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Public & Regulatory Law Alert - July 2011

Matthew Lohn
18/07/2011

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United Kingdom

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

Case News


Regulatory News


 

Case news

Daraghmeh v General Medical Council (2011) QBD (Admin) (King J) 26/5/2011

On 26 May 2011, Dr Daraghmeh (“the Appellant”) appealed a decision made by the GMC’s Fitness to Practise Panel, to impose conditions on his registration.

The Appellant had previously been required to complete an assessment of his competence which led to a finding of deficient professional performance as well as misconduct. The Appellant was suspended from practice but at a subsequent review hearing it was determined that his fitness to practise was no longer impaired based on the earlier misconduct finding. However, the Panel found that his fitness to practise remained impaired by reason of deficient professional performance.

The evidence presented to the Panel included the fact that the Appellant had been living outside the UK and intended to remain there for the next two years. The performance assessment findings were that the Appellant could perform at a more junior level but required appropriate supervision.

The Panel took all this into account and imposed a number of conditions on the Appellant’s registration, pursuant to the Medical Act 1983 s.35D(2)(c). These restricted the type of work that the Appellant was able to undertake and required supervision from a Consultant or equivalent person, until deemed appropriate.

The Appellant challenged the decision on two counts, submitting that the conditions were irrational and unworkable and arguing that the overall effect of the restrictions made it practically impossible for him to obtain permitted employment.

King J considered whether the Panel’s sanction was correct, taking into account the principles from Fatnani v GMC (2007) which indicate that the Court should be slow to interfere with a Panel’s decision if it has applied the correct principles.

The appeal in respect of irrationality and unworkability failed completely. King J found that the Panel had used its powers to impose conditions in order to protect the public and had ensured that they were appropriate, proportionate, workable and measurable. He considered that the need for the Appellant to be directly supervised was not unjustifiable or disproportionate in the circumstances.

The challenge from the Appellant that the conditions were making it impossible for him to obtain employment was also unsuccessful. Although it was accepted by King J that the conditions would make it more difficult, it would not be impossible for the Appellant to find employment.

King J also noted that there would be an opportunity for the conditions to be reviewed before their expiry and that the Appellant was entitled to request an earlier review if his circumstances changed.

The appeal was therefore dismissed.


Harrison v General Medical Council (2011) [2011] EWHC 1741

Dr Harrison (“the Appellant”) appealed against a decision by the General Medical Council’s Fitness to Practice Panel to erase his name from the register of medical practitioners, following a hearing at which his fitness to practise was found to be impaired as a result of his convictions for serious criminal offences including putting people in fear of violence, threatening to kill and perverting the course of justice.

The Appellant, who was in prison at the time of the decision, received the decision on the accepted date of 5 March 2010. He lodged his appeal on 29 March 2010 but without the requisite fees or a fees exemption application. An appeal with the appropriate fee was then submitted on 29 April 2010, outside the 28 day period permitted under the Medical Act 1983.

A hearing was convened to determine whether the appeal had been lodged within the correct timeframe and, if not, whether the court could extend the period within which the appellant could lodge an appeal. It was also considered whether it was in the interests of justice to extend the permitted time-frame.

Blake J, in considering the appeal, held that the original appeal, which was not accompanied by the appropriate fee, was not valid. Thus the only valid appeal was the one which was lodged on 29 April 2010, outside the 28 day period.

Blake J held that the Court had no power to extend the permitted period. He stated in his reasoning that the Medical Act 1983 was a primary statute and the Court could not therefore extend a timescale set out within it. He also found that there was no reason why the Appellant could not have appealed within the appropriate timeframe.  He said (obiter) that the lack of power to extend the time limit might be surprising if the Court had material suggesting that it would be in the interests of justice to extend, and suggested it was a matter for Parliament to decide whether the interests of justice were being adversely affected by its primary legislation.


Dr Mona Hosny v The General Medical Council [2011] EWHC 1355 (Admin)

On 26 May 2011, His Honour Judge Behrens, sitting in the Administrative Court, delivered an important judgment in the above case concerning the decision made by the General Medical Council’s Fitness to Practise Panel (“the Panel”) to impose a 12-month suspension on an anaesthetist’s registration.

