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Public & Regulatory Law Alert - February 2011

Matthew Lohn


United Kingdom

Read the Fieldfisher 'Public and Regulatory Law alert - February 2011' on

Case News


Regulatory News

Case news

Brennan v Health Professions Council (2011) [2011] EWHC 41 (Admin)

Mr Brennan, the physiotherapist of a well known rugby club, sought to appeal the decision of the HPC’s Competence and Conduct Committee that he should be erased from its register.

Mr Brennan admitted that he had taken part in the fabrication of a bloody injury by buying fake blood capsules, going on to the pitch during the game to give a player instructions contrary to European Rugby Council (ERC) Rules, giving the fake blood capsule to the player and instructing him to take it and use it for the benefit of the team, knowing that this was an attempt to cheat.

Mr Brennan attempted to hide the fabricated injury by examining the players mouth, finding that there was no injury and taking the player to the referee with the view to his being substituted off the pitch for a false blood injury.

Mr Brennan went on to photograph the cut lip, prepared dishonest or incorrect statements for two players to use for a ERC inquiry, helped the club officials to cover-up the attempted cheating, and lied to a ERC hearing. He admitted that his actions were dishonest and amounted to misconduct. However, Mr Brennan submitted that the decision of the Committee to strike him off did not provide adequate reasons, in view of the fact that the main aim of sanction was not punishment but public safety, and because it was agreed that Mr Brennan was not a risk to public safety. Furthermore, it did not take into account the apologies that Mr Brennan made to the Committee during the hearing and the evidence he had given illustrating his remorse, insight, rehabilitation and the steps he would take to prevent repetition of the misconduct.

In this case, the court agreed with Mr Brennan finding that the Committee had not provided adequate reasons for why Mr Brennan had been erased from the register. Its reasoning did not enable the informed reader to know what view it took of the important issues raised by Mr Brennan. It was not clear why it was proportionate to impose the heaviest and most punitive sanction, when punishment was not the objective of the sanction and the protection of the public, the primary objective of the sanction, was not at issue.

Where the purpose of sanction was to deal with issues other than the primary one of maintaining public safety, and was instead to provide deterrence to others and to maintain confidence in the profession’s reputation and standards, the reasoning was particularly important in showing that the sanction was proportionate to the misconduct and for the individual concerned. The court drew support from Dobbs J said in R (Howlett) v Health Professions Council [2009] EWHC 36617 Admin who indicated that the Committee should make plain why it reached the decision it had on the evidence before it. The Committee should have considered how the individual had responded, the sincerity and effectiveness of that response, the reality of whether the misconduct would be repeated in view of his insight into how the practice of the profession related to his obligations to his employer in professional sport, and the punishment which had been inflicted by the sport’s regulatory body. The Committee had not considered these issues and had not provided reasoning to suggest that striking off was the only sanction which would deter other physiotherapists from such future conduct, or why a years’ suspension would not be sufficient for the restoration of public confidence.

The court determined that the committee’s decision should be quashed and the case would be remitted with a direction that it reach a reasoned decision on sanction.

Manherlal Keshvlal Shah v General Pharmaceutical Council [2011] EWHC 73 (Admin)

Mr Shah sought to appeal the decision of the Statutory Committee of the General Pharmaceutical Council (formerly known as the Royal Pharmaceutical Society of Great Britain) on 17 November 2009 to remove his name from the register. Mr Shah asserted that the correct sanction was reprimand. An interesting point considered by the High Court was the degree of weight which Fitness to Practise Committees should give to previous decisions in similar cases, when deciding the appropriate sanction.

This case has a long history. Mr Shah owned and operated three pharmacies. In 1986, he was charged with a number of criminal offences and he pleaded guilty to three counts of false counting and two counts of the unlawful supply of unlabelled drugs during his practice as a pharmacist. Mr Shah received a fine of £2750. The Statutory Committee of the General Pharmaceutical Council (GPhC) then considered these convictions and resolved that Mr Shah was unfit to practise. He appealed this decision and a reprimand was substituted as an appropriate sanction.

Further deficiencies in Mr Shah’s practice were noted during visits to his premises in 1988 and 1989 and the appellant again faced criminal charges, which he admitted. The Statutory Committee of the GPhC decided that Mr Shah should be reprimanded again and after announcing the decision, the chairman of the Committee warned Mr Shah that if Mr Shah continued with his course of conduct, there would be “serious consequences”.

In May 2004, a patient made a complaint against Mr Shah to the GPhC after he gave him expired drugs and did not offer an exchange when confronted by the patient. A visit to his pharmacy also revealed that he was storing out-of-date medicines in the dispensary and unlabelled medicines which were allegedly kept for general dispensing use. Considering these facts, the Statutory Committee of the GPhC removed Mr Shah’s name from the register and Mr Shah appealed this decision.

Counsel for Mr Shah submitted that the Statutory Committee of the GPhC failed to have regard to the fact that in previous decisions of the committee there was “a consistent body of jurisprudence” showing that the reputation of the profession could be vindicated by decisions to reprimand practitioners for the supply and storage of out-of-date medicines in cases where there was no intention for re-use.

