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Public & Regulatory Law Alert - May 2011

Matthew Lohn


United Kingdom

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Case News

Regulatory News

Case news


CHRE v NMC and P Grant [2011] EWHC 927 (Admin)

On 14 April 2011 the Administrative Court delivered an important judgment in relation to the interpretation of R (on the application of Cohen) v GMC [2008] EWHC 581 and the way in which healthcare regulators should interpret "impairment".
In April 2010 Ms Grant, a registered nurse and midwife, was found guilty by the NMC's Conduct and Competence Committee of misconduct but the Committee did not find her fitness to practise was impaired. CHRE brought an appeal against this decision the basis that it was unduly lenient.
The charge related to events which extended over a total period of 20 months between March 2006 to November 2007. Complaints had been made by a patient, a former colleague and her employing NHS Trust. The particulars which were found proved related to failing to support and assist a junior colleague by failing to examine a patient in labour when asked to do so, subjecting a junior colleague to bullying and harassment, failing to provide appropriate care during a stillbirth delivery and failing to properly supervise or report the birth and death of a premature baby. The vast majority of the allegations were denied and the Committee had to make findings of fact, often on the basis of conflicting evidence. The first part of the case was heard in December 2009.
Following the findings of fact the case went part heard and resumed in April 2010. The Registrant gave evidence for a second time referring to a period of supervised practice and a number of courses she had attended from June 2009. She was closely questioned to test her assertion that she had truly reflected on her conduct, had insight and had effectively been rehabilitated. Two senior colleagues attended and gave evidence declaring that they were satisfied with the progress Ms Grant had made during the period of supervised practice, that there were no problems whatsoever with her clinical practice and that she was a dedicated and competent midwife. 
In closing submissions, legal advice and ultimately the Committee's decision much was made of what was described as Mr Justice Silber's 3 fold "test" from the case of Cohen. Following their finding of misconduct the Committee asked itself: Is the conduct of the Registrant remediable? Has it been remedied? Is it highly unlikely to recur?
Whilst the Committee referred to the registrant as having behaved arrogantly and impatiently they concluded she had addressed her poor performance and come to terms with her failings. They remarked on a change of demeanour the second time she gave evidence. They concluded the behaviour was remediable and had been remedied and that it was most unlikely that the registrant would commit misconduct again.
In giving its judgment the Court emphasised that it was important to read Silber's J decision in Cohen in full and not to ignore the important paragraphs that preceded his reference to the remediability of the misconduct. The Court stressed the fundamental considerations were the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. The key message from the Grant case is the need to have regard to the wider public interest in determining questions of impairment of fitness to practise. Mrs Justice Cox at paragraph 74 commented that in determining whether a practitioner's fitness to practise is impaired by reason of misconduct the panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.
The wider public interest was not referred to anywhere in the decision of the Committee on the issue of impairment. The Court found that the misconduct running through the various heads of charge raised serious attitudinal or behavioural issues rather than issues of clinical competence. The decision of the Committee was judged to be manifestly inappropriate and unduly lenient.


Paul Baxendale - Walker v David Middleton & 8 Others [2011] EWCH 998 (QB)

On 18 April 2011 the High Court delivered their judgement in the above case which concerned issues of absolute privilege or immunity, abuse of process, witness privilege and judicial immunity. The court was required to determine whether to strike out particulars of claim against various defendants.

The Claimant, a former solicitor, specialised in tax law and advised on tax avoidance schemes. Regulatory and disciplinary proceedings were brought against him following an allegation that he had a conflict of interest in his operation of the schemes. Conditions were placed on his Practising Certificate and in 2005 he was suspended for a period of three years. 

The First and Second Defendants are employed by the Solicitors Regulatory Authority ("SRA"). The SRA is responsible for discharging the regulatory functions of the Law Society, the Third Defendant. Together, referred to as "the Law Society Defendants".

The Fourth and Sixth Defendants were partners of Deloitte & Touche LLP ("Deloitte"), the Seventh Defendant, engaged to produce a report on the legality of some of the tax avoidance schemes of the Claimant. Together referred to as the "Deloitte Defendants". The Fifth Defendant was also employed by Deloitte, assisted in producing the report but is not party to these applications as he disputes that he had been served with the proceedings.

The Eighth Defendant, was Chairman of the Panel of the Solicitors Disciplinary Tribunal ("SDT"), the Ninth Defendant.

By way of background, on 4 June 2010, the Claimant issued the present claim against the Law Society. The Claimant was required to amend the Claim Form and Particulars of Claim and on 3 August the Amended Claim Form was issued and subsequently served, along with the replacement Particulars of Claim dated 29 July 2010.