Dr Hosny (“the Appellant”), who was of Egyptian origin, appeared before the Panel between 15 November and 16 December 2010 without legal representation, to face a number of allegations concerning clinical matters and two allegations of dishonesty.

The allegations concerning the Appellant’s clinical work were either found not proved, or not to have impaired her fitness to practise.

The allegations of dishonesty related to creating and forwarding a false reference and the completion of false application forms for employment, without declaring GMC Interim Order conditions and that she was subject to a GMC Fitness to Practise investigation.

The Appellant denied writing the reference herself and said she had assumed that she had received a good reference. She also asserted that her failure to disclose her conditions or the fitness to practise investigation was not dishonest as she had not meant to deliberately deceive anyone and that this had resulted from honest mistakes.

At hearing, the Panel applied the Gosh test and determined that the Appellant had dishonestly created and sent out a false reference. The Panel also found proved the allegation that the Appellant had failed to disclose her conditions and GMC investigation. The Panel determined that there was no remediation for these actions and the Appellant lacked understanding of the seriousness of the matter. The Panel therefore held that her fitness to practise was impaired and imposed a 12-month suspension on her registration.

The Appellant appealed against the Panel’s decision on five grounds. She contended that the Panel was wrong to find that she had created the reference herself, and had failed to give consideration for the need for the evidence to be “especially convincing” given the serious nature of the allegations which she faced. She also contended that the Panel had failed to consider her Egyptian nationality and language difficulties which explained the mistakes made in her application forms.

She further pointed out that she had appeared at the hearing without representation, and said that the Panel was wrong to find that there was no possible remediation, as her knowledge of the GMC’s rules and regulations had improved.

Finally, she asserted that the sanction of a 12 month suspension was disproportionate and that it infringed her right to family or private life under Article 8(1) of the ECHR.

The High Court dismissed the appeal. It held that the Panel had directed itself correctly as to the meaning of dishonesty. The Panel was entitled to conclude that the inaccurate application forms were dishonest. The Court noted that whilst the Appellant had some language difficulties, the inaccurate answers were not in a complicated part of the form and she had been able to complete the rest of the form correctly. The Court upheld the Panel’s finding that the Appellant’s fitness to practise was impaired in that she had denied dishonesty and had not understood the gravity of her misconduct.

In terms of sanction, the Court held that the 12 months suspension imposed was within the bracket of sanctions open to the Panel. It also considered that even if Article 8(1) of the ECHR was engaged, there was no breach because of the provisions of Article 8(2).


R (on the application of Johannes Philip Bonhoeffer) v GMC [2011] EWHC 1585 (Admin)

On 21 June 2011, the High Court delivered its judgement in the above judicial review proceedings. The Claimant, a consultant paediatric cardiologist, sought judicial review of the decision of the General Medical Council’s Fitness to Practise Panel, announced on Friday 29 October 2010, to admit the hearsay evidence of Witness A in fitness to practise proceedings brought against him by the GMC.

The fitness to practise proceedings related to allegations that the Appellant had sexually abused a number of boys whilst employed in Kenya in the 1990s.

The GMC chose not to call Witness A (a man in his twenties living in Kenya, who had indicated that he was willing and able to travel to the UK to give evidence in person to the Panel) to give evidence, and instead sought permission to rely on hearsay evidence from Witness A. That hearsay evidence took the form of transcripts of video-taped interviews of Witness A conducted by the Metropolitan Police in Kenya (the tapes themselves having been lost by the Police), a transcript of a conversation between Witness A and a third party (Witness Z), hearsay accounts given by Witness Z and a second witness as to what they were told by Witness A, and text messages sent by Witness A to Witness Z.

The GMC made this application on the grounds that, should he give oral testimony, Witness A faced risk of reprisals from both homophobic elements in Kenya and those who were loyal to the Claimant.

