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Public and Regulatory Law Group Alert: July 2012

Sarah Ellson
13/08/2012

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United Kingdom

Public and Regulatory Law Group Alert: July 2012

Intoduction 

Welcome to the Public and Regulatory Law Group Alert: July 2012.

In this month's edition:

Case law 

In Uddin v General Medical Council, the Court warned that in future, in considering issues of dishonesty, the GMC must apply the Ghosh test with caution. Summary >

In Waghorn v Care Quality Commission, the Court considered the proper interpretation of s.11(1) of the Care Standards Act. Summary >

News Update

New guidance has been issued by a number of regulators including; the General Chiropractic Council (Student Fitness to Practise) , the General Medical Council (Protecting children and young people: the responsibility of all doctors) and the Health and Care Professions Council (Standards of Proficiency – Social Workers in England). 

The following reports have been published: (1) The Care Quality Commission's report into the investigation of University Hospitals Morecambe Bay NHS Foundation Trust and (2) The Financial Reporting Council has published the Professional Oversight Board's report to the Secretary of State for Business, Innovation and Skills on its oversight of the regulation of the audit, accountancy and actuarial professions.

Case updates

Uddin v General Medical Council

Queen's Bench Division (Administrative Court) 23 July 2012 (unreported)

The court stated obiter that in considering issues of dishonesty in fitness to practise cases, the General Medical Council had to take care in applying the Ghosh test of dishonesty, which was devised in a criminal law context, as it was clear that the standard of proof, in the context of fitness to practise cases, was the civil and not the criminal standard.

The appellant GP (U) appealed against the decision of a GMC fitness to practise panel which found her guilty of misconduct and erased her name from the medical register.

U and her husband, through a company they owned, had purchased a care home.  The employees of the care home including the manager (H) were transferred to the company. H resigned and an employment tribunal found that she had been unfairly dismissed. U referred H under the Protection of Vulnerable Adults (POVA) scheme and H was placed on a list barring H from working with vulnerable adults, although that decision was later reversed. H referred U to the GMC.

After applying the Ghosh test of dishonesty the panel made five findings of dishonesty. It found that U's conduct in referring H to POVA was misleading and irresponsible, that the witness statements submitted by U had been falsified and that she should have ensured that the material sent to POVA, to substantiate the referral, was accurate. The panel found that her fitness to practise was impaired, that she was guilty of misconduct and that her behaviour would damage the public trust in the profession and bring it into disrepute. The panel concluded that erasure from the register was the only appropriate sanction. U challenged the panel’s findings on dishonesty.

The High Court held that the panel’s findings of dishonesty were flawed and could not stand, and stated that the matter should be submitted to a fresh panel for reconsideration, as had been the case in Bhatt v General Medical Council EWHC 783 (Admin) and Southall v General Medical Council EWCA Civ 407, 2 F.L.R. 1550.

Of particular note however was the Court's warning that in future, in considering issues of dishonesty, the GMC must apply the Ghosh test with caution as the standard of proof for fitness to practise cases is civil rather than criminal.   The key question is whether the conduct took place and whether it was known that it was false or that it was innocent or negligent.

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Waghorn v Care Quality Commission

2012 EWHC 1816 (Admin)

Consideration of the correct definition of "carries on or manages" in s.11 (1) of the Care Standards Act 2000, in relation to an independent hospital

Two Care Quality Commission authorised inspectors made an unannounced visit to a private clinic on the basis that they had reasonable cause to believe the premises were being used to provide services that required persons carrying on or managing an establishment to register with the CQC under s.11(1). In the basement of the building, they discovered W, a medical practitioner, performing liposuction on a female patient (P). During an interview, W admitted that he had met P a week earlier; was carrying out the procedure as a favour and was not being paid for it; did not know P's name; was working as an individual practitioner; was not employed by anyone; no company was involved in P's treatment that day; had provided his own medical equipment, and had undertaken to collect and dispose of the medical waste himself. W also admitted in interview that he had used this treatment room once before, in December 2009, when he had performed another liposuction procedure under local anaesthetic and under the same arrangements.

The clinic was owned and managed by another individual, but 'W' was found guilty of having carried on an independent hospital without being registered under s.11(1) of the Care Standards Act 2000

'W' appealed the District Judge's decision arguing that in order to be convicted of an offence under s.11 (1) a practitioner had to be carrying on an independent hospital as the owner and proprietor, or managing it on a day to day basis and that he was neither an owner, nor a manager carrying on an independent hospital.

The appeal was dismissed - the two expressions in "carries on or manages" in s.11 (1) were considered. Cox J stated that the term to "carry on" was capable of encompassing a broad range of personal involvement and control, extending beyond that involved in "manages an establishment". As the primary purpose of the Act was the proper regulation of independent hospitals to ensure the safety and welfare of those who sought medical advice and treatment, many of whom would be vulnerable, the restrictive definition of "carrying on an establishment" (which W argued for) ran contrary to the Act's fundamental purpose in requiring compulsory registration. On the facts of the instant case, it could not have been Parliament’s intention to permit an unregistered surgeon, working entirely on his own, to perform an invasive, surgical procedure on a patient on an ad hoc basis, in a one room hospital owned and managed by another or other persons unknown, and yet escape the reach of s.11(1).

