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Public & Regulatory Law Alert - January 2011

Matthew Lohn
17/01/2011

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United Kingdom

Read the Fieldfisher 'Public and Regulatory Law alert - January 2011' on www.ffw.com

Case News

 

Regulatory News

Case news

Clift v Slough Borough Council [2010] EWCA Civ 1171

Potential libel claims are increasingly an issue for public bodies. This case examined the duties of a public authority and the circumstances in which it can rely on the defence of qualified privilege.

C, a resident of Slough reported an incident of anti-social behaviour to the Council, but was dissatisfied with the way the officer responded to her concerns. In a letter of complaint, C wrote: "I am certain I would have physically attacked her if she had been anywhere near me" and later repeated a similar sentiment at a meeting with K, the Council's Head of Public Protection who was investigating the complaint.

The Council placed C on its Violent Persons' Register for 18 months and K circulated the Register within the Council by email to Council employees and to external partner organisations.

C pursued a claim for defamation in which the Council claimed that the distribution of the information was justified, and also that they were published under the defence of qualified privilege. At trial, the judge ruled that the only publications subject to qualified privilege were those sent to “customer facing staff” in departments of the Council likely to have contact with C (which would have included Neighbourhood Enforcement and Community Safety, but not departments such as Licensing and Education Services). The judge ruled that circulation to the other departments and to the partner organisations was not proportionate or fair and breached C’s article 8 Human Rights, thus was not covered by the defence of qualified privilege. Further, it could not be claimed that administrative convenience was sufficient justification for the Council-wide distribution.

The Council appealed to the Court of Appeal in respect of the ruling on qualified privilege, submitting that the judge had erred by failing to pay sufficient regard to the difficulties which confronted a local authority in knowing which information could or could not be published. 

The appeal was dismissed on the following grounds: 

 (1) Although it was accepted that the protection of all Council employees was a legitimate aim sufficient to justify an interference with a person’s article 8 rights, the court found that ill-considered and indiscriminate disclosure was bound to be  disproportionate. To publish as wide as the Council did was found to be in breach  of C'article 8 rights to have her reputation protected. Wood v Chief Constable of  the West Midlands [2004] EWCA Civ 1638 was followed.

 (2)  To claim the common law defence of qualified privilege, the Council had to first establish that it was under a duty to communicate the information to those who had a corresponding duty to receive it.  

 (3)  C' article 8 right to the protection of her reputation outweighed the duty of the    Council to warn supernumerary employees of the risks posed by C.

The appeal was dismissed.

Mvenge v General Medical Council - Queen's Bench Division (Administrative Court) - 10 December 2010

Dr Mvenge, a former doctor, appealed against the decision of the Fitness to Practise Panel (“the FTP Panel”) of the General Medical Council to erase him from the medical register.

In 1997, Dr Mvenge came to the UK to study medicine, and was granted a visa for this purpose until 2003. After this time, he continued to remain in the UK as an ‘overstayer’. In 2005, Dr Mvenge was cautioned by the Police for an attempted assault on his wife. He applied to the GMC in 2006 for limited registration for a year and produced a copy of his passport for the application. Dr Menge attempted to renew this in 2007 and in the declaration contained in the application he stated that he did not have any convictions or declarations.

Dr Mvenge commenced a clinical attachment at a hospital in 2008, and then signed a notification of change which enabled him to work. After this, he then applied to the DVLA for a provisional driver’s licence, sending a copy of a false Zimbabwean passport with his application. Dr Mvenge was subsequently arrested on suspicion of possessing a false passport with the intent to deceive by false representation as he was employed when he had no right to work. In the course of his interview with the police, Dr Mvenge admitted that he had knowingly provided the DVLA with a false passport. It also became apparent that Dr Mvenge had lied in the course of this interview as he had stated that he had registered with the General Medical Council towards the end of 2005 and he had not been required to provide his passport in order to be registered.

Dr Mvenge was subsequently convicted of knowingly possessing a false identity document and he was sentenced to 10 months’ imprisonment. He was then granted refugee status in 2009.

Taking all of the circumstances and Dr Mvenge’s conduct into account, the FTP panel considered whether Dr Mvenge’s fitness to practise was impaired. The FTP panel concluded that Dr Mvenge’s fitness to practise was impaired by reason of his misconduct and conviction. Dr Mvenge was suspended immediately and subsequently erased from the medical register.

Despite the court considering initially that the sanction of erasure was disproportionate, the appeal was dismissed. The Court, however, had a limited scope of review; Bolton v Law Society [1994] 1 W.L.R. 512 and Salsbury v Law Society [2008] EWCA Civ 1285 applied.