The GMC’s application was allowed by the Panel, which found that admission of the hearsay evidence was desirable pursuant to Rule 34(2) of its procedure rules in order to allow the Panel to fulfil its duty of making due enquiry, and was fair and relevant pursuant to Rule 34(1), noting its obligation to the Claimant and its duty to the public interest. The Claimant submitted that the Panel’s decision was irrational and in breach of his Article 6(1) right to a fair hearing.

The High Court found that no absolute rule existed under common law or Article 6 which entitled a person facing disciplinary proceedings to cross-examine witnesses on whose evidence the allegations against him were solely or partially based.

However, the High Court found that the Panel should have given consideration to whether the public interest justified an investigation based on hearsay evidence. The fairness of admitting hearsay evidence depended on the circumstances; it is of greater importance to ensure those accused of more serious allegations are afforded fair and proper procedural safeguards.

The High Court granted the Claimant’s application, concluding that on the specific circumstances of the matter before it, no reasonable Panel could have reasonably concluded that admission of the hearsay evidence was fair.


Ferguson v Nursing and Midwifery Council [2011] EWHC 1456 (Admin)

The Appellant, a registered nurse and midwife, appealed the NMC decision to suspend his registration.

The Appellant’s case was originally considered at an NMC Conduct and Competence Committee Panel ("CCC Panel") hearing which concluded on 14 October 2009. The charge against the Appellant related to claims that he had failed to provide an adequate standard of care to two patients, firstly on the night of 28 January 2004, and secondly, on 24 September 2005.

The Appellant admitted some of the allegations against him and the remainder were found proved after hearing evidence from eight witnesses. The CCC Panel found that the Appellant’s fitness to practise was impaired, and, noting that a striking-off order was not available under the statute (because it was an allegation of lack of competence), considered that a 12 month suspension order was proportionate and appropriate because of the very serious lack of competence and the continuing impairment of fitness to practise.

The CCC Panel also made an interim suspension order covering the period until the final order came into effect.

A CCC Panel then met on 25 October 2010 to review the substantive suspension order. The Appellant was present and informed the CCC Panel that he had not practised as a midwife since 2005, had not practised as a nurse since 2009, had not undertaken any courses, and had had no experience in a clinical environment since the substantive hearing.

The CCC Panel decided it was necessary to extend the Appellant’s period of suspension for a further 12 months.  The Appellant appealed by way of a Notice of Appeal which was filed on 17 November 2010. His appeal raised a number of grounds, some which related to the initial order of suspension made on 14 October 2009.

In deciding the appeal, Kenneth Parker J noted that the appeal relating to decisions made before and including 14 October 2009 had been filed over one year out of time, and could not properly be pursued.

Kenneth Parker J then considered the CCC Panel’s decision from October 2010, and held that it contained no obvious flaw, either in procedure or of substance, that would cast doubt on the legality of the decision. The CCC Panel had clearly and fully set out the reasons why the Appellant was not regarded as a competent nurse. Kenneth Parker J stated that the CCC Panel’s essential remit was to determine, giving regard to all the facts and circumstances, whether the Appellant’s deficiencies had been addressed. It was under no legal duty to provide guidance to indicate what steps a suspended nurse might take with a view to seeking to address identified deficiencies.

For those reasons, Kenneth Parker J upheld the decision of the CCC Panel and dismissed the appeal.


R (on the application of Nursing and Midwifery Council) v Fofanah (2011) [2011] EWHC 1346 (Admin)

This case related to an Interim Order. On 5 May 2011, the High Court considered the principles to be applied when considering an application under article 31 of the Nursing and Midwifery Order 2001 to extend an interim suspension order imposed on Mr Fofanah (“the Respondent”)’s registration as a nurse.

Mr Justice Lindblom held that the guidance given by the Court of Appeal in General Medical Council v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369 should be applied. In that case four criteria were considered: the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons for the failure to conclude the case, and the prejudice to the practitioner if the interim order is continued. The onus of satisfying the court that the criteria were met fell on the applicant regulatory body.