According to Cox J, the only sensible conclusion was that W was carrying on a hospital as defined by the Act. However, even if a narrower interpretation of "carries on" was correct, requiring activity closer, or equivalent to, management or control of a hospital, on the facts W was still correctly held to be carrying on an independent hospital on the relevant date.

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Regulatory News

Health and Social Care

CQC Morecambe Bay Investigation

The Care Quality Commission has published a report setting out the findings following its investigation into University Hospitals of Morecambe Bay NHS Foundation Trust. The CQC investigation involved an in-depth review of the care provided to patients when they entered the hospital and the care that they received afterwards. The CQC investigation found that patients remain at risk of receiving poor care, however, recent changes to the Trust's management have resulted in positive action to address many of the deficiencies highlighted in the investigation report. Click here if you would like to find out more and see the report in full.

Mark Addison confirmed as new NMC Chair

The Department of Health has announced Mark Addison as the new Chair of the Nursing and Midwifery Council.  He has previously held a number of senior civil service roles, including most recently that of non-executive Director of the National Archives.  Mr Addison will replace the Interim Chair Judith Ellis.  The Department of Health announcement can be seen here

GCC introduces guidance on Student Fitness to Practise

The General Chiropractic Council has issued guidance entitled 'Student Fitness to Practise: Guidance for Students (May 2012)'. The guidance explains the importance of  fitness to practise within the chiropractic students' personal and professional life, as well as during education and training. It considers the various factors relating to applications and sets out the possible consequences of a finding that a student's fitness to practise is impaired (for example, dismissal from the educational programme). The guidance can be found here

GMC welcomes Patients Association Support for revalidation

Katherine Murphy, Chief Executive of the Patients Association has announced the Association's support for revalidation, which the General Medical Council is expected to introduce later this year.  Mrs Murphy said that revalidation is a 'key tool' in ensuring public confidence in the medical profession. Further details can be found here

GMC launches new guidance to help doctors protect children from abuse

The GMC issued new guidance on 10 July designed to assist doctors to protect children from abuse or neglect. The guidance entitled 'Protecting children and young people: the responsibilities of all doctors', is intended to support doctors who must deal with a wide range of complex child protection issues in their day to day roles. The guidance comes into effect from 3 September and can be viewed here

HCPC publishes its standards for safe and effective practice for social workers in England

New standards took effect on 1 August 2012 when the regulation of social workers in England transfered from the General Social Care Council to the Health and Care Professions Council (HCPC). The standards of proficiency set out what is expected of newly qualified social workers in terms of knowledge and ability. The standards can be found here.

Arm's Length Bodies Review: Consultation on transferring functions of HFEA and HTA

On 28 June 2012, the Department of Health released its public consultation on its proposal to transfer the Human Fertilisation and Embryology Authority's function to the Care Quality Commission and Health Research Authority.  The proposed transfer forms part of the government’s plan to cut NHS administrative costs See the response of the HFEA here and the response of the HTA here

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Accountancy and Finance

FRC publishes consultation on disciplinary Schemes

The Financial Reporting Council has launched a consultation document seeking views on its proposals to make changes to its disciplinary Schemes.  Proposals include; (1) the introduction of a procedure to enable cases to be concluded by agreement between parties without a hearing, (2) the ability to conduct enquiries before initiating an investigation, (3) refinements to the criteria for commencing an investigation, (4) a new power to impose interim orders, (5) amendments to reduce the potential for delay and (6) amendments to improve the procedure for making future changes to the disciplinary Schemes.  Responses to the consultation are requested by 15 September 2012. For more information on the proposals please click here

Report on Independent Oversight of Regulation of the Audit, Accountancy and Actuarial Professions

A report by the Professional Oversight Board (POB) has been published by the FRC regarding the POB's oversight of the regulation of the audit, accountancy and actuarial professions, for the year to 31 March 2012. On 2 July 2012, the POB's responsibilities have been transferred to the FRC as part of the recent restructure. For more details and to view the report in full please click here

FRC Reform

The House of Commons and the House of Lords have given parliamentary approval for the reform of the FRC. The reforms will provide the FRC with enhanced independence from those it regulates, and a more proportionate range of sanctions. Further details about these reforms can be viewed here

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Legal

More than 2,500 solicitors sign up for new QASA scheme in the first week

Solicitors and Registered European Lawyers have until 21 September 2012 to register on the Solicitors Regulation Authority website if they wish to practice advocacy in the criminal courts from January 2013. The Quality Assurance Scheme for Advocates (crime) will be operated jointly by the SRA, Bar Standards Board and ILEX Professional Standards. The scheme will systematically assess and assure the quality of all criminal advocates appearing in courts in England and Wales. It has been devised to ensure that in future, the performance of all advocates (in criminal courts) is measured against the same set of standards, regardless of the advocate's previous education and training. More information about the scheme can be found here.

For further information please contact Sarah Ellson, Partner or Juliet Oliver, Partner in the Public and Regulatory practice at Fieldfisher.

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