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Public and Regulatory Law Group Alert: December 2012

Sarah Ellson


United Kingdom

Public and Regulatory Law Group Alert: December 2012


Welcome to the PRG's final alerter for 2012: With this bumper edition, we wish you all the best for the festive season.

There have been a host of management changes and new appointments this month with the GOC, BHA, NMC and SRA all welcoming new faces. The GPhC and SRA have published their strategic plans, demonstrating their new priorities going forward, and stakeholders are urged to participate in a number of consultations being carried out by the GOsC, CQC and the Home Office.  For this, and more regulatory news, see here.

It's been a busy month for the High Court this month, with the SRA, NMC, GDC, HPC and the GOC all defending appeals against the findings of their various Committees and Panels.  The cases of Siddiqui v HPC and Duthie v NMC deal with challenges to witness evidence, and the need for fitness to practise panels to provide robust reasons to support their assessments of witness credibility.  The GDC case of Mould and the NMC cases of Ajala and Fuyane deal with proportionality of sanction, while the SRA v Slater case looks at the extent to which a Tribunal can have regard to evidence given by a registrant at a different hearing, when determining credibility in relation to allegations of dishonesty. Summaries of these cases and others can be found below.

Regulatory news

Health and Social Care

GMC moves to reduce Council

The General Medical Council has confirmed a historic move for the organisation in creating a new smaller Council. From 2013 the Council will be reduced from 24 to 12 members and will be led by Chair, Professor Sir Peter Rubin. To read more about the changes please click here.

GOsC launches consultation on patient consent guidance

A consultation has been launched by the General Osteopathic Council in relation to proposed new guidance for osteopaths regarding the law on obtaining consent and issues of capacity.  Any responses to this consultation should be submitted before 16 January 2013. To find out more please click here.

GPhC publishes strategic plan

The GPhC has laid out its strategic plan for 2013-2016 to both Westminster and Scottish parliaments, setting out its key priorities.  The plan confirms the regulator's main goals including communicating and engaging effectively with stakeholders and improving efficiency and effectiveness in delivering key directives  To view the plan in full please click here.

NMC appoint new director

The Nursing and Midwifery Council has announced its appointment of Mark Smith as the new Director of Corporate Services.  Mr Smith was previously Executive Director of Finance and Resources at The Learning Trust and will now be responsible for finance, IT and human resources for the Council.  Further details about this appointment can be found here.

CQC strategy consultation

The Care Quality Commission invited responses to a consultation regarding the way in which it operates.  The Commission has set out what it considers to be necessary changes such as: making more efficient use of information it holds about care services, strengthening its relationships with key stakeholders, providers of services and the public, and strengthening its responsibilities in relation to mental health services. The consultation closed on 6 December 2012. If you would like to find out more please click here.

CQC publish comprehensive report on health and social care

The CQC has compiled a comprehensive report on health and social care in England based on the findings from over 13,000 inspections.  Whilst it found that many organisations were responding well to the increasing pressure on them, 1 in 10 NHS hospitals failed to treat people with respect, and 23% had inadequate staffing levels.  To read more about the findings please click here.

Adult Care Homes Sector asked for opinion on regulation

The adult care homes sector has been asked by the government to set out ways to improve the enforcement of regulation.  The six week 'focus on enforcement' consultation which started this month is part of an initiative to enable providers to achieve the highest standards of care.  The exercise will look at proportionality of compliance and enforcement activity and whether providers are being subjected to unnecessary costs and pressures.  For further details please click here.


Home Office launches consultation on New Regulatory Regime

The Home Office is seeking views on its proposals to reform the regulation of the private security industry, an opportunity which the Security Industry Authority's Chief Executive urges those concerned to take.  The Home Office seeks to introduce a business regulation regime.  The consultation and the SIA's comments can be found here.


Management changes at the BHA

The British Horseracing Authority has announced that Paul Scotney will be leaving his full time role as Director of Integrity Services, Compliance and Licensing on 14 December 2012.  This move is part of the ongoing restructure and review by the Chief Executive, Paul Bittar.  Adam Brickell, currently Head of Legal and Compliance will be promoted to the position of Director of Legal, Integrity and Risk.  For further details about the business restructure at BHA please click here.