On 11 February 2009, the NMC’s Investigating Committee in its interim order capacity  considered allegations against the Respondent, including an allegation that he dragged a patient in his care across the floor by his ankles. On that date the Investigating Committee made an interim suspension order for 18 months. The Respondent did not oppose the order. The order was twice extended by the High Court and the latest extension was due to expire on 9 May 2011.

The final hearing before a Panel of the Conduct and Competence Committee (“CCC Panel”) had originally been fixed for September 2010. However, the Respondent made a successful application for adjournment on the grounds he was unfit to attend the hearing. The hearing was therefore rearranged for 1-3 March 2011.

The hearing proceeded on those dates, and the CCC Panel found the allegations against the Respondent proved. However, there was no time left for the CCC Panel to determine whether his fitness to practise was impaired nor for the CCC Panel to go on to consider sanction, if appropriate. The hearing was therefore adjourned part-heard until 24 June 2011.

The NMC was concerned that, without extension of the interim suspension order, there was at least 7 weeks in which the Respondent could resume working as a nurse once the interim suspension order expired on 9 May 2011. The NMC therefore made an application to the High Court to extend the suspension order by 8 months.

Lindbloom J applied the criteria from General Medical Council v Dr Stephen Chee Cheung Hiew [2007], concluding that the allegations were grave and had been proved, the risk of harm to patients was serious, the delay to the case was not solely the fault of the NMC, and that there would be no material additional prejudice to the Respondent if the interim suspension order was extended. The extension was therefore granted.


Harris v Solicitors Regulation Authority [2011] All ER (D) 218 Queen's Bench Division (Administrative Court), 28 June 2011

The Appellant, who had been a sole practitioner, appealed against a decision of the Solicitors Disciplinary Tribunal (“SDT”) that he should be suspended from practising as a solicitor for two years.

The Appellant had been accused of ten offences including failing to comply with the Introduction and Referral Code in conveyancing matters, providing inaccurate and misleading costs information, failing to keep accounts properly written up, wrongfully withdrawing money from client accounts, failing to remedy breaches promptly, using client funds for his own purposes, failing to disclose information and deliver account reports, drafting wills for his aunts from which he might benefit without advising them to seek independent legal advice, and making a wrongful transfer of funds using a loan.

The SDT held the Appellant should be suspended from practice for a period of two years, and stated that if he ever returned to practice, this must be in an employed capacity.

The Appellant appealed. His suspension was stayed pending the outcome of the appeal, which was on three main grounds: firstly, that the SDT had erred in law in having failed to address the standard of proof and had not made clear that it was to the criminal standard; secondly, that the decision to suspend had been excessively harsh and that cogent reasons for that decision had not been given, particularly taking into account the mitigating factors that had been summarised by the SDT; and thirdly that the SDT had erred in law in its findings on the evidence in respect of the proved allegations.

The Solicitors Regulation Authority (“SRA”) submitted in response that the Appellant had admitted eight of the ten allegations, therefore no standard of proof had been required in relation to them. Furthermore, the SRA contended that the two proven allegations had been in respect of a breach of mandatory professional rules.

In deciding the appeal, Mr Justice Supperstone held that, on the facts, the Appellant had pleaded guilty to eight of the ten allegations and had been found to have contravened two mandatory professional rules.

The SDT had properly considered the mitigating factors, and had considered a range of sanctions, but given the circumstances (including the seriousness of the breaches of the Solicitors’ Accounts Rules) the SDT had properly concluded nothing less than suspension should be imposed. The sanction imposed was therefore not excessive and the appeal was dismissed.


Case of X,Y,Z, Brian Morgan v A Local Authority [2011] EWHC 1157 (Fam)

In May 2011 an application was made to the High Court by a freelance journalist, Mr Morgan, to have the name of a paediatrician, Dr M, disclosed following a care proceedings case brought by Coventry City Council (the local authority), in which it relied on Dr M’s report in advancing its case of fictitious or induced illness.

The matter was heard by the President of the Family Division, Sir Nicholas Wall, who noted that the case raised a number of issues relating to circumstances in which expert witnesses in family proceedings should be identified, as well as issues relating to transparency in family justice. Dr M himself had left the question of his identification to the Court and did not support nor oppose Mr Morgan’s application.