This argument was rejected by the Court, who stated "While I do not suggest that Mr Dingemans was wrong to place the decisions before the committee or rely upon them before me I can well understand why the committee concluded that the decisions gave us only limited assistance in determining the appropriate current sanction in this matter.” 

The Court considered that the Statutory Committee was justified in concluding that the significance of the previous decisions was limited.

The appeal was dismissed.

R (Coke-Wallis) v ICAEW [2011] UKSC 1

On 19 January 2011 a unanimous decision by the Supreme Court stated that the principle of double jeopardy (Res judicata) applies to disciplinary proceedings which are civil in nature. In doing so they upheld the appeal of Mr Coke-Wallis.

The facts of the case centred around Mr Coke-Wallis’ expulsion as a member of the Institute of Chartered Accountants of England and Wales (ICAEW). The ICAEW bought an initial disciplinary complaint against Mr Coke-Williams that had failed due to an evidential technicality. 

The Supreme Court ruled that bringing a second complaint where the underlying conduct was the same contravened the principle of res judicata and should be barred, even where the effect is that: “a person who has shown by his discreditable conduct that he is not fit to practise may continue to do so” (Collins LJ).

Fouche v Nursing and Midwifery Council [2011] EWHC 133

Mrs Fouche sought to appeal the decision of a Fitness to Practise Panel of the Nursing and Midwifery Council (NMC) to erase her name from the register of nurses after alleging that her fitness to practise was impaired by reason of misconduct.

Mrs Fouche had been working as a home manager at Eversley Nursing Home from February 2003. The allegations of misconduct, which comprised a number of incidents occurring between 5 February 2003 and 27 July 2007, resulted in Mrs Fouche being dismissed.

The allegations included the removal of a fridge freezer, a video recorder and food from the nursing home, a failure to arrange chiropody services for residents of the home, falsifying residents’ personal expense records, withdrawing of money from a resident’s bank account contrary to company policy, shouting at residents and liquidising residents’ food and feeding them via syringe when they did not want to eat.

A disciplinary hearing was arranged for 1 - 3 March 2010. Mrs Fouche failed to attend but provided two letters to the Panel. The Panel continued in the absence of Mrs Fouche and found that her fitness to practise was impaired and determined that she should be erased from the register. Mrs Fouche was informed of the decision on 8 March and appealed.
In the High Court, Mrs Fouche sought to rely on two documents entitled “My Experience of Working at Eversley Nursing Home” and “In My Defence”, which had not previously been before the Panel. The documents set out an account of events at the home and a response to the allegations which had been found proved by the Panel.

The High Court briefly considered whether the Panel should have proceeded in the absence of Mrs Fouche and decided they were entitled to do so. The Court went on to consider each of the allegations which had been proved against Mrs Fouche and dismissed the appeal. The Court agreed that there was sufficient evidence to support the allegations and the Panel was entitled to find the allegations against Mrs Fouche proved. The Court also acknowledged how the Panel had considered the full range of sanctions available, including imposing no sanction and agreed with Mr Clancy, representing the NMC, that while the sanction was harsh it was nevertheless in the range of options available. The Court declared that there was no fault in the approach adopted by the Panel and the decision was just.  The appeal was dismissed.

Regulatory news

GMC - Major reforms proposed to the GMC’s fitness to practise work

The General Medical Council (GMC) has proposed major changes to the way it handles cases involving concerns about doctors. The aim is to deliver a quicker system while still maintaining fairness to doctors and patients. On 17 January 2011, the GMC launched a major public consultation on the proposals which recommend that doctors could accept sanctions, including suspension and erasure, without their cases going to a hearing.

Patient protection would be the driving force behind the new system but where possible it would avoid subjecting doctors and patients to long, stressful and sometimes harrowing public hearings. It would also be transparent - even when a case did not end with a hearing, the concerns and any sanctions would still be published on the GMC website. For those doctors who do not accept the sanction proposed by the GMC or where there is a significant dispute about the facts, cases would still be referred for a hearing.

The consultation document also proposes a more speedy process for dealing with doctors convicted of serious crimes such as murder and rape - the GMC argues that those who have committed such crimes are not fit to be doctors. Further information can be found here.

The Actuarial Profession - changing the way executive functions deliver services to members

The Profession is to make changes to the way executive functions deliver services to members and has entered a period of consultation with its staff. The goal is to improve operational effectiveness. The proposals will be phased in through 2011. Further information is available here.

APB -  issues Revised Guidance on The Audit of Insurers

On 6 January 2011, The Auditing Practices Board (APB) of the Financial Reporting Council published a revision of Practice Note (PN) 20: “The Audit of Insurers in the United Kingdom”. A consultation draft of the revised PN was issued in May 2010 for public comment. The revision applies to audits of financial statements of Insurers for periods ending on or after 15 December 2010. The guidance reflects the provisions of the clarified ISAs (UK and Ireland) (which apply to the audits of financial statements of Insurers for periods ending on or after 15 December 2010) and changes in the legislative and regulatory framework. A copy of the PN can be found here.

