Public and Regulatory Law Group Alert: September 2012

Introduction

This month's edition includes details of the Serious Case Review of the Winterbourne View Care Home, imminent changes to the Independent Safeguarding Authority's disclosure and barring scheme, and the restructure of the Council for Healthcare and Regulatory Excellence.  The Health and Care Professions Council also took over the role of the General Social Care Council last month and it has already been busy agreeing Memorandums of Understanding with other social care regulators.

This month has also seen a number of interesting decisions released by the Courts:

In Russell v Visitors to the Inns of Court, it was held that a decision of the Bar's Disciplinary Tribunal was not invalidated by the inclusion on the panel of a barrister who was not on the list of those appointed to sit.  This decision which has only recently been released in full, has already been followed in the case of Temblett v Visitors to the Inns of Court.

In Media Protection Services Ltd v Crawford, the Court held that a company acted unlawfully in issuing criminal proceedings as it, and its Director, were not authorised to do so, or exempt, under the Legal Services Act 2007.

The Court considered the General Medical Council's discretion to allow entry on to the medical register in the case of Patel v GMC.

Finally, in the high profile case of Nicklinson, the Court held that it could not make changes to the law as it currently stands on issues of assisted suicide and voluntary euthanasia.  Such changes were for Parliament.

Regulatory News

Health and Social Care

GMC and NCAS enter agreement

The General Medical Council and the National Clinical Assessment Service have agreed five key principles to support their work together. These aim to enhance patient safety and public protection, and provide greater clarity and transparency regarding their respective roles. To read more about the five principles agreed by the organisations click here

GMC publish guidance for responsible officers

The GMC has published guidance to assist responsible officers in making revalidation recommendations about doctors. The revalidation process is expected to be introduced later this year. Further information about the guidance can be found here

GMC issue statement in relation to Dr Freddy Patel

The Medical Practitioners Tribunal Service has erased Dr Patel from the medical register. Dr Patel was practising as a pathologist when he provided reports relating to the death of Ian Tomlinson during the G20 protests. To see the GMC statement welcoming the decision, please click here

HCPC takes over regulation of social workers

The Health and Care Professions Council took over responsibility for the regulation of social workers in England on 1 August 2012 following the abolition of the General Social Care Council on 31 July. The HCPC will investigate concerns, set standards and approve and monitor education and training programmes for social workers in England. Social workers will now have to meet the HCPC standards of proficiency relevant to their area of practice, as well as the HCPC standards of conduct, performance and ethics which apply to all of the 16 health and care professions HCPC regulates. For further information please click here

HCPC agree Memorandum of Understanding with other UK regulators

The HCPC has agreed a Memorandum of Understanding with the other UK social care regulators, allowing social workers to register and practice in more than one country and recognising the education programmes of its fellow regulators. Full details can be viewed at the HSPC website here

HTA issues first organ donation licenses

The Human Tissue Authority has issued its first licences under the EU organ donation Directive. The Directive sets minimum standards to ensure the quality and safety of human organs intended for transplantation.  To find out more please click here

Making a referral to the Independent Safeguarding Authority - changes to disclosure and barring

Changes to disclosure and barring will come into force from September 2012 intended to ensure proportionate and effective safeguarding arrangements. Amongst the key changes are: a new definition of 'regulated activity' to focus on work which involves close and unsupervised contact with vulnerable groups, the removal of the category of 'controlled activity', and changes to CRB checks such as the inclusion of a minimum age of 16. To find out more, or to complete the Independent Safeguarding Authority's survey regarding the changes, please click here

Winterbourne View Serious Case Review published

The findings from the serious case review have now been published, detailing changes to be made to ensure protection from abuse. The review considered the role of the various organisations involved including the Care Quality Commission, Castlebeck Ltd, NHS South Gloucestershire, NHS South West, South Gloucestershire Council and Avon and Somerset Police and concluded that the various agencies failed to effectively communicate and pass on concerns amongst each other. The full report can be seen here