The matter concerned both the Administration of Justice Act 1960 (AJA 1960) and the Children Act 1989. The President considered that as section 12 of the AJA 1960 did not in itself prevent Dr M’s identification two questions arose: firstly, whether restraint should be exercised to protect him, and secondly, if not, should publication of his report be ordered.

The President was faced with two principal arguments against disclosure. Firstly, an argument was put forward by Professor Stephenson (President of the Royal College of Paediatrics and Child Health) who advised of the wariness and concern amongst paediatricians about child protection work and how anonymity afforded them protection from vilification for their reports. Secondly, arguments were submitted by Dr M and, intervener, the Medical Protection Society (MPS) under the ECHR umbrella. It was argued that Article 8 was not limited to one’s personal life but should also be extended to professional activities and reputation, and moreover that the balance between Articles 8 and 10 (i.e. the rights of the media) lay in the contribution which the material made to public debate.

The President, having considered observations made by Munby LJ in A v Ward [2010] EWHC 16 (Fam), and considering the need for transparency in family proceedings, decided that there was no pressing social need for anonymity in this case. In relation to the report, he determined that a redacted form should be disclosed to allow a real debate about the nature of the advice and the terms in which it was given as well the doctor’s justification for his views.

The President did however note that there will be cases when anonymity of an expert will need to be preserved. The President noted that he would like to see a practice develop where experts are routinely encouraged to disclose their reports allowing the media to comment both on the report and on the way they were put to use in proceedings. If there are experts who are attacked for their views, judges may wish to give permission to the doctor to contribute to the debate and for any judicial reaction to be made public.


R (on the application of G) v The Governors of X School (2011) [2011] UKSC 30

The Supreme Court has delivered its judgment on school disciplinary proceedings and the right to legal representation in those proceedings.  It considered whether the governors' decision not to allow the claimant to have legal representation violated his rights under Article 6 of the ECHR.  The Supreme Court  found that Article 6(1) did not apply to the disciplinary proceedings in issue. The judgment follows the ECtHR in distinguishing between proceedings that are directly determinative of the civil right in question (in this case, the right to practise a profession and to work with children more generally) and those that have a more tenuous link. The Supreme Court endorses the "substantial influence" test formulated by Laws LJ in the Court of Appeal. The Supreme Court found that the school's disciplinary proceedings did not have a substantial influence over the Independent Safeguarding Authority's determination, citing the ISA's independence. Lord Kerr, dissenting, said that the ISA could and indeed should be substantially influenced by the findings of the disciplinary tribunal and that to focus on an individual stage in the process is mistaken.  See the Supreme Court's website for a summary of the judgment and the judgment itself.

 


Regulatory news

BMA secures amendments to Health Bill

The BMA has previously expressed that The Health and Social Care Bill should be withdrawn or at least undergo major changes after feedback from BMA members indicated high levels of concern about proposed reforms to the English NHS.  In its formal submission to the NHS Future Forum, the body leading the government’s listening exercise on the reforms, the BMA said the legislation represented “an enormous risk” at a time of significant financial pressure for the NHS. The BMA set out its own recommendations for changes intended to encourage the development of more integrated services and argued that greater collaboration would be more likely to improve quality and efficiency. The proposals intended to increase and enforce competition and these amendments were secured this month. The changes will be enforced through contractual mechanisms avoiding the need for amendments to the Bill.


BSB - Consultation Paper on Draft International Practising Rules Published

The Bar Standards Board has published a consultation paper on draft international practising rules intended to assist barristers undertaking international work. Suggesting that it is not practical to distinguish between instructions on the basis of location, the BSB has sought to restate the existing rules in a clearer form without significantly altering their effect. The paper is part of a series of consultations ahead of the new Code, scheduled for introduction in 2012.