The points that were raised by Dr Mvenge at appeal had all been put before and considered by the FTP panel. The majority of the points raised by Dr Mvenge related to mitigation; where the standing of the profession was in issue, points of mitigation carried little weight. Dr Mvenge had failed to raise any errors in accordance with established legal principles. Accordingly, there was no basis on which the appeal could succeed.

R (on the application of Sabah Al-Zayyat) v General Medical Council - Queen's Bench Division (Administrative Court) - 25 November 2010

Dr Al-Zayyat applied for Judicial Review of the decision of the General Medical Council’s Fitness to Practise panel (“the FTP Panel) decision that she had voluntarily and deliberately absented herself from her misconduct hearing.

Dr Al-Zayyat, a Paediatrician, had examined a baby two days before he died of multiple injuries. As a result of the baby’s injuries, his mother and others were convicted of causing his death. At the trial, Dr Al-Zayyat gave evidence and following this, was the focus of significant media attention.

The General Medical Council brought allegations against Dr Al-Zayyat arising from her examination of the baby. It was also alleged that Dr Al-Zayyat had subsequently applied for a job in Ireland in which she had misrepresented her situation by stating that she did not know of anything arising from her past conduct that would pose a problem in the post that she was applying for.

Dr Al-Zayyat flew to Saudi Arabia the day before the fitness to practise hearing was due to commence. Before her departure she was examined by a psychiatrist who was of the opinion that Dr Al-Zayyat was unfit to defend herself or instruct solicitors. Dr Al-Zayyat was suicidal, and had suffered from a complete breakdown in her mental health; she was subsequently admitted to hospital upon her arrival in Saudi Arabia.

As a result, the FTP panel decided not to proceed in Dr Al-Zayyat’s absence and the hearing was adjourned for several months. Dr Al Zayyat applied for voluntary erasure from the medical register; this was rejected by the panel, who reopened the disciplinary hearing. Psychiatric evidence about Dr Al-Zayyat was heard by the panel, which stated that she was incapable of attending the hearing and was likely to break down if she did. The Legal Assessor advised the panel that the critical issue was whether Dr Al-Zayyat was faking her incapacity. The panel was also reminded that the evidence of two doctors was that she could not take part in the hearing. Despite this evidence, the panel decided to continue, finding that Dr Al-Zayyat’s absence was voluntary and deliberate.

The application was granted for the following reasons:

1. It would be potentially unfair and a rare occurrence to proceed if a doctor was involuntarily absent; R (on the application of Wotton) v Central Devon Magistrates Court (2003) EWHC 146 (Admin), (2003) EHLR Dig 6 were considered.

2. It was not open to the panel to determine that the views of the psychiatrists were not clear; they had been clear. 

3. There was no evidential support from the panel’s conclusion that Dr Al-Zayyat’s absence was not genuine and involuntary.

The panel were firmly of the opinion that Dr Al-Zayyat’s absence was voluntary and deliberate; they were not persuaded that she was in fact genuinely incapacitated. The basis of the panel’s conclusion was not clear. 

Although the Legal Assessor had advised that the critical issue in this case was whether Dr Al-Zayyat was faking her incapacity, the panel failed to make a determination on this issue. The determination reached by the Panel suggested that it believed that Dr Al-Zayyat was faking her illness, yet they failed to provide their reasons for believing that she had the capacity to attend the hearing. No reference was made to a psychiatric report from Saudi Arabia that had described Dr Al-Zayyat as presenting a high suicide risk and suffering from depressive illness. Dr Al-Zayyat had sent a letter to the panel which only showed that she was very sorry for the events which occurred and that she accepted a measure of blame; the letter went no way to showing that she was able to participate in the hearing.

The panel’s findings were therefore found to be perverse, and accordingly the decision would be quashed.

Regulatory news

GOC - New Appointment

The Appointments Commission has appointed Anna Bradley as permanent Chair of the General Optical Council (GOC). Ms Bradley had been acting as interim Chair since 3 June 2010.

GOC - standardised data collection research report published

A report has been published by the General Osteopathic Council (GOC) in relation to the development and piloting of a new research tool. The standardised data collection tool was used to collect, share and compare data about osteopathic patients and treatment. The full report can be viewed here.

CHRE - General Teaching Council (England) Review

In June 2010 the General Teaching Council for England (GTCE) invited CHRE to lead a review of its approach to equality issues within its conduct function. The findings of this review, published in November 2010 consider how the GTCE handled 11 conduct cases involving allegations of racism. The review also addresses issues that the Department of Education should consider for the future model of regulation of teachers in England. The final report can be found here.

CHRE - 'Nothing about us without us': are we listening to those who witness the delivery of undignified care?

