Public and Regulatory Law Group Alert: May 2012

Case Law

Department of Health v Information Commissioner

The Department of Health (D) appealed the Information Commissioner's (R1) Decision Notices that it was obliged to disclose two risk registers concerning the impact of the government's proposals to reform the NHS to the second and third respondents (R2 and R3).  Rt Hon John Healey MP, the Shadow Health Secretary (R2) requested disclosure of the transition risk register and the journalist Nicholas Cecil (R3) requested disclosure of a strategic risk register.

D refused to disclose both registers under s.35(1)(a) of the Freedom of Information Act 2000 (the Act), which exempts information held by a government department relating to the formulation or development of government policy, from the requirements for disclosure under s.1 of the Act. D also redacted the names of four civil servants in the transition risk register, relying on the exemption for some personal data in s.40(2).

R2 and R3 appealed to the Information Commissioner, who decided that the whilst s.35(1)(a) was engaged, the registers should be disclosed in the public interest. D appealed this decision on the basis that a requirement to disclose the risk registers would have an inhibiting or chilling effect on the future behaviour of civil servants.

The First-tier Tribunal (the Tribunal) examined:

• on the basis it accepted that s.35(1)(a) was engaged, whether the Information Commissioner had properly applied the public interest test and
• if so, whether the names of the civil servants in the transition risk register should have been redacted.

Before the Tribunal both parties agreed that s.35(1)(a) was engaged in the case leaving the question of the balance of the public interest test to be considered.  The Tribunal commented that the case was "difficult" with the "public interest factors for and against disclosure particularly strong".

The Tribunal observed that previous decisions had established that (absent any wrong-doing) the government required a "safe space" in order to consider policy options but that this requirement would change as the Bill was developed. The Tribunal accepted that there was, "no straight line" between policy formulation and development and delivery and implementation .  The need for a "safe space" would be greatest during the consultation period and would reduce once the policy was announced, with room for a potential increase again if the policy required further development – even after an Act had received Royal Assent if it was a "framework" act.

The Tribunal said that the NHS reforms were so unexpectedly wide-ranging that there would have been a very high public interest in understanding their risks. It noted that the critical time for it to consider the public interest was at the time when R2 and R3 were notified of the refusals to disclose, and it reviewed the chronology and timings of the requests in reaching its decision.  It questioned the evidence for the "chilling effect" that disclosure would have on civil servants and policy formulation and noted that such officials were expected to act with courage and independence and that information should not be withheld simply because of fear that it may reflect adversely and unfairly on a particular official.

As R2's request had been refused after the consultation period at a time that there was less need for a "safe space", the Tribunal concluded that the transition register did not cover direct policy considerations and disclosure would have informed the public debate at a time of considerable public concern – particularly as there had been no formal consultation process prior to the publication of the White Paper which contained unexpected proposals for reform. As a consequence, the Tribunal held that public interest in maintaining the s.35(1)(a) exception did not outweigh the public interest in disclosure. D was therefore ordered to disclose the register.  It was held that the names of three out of the four civil servants redacted from the report should also be disclosed.

The strategic risk register by contrast contained risks which needed to be brought to the attention of ministers so that policy decisions could be made. Therefore the Tribunal held that disclosure could be withheld to allow the government to consider how  to manage the unprecedented level of public debate following the publication of the Bill.

Matthew Cornish v General Medical Council (2012) EWHC 1196 (QB)

A consultant anaesthetist (C) who was convicted of stealing drugs from his work place appealed against his erasure from the medical register.

C had been using drugs including opioids for fifteen years when he was suspended from work for possession of morphine. He had been taking  such drugs at work and stealing many of them from the hospital where he worked before he was discovered  as a result of developing a serious infection as a consequence of intravenous drug use. He was convicted of the theft of the drugs in 2010 and received a suspended prison sentence.

The Fitness to Practise Panel (the Panel) at the General Medical Council found  that C was suffering from opioid dependency syndrome, currently abstinent and refused to accept his contention that although he had taken drugs in the hospital car park and at home, he had never taken them in the hospital despite drug paraphernalia being found in his locker. Although in the opinion of a psychiatrist he was fit to practise on a limited basis with appropriate monitoring and supervision and was considered competent, the Panel concluded that erasure was the only appropriate sanction in light of his criminal conviction and his misconduct.

On appeal C accepted that his fitness to practise was impaired on the grounds of: a) his conviction for theft of drugs from his employer, b) his misconduct, and c) his health but challenged the finding that he took drugs inside the hospital. He argued that the Panel's reasoning was flawed and that erasure was excessive and disproportionate.

Lang J described the Panel's finding in relation to C's use of drugs within the hospital as containing "an impressive summary of the evidence and submissions relating to this issue" which supported the argument that the Panel properly took into account the Appellant's evidence and submissions in reaching its conclusions.  The Court said that the Panel's reasons were "fully and clearly stated" and held that the Panel had correctly directed itself in the use of circumstantial evidence and the standard and burden of proof - the evidence demonstrated that C had persistently lied about his drug use and the paraphernalia found in his locker suggested that he had used drugs at work. The Court held that the Appellant has failed to establish any grounds for overturning the Panel's determination of fact.