Legal and Finance

SRA announce new board members

The Solicitors Regulation Authority has announced its appointment of new board members. Lay members joining in 2013 include; Enid Rowlands, Bill Galvin and Peter Phippen. Julia Black will also join the board as a lay member from 2014 and Chris Randell as a Solicitor member.  The changes have come about due to a range of factors including the need to have a lay majority and the preference for a reduced number on the board, and the solicitor component aims to better reflect the variety of practices in which the profession is engaged.  To find out more please click here.

SRA recommendation on financial adviser referrals

The SRA has recommended to the SRA Board that it should permit solicitors to refer clients to any financial adviser, regardless of whether or not they are tied to particular institution. For further information on this topic please click here.

SRA to launch Strategic Plan

The SRA is inviting stakeholders to the launch, on 14 December, of its strategic plan for 2013-15 in which the way in which the SRA intends to deliver risk-based outcomes-focussed regulation and deliver regulatory reform will be discussed.  In addition, two further consultations will be launched, relating to international regulation and the SRA's red tape initiative, to reduce regulatory burden and bureaucracy.  To find out more please click here.

FRC and ICAS to investigate auditors

The Financial Reporting Council and Institute of Chartered Accountants of Scotland have been commissioned to undertake a joint investigation into the competencies and professional skills of auditors.  In a bid to restore market confidence and trust in the audit profession, the investigation will consider what auditors do today and what might change in the future.  Further details about this project and the key aims can be found here.

Police – changes to complaints system

Home Office circular 023/2012 considers new legislative changes and associated guidance which came into force on 22 November 2012.  The changes relate to the police complaints system and procedures for dealing with cases of misconduct and unsatisfactory performance in Home Office police forces. To view further details please click on the link above.



Case Law

Proportionality of Sanction

Mould v General Dental Council EWHC 3114 (Admin)

The appellant, M, appealed against the decision of the General Dental Council (GDC) to suspend him from the Register for a period of 12 months.

Prior to his suspension, M ran a private dental practice from his residential address. The allegations heard at the first disciplinary hearing were that M had prescribed, dispensed and administered diclofenac sodium (Voltarol) to two patients for non-dental purposes. In one case this was carried out at his NHS place of work during NHS hours. The Professional Conduct Committee found that M's fitness to practise was impaired by reason of misconduct. The Committee imposed nine conditions on M for one year to be followed by a review.

The conditions included requirements that M appoint a registered dentist as a mentor; that he meet with his mentor monthly and that he develop a Personal Development Plan (PDP) and report back to the GDC every three months. At the review hearing, M admitted that he was late in appointing a mentor; met with the mentor only three times and failed to produce a PDP.  The Committee rejected M's argument that his failure to comply was caused by financial strains and other external factors.  M's fitness to practise was found still to be impaired because he had not given any assurance that he would address deficiencies in his practice. His actions, including his failure to engage with the investigatory process, indicated misconduct.

At appeal in the High Court, the appellant argued that the Committee's decision-making process was flawed and their findings were unjust. Judge Allan Gore QC dismissed the appeal. The decision of the Fitness to Practise Panel could not be said to be wrong nor clearly inappropriate and therefore the court would not be minded to interfere. The Judge rejected the argument that the Committee's failure to warn the unrepresented appellant of the possibility of suspension was fatal to the fairness of its decision. Although Dyson LJ had said that this was a possibility in Russell v GMC EWHC 2546, it was by no means a certainty.

Turning to arguments made for the appellant on the issue of proportionality, the Judge denied that the proper test is the weighing of harm to the public against damage to the registrant. In deciding on the proportionality of a sanction such as suspension, a Committee was right to take into account the need to protect patients, maintain public confidence in the profession and uphold proper standards of conduct. The fact that the Committee imposed the maximum period of suspension did not make it a disproportionate decision. Although the Committee could have reached a different decision on proportionality, it was not required to do so.

Fuyane v Nursing and Midwifery Council EWHC 3229 (Admin)

The appellant F, appealed against a decision of the NMC's Conduct and Competence Committee to strike her off the register.  F is a Zimbabwe national who came to the UK in 2002 having practised as a lawyer in Zimbabwe.  Her application for asylum was turned down and at the time that she came before the Court, her case was being considered under the successor to the 'Legacy' scheme.

