuasion’, ‘moved into counsel’s shoes’ and ‘into the perils of self-persuasion’ ?
  • Consider in the context of the whole trial; the number, length, terms and circumstances of the interventions (do they indicate a provisional view or a final unalterable view?
  • When did the interventions occur? Vigorous early interventions are less readily excused than those at a later stage for better comprehension of the evidence and the weighing of this.
  • A more active judicial role in such proceedings than formerly is now accepted.

In Banerjee the court, applying the above principles, found against the appellant noting that the PCC had sought to close an evidential gap caused by the prosecutor not cross-examining the doctor on a key point. In the present case Kerr J found no such lacuna, noting the prosecutor had put the case fully in his cross-examination. She also observed that the GOstC PCC did not include a legally qualified chair, lay members being less likely to rid from their minds the contaminant of extraneous prejudicial information (given the lay member in question here was a lawyer, there was also a concern of disproportionate influence upon her PCC colleagues).

Kerr J rejected GOstC submissions that regulatory proceedings were essentially ‘inquisitorial’, hence allowed for the sort of questioning deployed. Instead she found the procedural rules pointed clearly to ‘adversarial proceedings’ and the contest (between two competing factual accounts) was clearly adversarial in nature. She also noted that the Court of Appeal in Banerjee had not suggested different (less vigorous) principles applied because of any qualitative difference in the nature of the proceedings. Across jurisdictions, she noted, adjudicating bodies have the duty ‘not to transgress the bounds of fairness in conducting the hearing’.

Conclusion

Kerr J found that whilst the ‘bar is set high’ to find such transgression, the PCC member’s questioning on this occasion had done so. Given that consideration of the credibility of the registrant and complainant was key, it was ‘of the utmost importance to the fairness of the proceedings…. that this crucial issue was treated in an even-handed and balanced manner’. Here it was instead ‘marred by inappropriate protracted and hostile questioning’.

Key points highlighted were:

  • The ‘brevity of questions asked of the patient’ and the ‘easy ride’ he got as compared to the registrant’s experience would ‘not of itself establish unfairness’ but was a relevant factor.
  • The Committee did not take an objective view of the patient’s correspondence (as reflected in the PCC member’s extended questioning why the registrant was upset by it) despite the fact that correspondence was ‘undoubtedly aggressive and bullying’ and ‘obviously inappropriate and wrong’. It was, said Kerr J ‘blindingly obvious that [the correspondence] would upset many persons of ordinary fortitude and that it did upset and frighten Ms Beard’, yet this attracted no PCC criticism. This failure to recognize the correspondence for what it was ‘evinced hostility toward Ms Beard and indulgence toward [the] patient’.
  • The hostile tone and content of the lengthy questioning of Ms Beard about that correspondence and the ‘lengthy excursion into Ms Beard’s past career, including demands she look at her CV’ were humiliating and distressing.
  • The PCC member was for too long allowed to pursue questioning, ‘the unstated relevance of which was nil or so tenuous as to amount to vexing the witness rather than illuminating the issues’.
  • Later intervention (and questions by the Chair) did not cure the unfairness of the proceedings which were by then ‘irretrievably compromised’ and the absence of robust objection by Ms Beard’s counsel was not indicative of the fairness of the questioning. Echoing Lord Walker in Demarco, Kerr J noted ‘how difficult it is for counsel to intervene to stop impropriety as it is going on’.

Those advising registrants (who will often be distressed by the close questioning they face and will enquire of those representing them whether a challenge is possible as a result) will wish to pay careful attention to the distinguishing nature of the judicial intervention/ questioning in this case, which also provides a useful recitation of the principles.

If you have any questions or would like to know more about our update, please contact Simon Turner (Partner).

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