POB & PCAOB - UK and US regulator agree arrangements for sharing information and cooperation on audit inspections

Regulators in the UK and the US have signed an information sharing agreement aimed at increasing the level of co-operation on the oversight and inspection of audit firms on 10 January 2011. The Statement of Protocol between the UK’s Professional Oversight Board (POB) and the Public Company Accounting Oversight Board of the United States (PCAOB) is a statutory requirement necessary to facilitate effective cooperation between the two organisations and pave the way for joint work on inspections, including exchanges of information and interviewing firm personnel. The Statement of Protocol can be viewed here.

CHRE - 2011 Health & Social Care Bill proposes more independence and new powers

The Government’s Health & Social Care Bill is proposing to make the Council for Healthcare Regulatory Excellence (CHRE) more independent of government and to give it additional powers. Functions would include overseeing the regulation of social work professionals in England and quality-assuring appointments to health professional regulators’ councils. The name would change to the Professional Standards Authority for Health and Social Care and would be funded by a levy on professional regulators. Access to the full details of the Health and Social Care Bill can be found here.

CQC - Stoke Services inconsistent throughout England

The Care Quality Commission (CQC) has published the results of a major review into the stroke services. Stroke is the single largest cause of disability in adults and access to high quality support and services is imperative for recovery. However, the CQC national report reveals inconsistencies regarding peoples’ transfer from hospital to home, access to specialist community-based rehabilitation services such as speech and language therapy, support for carers, information given to people around the time they leave hospital and how well services take account of the communication needs of people with aphasia.

The review shows that whilst many areas have considerable scope for improvement, other areas are providing good quality services on most aspects of stroke care.  Further details of the review can be found here.

FRC - proposes enhancements to Company Reporting and Audit to deliver greater value to investors

On 7 January 2011, the UK’s Financial Reporting Council (FRC) published recommendations aimed at improving the dialogue between company boards and their shareholders. The FRC’s report, 'Effective Company Stewardship: Enhancing Corporate Reporting and Audit', contains seven key recommendations. It responds to lessons of the financial crisis and builds on changes already made, such as the new UK Corporate Governance Code and the introduction of the Stewardship Code for institutional investors. A copy of the report can be found here.

FRC - FSA and FRC extend cooperation and information exchange on audit issues

The Financial Services Authority (FSA) and the FRC have today agreed a new memorandum of understanding (MOU) to enable a greater degree of cooperation and information exchange between the two regulators. The MOU underpins the increased dialogue between the FSA and FRC on accounting and disclosure issues that has been in place since 2005 and follows the publication of a joint discussion paper on the audit of financial institutions published in June 2010. More information on this subject can be found here.

FRC -  tries to improve dialogue between boards and shareholders

In the wake of corporate governance changes such as the new UK Corporate Governance Code and the recent introduction of the Stewardship Code for institutional investors, the FRC has published recommendations aimed at improving dialogue between company boards and their shareholders. More information on this subject can be found here.

GOsC - New developments in collecting standardised patient data in osteopathic practice

A full report was published on 22 December 2011, examining the development and first piloting in practice of a standardised data collection (SDC) tool for general use by osteopaths.

Very little is known currently of the national day-to-day practice of osteopaths, the profile of patients who consult osteopaths or the outcomes of their care. Led by the National Council for Osteopathic Research (NCOR), work began in February 2008 on a General Osteopathic Council -funded project to develop and pilot at national level, an SDC tool that would enable osteopaths to collect, share and compare patient data.

The SDC tool was developed by volunteer osteopaths working through the national network of NCOR research hubs, set up primarily for this purpose. The volunteers examined an existing SDC tool, widely used in physiotherapy, for its potential application to osteopathic practice. The osteopaths involved preferred to develop a specific tool for osteopathy to reflect the range of osteopathic practice. The full report can be viewed here.


HFEA - launches public consultation on sperm and egg donation

On the 17 January 2011 the Human Fertilisation and Embryology Authority (HFEA) launched a 3 month public consultation about sperm and egg donation. This will focus on the level of compensation for donors, the number of families a donor can help to create and family donations. People participate through a series of questionnaires on the consultation pages on their website. There will be a series of workshops held with patients, donors, parents of donor-conceived people, and those who are donor-conceived. The HFEA will also be consulting with clinics. Further information is available here.


NMC - Progress Review 2010

The CHRE has published its review of the Nursing and Midwifery Council's (NMC) progress in relation to improving its fitness to practise work. The CHRE will be working with the NMC over the next few months to facilitate continuing improvements. The review can be found here.

SRA - Insurance changes proposed

The Solicitors Regulation Authority (SRA) are proposing changes to the current insurance arrangements for firms - some to take effect later this year. Among the changes, the SRA are proposing to remove the single renewal date for professional indemnity insurance for firms from October 2011. These changes and other proposals are set out in the consultation paper which can be viewed here.

SFO - may be folded into FBI - style agency

A Home Office consultation, to be published in spring 2011, will consider merging the Serious Fraud Office (SFO) into a new National Crime Agency or structuring it at the core of a single Economic Crime Agency. An article on the proposed changes is available here.

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