CQC carries out Internal Management Review of its role in Winterbourne View

The CQC who had previously apologised to patients and families involved for its failings, have already made changes to their internal governance arrangements around safeguarding alerts and referrals, and have set up a specialist team to deal with whistle-blowing allegations in the wake of the Winterbourne View scandal. To find out more about the changes made by the CQC and view the internal management review in full please click here

NQB publishes report on maintaining quality in health care system

The National Quality Board has published a draft report setting out how quality will be maintained in the health care system. For further details and to share your views please click here

CHRE prepares for restructure

The Council for Healthcare and Regulatory Excellence has started to prepare for its new structure as the Professional Standards Authority for Health and Social Care. In the lead up to the launch date of 1 December 2012, the new functions and responsibilities outlined in the Health and Social Care Act are gradually taking effect.  The CHRE now have an oversight role for the regulation of social workers, and will have a new role in accrediting voluntary registers and reporting to the Privy Council on the appointment process undertaken by eight health and social care regulators.  To read more about the developments visit the CHRE website by clicking here

Concern raised over blanket visual acuity thresholds

A joint statement has been issued by the Royal College of Ophthalmologists, the College of Optometrists, the Optical Confederation and the Local Optical Committee Support Unti regarding their concerns on imposing blanket visual acuity thresholds on referrals for cataract surgery. Further details can be viewed here

Legal

SRA consultation

The Solicitors Regulatory Authority has launched a consultation on rules governing how solicitors work with financial advisers. FSA regulations on advisers are due to change at the end of the year and the SRA is consulting on options for changing its code too, revisiting the current provision that only allows solicitors to refer to those advisers deemed "independent". Interested parties are invited to comment on the options being presented and the consultation will remain open until 10 September 2012. Further information about the proposals and the consultation can be found here

Accountancy and Finance

AADB launch investigation in to ICAEW members

An investigation has been launched by the Accountancy and Actuarial Discipline Board in relation to the conduct of certain members of the Institute of Chartered Accountants in England and Wales. The investigation also concerns PricewaterhouseCoopers LLP as auditors of RSM Tenon Group plc. The AADB’s decision to initiate an investigation was taken following consultation with the ICAEW. For more information visit the FRC website by clicking here

Police and Security

SIA review close protection/door supervision arrangements

The Security Industry Authority is reviewing current arrangements whereby close protection licence holders can use their licence to work as door supervisors as well. Changes to the qualifications required to obtain a door supervision licence have prompted the review. For more information about the changes, options and to provide feedback please click here

Case Updates

Russell v Bar Standards Board, Visitors to the Inns of Court, 12 July 2012

The appellant barrister ("B") appealed against the findings of a disciplinary panel appointed by the President of the Council of the Inns of Court (COIC) that she had been guilty of conduct unbecoming a barrister.

The Tribunal was governed by the Disciplinary Tribunal Regulations 2009 ("the Regulations"). From May 2006 the COIC established the Tribunals Appointments Body (TAB). The TAB's Terms of Reference required lists of barristers appointed to volunteer as tribunal members to be maintained.  Those barristers who were already on the previous list of those available for hearings could remain on the list until May 2009, after which date they could apply to be on the new list.

In this case the new arrangements did not appear to have been applied to one of the tribunal members ("S"). S appeared to be a person who could lawfully be nominated under regulation 2(2)(c) of the Regulations because he was a barrister of not less than 7 years standing and had been nominated by the President of the COIC.  However S had been on the list prior to May 2009 and had not applied (nor been aware that he needed to apply) to be on the new list.

The Visitors to the Inns of Court determined two issues:

(1) To be valid a nomination need only fulfil the requirements of the Regulations and no more: The Terms of Reference set out what should happen as a matter of good practice but could not alter the correct interpretation of the Regulations.  In this case, the Tribunal's members, including S, met the requirements of Regulation 2(2)(c) and so the Tribunal was validly constituted.  Barristers had no legitimate expectation that the appointment of Tribunals would be in accordance with the TAB terms of reference.

