Regulation of Health and Social Care Professionals Consultation

the imposition of a relevant sanction has been “unduly lenient” or in relation to a
decision not to take any or restore a person to the register, that the decision
“should not have been made”. In addition, a referral must be desirable for the
protection of members of the public. 25 However, the “should not have been made”
criterion has been interpreted as implying undue leniency. 26 The test of undue
leniency has been defined by the Court of Appeal as being whether the decision
“is one which a disciplinary tribunal, having regard to the relevant facts and to the
object of the disciplinary proceedings, could reasonably have imposed”. 27
10.41 The CHRE has 40 days to make a referral after the relevant decision has become
final. The referral is to be treated as an appeal, which distinguishes it from an
application for judicial review where the court would only intervene if there was an
error of law. Instead, the court can dismiss the appeal, allow the appeal and
quash the decision, substitute the relevant decision for one that could have been
made, or remit the case to the fitness to practise panel to dispose of the case in
accordance with the court’s directions. 28 The court will allow the appeal where the
relevant decision was “wrong”, which requires probing whether the fitness to
practise panel performed its task correctly. 29
10.42 During the passage of the NHS Reform and Health Care Professions Act 2002,
the Government indicated that it anticipated the section 29 power being used
“extremely sparingly”. 30 A possible reason for this may be the element of double
jeopardy inherent within section 29. Since the first referral in 2004, there have
been approximately 44 referrals made using section 29, which have resulted in
18 reasoned judgments. A referral to higher courts is normally initiated as a result
of the CHRE’s annual review of all fitness to practise decisions. The proportion of
cases referred to the higher courts is normally less than 1% of the cases
reviewed and the number of cases referred has decreased over time. 31
10.43 Neither Enabling Excellence nor the Health and Social Care Bill 2011 propose
changes to the substance of section 29. However, an issue has arisen in light of
the General Medical Council’s proposed Medical Practitioners’ Tribunal Service
(see Part 9). An element of this is a proposed right of appeal for the General
Medical Council in cases where it considered that a decision of the tribunal was
unduly lenient. This mirrors the wording and approach of section 29. 32
24 As above.
25 NHS Reform and Health Care Professions Act 2002, s 29(4).
26
Council for the Regulation of Health Care Professionals v Ruscillo [2004] EWCA Civ 1356;
[2005] 1 WLR 717 at [68] to [69].
27 As above, at [76].
28 NHS Reform and Health Care Professions Act 2002, s 29(6) to (8).
29
Council for the Regulation of Health Care Professionals v Ruscillo [2004] EWCA Civ 1356;
[2005] 1 WLR 717 at [70].
30 Hansard (HL), 31 January 2002, vol 631, col 356, Lord Hunt.
31 Council for Healthcare Regulatory Excellence, CHRE Review 2007-08 (2008), p 21.
32
General Medical Council, The Future of Adjudication and the Establishment of the Medical
Practitioners Tribunal Service (2011).
200