In 2006, F obtained a place on a three year nursing diploma course after she obtained fraudulent documents.  She completed the course in 2009 and registered with the NMC and obtained employment as a mental health nurse.  During the course of her study, F obtained a bursary of around £20,500 to support herself through her studies, and her tuition fees of close to £21,000 were paid for by the NHS.  When F attempted to open a bank account for the purpose of receiving her bursary, she presented the false documents to a bank who reported her to the Police.  She received a caution in respect of this offence.  However her use of false documents in relation to obtaining the bursary and course fees were later identified and she appeared in the Birmingham Crown Court in 2011, charged with two offences of dishonesty.  The Court took into account her personal mitigation including her immediate admission of guilt and she was sentenced to a short suspended period of imprisonment and ordered to do 180 hours of community work which she completed quickly.

The NMC based its case on F's Crown Court convictions.  The Committee took the view that notwithstanding her mitigation, the charges involved two very serious offences of dishonesty and no lesser penalty than striking off was justified.

The Court, bearing in mind that it must be slow to interfere with a decision of a professional panel which is generally best placed to take a correct view of what is required in order to maintain professional standards, nonetheless concluded that the penalty imposed by the Committee was unduly harsh.  It considered that F had committed offences at a time when she was in 'limbo' – that is she was not returned to Zimbabwe on humanitarian grounds, but neither was she permitted to work.  Although her behaviour was not to be condoned, she was a highly intelligent woman who entered a course of conduct designed to obtain a professional qualification, albeit by deceitful means.  She immediately admitted the offending and the Court felt her remorse was truly genuine.  She had numerous references and it was clear that these offences apart, F was of impeccable character.  She had, by this offending, destroyed any chance of pursuing her primary law career and if she was to gain the right to remain in the country and remained struck off the nursing register, her training and experience would be lost to the community.

The Court considered that in all the circumstances this case was an exceptional one, and quashed the striking off order, substituting a period of 12 months suspension.

Ajala v Nursing and Midwifery Council EWHC 2976 (Admin)

The appellant A, appealed against a decision of the NMC's Conduct and Competence Committee imposing a six month suspension order following a finding of impaired fitness to practise.  A was convicted of failing to provide a breath specimen following a car accident in which she was not the driver, and for offences involving identify fraud.  In relation to the identity fraud, she had used false documents in order to open a mail collection account at a post office and when she was arrested, she was found in receipt of various forms of identification in the names of various people.  In relation to the latter offences, A was given a 16 week custodial sentence which was suspended for 12 months.  She was given credit for her early guilty plea and the fact that she was not the mastermind of the operation and was under the heavy influence of another individual.  The Court commented however, that the there was no doubt that the custody threshold had been reached, and her actions were borne out of greed and not need.

The NMC based its case on A's convictions and the Committee considered that her fitness to practise was impaired.  It found however that her convictions were not fundamentally incompatible with her continuing to be registered with the NMC and did not warrant striking off.

A appealed the sanction on the basis that there was no harm or risk to patients, there had been delay on the part of the NMC in disposing of her case, public confidence was not served by the sanction and a different sanction was appropriate.

The Court held that it was for A to persuade the Court that the sanction imposed was either excessive and disproportionate, or outside the range of what could be regarded as reasonable.  Whether or not there was harm or a risk of harm caused to patients was not relevant; the real concern was that her offences of dishonesty bought her honesty and integrity into question.  The Court considered that the NMC's delay in disposing of the case was only 6 months outside of its key performance indicator of 18 months, and was therefore not extreme.  The Court reiterated that maintenance of public confidence in the profession was critical, and in this case the Committee carefully went through the various stages of sanction which were open to them.  It had determined that the offending was too serious to impose a caution and the suspension order proportionately addressed the wider public interest in maintenance of the reputation of the nursing profession.  Her appeal was therefore dismissed.

Challenges to witness evidence

Siddqui v Health Professions Council EWHC 2863 (Admin)

The Appellant S, was a radiographer who appealed against the finding of the Council on the basis that it had reached the wrong conclusion in relation to the credibility of a crucial witness.

A number of counts of misconduct/lack of professional competence were found proved against S, leading to findings of misconduct and current impairment which led to him being struck off the relevant Register. S sought to appeal one of those counts which related to an intimate, sexually motivated examination he had performed on a female patient.

