Privy Council Appeal No. 15 of 2001

Mrs. Paula Carroll	Appellant
	v.
The Council for Professions Supplementary to Medicine
 (Radiographers Board)	Respondent

	FROM

	THE PROFESSIONS SUPPLEMENTARY TO
MEDICINE ACT 1960
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	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 6th November 2001
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	Present at the hearing:-
			Lord Hope of Craighead
			Lord Lloyd of Berwick
			Lord Rodger of Earlsferry
		  	[Delivered by Lord Hope of Craighead]
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1. 	The appellant is a State Registered Radiographer.  On 4 December 1973 her name was entered on the register maintained for her profession under section 2 of the Professions Supplementary to Medicine Act 1960 by the Radiographers’ Board.  On 1 February 2001 the Disciplinary Committee of the Radiographers’ Board found her guilty of infamous behaviour in a professional respect.  As it was empowered to do by section 9(1) of the Act, the Committee directed that her name be removed from the register.  The appellant has now appealed against that direction to their Lordships’ Board under section 9(3).

2. 	The case against the appellant on 1 February 2001 was that she failed to disclose material information about her previous employment when she applied on 14 July 1999 for the post of radiographer at the Seacroft Hospital, which is part of the Leeds Teaching Hospitals NHS Trust.  The charges against her were in these terms:
“That being a State Registered Radiographer, Mrs Carroll is guilty of infamous conduct in a professional respect in that she individually or cumulatively:

1.	failed to declare the reason for leaving the employment of Salford Royal Hospital NHS Trust, Hope Hospital in an application form dated 14th July 1999 for the post of Radiographer at the Seacroft Hospital part of the Leeds Teaching Hospitals NHS Trust (hereinafter referred to as “the Trust”);

2.	failed to declare her employment with and reasons for leaving Rochdale NHS Trust, Birch Hill Hospital in an application form dated 14th July 1999 for the post of Radiographer at the Trust;

3.	failed to declare her employment with and reasons for leaving the Leicester Royal Infirmary in an application form dated 14th July 1999 for the post of Radiographer at the Trust.”

3. 	The Committee was provided by the Board’s solicitor with the following information from the disciplinary register about the appellant’s previous history.  On 28 May 1993 she was found guilty of infamous conduct in a professional respect in that on two occasions in September 1992 in the Department of Radiography at the Conquest Hospital, St Leonards on Sea, East Sussex she was incapable due to alcohol of performing her duty as the first call radiographer at the hospital.  Judgment was postponed for one year.  At the resumed hearing on 4 June 1994 no further action was taken.  On 17 January 2000 she was again found guilty of infamous conduct in a professional respect in that, either individually or cumulatively, (1) she failed to declare the reason for her leaving the employment of the Salford Royal Hospital NHS Trust Hope Hospital in an application form dated 15 September 1998 for the post of radiographer at the Leicester Royal Infirmary NHS Trust, (2) she failed to declare her employment with and reasons for leaving Rochdale NHS Trust Birch Hill Hospital in that application form and (3) on 28 January 1999 she was under the influence of alcohol at an investigatory meeting at the Leicester Royal Infirmary.  Judgment was postponed on this occasion for two years.  After taking this information into account, the Committee decided on 1 February 2001 to direct removal of the appellant’s name from the register.

4. 	The appellant represented herself at the hearing of her appeal by the Board.  She did not seek to challenge the Committee’s finding that she was guilty of infamous conduct in a professional respect.  She submitted however that the Committee ought not to have directed that her name be removed from the register.  Her submissions were therefore directed solely to the question of penalty, and they fell into two parts.  In the first place she provided some further information to explain the conduct which was the subject of charges 2 and 3.  These charges related to her failure to declare her employment with and reasons for leaving the Birch Hill Hospital, Rochdale and Leicester Royal Infirmary when she was applying for the post of radiographer at the Seacroft Hospital.  In the second place she submitted that the Committee had failed to take account of the fact that the conduct of which she had been found guilty on 1 February 2001 occurred some six months before the hearing on 17 January 2000 when, as she put it, she was put on probation for two years.  She pointed out that she had not been found guilty of anything during her period of probation that would cause her to be found guilty of infamous conduct in a professional respect.  She said that in these circumstances the decision of the Committee to direct that her name be removed from the register was unjust and inequitable.  

5. 	The explanations which the appellant gave for her failures to declare her employment with and reasons for leaving the Birch Hill Hospital, Rochdale and Leicester Royal Infirmary were to this effect.  She said that she had worked as a radiographer for only three days at Birch Hill and that she was never formally dismissed from her post at this hospital.  She had simply been told by the radiology manager there that he was not in a position to offer her any further shifts.  She said that she never did any formal work at all at Leicester Royal Infirmary.  Although she had been suspended, her employment at that hospital was not formally terminated as she took the option which was offered to her to resign.   She had thought that these incidents were so insignificant, in the context of her many years of service since 1973 as a radiographer, as to be not worth mentioning on her application form.  

6. 	Their Lordships do not agree that these incidents were insignificant.  The Committee was informed that the application form required the applicant to list her previous employment and her reasons for leaving that employment and to sign a declaration that the form had been completed correctly.  It was also stated on the form that any misleading statement or deliberate omission would be treated as grounds for disciplinary action: see Record of Proceedings, p 7.  It is plain that the purpose for which this information was required was to enable inquiries to be made of the applicant’s previous employers as part of the assessment of her suitability for the post for which she had applied.  