Quality Assurance Framework for Criminal Advocates Approved by BSB

The Quality Assurance Scheme is a joint project by the BSB, SRA and ILEX Professional Standards which aims to promote the regulatory objectives identified in Lord Carter’s 2006 report, which identified a need to ensure that all advocates appearing in the criminal courts are operating to consistent standards. The scheme includes provisions for assessment of advocates against agreed standards and sets out four distinct levels of accreditation. The scheme has been approved by the BSB and SRA, and will be considered by ILEX Professional Standards in July. If approved, the proposals are expected to be submitted to the Legal Services Board in July.


CQC - Care Quality Commission Additional Functions (Regulations) 2011

New regulations enable the CQC to review on application a decision made pursuant to the High Security Psychiatric Services (Arrangements for Safety and Security at Ashworth, Broadmoor and Rampton Hospitals) Directions 2011 to withhold post or other items from patients and record or monitor telephone calls. 


GDC Launches Tooth Whitening Awareness Campaign

The General Dental Council has launched a campaign to raise public awareness of safety in relation to tooth whitening. In a publication entitled “Considering tooth whitening?” the GDC warns the public against tooth whitening conducted illegally by unregulated individuals. The GDC’s position is that tooth whitening constitutes the practice of dentistry, and therefore may only be lawfully conducted by GDC registrants.


GOC Publishes Protocol on Breaches of the Opticians Act

The General Optical Council (GOC) has published a new protocol setting out the way it will deal with breaches of the Opticians Act.  Offences that the GOC may prosecute include the illegal sale of zero-powered contact lenses, the sale of contact lenses without the involvement of an optician (including online sales), testing sight while unregistered and falsely claiming to be a registered optician.


GOsC - Osteopathic Practice Standards Consultation Report and Response

The final report from the Osteopathic Practice Standards consultation is available, together with a detailed response to the consultation. An equality impact assessment has been carried out to identify any equality and diversity issues that might arise from the introduction of new standards. Following this report, new Osteopathic Practice Standards will be published on 31 July 2011, to take effect from 1 September 2012.


GPhC - The General Pharmaceutical Council (Continuing Professional Development and Consequential Amendments) Rules Order of Council 2011

New Rules have been published, which set out matters relating to non-compliance with requirements or conditions of the continuing professional development framework and false declarations about compliance. The CPD framework relates to standards of proficiency for the safe and effective practice of pharmacy.


LSB publishes annual report for 2010/11

The Legal Services Board has published its annual report for 2010/2011. The report sets out progress in reforming legal services regulation.


LSB - Regulation of Referral Fees for Legal Services

The Legal Services Board has published its decisions about the future regulation of referral fees in the legal services market. The new guidance requires approved regulators to ensure that where referral fees are in operation, consumers are aware of this and know to whom they are being paid.


NMC Moves Quality Assurance In-House

The Nursing and Midwifery Council has announced that it will bring in-house its duty to ensure quality of nursing and midwifery education programmes in the UK. The decision is made as part of the NMC’s strategy to develop and implement a quality assurance process which will give the public confidence in the competence of newly qualified nurses and midwives.


NMC and Care Council for Wales sign MOU

The Nursing and Midwifery Council and the Care Council for Wales have signed a memorandum of understanding which sets out the framework for a working partnership between the CCW and the NMC. The partnership aims to safeguard the wellbeing of the public receiving health and adult social care services in Wales. The MoU sets out areas of cooperation between the two organisations and identifies named individuals with specific remits for ensuring that the spirit of the MoU is effectively implemented.


NMC gives evidence to Health Committee

Nursing and Midwifery Council Chief Executive and Registrar Professor Dickon Weir-Hughes has given evidence to the House of Commons Health Committee about nurses’ and midwives’ professional responsibility to report poor care. Professor Weir-Hughes stated that the NMC is developing new standards on delegation in response to the delegation of duties traditionally perceived as being associated with nursing to unregulated healthcare support workers.


SRA welcomes LSB decisions

The Solicitors Regulation Authority has welcomed the decision of Legal Services Board to approve its new handbook. The new handbook, which sets out the standards and requirements for principle-based, outcomes-focussed regulation, will come into effect on 6 October 2011. The LSB has also approved the SRA’s licensing authority application, which now goes forward for Parliamentary approval.

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