Dan Smith

Preliminary Matters
Service

1. The Panel was provided with the following bundles:
• Voluntary Removal Agreement (VRA) hearing bundle of 148 pages, and
• skeleton argument of 4 pages, and
• email 21 August 2024 (waiver of notice period) of 2 pages.

2. The VRA hearing bundle disclosed that notice of the hearing was provided to the Registrant at his registered email address on 28 August 2024 giving details of the date, time, and a dynamic access link to the hearing with all of the papers necessary to permit effective participation.

3. An email received from the Registrant’s representatives dated 21 August 2024 expressly waived entitlement to 28 days’ notice of the hearing.

4. The Health and Care Professions Council (Coronavirus) Amendment Rules Order of Council 2021 allowed the notice of hearing to be served by email.

5. The service bundle included:
• an outbound server deliver notification.
• a signed certificate of registration with the HCPC dated 28 August 2024 confirmed the Registrant’s status and registered email address.

6. The Panel found that the Registrant had been served with the Notice of Hearing in accordance with:
• rule 3(1) of the HCPC Conduct and Competence Committee (Procedure) Rules 2003 (the rules) and
• although the Registrant had not been given the minimum 28 days’ notice in accordance with rule 13 (4), the Registrant’s representatives had expressly waived the notice period on his behalf in order to expedite the process.

7. Accordingly, the Panel was satisfied that all of the requirements in relation to service had been met (including by waiver of the notice period) and that it was empowered to deal with this matter.

Proceeding in the Registrant’s absence

8. Ms O’Connor, on behalf of the HCPC invited the Panel to proceed to hear and determine this application in the Registrant’s absence.

9. Ms O’Connor explained that the HCPC had been in correspondence with the Registrant’s professional representatives in relation to this matter, most recently on 20 August 2024 confirming the HCPC’s agreement to the Registrant’s Voluntary Removal. On 22 August 2024, the Registrant had signed the Voluntary Removal Agreement (VRA) and had returned it to the HCPC.

10. Ms O’Connor submitted that the Panel could be satisfied that all reasonable steps within the rules had been taken to properly notify the Registrant of this hearing, and the Registrant had been given the opportunity to attend the hearing remotely. Ms O’Connor submitted that the Registrant was fully aware of the proceedings and had made no request for the hearing to be postponed.

11. Ms O’Connor submitted that there had been no application to adjourn the hearing. Instead, the representatives for the Registrant had said that he did not intend to participate in the hearing for health reasons and that he was content for the hearing to proceed in his absence. Accordingly, there was no indication that a delay in the proceedings would be likely to result in the Registrant’s participation.

12. Ms O’Connor submitted that the Registrant had waived his right to attend and that an adjournment would serve no useful purpose.

13. The Panel accepted advice from the Legal Assessor, referring to:
• the HCPTS Practice Note Proceeding in the Absence of the Registrant last updated in June 2022
• rule 11 which permits proceedings to continue in the absence of a Registrant in certain circumstances
• the principles set out in R v Jones [2002] UKHL 5
• R v Jones (Anthony William) HL 20 Feb 2002
• the cases of GMC v Adeogba and GMC v Visvardis, both (2016) EWCA Civ 162

14. The Panel determined that the Registrant had voluntarily absented himself for reasons of his health. An adjournment would serve no useful purpose and might even be detrimental to the Registrant in the circumstances of this case. There was correspondence in the bundle from the Registrant’s representatives and from his medical advisers explaining the adverse impact that the continuation of the proceedings had, and might have, on the Registrant’s health.

15. The Registrant had not requested an adjournment and this would not be likely to secure the Registrant’s attendance at a future date. It was in the public interest to conclude the proceedings expeditiously. It was also in the Registrant’s own interests for the proceedings to be concluded today if possible. The Panel therefore determined to proceed in the absence of the Registrant.

Proceeding in private

16. Ms O’Connor applied for all of the hearing to be conducted in private to respect the Registrant’s right of confidentiality of his private life.

17. Ms O’Connor informed the Panel that while she would not be referring to any matters regarding the Registrant’s health, there were substantial and pervasive references to this in the papers. Her submissions would become fragmented and difficult to follow if the hearing required to move from private to public session repeatedly. There was a risk that private health information would become public. The public’s understanding of the context of the case would not be advanced as the context ought to be discussed in private. Accordingly, the likely scope of any public version of a part-private hearing would not be informative or helpful for the public.

18. Ms O’Connor submitted that to protect the right for respect for the Registrant’s private life, the entire hearing should be conducted in private.

19. The Panel accepted advice from the legal assessor which referred to the HCPTS Practice Note Conducting Hearings in Private last updated in March 2017. The Panel was satisfied that it could depart from the open justice principle in the circumstances of this case for the reasons advanced by Ms O’Connor on behalf of the HCPC. Any references made by it to the Registrant’s health or other aspects of his private life would be in private. However, the substance and detail of the case entirely related to the Registrant’s health. The Panel considered that the public would not be better informed by a part-private/part-public decision.

20. Accordingly, the Panel decided that the hearing should be conducted entirely in private.

ORDER: The Panel grants the application for voluntary removal and directs the Registrar to remove the name of Mr Dan Smith from the Register with immediate effect.

No notes available

History of Hearings for Dan Smith