The Patients Association has published first hand accounts on their website of carers who lost elderly relatives in NHS hospitals. They have requested an immediate introduction of ‘patient safeguarding champions’, a comprehensive review of the NHS complaints process and the introduction of a national survey of the carers of inpatients. The key message within this report is that some health professionals in hospitals did not think about the importance of maintaining the dignity of elderly patients when they were administering care. Further details of the accounts can be viewed here.

CQC - Publishes Annual Performance Assessment and announces review of system

The regulating body of health and social care, the Care Quality Commission (CQC) has published the results of its annual review of councils with responsibilities for providing adult health and social care. The full report can be reviewed here. The CQC has also announced that it is to review the system for appraising councils, after the Minister of State for Care Services announced that there will no longer be an annual performance assessment.

Electoral Commission - concludes investigation into British National Party accounts

The Electoral Commission have announced the outcome of their investigation into the 2008 financial accounts of the British National Party (BNP). The investigation also considered the recording and reporting of donations by the party in 2008. The full case summary is available here.

FRC - APB tightens Ethical Standards for Auditors

The Auditing Practices Board (APB) published a Feedback Statement and revised Ethical Standards for Auditors. The Financial Reporting Council (FRC) has also issued revisions to its guidance on Audit Committees, following their parallel consultations in July 2010. A copy of the FRC Guidance can be viewed here.

FRC - Consults on its priorities and funding

The FRC has published its priorities and funding proposals for 2011-12. The paper ‘Draft Plan and Levy Proposals 2011-12’ can be viewed here. Responses to the consultation are requested by 9 March 2011.

FRC - to explore best practice by UK Company boards in determining and managing their level of risk

The FRC is to bring together company directors, investors and others to explore how companies are responding to the new UK Corporate Governance Code provision on Board’s responsibilities for risk. The FRC will consider whether the Turnball Guidance on risk and internal control needs to be amended in the light of these meetings.

GMC - responds to the outcome of the Department of Health consultation on the future of Fitness to Practise adjudication

The Government has announced that OHPA is to be abolished and the GMC will retain overall responsibility for adjudication. The GMC has welcomed this decision and their full response can be viewed here.

 

GPhC - consultation on CPD framework and rules

The General Pharmaceutical Council (GPhC) is running a consultation on a new draft framework and rules for continuing professional development for pharmacists and pharmacy technicians. The consultation can be viewed here.

 

GSCC - Royal College outlines standards for child protection

A new set of standards have been introduced by the Royal College of Paediatrics and Child Health, following a report by Sir Ian Kennedy. The ten standards outline reform into the delivery of healthcare to children and young people in the UK. In particular, the standards state that all children’s social workers should have access to a paediatrician who can provide child protection advice and assessments. Further information can be viewed here.

GTC - response to the White Paper

The General Teaching Council (GTC) has responded to Government proposals for change, stating that they risk not producing the radical advances in educational achievement for young people as intended. The GTC raises several major concerns centring upon key issues of regulation, registration and support for teachers’ professional practice and development. The full GTC response can be viewed here.

LSB - Announces proposals on workforce diversity transparency

The Legal Service Board is proposing to introduce new measures for collecting and publishing diversity data on the legal workforce. Further details on the proposals can be found here.

LSB - Rules relating to the Solicitors Disciplinary Tribunal

The LSB has published its decisions on plans to explicitly apply its process to approve rule changes and its compliance and enforcement policy to the Solicitors Disciplinary Tribunal. This will include amending its rules and policy to provide greater transparency of its processes with regard to approving rule changes made by the Tribunal under section 46(9)(b) of the Solicitors Act 1974 and its power to direct the Tribunal if it fails to perform its functions to an adequate standard.

LSB - Statement of Policy on Section 69 powers

Under s.69 of the Legal Services Act the Lord Chancellor may by order modify, or make other provision relating to, the functions of an approved regulator. The LSB consulted on how the s.69 powers might be exercised and a decision paper setting out its conclusions has been released. This document can be viewed here.

SRA - on target to become an outcomes-focused regulator

The Solicitors' Regulatory Authority (SRA) has set out in detail how it intends to implement its plan to become an outcomes-based regulator by September 2011. The paper, which can be viewed here sets out what consumers, firms and regulated individuals can expect, and how risk-based regulation will work in practice.

SRA - Regulator sets out guidance on pre-emptive ABS discussions

The SRA has issued new guidance in preparation for the licensing of alternative business structures (ABS's) in October 2011. The guidance sets out what is to be permitted in firms’ negotiations with potential investors ahead of the change. The full guidance is available here.

SRA - proposes major changes to insurance arrangements

The SRA is proposing to remove the single renewal date for professional indemnity insurance for firms from October 2011. This would allow firms to renew cover during any time throughout the year. These changes and other proposals are set out in the consultation paper which can be viewed here.

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