PSA Appeal: HCPC Committee obliged to conduct CoP Review
The Professional Standards Authority (PSA) challenged a decision of a disciplinary committee of the Health and Care Professions Council (HCPC) which decided not to make a substantive decision about a continuation or discharge of a conditions of practice order on a third review when it considered it had no power to do so: Professional Standards Authority for Health and Social Care v Health and Care Professions Council & Anor [2025] EWHC 164 (Admin) Collins Rice J
A hospital operating-department practitioner whose fitness to practise was found to be impaired was made the subject of an 18-month Conditions of Practice (CoP) order on 14 September 2021. That order was reviewed and extended for a further 9 months by another committee on 13 March 2023. Yet again the order was reviewed and extended for four months on 1 December 2023. But when another committee was convened for a third review on 3 April 2024 it took the view that it had no jurisdiction or legal power to do so because the order had already expired.
So the practitioner went back to working as normal and unconditionally.
The PSA contended in the High Court that the committee had, unlawfully and contrary to its overarching obligations to the public, permitted the practitioner to practise without conditions when there had been no substantive confirmation that it was the proper thing to do.
The scheme of Article 30 Health Professions Order provided two routes to a formal committee review. The first was set out in Art.30(1)(a). That imposed a duty for a committee to review a CoP order before it expired. The second was set out in Art.30(2) and (4). That gave a power to a committee to review an order at any time during its currency.
There was no dispute that in both cases the function must be exercised while the previous order was still extant.
On a mandatory review under Art.30(1) the committee was given a power to (a) extend the period of the order it was reviewing, (b) make a different order which could have been made at the time of the original order or (c) where the order under review was a suspension order, replace it with a different conditions of practice order. In each case, including where an extension was made, that was expressed to be with effect from the date on which the order under review would (otherwise) have expired.
The scheme was carefully designed to leave no gaps. Those conditions had to be reviewed before the order expired to check whether the protection of the public still required them.
The provision made by Art.30(4) in the case of discretionary applications for review under Art.30(2) was different. There was still a power to extend, but the words creating seamless consecutiveness (with effect from the date on which the order would, but for this provision, have expired) were omitted. Provision was made for a more flexible range of powers than was available on a mandatory review.
The original CoP order imposed on 18 September 2021 was expressed for a term of 18 months and ran from 12 October 2021 to 12 April 2023. The committee undertaking the first review on 13 March 2023 confirmed the exact expiry date in its decision and therefore confirm its own jurisdiction to review, since the order still had a month to run. It was exercising its functions further to Art.30(2) and (4) – the discretionary route, rather than the mandatory route. The Committee extended the order for a period of nine months with immediate effect. There was no provision made by law for the start and end date of the nine-month extension period ordered so it was a matter for the committee.
The parties appear to have proceeded on the basis that the period began running immediately and therefore expired on 13th December 2023. The review committee convened on 1 December 2023 and expressly confirmed an expiry date of 13 December for the previous order, and therefore its own jurisdiction to review since the order still had 12 days to run. It ordered the CoP order to be extended for a period of four months with immediate effect.
The next panel treated the question of the period and expiry of 1 December 2023 order as essentially a question of fact and evidence, but the effect of the law was clear. The extension period identified in the order made on 1 December operated consecutively to the expiry of the order made on 23 March. That order expired on 13 December. So the order made on 1 December ran from 13 December 2023 to 13 April 2023.
That being so, the question of interpreting with immediate effect in the December order did not properly arise at all. The appearance of this language in the December order could not have related to the start and end dates of the period of the extension consistently with Art.30(1)(a) because it was the law contained in that Article itself which determined the start and end dates.
The committee was wrong to conclude that the order had already expired and that it had no jurisdiction to conduct a review. On the contrary, the previous order had not expired and the committee was obliged to conduct and determined a review one, moreover, to be conducted with reference to the overarching objective of the protection of the public.
Allowing the appeal, her Ladyship observed that the procedural history could not fairly be said to be of the practitioner’s making. The original confusion about dates of the orders could not be attributed to him or to anyone other than the HCPC. If, notwithstanding the lapse of time since last April, there was assessed to be a material risk of it turning out that there had been, and was, after all a continuing need for the practitioner to be subject to conditions on his practice as a result of his former misconduct, then from the point of view of the public, the sooner that were addressed and resolved the better. That was only fair to the practitioner also.