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Public and Regulatory Law Alert: October 2011

Sarah Ellson


United Kingdom

Public and Regulatory Law Alert: October 2011

Case Law

R (on the Application of Darsho Kaur) v Institute of Legal Executives Appeal Tribunal EWCA Civ 1168

The appellant, Ms Darsho Kaur, sought to appeal against the decision to refuse her judicial review application regarding allegations of apparent bias by the Institute of Legal Executives (ILEX) and its appeal tribunal.

The appellant was an ILEX student who in May 2007 together with others, sat law and practice exams at the London College of Advanced Studies where she had studied.  She, together with others, was suspected of cheating in the exam due to the very similar exam papers that were submitted.  ILEX investigated and charged her with various disciplinary offences including that she had engaged in conduct that was unbefitting to ILEX or likely to bring it in to disrepute by cheating in respect of two exams.  

The ILEX Disciplinary Tribunal sat in March 2009.  In accordance with its rules, the ILEX panel included two lay members and an ILEX Council member.  The appellant did not attend but denied the allegations.  The Tribunal found that the allegations were proved in relation to one exam but not in relation to the other.  She was excluded from ILEX for a minimum of five years and was ordered to pay costs in the sum of £1700.00.

The appellant appealed to ILEX’s Appeal Tribunal (“IAT”) and as a preliminary issue, the appellant raised an objection to the inclusion of the vice-president of ILEX on the IAT panel.  Her appeal was dismissed and the appellant sought to judicially review the decisions of ILEX and the IAT under the doctrine of automatic disqualification, or on the basis of apparent bias because both panels hearing her case contained Council members (who were also directors) or the vice-president of ILEX.

Lord Justice Rix delivered the judgement for the Court who felt that in this case the basis of any argument as to bias did not have to be defined as either the doctrine of automatic disqualification or the doctrine of apparent bias, but that the doctrines should be seen as ‘two strands of a single over-arching requirement:  that judges should not sit or should face recusal or disqualification where there is a real possibility on the objective appearances of things, assessed by the fair-minded and informed observer … that the tribunal could be biased’.

Applying that analysis to the current facts, the Court found that the Vice-President of ILEX should not have been a member of the IAT panel who was dealing with an allegation of engaging in conduct unbefitting to the ILEX or likely to bring it in to disrepute, given her obvious interest in ILEX’s disciplinary regulation policy.  Likewise, the Council members and directors could not be adequately insulated from a perception of bias given the interest in ILEX and its governance in upholding its professional standards.  The appeal was therefore allowed.

Shah v General Dental Council, Queen’s Bench Division (Administrative Court) 1 November 2011

The appellant appealed against the decision of the General Dental Council’s Professional Conduct Committee (“the Committee”) to remove him from the Dental Register following a finding that he had sought to commence a relationship with a patient who had attended an emergency dental appointment.  As she was in receipt of state benefits, the patient was exempt from paying for dental treatment but the appellant told her that he could not perform the necessary treatment on the NHS and that she would have to pay.  He told her he would reduce his fee if she spent time with him.  When the patient later discovered that she had not needed to pay for the treatment, the appellant told her he would refund her money if she withdrew her complaint.  The appellant denied all allegations at the hearing.

The appellant argued that the Committee when making its decision to remove him from the register, did not consider the likelihood of such conduct recurring and therefore whether he in fact posed a risk to the public.

The Court found that the Committee was entitled to consider that the appellant lacked remorse and insight by denying the allegations, although it was not open to the Committee to impose a more serious sanction on this basis alone.  It considered that as this was a case where a Dentist lied to a patient, telling her that she had to pay for a procedure when she did not, then misused his position by making advances towards her with the offer to reduce those fees, the Committee was entitled to consider that suspension was not the appropriate sanction.  The appeal was therefore dismissed.

Regulatory News

GOC approves new Rules

The General Optical Council (GOC) has approved new Fitness to Practise Rules which make four notable changes, including a provision for Case Examiners to decide whether to refer cases for a Fitness to Practise hearing, to review a decision not to refer a complaint to a Fitness to Practise Panel and a provision that the defence or prosecution should pay all or part of their costs in substantive or review hearings.  More details can be seen here > 

GOC appoints new Interim Director of Regulation

The GOC has announced the appointment of Mandie Lavin as Interim Director of Regulation.  Ms Lavin formerly held positions of  Director of the Bar Standards Board and Director of Fitness to Practise and Legal Affairs and the Royal Pharmaceutical Society of Great Britain.  She joined the GOC on 10 October. The formal announcement can be seen here >

GDC announces new guidance on Remote Prescribing

The General Dental Council (GDC) has published new guidance on remote prescribing which prevents the provision of Botox or injectable cosmetic medicinal procedures via this method.  The new guidance aims to alleviate concerns that remote prescribing of these procedures would be misused and brings it in line with other healthcare regulators.  Further information can be seen here >

Changes to complaint handling underway at GDC

The GDC has announced that changes are already underway which are intended to improve the handling of complaints against dental professionals.  More meetings and hearings will be held to ease the backlog of cases and reduce delay, and more serious cases will be fast-tracked under the new changes which mark the first phase of a wholesale overhaul of the GDC complaint handling process.  Further details can be seen here >

