Public and Regulatory Group predictions for 2017
As we enter 2017 the Public and Regulatory team at Fieldfisher has been considering its predictions for legal developments in the sector in the year ahead. Here are a few of the areas we think are "ones to watch":
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Regulators may seek that "adverse inferences" be drawn in relation to registrants who do not attend their fitness to practise/regulatory hearings.
In legal regulation cases such as Iqbal v Solicitors Regulation Authority [18 May 2012] and Ashiq v Bar Standards Board [2013] (which we covered here) the Courts have indicated that the public would expect a professional person to account for their actions, and suggested that the legal regulators could potentially update their practices so that an adverse inference might be drawn, where a registrant failed to give evidence. In April 2015 Turner J suggested in Radeke v GDC [2015] EWHC 778 that adverse inferences might be drawn in circumstances where an absent registrant fails to produce a witness statement. Most recently in October 2016 we saw a similar comment in Kearsey v Nursing and Midwifery Council [2016] EWHC 1603 (Admin) (which we covered here) in which Ouseley J proposed that the NMC might wish to consider permitting its panels to draw adverse inferences in circumstances where a registrant fails to attend a hearing into matters which call for the registrant's explanation. Could 2017 be the year in which regulators amend their procedures and hearing notices and start to warn registrants of a duty to give an account and the potential for adverse inferences where they fail to do so?
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The Great Repeal Bill will be revealed.
The House of Commons Library has estimated that 13.2% of UK primary and secondary legislation enacted between 1993 and 2004 was EU related, the review of all EU-related legislation since 1972 therefore makes this one of the largest legislative projects ever undertaken in the UK. The Government has indicated that the Great Repeal Act will seek to provide certainty as to what will happen on day 1 post Brexit. Whilst some envisage the Bill will simply be the greatest ever "saving provision", essentially keeping everything in place despite the repeal of the European Communities Act 1972, others have observed that certain provisions will require transposition in order to be operable (eg in the absence of access to EU institutions such as the European Medicines Agency), and environment secretary Andrea Leadsom has told a commons committee that only two thirds of existing EU environmental legislation could be 'rolled forward' with minimal technical changes. The stated intention is "to maintain a robust legal and regulatory framework where that had previously depended on EU laws". It is a statement of the obvious that Brexit; its political, legal and social ramifications will dominate 2017, but in the regulatory space public bodies and regulators will need to examine whether the Repeal Bill adequately addresses and navigates their requirements, and any additional responsibilities.
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The role of Indicative Sanctions Guidance will be reviewed by the Court of Appeal when it hears the case of Professional Standards Authority v HCPC and Mr B Doree in late January 2017.
The HCPC’s Conduct and Competence Panel found that its registrant, Mr Doree, had bullied one colleague, and sexually harassed another. The original HCPC Panel in 2015 noted that Mr Doree: ‘deliberately drove a car at a colleague, bullied a colleague by invading his personal space, name calling and use of insulting and intimidating behaviour. In addition he had demonstrated inappropriate sexual behaviour towards another colleague by the use of offensive language, vulgar, sexual innuendo and mime, and discussion of wholly inappropriate topics of a sexual nature. This behaviour was unwanted and unwarranted with a significant sexual element and clearly falls well below the standards expected of a registered professional.' The Panel decided to issue a 5 year Caution. The Professional Standards Authority considered this to be unduly lenient and appealed the HCPC’s decision. The High Court’s judgment in the case not only upheld the HCPC’s decision, but contained a number of comments that may have implications for other fitness to practise hearings. Permission to appeal to the Court of appeal was granted in May 2016.
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After permission was granted in November 2016 the Supreme Court will determine whether the Employment Tribunal has jurisdiction to hear a complaint against a qualifications body under section 120 of the Equality Act 2010 (a term which will apply to many regulators), or whether the ET's jurisdiction is ousted by section 120(7) EA 2010 because of the availability of judicial review.
Michalak v General Medical Council and others [UKSC 2016/0084] will be heard in 2017 when the Court will consider the previous case law developed in Jooste v GMC [2012] EQLR 1048. The Court of Appeal decision was that the existence of judicial review does not preclude the use of the ET because that was never the intention of Parliament and the ET has a sufficient jurisdiction with appropriate remedies which should be used before recourse to judicial review is contemplated. This will be an important case for determining how claims relating to protected characteristics should properly be pursued.
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Disciplinary cases may be publicised differently.
In September 2016 the NMC issued new Publication Guidance and announced that it had taken the decision to no longer publish detailed draft charges ahead of the hearing. It will publish the Nurse or midwife’s name, PIN and the part(s) of the register on which they appear; date and venue of the hearing; the county where the events that are the subject of the allegation took place, or, where that is not relevant (for example in conviction cases where the conviction does not relate to the nurse or midwife’s practice), the county of the nurse or midwife’s registered address and the type of allegation against the nurse or midwife which will be the subject of consideration by the panel. It will no longer publish detailed charges against a nurse or midwife before the hearing starts having decided that putting such information into the public domain at this stage is disproportionate and can be prejudicial to a nurse or midwife, in that the charges may be subsequently amended and/or not ultimately proved by the NMC. Once the charges have been confirmed to the panel on the day of the hearing, these will be available upon request. The 2016 case of SRA v Spector [2016] EWHC 37 made clear however that non-publication of disciplinary outcomes will not usually be acceptable as there is a general interest in the public being able to know the identities of those subject to disciplinary proceedings; open justice is an important common law principle, departures from which must be justified and an appearance before a disciplinary tribunal does not assume a taint on character, and in any event this is not sufficient justification for departing from principle of open justice.
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Proportionality as a freestanding ground in judicial review?
Most observers consider that proportionality will, at some point, become a freestanding ground of judicial review in some form, and will swallow the narrower Wednesbury/irrationality test. In part, the courts have been moving in this direction for some time, subjecting decisions which affect 'fundamental' common law rights to more 'anxious scrutiny' when considering whether or not they are irrational in the Wednesbury sense. In addition, the influence of the domestic incorporation of the ECHR has led to the courts becoming far more comfortable in conducting a balancing exercise when ECHR rights are in play than they were prior to 2000. In Keyu v Secretary of State for Foreign Affairs and Defence [2015] UKSC 69 the Supreme Court sidestepped the question for the moment, stating that the issue could only be decided by a nine-judge panel (largely due to its significance and the weight of prior precedent to the contrary). Although it is unlikely that the proportionality floodgates will fully open in 2017, the issue will remain a live one. The recent suggestions that the Prime Minister may seek in due course to repeal the Human Rights Act have the potential to crystallise the issue sooner rather than later.
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More regulators will consider the use of Alternative Dispute Resolution procedures as an adjunct to professional disciplinary procedures.
In October 2016 the Royal College of Veterinary Surgeons began its second ADR trial to resolve client concerns without regulatory involvement, with a view to a potential full roll out in 2017. This scheme largely follows the structure of the Optical Consumer Complaints Service, an independent and free mediation service for consumers (patients) of optical care and professionals which is funded by the General Optical Council. A range of regulators (including the NMC, FRC, RICS, HCPC, BSB and GPhC) have operated consensual disposal schemes for some time, and this appears to be a general trend. In addition, the NMC will soon have the power to agree undertakings with registrants without the need for fitness to practise proceedings but where there are deficiencies in practice which need to be remedied. We anticipate that a number of other regulators may seek to pilot and consult on similar proposals in due course. While the need to protect the public means that the regulatory world will never enjoy Alternative Dispute Resolution on the scale of civil proceedings, we are continuing to move away from the historic model of 'discipline or bust'.