(2) Even if there was a defect in the constitution of the Tribunal, the 'de facto doctrine' (R (on the application of Argles) v The Visitors to the Inns of Court EWHC 2068 (Admin)) applied to membership of the Tribunal. This provides that the acts of an officer or a judge may be held to be valid in law even though his or her own appointment was invalid. This is on the basis that it is preferable to uphold his or her acts than to annul them in circumstances where he or she has otherwise acted under a general supposition of competence.  In this case there was no question that S was competent and he sat with other members of the Tribunal who presumed him to be validly sitting (as he himself had assumed) which gave him "colourable authority". It was held that there was strong public interest at stake in addition to the interests of the parties to the proceedings and the public policy rationale underlying the doctrine applied.

Temblett v Bar Standards Board, Visitors to the Inns of Court, 26 July 2012

The appellant barrister ("T") had been disbarred following findings of professional misconduct and T appealed the decision.  At a case management hearing, T's appeal had been struck out, with the exception of his appeal against the sanction imposed.  The judge directed that if the case of Russell summarised above went in favour of the appellant in that case, T's appeal could continue on similar grounds.

Notwithstanding the arguments in this case that Russell could be distinguished - as it only involved one member of the tribunal whereas the instant case involved four members and the relevant rules in Russell were the Disciplinary Tribunal Regulations 2009 whereas in T's case they were the Disciplinary Tribunal Regulations 2005 – the application was refused.

The Visitors held that the principle in the case of Russell applied equally to the instant case and the members of the Tribunal had been validly appointed.  That different rules applied between the cases was immaterial as there was no difference in substance between the two sets of Regulations.  As there was nothing to distinguish this case from that of Russell, it was considered that there was no reason to give T further time to allow reformulation of his grounds of appeal.  Accordingly his application to adjourn was dismissed.

Media Protection Services Ltd v Crawford EWHC 2373 (Admin)

The appellant company ("M") appealed a decision of the District Court to dismiss the information that had been laid against the respondent licensees ("L").  The information which had been laid by one of M's directors ("H") alleged that L had dishonestly received a programme included in a broadcasting service somewhere within the UK and showed the programme, a football match, in their pub, to avoid the payment of any charge applicable.  The information alleged an offence contrary to s297(1) of the Copyrights, Design and Patents Act 1988.

M was a private limited company trading for profit and had been retained by the Football Association Premier League Limited ("F") to investigate and prosecute infringements of F's intellectual property rights.  An issue was then raised as to whether H acted unlawfully in commencing the prosecution against L by carrying out legal activity within the meaning of the Legal Services Act 2007 ("the Act").  It was accepted by M that neither M nor H were authorised or exempt under the Act.

The Court held that (1) the laying of an information was the commencement of proceedings in the Magistrates' Court. It was the information itself which was tried by the Court, not the summons or the description of the offence in the summons.  The fact that the information may not lead to the issue of a summons was not a matter which affected the commencement of proceedings.  Once the information had been laid against L, M was deemed to have carried out a 'reserved legal activity' under Schedule 2 of the Act. (2)  H was not an authorised litigator and nor was he acting on his own behalf but as a director for a company acting for reward from its client.  He therefore had acted as a Solicitor within the meaning of s20 of the Solicitors Act 1974.  Consequently, it was held that the laying of the information was not lawful and the prosecution was incompetent in accordance with s127(1) of the Act.

R (on the application of Patel) v General Medical Council EWHC 2120 (Admin)

The claimant (P) held an overseas qualification and was seeking registration with the GMC as a medical practitioner. The GMC had refused to accept P's Primary Medical Qualification.  P applied for a judicial review of this decision.