The complainant had been referred to S for the purpose of undergoing an external examination.  Following that examination, S told her, without the input of a clinician, that he would need to conduct a more intimate examination in the future.  He requested the complainant's personal contact details and encouraged her to lie to her GP to ensure that the examination could go ahead and to ensure that he would be the individual to carry out the examination.  Some months later, he conducted an intimate examination on the complainant and made a number of inappropriate comments while carrying out the examination.  Following the consultation, he sent an email to the complainant which was personal in nature.

Before the Council, S sought to question the complainant's credibility, specifically why she did not make a complaint at the time, tentatively suggesting (though not putting directly) that the allegations were false and were made to support a false damages claim.  The Council found the allegations against him upheld.

S appealed to the High Court on the basis that the Council had made an erroneous assessment of the complainant's credibility. The court followed the analysis of Langstaff J in Bhatt v GMC EWHC 783 (Admin) to the effect that the court should show substantial regard for the findings of the Tribunal in assessing the credibility of a witness, and that findings of fact founded on the assessment of the credibility of a witness are close to being unassailable and must be shown with reasonable certainty to be wrong if they are to be departed from. There was more than adequate material to enable the Tribunal to reach the conclusions it did.

Duthie v Nursing and Midwifery Council EWHC 3021 (Admin)

The appellant midwife, D, appealed against the Nursing and Midwifery Council's (NMC) decision to strike her off the register. The NMC's Conduct and Competence Committee had found that D's fitness to practise was impaired by reason of misconduct.

Mrs A delivered a stillborn baby at home following a traumatic caesarean section birth of her daughter two years previously. D was the lead midwife and it was alleged that she failed to provide an appropriate standard of care to Mrs A and her baby. It was known that Mrs A's baby was breech and was also large, increasing the risks of home birth. Neither D nor the second attending midwife had experience of breech births and the Committee found proved, amongst other matters, that D had failed adequately to explain the risks of home birth and had dissuaded Mrs A from going to hospital earlier.

Mr Justice Irwin found that the decision of the Committee was flawed. Although he agreed that D had altered her notes after the event to protect herself, the panel had been wrong to draw the conclusion that this was fatal to her credibility. Citing R v Lucas (Lyabode Ruth) QB 720, Mr Justice Irwin noted that a lie could be told to bolster a true defence. Although a High Court judge will be reluctant to condemn a Committee's findings as to the credibility of a witness because the Committee has had the benefit of hearing and seeing the witnesses, such reluctance is not an absolute bar. The Committee had erred because its findings were inconsistent with contemporaneous records of health professionals which could be relied upon. Such records indicated that Mrs A had been informed of the risks and that Mr and Mrs A frequently gave clear indications of their preference for a home birth.

Mr Justice Irwin also found that the panel's findings as to the positive credibility of Mr and Mrs A were flawed. Their evidence at the hearing that they were willing, or desired, a caesarean section from an early stage was found on appeal to be inconsistent with the un-impeached contemporaneous records of other witnesses. The Committee had failed to make sufficiently clear its reasoning as to its view on the credibility of Mr and Mrs A.

Faniyi v Solicitors Regulation Authority EWHC 2965 (Admin)

Nathaniel Faniyi (F) appealed against a refusal of the Solicitor's Disciplinary Tribunal to hold a rehearing after he was struck off in his absence.  The hearing which concerned nine allegations of professional misconduct, was initially listed for June 2010 but was relisted for 2 December 2010 due to F's ill health.  In addition to the striking off order, F was ordered to pay £28,000 in costs.

Following the December hearing, F issued an application for the SDT to set aside its decision and grant a rehearing, on the basis that he believed the December hearing had been vacated.  This was heard on 16 December 2010 before a newly constituted SDT, which rejected his application and concluded that he had been aware of the date and had deliberately not attended, that he had not been denied a fair hearing and that it would not be "just" to order a rehearing.  F was ordered to pay £7,500 in costs.

At the hearing in the High Court on 12 October 2012, Mr Justice Foskett said: "The evidence the appellant had known about the first hearing and had been running shy of the whole process, hoping to delay it for as long as possible, was, to my mind, overwhelming." He went on to agree with Lord Justice Leveson who, in Elliot (R on the application of) v Solicitors Disciplinary Tribunal & another EWHC 1176 (Admin), said: "Those who fail to attend lose the right to participate and explain, and they do so at their peril. As conceded, if, without more, a solicitor deliberately absented himself it would not be feasible to argue that he was entitled to a rehearing."