The Claimant's pleaded case against the First, Second, Fourth and Sixth Defendants was that they had committed the torts of conspiracy to injure, conspiracy to defraud, conspiracy to use unlawful means and malicious falsehood. Additionally, the Claimant alleged the First, Second and Eighth Defendants had committed the torts of misfeasance in public office.

The Defendants all submitted that the Claimant's claims had no real prospect of success. The Law Society Defendants contended that the Claimant’s claim should be struck out on two further grounds: 1) on the basis of absolute privilege or immunity applying to conduct in the course of disciplinary investigation and 2) that the Claimant’s claim amounted to a collateral attack upon a final decision. The Deloitte Defendants added a further ground for striking out the claim, arguing that their report was protected by witness privilege due to the fact that it had been prepared for the purposes of disciplinary and regulatory proceedings. The disciplinary tribunal defendants contended that the claim should be struck out on the grounds of judicial immunity.

The applications by the First, Second and Third Defendants

The High Court determined that there was no real prospect of any of the causes of action pleaded against the Law Society Defendants succeeding.

The High Court held that the actions of the Law Society Defendants were protected by absolute privilege and immunity and that the Claimant's claims should also be struck out on this basis. On reaching this decision, The High Court followed Darker v Chief Contable of West Midlands Police [2001] 1 AC 435 and referred to Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 442, in which Lord Esher stated that immunity applies to any "authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes".

The court also noted Gray v Avadis [2003] EWHC 1830 (QB) where it was decided that the SDT and the OSS (and presumably now the SRA) are tribunals exercising functions equivalent to a court of justice and thus benefitting from absolute immunity.  

The High Court further held that the Claimant's claim should be struck out on the basis of abuse of process, following Hunter v Chief Constable of the West Midlands Police [1982] 1 AC 529 where Lord Diplock stated that it was an abuse of process to initiate 'proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made." 

The High Court noted that in making this claim, the Claimant sought to go behind the decision of the Master of the Rolls to impose certain conditions of the Claimant’s practising certificate and the decision of the SDT to strike him off. As such, the Claimant’s actions amounted to an abuse of process.

The applications of the Fourth, Sixth and Seventh Defendants

Following the decision of the High Court that the Claimant had no real prospect of success against the Law Society it was the view of the court that the Law Society Defendants did not "recruit" the Deloitte Defendants to any conspiracy and therefore the Claimants claim against the Deloitte Defendants has no real prospect of success and should be struck out.

The High Court also held that the Claimant's claim against the Deloitte Defendants should also be struck out, on the grounds of witness privilege, following Marrinan v Vibart, on the basis that a witness in proceedings cannot be the subject of any civil claim in respect of the evidence he gives. Furthermore, as the proceedings before the SDT qualified as judicial proceedings (Gray v Avadis) for which the report was commissioned, the Deloitte Defendants enjoyed the benefit of absolute witness privilege.

The applications made by the Eighth and Ninth Defendants

With regard to the Eighth Defendant the High Court held that there was no proper basis for the Claimant’s claim against him and had no real prospect of success and therefore should also be struck out. The court also agreed that the case should be struck out on the basis on judicial immunity (Gray v Avadis applied).

The claim against the Ninth Defendant must also fail on the grounds that the SDT is a statutory tribunal and does not have a corporate identity or legal personality separate from its members. Therefore it is not capable of being independently liable in damages.

The application was granted.


Regulatory news


GDC - Call for ideas about Scope of Practice

The General Dental Council (GDC) wants to hear from dental professionals as part of its review of one of its key documents - Scope of Practice. The guidance was first published in January 2009 and sets out the skills and abilities that each registrant group should have. An online feedback exercise is being launched to find out whether Scope of Practice has achieved its original aims and whether the lists still accurately reflect the scope of practice for all the registrant groups. Any feedback received will feed into the development of the formal consultation that will run later this year with the aim of producing new guidance in 2012.

GCC - Announces retirement of Chief Executive & Registrar

The General Chiropractic Council (GCC) have announced that their Chief Executive & Registrar, Margaret Coats will retire on 17 June 2011The General Chiropractic Council (GCC) have announced that their Chief Executive & Registrar, Margaret Coats will retire on 17 June 2011The General Chiropractic Council (GCC) have announced that their Chief Executive & Registrar, Margaret Coats will retire on 17 June 2011The General Chiropractic Council (GCC) have announced that their Chief Executive & Registrar, Margaret Coats will retire on 17 June 2011.


GMC - New covert recording guidance Issued

The General Medical Council (GMC) has issued new guidance in relation to the covert recordings of patients and using mobile phones to record consultations. The guidance 'Making and using visual and audio recordings of patients' sets out what doctors must do when recording patients for any purpose, including treatment, research, education or public media. The guidance can be viewed on the GMC's website here.