The Court described the grounds of appeal in relation to sanction as failing to "acknowledge or appreciate the seriousness of the Appellant's misconduct".  Erasure was held to be neither excessive nor disproportionate and it was noted that the four  features of impairment as set down in the Shipman Report, were present: C presented a risk to patients; he had brought the profession into disrepute; he had breached one of the fundamental tenets of the profession; and his integrity could not be relied upon.

The Court held that C's misconduct was not fully mitigated by his addiction and he had committed a persistent breach of trust, was dishonest, calculating and deceitful. It also agreed with the Panel that his misconduct demonstrated a blatant disregard for patient safety and followed Bolton v Law Society 1 W.L.R. 512 to conclude that evidence of good character and competence did not mean that erasure was the wrong sanction. The psychiatric evidence was found to focus on C's health issues and prognosis rather than the seriousness of the misconduct and conviction. The Panel's decision had been considered in light of the public interest and fell within the scope of the Indicative Sanctions Guidance on erasure. The appeal was dismissed.

Michael Jonathan Fish v General Medical Council  EWHC 1269 (Admin)

The appellant (F) was a consultant anaesthetist who worked as a locum.  One locum agency for whom he worked made a complaint against F to the General Medical Council (GMC), which resulted in the GMC's Fitness to Practise Panel considering allegations, which can be summarised as follows:

(i)     that he had not paid for accommodation provided by the agency;

(ii)    that he had wrongly recorded his hours worked and claimed payment for time during which he had not worked; and 

(iii)   that he had deliberately deleted a declaration on the agency's timesheets that the information given on the form was correct and complete.

The Panel found only allegation (iii) proved, concluding that it amounted to dishonesty and imposed a one year suspension. F appealed this decision.

The Court reviewed the manner in which the GMC had advanced its case against F and considered that allegations (ii) and (iii) had been linked; allegation (iii) had been made on the basis that F had deliberately deleted a declaration because he had wrongly recorded his hours to overclaim time (which the Panel did not find proved).  The Court considered that allegation (iii) was not advanced asa free-standing allegation .  Foskett J made reference to the long-standing principle that an allegation of dishonesty should be clearly particularised and that the allegation should be fairly and squarely put to a registrant during a hearing.  He stated that:

            … no one should be found to have been dishonest on a side wind or by some kind of default setting in the mechanism of the inquiry.  It is an issue that must be articulated, addressed and adjudged head-on.

The Court held that the Panel, in finding allegation (iii) proved and F to be dishonest, had failed to ascribe a motive for F deliberately deleting the declaration from the time sheet.  It considered that either the declaration did not appear as standard on every timesheet and more weight should have been given to F's contention that it was not on the sheet he was given; or little attention was paid to the declaration anyway as its absence went unnoticed for some time.  The Court considered that the Panel had not explained why, if F was overstating his hours worked, he would want to draw attention to this fraud by deleting the declaration.  Allegation (ii) -  that F had been overstating his hours - was not found proved and so the Panel could not infer that he had deliberately deleted the declarations for some dishonest motive.  The Court stated that even on the balance of probabilities, it could not be proved that someone committing fraud would deliberately delete a declaration of truth.

The Court held that the Panel was incorrect to conclude that F had acted dishonestly and the appeal was allowed and the sanction set aside.

Foskett J also commented about the advice of the Legal Assessor and confirmed the principle that it should not be equated with the directions of  judge to a jury.  He did, however, suggest that it would be helpful and desirable for a Legal Assessor to discuss his or her proposed advice with the representatives/parties prior to announcing it to the Panel.

Bryant v Solicitors Regulation Authority  EWHC 1475 (Admin)

The appellant (B) was practising as a partner in a joint partnership when he made a protected disclosure to the National Criminal Intelligence Service (NCIS) in respect of an American client. The NCIS communicated this disclosure to the Law Society who commenced an investigation.   B and his partner were later arrested and questioned by police, although no criminal proceedings were ever begun. The Law Society alleged that B had deliberately involved himself in six fraudulent transactions by the American client, or that alternatively the transactions were so dubious that no solicitor should have become involved with them without carrying out sufficient enquiries to establish that they were not fraudulent.

B appeared before the Solicitors Disciplinary Tribunal (Tribunal) which concluded that he had been dishonest and he was struck off the role of solicitors. On appeal, the finding of dishonesty was quashed and the sanction was reduced to a two year suspension. There was considerable mitigation for B and the court held that the Tribunal had erred by ruling character testimonials inadmissible and applying a purely objective test for dishonesty rather than a mixed subjective and objective test.

Once the suspension had expired, B was issued a series of practising certificates which were subject to conditions. B's appeal against the conditions imposed by the third of these practising certificates was dismissed by the SRA's Appeals Committee and he appealed to the High Court. Counsel for B submitted that it is almost impossible for solicitors who have conditions imposed on their practising certificates to find employment because employers are unwilling to take on the increased premiums demanded by professional indemnity insurers for such employees.