The court gave consideration to whether F had received correspondence regarding the 2 December hearing, finding that he received all but one letter from the SRA. F's case was that he believed the hearing had been adjourned based on correspondence received from the SRA's solicitor. However, F had received a letter from the SDT regarding the hearing date, and furthermore the SDT did not send any letters to the parties informing them of an adjournment.

The court also considered that F made a deliberate decision not to give evidence at the hearing listed on 16 December and that due to his experience as a solicitor he would have appreciated the significance of a second Tribunal accepting his account of events. There was credible evidence before the original Tribunal that F had deliberately chosen not to attend.

Sharma v Solicitors Regulation Authority EWHC 3176 (Admin)

The Appellant (S) appealed a costs award against him.  He was one of a number of defendants before the SDT and admitted to allegations of dishonesty.  Consequently, his name was struck off the roll.  The SRA's total costs of bringing the case against all of the defendants were estimated at around £65,000. Finding that the greatest culpability belonged to S, the Tribunal made a costs award of £49,000 against him personally.  The Tribunal did this following an enquiry into his means which established, amongst other matters, that he owned three properties.

S appealed on the basis that the costs should have been shared equally between the defendants and that the Tribunal had not properly enquired into his means.  On the latter point, he suggested that the rental value of his properties was minimal.

The Divisional Court rejected the appeal.  It referred to Merrick v Law Society EWHC 2997 (Admin) as authority for the proposition that a means enquiry ought to be made where the question of costs arises.  In the present case, the Divisional Court reiterated the principle that, absent an error of law, appeal courts should pay considerable respect to the decision of the lower Tribunal, only interfering if the lower Tribunal's decision is was clearly inappropriate.  In the present case, there had been no error of law.  The Tribunal was entitled to apportion costs between the defendants before it on the basis of varying degrees of culpability.  S had been alive to the need to address (and indeed had addressed) the Tribunal as to his means.  It was incumbent on the Appellant to adduce all relevant evidence on this matter.  In the circumstances, he should have put independent valuations of his rental properties before the Tribunal if he sought to argue with any force that these properties should not be taken into account in calculating the costs award against him.  In the circumstances, the Tribunal had made proper enquiries and its conclusions were both considered and appropriate.  A further costs award of £16,500 was made against the Appellant.

Slater v Solicitors Regulation Authority EWHC 3256 (Admin)

The Appellant (S) appealed a sanction of being struck off the roll.  He and his principal were accused of mishandling client monies.  S had been the subject of two previous sets of disciplinary proceedings and a condition of his practising certificate was that he was not to be responsible for any client monies.  In contravention of this condition, S directly received (to his own account rather than the firm's client account) £26,500 of client monies.  The client themselves supported S' assertion that the money was to be treated as an interest free loan to him, to be repaid into the client account at a future date.

S accepted that he had contravened the conditions of his practising certificate but claimed that this was done in the full knowledge of his clients and his principal.  His principal denied this and, because the SRA was not prepared to accept the principal's basis of plea, a Newton hearing was convened to establish the facts of the matter.  At the Newton hearing, S was disbelieved by the Tribunal and, purely as a result of his 'evasive' evidence at the hearing, the Tribunal made a finding of dishonesty against him.

S appealed on the basis that the sole reason for the Newton hearing taking place was because the SRA was not prepared to accept the principal's basis of plea. S submitted that it was unfair in the circumstances that his evidence at the hearing gave rise to a more severe sanction than if there had not been such a hearing.

The Divisional Court rejected the appeal commenting that "[the principal's basis of plea] was not a matter which was irrelevant to Mr Slater's own position... the outcome of that hearing did... have a bearing on the appropriate sanction for Mr Slater. He was contending that his employer at all times knew of his wrongdoing... a factor he was relying upon in order, to some extent at least, to mitigate the gravity of his wrongdoing." The court considered that it would be "wholly unreal" for the Tribunal, in reaching its conclusion, to put out of its mind the fact that it found S to be an evasive and unreliable witness.  The court did comment that there may be cases where it would be unfair for a Tribunal to take into account issues arising out of a Newton hearing against a particular party but that was not so in the instant case.

