In PSA –v- HCPC & Sharf [2025] EWHC 164 (Admin), the Professional Standards Authority (PSA) brought an appeal against a decision by a Health and Care Professions Council (HCPC) Committee that it could not conduct a review of a Conditions of Practice Order at a Substantive Order Review Hearing as that Order had already expired.   

On 14 September 2021, Mr Sharf was made subject to an 18-month Conditions of Practice Order following the conclusion of his Substantive Hearing. This Order was reviewed on 13 March 2023, and extended for a further nine months (with some variation to the terms of the Order). The Committee on that occasion directed that this should take place with “immediate effect.” At the second Review Hearing on 1 December 2023, the Committee made a further extension to the Order of four months, and also stated that this extension was to take place “with immediate effect.” At the third Review Hearing, convened on 4 April 2024, the Committee concluded that at the second Review Hearing, the four-month extension had been made to start on 1 December 2023, meaning that the Order had in fact expired on 1 April 2024. The Committee concluded that there was no Order in effect for them to review, and Mr Sharf was permitted to return to unrestricted practice.   

The focus of the appeal was the decision made at the second Review Hearing on 1 December 2023, and whether the four month extension should have started running from either the date of that hearing or 13 December 2023; the date on which the Order was due to expire.   

As with several regulators, the HCPC has both powers to conduct a mandatory review of a Substantive Order (Article 30(1) of the Health Professions Order 2001) and also a discretionary review, under Article 30(2) and (4) of the same Order. A Committee has more flexible powers if conducting a discretionary review, including the power to vary conditions or reduce the length of the Order. Significantly, the powers granted to the Committee under Article 30(2) and (4) do not include the phrase “with effect from the expiry of the Order”, whilst those words, or variations of them, feature in the Committee’s powers under Article 30(1).   

At the first Review Hearing on 13 March 2023, the Committee only had the power to vary the Order if it acted under Article 30(2). Given the absence of the phrase “with effect from the expiry of the Order” within the Committee’s powers under Article 30(2) and (4), it was arguably open for the Committee to direct that the variation and extension of the Order should take place with immediate effect.   

Whilst Collins Rice J concluded that the Committee, on 13 March 2023, were permitted to vary and extend the Order with immediate effect, she concluded that this course had not been open to the Committee at the second Review Hearing on 1 December 2023. Regardless of the words used by the Committee, they were in fact exercising their powers under Article 30(1) (the mandatory review), and those powers did not permit them to make an extension to the Order “with immediate effect”. It was Collins Rice J’s conclusion therefore that the Order had been extended to 13 April 2024 (a four month addition to the previous expiry date of 13 December 2023). So the Order had still been in force at the Review Hearing on 4 April 2024. The decision of the Committee on 4 April 2024 was therefore quashed, and Collins Rice J invited the parties to try and agree a draft Order as to the next appropriate steps, given the length of time since Mr Sharf’s original disciplinary matters and the fact that he had, since the 4 April decision, been practising for ten months without restriction.   

Collins Rice J took the opportunity to comment on the “quite complex” arrangements with Article 30 of the 2001 Order, and encouraged the HCPC to provide clarity in the length of its Conditions of Practice Orders, including the Order specifying in unambiguous terms its start and end date.   

Most health and social care regulators have the power to conduct both a mandatory and discretionary (or early) Review of a Substantive Order. Likewise, the powers that are available vary depending on whether they are acting under the mandatory or discretionary regime, with most regulators only having the power to make changes with immediate effect if they are in fact conducting a discretionary review. There are frequently occasions when a Substantive Order Review Hearing has been convened to allow a panel or committee to conduct a mandatory review, and it transpires that it would be more appropriate for the panel or committee to exercise its powers under the discretionary regime. This case should not be treated as a basis for departing from that approach, assuming that both parties are in agreement with changing from a mandatory to a discretionary review. What this case serves to underline though is the need for any panel or committee to make clear within its decision:

•  Whether they have acted under their mandatory or discretionary powers i.e. specify under which paragraph, Rule or Regulation they acted when making their decision; and 
• The intended start and end date of any change to an Order they seek to make.    

By setting out the intended start and end date, should ensure that the decision sets out clearly whether the panel or committee were acting under their mandatory or discretionary review powers. 

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