GMC - Views sought on plans to change guidance on prescribing unlicensed medicines

The GMC is consulting on new plans to allow doctors to prescribe a cheaper off-label or unlicensed alternative to a licensed medicine. The GMC has presented draft guidance "Good practice in prescribing and managing medicines and devices" which specifies that the alternative must be as safe and effective, and approved in authoritative clinical guidelines. The GMC has also sought to temper the increase in medicine being purchased online by proposing a requirement for doctors prescribing via websites to liaise with the patient's GP. A link to the draft guidance can be read here.


NMC - Complaints against nurses and midwives rise by 57 percent

The NMC has experienced a record year on year increase in the number of complaints against nurses and midwives. The NMC received 833 new referrals in January and February of this year compared to 530 for the same period in 2010 - an increase of 57 per cent. The NMC said that, whilst more detailed work is needed to understand the precise reasons for the increase, the volume of new complaints referred from employers and particularly from members of the public is significant.

NMC - New advice for Botox® nurses and midwives

The advice, 'Remote prescribing and injectable cosmetic medicinal products' makes clear the NMC's position that remote prescriptions or directions to administer should not be used to administer injectable cosmetic medicinal products such as Botox®. The advice document can be reviewed here.


NMC - backs Unison handbook for nurses to raise concerns

Unison has launched guidance at its annual health conference on raising concerns about patient safety, following the Mid Staffordshire Hospital crisis. The "Duty of Care Handbook" aims to give all members of staff the confidence to raise concerns, even if bringing them into conflict with management. It is being backed by the NMC and the Health Professions Council (HPC).

OFSTED - Education Committee scrutinises the role and performance of OFSTED

In its second report of Session 2010/11 the Education Committee scrutinises the role and performance of OFSTED. The Committee concludes OFSTED has grown too big to discharge its functions as efficiently as smaller, more focussed and specialist organisations might. It recommends that OFSTED should be divided into two new organisations - the Inspectorate for Education and the Inspectorate for Children's Care. The full report can be viewed here.

GSCC and CQC - strengthen commitment to public safety with new partnership

The General Social Care Council (GSCC) and the Care Quality Commission (CQC) have joined forces in a new partnership by signing a memorandum of understanding (MoU). The MoU sets out the framework for a working partnership between the CQC and the GSCC in order to safeguard the wellbeing of the public receiving health and adult social care services in England. The full article can he read here.


HPC - Anna van der Gaag re-appointed as Chair for four more years

The Health Professions Council (HPC) is pleased to announce the re-appointment of Anna van der Gaag as Chair for four more years, until July 15 2015. Anna was initially appointed as Chair by the Health and Social Care Appointments Committee of the Appointments Commission 1 July 2009.

SRA - Board approves key changes to financial protection

The Board of the Solicitors Regulation Athority (SRA) has approved key changes to the arrangements for client financial protection, following receipt of more than 300 responses to its consultation. A policy statement was published on 18 April, setting out full details of the arrangements. The main changes are in relation to the operation of the Assigned Risks Pool (ARP). Further details can be found here.


SRA - launches review of CPD rules

The SRA has launched the first review of continuing professional development obligations. The aim is to produce a new scheme to improve solicitors' competence and ethical conduct. Professor Andrew Boon (Westminster University) has been appointed to carry out the work. The research will feed into the wider review of legal services education and training launched earlier this year by the SRA, the Bar Standards Board and Institute of Legal Executives Professional Services.


LSB - Publishes its Business Plan for 2011/12

The Legal Services Board (LSB) have published its Business Plan for 2011/12. This follows a consultation on the draft work-plan published in December 2010. The Plan sees the Board maintain its focus on its three early priorities including independence, competition, and complaints-handling.


GPhC - new CPD framework and rules agreed

A new framework and set of rules for continuing professional development have been approved by the General Pharmaceutical Council (GPhC). However the Council Members hold the view that there needs to be some long-term thinking and evidence gathering to establish the cost-effectiveness of the CPD process. This needs to take into account both the regulator and the registrants, and also ensure that it is an effective way of ensuring registrants' fitness to practice.

The new CPD framework and rules can be found here.

FRC - AADB issues guidance for prosecution decisions under its Accountancy Scheme

The Accountancy and Actuarial Discipline Board (AADB), an operating body of the Financial Reporting Council (FRC), has issued guidance to its Executive Counsel in respect of decisions to deliver disciplinary complaints under its Accountancy Scheme. The guidance was developed taking particular account of the absence of an alternative to a disciplinary hearing for dealing with alleged misconduct and is designed to ensure that a case that meets evidential requirements should normally be the subject of a disciplinary hearing unless that is clearly not in the public interest. The guidance can be reviewed here (Guidance is appendix 1 of the document).


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