Obi v Solicitors Regulation Authority EWHC 3142 (Admin)

O appealed the decision of the Solicitors Disciplinary Tribunal ("SDT") of 29 October 2010 to strike him off the roll of solicitors.  O's appeal has been allowed, and his case is to be remitted back to a differently constituted SDT for reconsideration of the issue of sanction.  On appeal the Court was concerned about the inadequacy of the reasons given in relation to sanction and also whether the SDT had acted in a way which did not allow the opportunity for submissions in mitigation on issues which the SDT clearly considered were significant to their views on sanction.

O originally came before the SDT in September 2006 to face five allegations, which in essence involved the setting up of a "bogus" solicitors firm before O was admitted as a solicitor and then actively misrepresenting the situation to the Law Society over a period of time.  O admitted three of the allegations and denied the other two.  The SDT however, found the denied allegations proved and O was struck off.  O appealed on the grounds that he had obtained new evidence.  In October 2008, in light of the new evidence his appeal was resolved by way of a consent order allowing his case to be remitted for a fresh hearing before a differently constituted SDT.  O was to remain struck off in the meantime.  At his second SDT hearing in October 2010, O again admitted the three allegations and denied the other two.  On this occasion the SDT found the two denied allegations not proven.  At which point the SDT invited Counsel for O to make submissions on mitigation in relation to the admitted allegations alone.  O had by this time been struck off for four years and Counsel for O submitted this should serve as punishment and it would not be proportionate for him to be subject to further suspension.  The SDT decided that O should again be struck off.

In considering O's appeal the Court looked at the test applied in Salsbury v Law Society 1 WLR 1286 and Solicitors Regulation Authority v Dennison EWCA Civ 421, as to whether the sanction imposed by the SDT was "clearly inappropriate".  The following three matters about the SDT's decision made the Court "uneasy":

(1) When inviting submissions in mitigation, the SDT did not indicate to O's Counsel that (a) they did not regard the new evidence called by O as credible, (b) they thought O's evidence had been "evasive and inconsistent", (c) they rejected his account of why he had signed a mortgage deed and (d) that they were proposing to take into account O's admission in his evidence before them that in one particular respect, his evidence before the 2006 SDT had been untrue;

(2) No reference was made by the SDT, even if only to dismiss it as irrelevant, to the fact that O had already been barred from practice for four years (partly, at any rate, because of adverse findings on two allegations which had now been set aside); and

(3) No reference was made to having excluded suspension as an inadequate sanction in the circumstances.

While reluctant not to reach a final conclusion as to sanction, the Court concluded that in light of the above issues, there was no alternative but to remit the case to a differently constituted SDT for reconsideration of the issue of sanction.

R (On the application of J) v Chief Constable of Devon & Cornwall (2012)

J was a registered nurse, who had been employed in nursing homes through care agencies.  J applied for judicial review of a decision by the Chief Constable of Devon & Cornwall Police ("the Police") to include in the "other relevant information" section of her Enhanced Criminal Record Certificate ("ECRC"), details of previous complaints made to the Police against J by care home residents.

The relevant information appeared on ECRCs issued on 8 December 2011 and 6 January 2011, in respect of J's applications for three nursing positions, and related to allegations in February 2007 and June 2011. The ECRCs included details of a complaint of assault in February 2007 following which the care home arranged for J to undergo manual handling training (no official complaint was made) and a complaint of mishandling a resident in June 2011.  In respect of the latter complaint, the alleged victim was too ill to make a statement to the Police and subsequently died and two other patients who had made complaints were not deemed reliable due to their dementia.  J was interviewed by the Police and denied these incidents. 

The statutory provision relating to disclosure of information in ECRCs is section 113B(4) of the Police Act 1997, which (prior to amendment by the Protection of Freedoms Act 2012) stated that before issuing an enhanced criminal record certificate, the Secretary of State shall request the chief office to provide any information which, in their opinion, might be relevant or ought to be included in the certificate. 

Applying this test to the information from 2007 and 2011, the Police concluded that J had a propensity for inappropriate and physically rough treatment of the elderly which could put them at risk. It was considered that the allegations were not so without substance that they were unlikely to be true and therefore might be relevant and ought to be included in the ECRC, as there may be a risk posed to the vulnerable group. Further, the infringement of the human rights of J under Article 8 ECHR was outweighed by the potential risk posed to the vulnerable group.     