7. 	There is no doubt that the two incidents which the appellant omitted to mention on her application form had a direct bearing on her suitability for her post as a radiographer at the Seacroft Hospital.  The Committee heard evidence that her employment with the Birch Hill Hospital, Rochdale was terminated following a complaint that she was found to have had a drink when she was on duty as a radiographer, and that she resigned from her position with the Leicester Royal Infirmary after she had been suspended and an investigation into an allegation that she had failed to include her previous employment on her application form for the post of radiographer at the Infirmary had had to be adjourned as she was under the influence of alcohol: Record of Proceedings, pp 18, 20-22.  The Committee was, of course, reminded that the appellant had not been charged on this occasion with being on duty while under the influence of alcohol.  But it was entitled to take account of the background to the charges when it was reaching its decision as to whether or not the appellant was guilty of infamous conduct in a professional respect in the light of all the facts which it found proved.  The background circumstances were also relevant to the question of penalty.  As it was in the appellant’s interest not to disclose these incidents on her application form, the Committee was entitled to regard her omission to mention them as deliberate.

8. 	The Professions Supplementary to Medicine (Disciplinary Committees) (Procedure) Rules Order of Council 1964 (SI 1964/1203) required the Committee, having recorded its finding against the appellant, to consider first whether it should postpone judgment: rule 10(3).  The maximum period for which judgment may be suspended is 2 years: rule 10(4).  The rule does not lay down any minimum period.  Having determined not to postpone judgment, the Committee was required to determine whether by reason of its finding the Registrar should be directed to remove her name from the register: rule 10(5).  No other form of disposal is provided for in the Rules.  As Mr Perry for the respondent pointed out, the effect of rule 10 is that only three forms of disposal are available: (1) to postpone judgment for a period not exceeding two years; (2) to direct that the name be removed from the register; and (3) to take no further action in the case.  

9. 	But a direction that a name be removed from the register is not irrevocable.  It is open to a person whose name has been removed from the register to apply for his or her name to be restored to the register under rule 14.  The Rules do not lay down any period within which such an application may be made following the removal of the name, nor do they enable the Committee which directs removal of the name to stipulate any such period.  The procedure provided for in rule 14 may be instituted at any time.  Once it has been instituted, the application must be dealt with by the Committee as laid down by the rule. The Committee is however entitled to require such evidence as it thinks necessary concerning, among other things, the character of the applicant and his or her conduct since the name was removed from the register: rule 14(ii).  This suggests that the applicant should allow a reasonable interval to elapse after the removal of the name before making an application for its restoration to the register.  The interval should be long enough to enable the Committee to reach an informed decision, bearing in mind the need to protect the public interest, that it would be appropriate for the name to be restored. 

10. 	Their Lordships are not persuaded, in the light of this background, that the Committee’s decision as to penalty at the hearing on 1 February 2001 was unjust and inequitable.  It is true that the decision at the previous hearing on 17 January 2000 was to postpone judgment for two years, and it is also true that the application form which formed the basis for the charges which were before the Committee on 1 February 2001 was dated 14 July 1999.  The charges which were before the Committee on 1 February 2001 did not relate to any conduct during the period for which the Committee on 17 January 2000 decided to postpone judgment.  But the Committee which disposed of the appellant’s case on 17 January 2000 was unaware of the facts relating to the application for the post at Seacroft Hospital.  These facts were not made the subject of any charge against her until they were before the Committee on 1 February 2001.  There is no doubt that the Committee which sat on that date was entitled to reach its decision as to the appropriate disposal of her case in the light of all the facts and circumstances that had then been revealed.  It was not bound by the decision of the Committee on 17 January 2000 to postpone judgment.  It was entitled to take a fresh look at the case, bearing in mind the public interest.  Furthermore, as Mr Perry pointed out, it was entitled to take account of the fact that the appellant would have the right under rule 14 to apply at any time after its removal for her name to be restored to the register.

11. 	As has often been said, their Lordships’ Board will not lightly interfere with the exercise of a discretion by a professional conduct committee in matters relating to penalty.  In this case the Committee was best placed to assess the seriousness of the appellant’s conduct in the light of its experience and to arrive at an informed judgment as to what was required to maintain the standards and profession of radiographer.  The history which was before the Committee indicated that the infamous conduct of which the appellant had been found guilty on this occasion formed part of a pattern of behaviour and that that pattern extended over a substantial period.  It was characterised by repeated attempts when completing application forms to conceal previous instances of inappropriate behaviour associated with the consumption of alcohol.  The Committee was entitled to regard her infamous professional conduct as sufficiently serious to justify the imposition on the appellant of the ultimate penalty of directing the removal of her name from the register.  The effect of this direction was to supersede the decision of the Committee on 17 January 2000 to suspend judgment for two years.  In their Lordships’ view, this result too was well within the discretion of the Committee in all the circumstances.

12. 	For these reasons their Lordships will humbly advise Her Majesty that the appeal should be dismissed.  Mr Perry did not ask for an order as to costs, and their Lordships have decided to make no such order.