GMC welcomes measures to introduce language proficiency requirement for EU doctors

Health secretary Andrew Lansley told the Conservative Party Conference that measures would be introduced to ensure that employers can only take on doctors from the EU who are competent and have the requisite communication skills.  Responsible Officers will have a legal duty to check prospective doctors’ communication and clinical skills before offering them a post within the health system.  The General Medical Council (GMC) welcomes the move.  More information about the announcement can be seen here >

GMC launches consultations on CPD guidance and revalidation regulations

The GMC is seeking views on its proposed guidance on how doctors and employers should be dealing with the requirement for continuous professional development, and how the GMC can help support doctors to maintain their knowledge.  CPD plays an important part in the revalidation process, upon which the GMC has also asked for comment to ensure that its proposed regulations are flexible and straightforward whilst still improving patient care.  The consultations will end in January 2012, and you can read more here >

NMC introduce new procedures for reviewing fitness to practise referrals

The Nursing and Midwifery Council (NMC) has introduced new procedures for referring isolated misdemeanours to employers where the referrals do not raise concerns about a registrant’s fitness to practise warranting further action.  As part of the new processes, referrals will be reviewed to identify those matters which should be dealt with locally by employers, and those which should be investigated immediately due to potentially serious concerns about a registrant’s fitness to practise.  Further information can be found here >

SRA moves to outcomes-focused regulation

The Solicitors Regulation Authority (SRA) has revised its approach to regulation, with a move to outcomes-focused regulation. The risk-based approach is designed to result in better outcomes for consumers by promoting ethical behaviour amongst legal service providers.  The new version of the Solicitors Code of Conduct, which reflects this move, came into effect on 6 October 2011.  More information can be found here >

BSB considers changes to QASA proposals

The Bar Standards Board (BSB) is reconsidering initial proposals for the Quality Assurance Scheme for Criminal Advocates (QASA) after issues about unintended consequences of the proposed scheme were raised during the consultation period.  The current consultation has been extended to 7 November 2011, to allow time for further consideration of the initial proposals.  The announcement can be viewed here >

CQC publishes Equality and Human Rights guidance for inspectors

In conjunction with the Equality and Human Rights Commission, the Care Quality Commission (CQC) has produced guidance for inspectors incorporating equality and human rights in to their compliance monitoring roles, and how to go about reporting suspected breaches.  More can be seen here >

FRC to consult on amendments to Operating Procedures

The Financial Reporting Council (FRC) has published for public consultation, amendments to its operating procedures. The amendments are to allow for the sharing of otherwise company-confidential information with the FRC’s Audit Inspection Unit and for the Panel to make its own announcement where the existence of a Panel enquiry has become public and in cases where a company makes a significant change to its corporate reporting following Panel intervention.  The FRC considers that these amendments will impact positively on effectiveness and efficiency.  Further details can be seen here >

FRC amends UK Corporate Governance to promote gender diversity in the boardroom

The FRC has amended the UK Corporate Governance Code to include requirements for listed companies to report annually on their boardroom diversity policy and add boardroom diversity as one of the factors to be considered when evaluating its effectiveness.  The decision, which will come in to effect in on 1 October 2012, will require listed companies to report on measurable objectives and progress in the important area of gender diversity.  Further information can be found here >

GOsC appoints new Chair

James Kellock has been appointed Chair of the General Osteopathic Council (GOsC) . Mr Kellock also sits as Chair of the Investigation Committee of the General Optical Council and sits on the fitness to practise committees of the General Dental Council and Association of Chartered Certified Accountants.  The announcement can be seen here >

GSCC prepares briefing for Lords debate on Health and Social Care Bill

The General Social Care Council (GSCC) issued a statement on key issues surrounding the transfer of functions from the GSCC to the Health Professions Council under the Health and Social Care Bill.  Ahead of the second reading debate which took place on 11 and 12 October, the GSCC prepared a briefing identifying potential risks in the transfer and urged the HPC to continue to require social work students to register.  The briefing in full can be seen here >

GTCE concerns about the Education Bill

Gail Mortimer the General Teaching Council for England (GTCE) Chair spoke to the GTC Wales about concerns that the Education Bill would undermine the GTCE’s ability to set and be accountable to professional standards.  Of particular concern was the proposed single sanction of barring, the replacement of a head teacher’s duty to refer cases of misconduct with an obligation to consider referral, and the lack of a universal benchmark to measure a teacher’s competence, leaving employers to make their own subjective assessments.  The article can be viewed here >

HFEA announce improvements to egg and sperm donation services

Following a public consultation, the Human Fertilisation and Embryology Authority (HFEA) has announced changes designed to reflect the valuable contribution donors make in assisted reproduction.  Compensation for donors will now be a fixed sum of £35 per visit for sperm donors, and £750 per cycle for egg donors, replacing the current system of compensation for out-of-pocket expenses and loss of earnings, capped at £250.  Further information on the new policies can be found here >

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