In response to the inclusion of this information on the ECRCs, J claimed that the disclosure was disproportionate, partial and did not give an accurate picture of the allegations.  J also claimed that the decision was unlawful as she had not been given an opportunity to make representations before the decision was made. The Police subsequently agreed to review the decision and determined it was proportionate to disclose an amended text which gave details of the 2007 and 2011 complaints and also included J's account. J's position was that it was disproportionate to include any information concerning the incidents.  The Police decided not to amend the ECRC and J therefore sought judicial review of the decision.

On judicial review, Mr Justice Foskett held that the decision to disclose the information relating to the 2007 and 2011 allegations should have been seen as a border-line decision and should have prompted the Police to give J an opportunity to make representations before disclosure was given.  The relevant law cited derives from R(L) v Commissioner of Police of the Metropolis which emphasises the need for proportionality; balancing the need for protection against harm to children and vulnerable adults against the applicant's right to respect their private life under Article 8 of the ECHR.  It was held that the 2007 allegation was not a matter for disclosure by the police as, when considering the issue of proportionality, it did not possess such intrinsic gravity that demanded disclosure bearing in mind the weight of J's Article 8 rights. The balance was also deemed to be against disclosure of the 2011 allegations (if they stood alone) as nothing adverse was established against J, there was doubt about the reliability of the information, there was no evidence of widespread complaints about J and the allegations were strongly disputed. With regard to the cumulative effect of the 2007 and 2011 allegations, the risks generated by the possibility of occasional heavy-handedness were not considered to outweigh J's right to respect for private life under Article 8.

Further, the amended text suggested by the Police (including J's account) was not a satisfactory means of meeting J's legitimate concerns about her Article 8 rights, as reciting the allegations (in any form) would cause her irredeemable harm in seeking further employment.  A declaration was therefore ordered that the initial disclosure breached J's Article 8 rights and the further decisions taken should be quashed.

Spencer v General Osteopathic Council EWHC 3147 (Admin)

S, a registered Osteopath, appealed against the finding of the Professional Conduct Committee ("the Committee") that he was guilty of unacceptable professional conduct.

S did not challenge the findings of fact (which he had admitted), namely a failure on two occasions to take adequate notes of a consultation with a patient but sought to argue that those failures did not amount to unacceptable professional conduct.  He argued that therefore the Committee's ought not to have issued any sanction at all (in this case, an admonishment).

When determining whether the conduct in question met the threshold for "unacceptable professional conduct", Counsel for S drew an analogy with "misconduct" in medical and dental legislation.  He argued that the principles in Calhaem v General Medical Council applied in this case (e.g. that mere negligence does not constitute misconduct and that a single negligent act or omission is less likely to cross the threshold for "misconduct").  Counsel for the Council argued that such comparisons were unnecessary as "unacceptable professional conduct" has a specific definition in the Osteopaths Act 1993 ("the Act"). He further suggested that the threshold for "unacceptable professional conduct" was lower than that of "misconduct" due to the differing powers under the schemes.  For example, the General Medical Council has an ability to impose a sanction (i.e. issue a warning) where the threshold for impaired fitness to practise is not reached, whereas the GOC has no such power. 

The Court held that there was no reason to distinguish the threshold for a finding of "unacceptable professional conduct" from that of "misconduct" in medical and dental legislation.  In doing so, it noted that the starting point should be the language of the Act, which defines unacceptable professional conduct as "conduct which falls short of the standard required of a registered osteopath".  The Court looked at the dictionary definition of "conduct"- which is behaviour or a manner of conducting oneself - and considered that this implied that there needed to be an element of blameworthiness.  The Court further recognised that given that the Act specifies that "a breach of the Code of Practice may be established, and may be significant, without making out "unacceptable professional conduct", a breach of the Code is a starting point and is relevant, but is not definitive and does not raise a presumption of "unacceptable professional conduct".

In relation to the findings of the Committee, the Court agreed that it was correct to apply the principles in Calhaem.  It held that the failures (albeit not a single act of poor performance, but two) did not amount to incompetence or negligence to a high degree and therefore quashed the Committee's finding of unacceptable professional conduct.


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