Reference was made to Lebow EWCA Civ 411 and Razeen EWCA Civ 1220 when considering that the true purpose for imposing conditions is the need to protect the reputation of the profession and to maintain public confidence. The court noted that even if no conditions appeared on B's practising certificate, any prospective employer would still have to make enquiries of his disciplinary background and inform their insurers of any findings. It held that if the SRA considers that proportionate conditions should be imposed on a solicitor's practising certificate, then it would be inappropriate not to impose them, or to lift them, simply because in the current market the insurance consequences will be much more significant, namely, rendering the "prospect of further practice impossible"

The court reviewed the five conditions imposed on B's practising certificate and concluded that it would be impossible to find them irrational, illogical, unnecessary or disproportionate. The court rejected B's  suggestion that he give the SRA undertakings instead of the conditions imposed because they would either make no difference or would be less effective in protecting the public and maintaining confidence in the profession. The appeal was dismissed.

Regulatory News

GDC prosecutes dentist for illegal practice

The General Dental Council (GDC) successfully prosecuted a Surrey-based  dentist for the illegal practice of dentistry and obtained a £2000 costs order against him.  Mr Richard Spencer, formerly of the Aberfoyle Dental Surgery in Surrey pleaded guilty to unlawfully holding himself out as being prepared to practise dentistry while not registered, contrary to Section 38 (1) of the Dentists Act 1984, as well as unlawfully using the title of a Dental Surgeon on registration forms for his premises contrary to Section 39. Mr Spencer received a conditional discharge of 12 months on both offences.

GPhC publishes disclosure policy in relation to pharmaceutical professionals

The General Pharmaceutical Council (GPhC) has published a policy focussing on the transparency of both the information they hold and their demonstration of fairness in considering what information they publish and disclose. The policy covers the GPhC's disclosure method in relation to Fitness to Practise, including the information shared at different stages of an investigation and any sanction publication details.

SRA issues bogus firm advice to legal profession

The Solicitors Regulation Authority (SRA) has issued guidance to law firms on how to protect themselves against identity theft by fraudsters who set up branches of legitimate law firms using empty offices as business addresses. Firms are at risk as they could be held liable for any breach of trust in paying away mortgage monies. The SRA provides the public with tips so that they can help verify that the firm they wish to use is genuine.

SRA tackles regulation approach for APFs

The SRA will consult on the options now open to it to change its role in the regulation of authorised professional firms (APFs) now that some firms may choose to move to the alternative business structure (ABS). The current exemption allows most law firms to carry out activities under the SRA by complying with the SRA Financial Services (Scope) Rules 2001, without the need for regulation from the FSA. A small number of firms do not fall under this exemption, as they provide mainstream financial services and so are authorised by the FSA and SRA as APFs. The SRA and FSA have formulated three options on which to consult over the next twelve weeks ending on 17 August.

HFEA welcomes draft revised fertility guideline

The Human Fertilisation and Embryology Authority (HFEA) has welcomed the draft revised fertility guideline from NICE, which focuses on the number of embryos that should be transferred during treatment. The HFEA's policy requires clinics to ensure that no more than 15% of births following treatment in the clinic are multiple births, with the aim of reducing this to 10% over time.

GMC to launch Medical Practitioners Tribunal Service (MPTS) on 11 June

On 11 June 2012, the General Medical Council (GMC) will launch the MPTS for UK doctors which will operate separately to the GMC and will be accountable to Parliament. The tribunal will run all fitness to practise panel and interim orders panel hearings in the UK. The purpose of the formation of this tribunal is to strengthen confidence in the profession and promote transparency, fairness and impartiality of hearings. It follows government recommendations for a greater separation between the GMC's investigation function and their adjudication of cases.

Government Launches Red Tape Challenge for regulation

The government has launched the Red Tape Challenge, a deregulation initiative aimed at promoting discussion on regulation by inviting the experience and views of people who deal with regulation on a daily basis. These contributions will then be used by the government to inform a set of proposals concerning regulatory reform. Beginning on 31 May for three weeks, the focus for the Red Tape Challenge will be on legal services matters.

GSCC presents report on Approved Mental Health Professionals (AMHP)

From March 2011 to February this year, the General Social Care Council (GSCC) performed inspections of all 22 approved courses offering AMHP training. Nineteen courses were assessed as green, three as amber and none as red.  The inspection process looked at all aspects of the course including recruitment, delivery, training and assessment.  This report is the third of five learning and research reports that will be published by the GSCC before its closure on the 31 July 2012.

Regulators' "Memorandum of Understanding" marks greater sharing of information

Regulators from legal, accountancy, financial and property sectors have signed a Memorandum of Understanding (MOU), a formal non-binding agreement allowing for greater information sharing where it would be in the public interest to do so. The aim is to provide a framework against which regulators can tackle issues such as consumer engagement, evidence gathering and commons standards and definitions, in light of the recent liberalisation of the legal services market through the launch of ABS.

GOsC publishes new fitness to practise guidance for osteopathy students

The General Osteopathic Council (GOsC) has produced new guidance outlining the role of osteopathic education institutions with regards to student fitness to practise, suggesting a framework for managing fitness to practise issues.

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