P argued that the qualification at the University of Health Services, St Kitts and Nevis had been considered as an acceptable degree for registration purposes by the GMC in an email in November 2004. P completed the course in 2011 and applied for provisional registration but was informed that the course did not meet the necessary criteria for an 'acceptable overseas qualification' under Medical Act 1983 s21(b)(2).  New criteria agreed by the GMC in 2010 required half of the course to be undertaken in the country awarding the qualification.

P claimed that the criteria were unlawful, but the claim was dismissed. The Court held that the GMC did not have a discretion to allow registration where the Registrar was not satisfied in respect of the specified criteria. In fact, it was held that the GMC retained discretion to direct that someone is not registered, even where they satisfied all the criteria.  The GMC was not prohibited from defining 'acceptable overseas qualification' in absolute terms and had not fettered its discretion in specifying such criteria.  The Court also held that the requirement for 50 per cent of the study to take place in the awarding country was not irrational and the lack of transitional provisions did not render it irrational either.  The GMC was entitled to change the criteria with immediate effect if it considered it appropriate to do so.

R (on the application of Nicklinson) v Ministry of Justice, R (on the application of AM) v Director of Public Prosecutions EWHC2381 (Admin)

This case relates to two Claimants, N and M, both suffering from catastrophic physical disabilities which left their mental processes unimpaired.  Both wished to end their lives but because of their disabilities, were unable to without assistance.  In applications for judicial review they sought declarations relating to issues of assisted suicide and voluntary euthanasia. 

N argued that at common law, voluntary euthanasia could provide a defence of necessity to a charge of murder.  He said that autonomy and dignity, humanity and justice allowed him to end his own life and he had the right to do so under Article 8 of the European Convention on Human Rights (the right to respect for private and family life). 

M sought an order that the DPP should clarify his published policy so that it was clear whether those that might assist him to commit suicide in Switzerland would face prosecution in England.  He also argued that s2(1) of the Suicide Act 1961 which criminalises aiding or abetting suicide, was incompatible with Article 8. He also sought declarations in relation to the GMC and SRA in order that a doctor or solicitor who played a part in helping him to commit suicide via Dignitas (and did not face the risk of prosecution, under the clarified DPP policy he sought) should not be exposed to the risk of professional disciplinary proceedings.

The Court refused the applications. On the issue of voluntary euthanasia, the application was refused on the grounds firstly that the Court, hearing an individual case, was not competent to decide the broader questions relating to this profoundly difficult and complex ethical area. From a constitutional point of view, whilst, the Court could make incremental changes in order to keep up with developments as required in a just society, any major changes which involved such controversial aspects of social policy must be left to Parliament. Any changes which may be made in the future around voluntary euthanasia, would need to be set in the context of a framework with appropriate procedural safeguards.  This was not something the Court had the power to do, nor could it continue to monitor such a regime.

“A decision by the court to alter the common law so as to create a defence to murder in the case of active voluntary euthanasia would be to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change, and where the result would be to create uncertainty rather than certainty. To do so would be to usurp the role of Parliament.” (Toulson LJ, at paragraph 84)

The Court said that it would be wrong to conclude that Article 8 required that voluntary euthanasia be a defence to murder.  The House of Lords and the European Court on Human Rights had both concluded that a blanket ban on assisted suicide was not incompatible with Article 8 and so the same had to apply to voluntary euthanasia (R (on the application of Pretty) v DPP UKHL61 and Pretty v United Kingdom (2346/02) 2 FLR45).

The Court further concluded that the DPP had no power to set a policy, which established that he would not prosecute in certain types of case. To do so would be to undermine the law where Parliament had already made it clear that there was a blanket ban on assisted suicide.  He was, rather, seeking to identify the factors that would be taken into account in the exercise of his discretion. Whilst there will be cases where the public interest does not require a prosecution, the law as it stands is that any person who encourages or assists another to commit suicide will be at risk of prosecution.  As this ground had failed, the claims against the GMC and the SRA failed also.