Public and Regulatory Law Group Alert: October 2012
Welcome to the PRG's October alerter. This month's edition includes news that the SRA is looking into solicitors' conduct relating to the Hillsborough tragedy. The GMC are looking into the significant increase in complaints against its doctors in recent years, and the NMC have announced that their website will publish details of struck off nurses and midwives, indefinitely.
This month the Court has confirmed its position regarding the extension of interim orders in GMC v Srinivas, reiterating that the Courts can have regard to the fact that the GMC's Interim Orders Panel could impose conditions on a doctor's registration if the Court declined to extend a Suspension Order.
In Camelot v Gambling Commission, Camelot sought to challenge the Commission's licensing of the Health Lottery Scheme. The Court struck out the claim, stating that Camelot was aware of the Commission's intentions and should have taken action sooner than it did if it considered the Commission was acting unlawfully.
The judgement of the Football Association's Regulatory Commission against Chelsea footballer John Terry was released on 5 October 2012.
Dr Srinivas (S), a locum GP, originally faced criminal allegations of unwarranted intimate examinations of female patients, and was subsequently charged under the Sexual Offences Act 2003. S was eventually acquitted (after a retrial) in October 2011.
The GMC's Interim Orders Panel ('the Panel') imposed an interim order of conditions upon S' registration on 27 July 2009. The Panel later imposed an interim suspension order on S on 10 June 2010, shortly after he had been formally charged under the Sexual Offences Act 2003.
After S' acquittal, the GMC proceeded to conduct its own investigation into the allegations and in May 2012, the GMC received new information relating to patient records which could have resulted in further, serious allegations being brought against S.
The General Medical Council applied to the High Court for an extension of 6 months to an interim suspension order against (S) under s. 41A(6) of the Medical Act 1983.
This application to the Court was the fourth application by the GMC to extend the suspension order. The GMC claimed that it needed to obtain further evidence, and argued that it may then become necessary for it to serve a notice setting out the allegations against him under Rule 7 of the Fitness to Practise Rules to which S would have 28 days to respond. The GMC would then require further time to refer the case to the Fitness to Practise panel. S argued that the GMC had already had sufficient time to deal with the case.
The GMC argued that the Court could not have regard to the fact that were an extension refused, the Panel could instead make an order imposing conditions on S' registration. However, the Court considered, it could not overlook the potential for the subsequent imposition of conditions, and if the grant of extension was refused, then the Panel could revisit the matter on the basis that there had been a material change in circumstances. Citing GMC v Hiew  EWCA Civ 369, the Court considered the gravity of the allegations against S, the nature of the evidence, the risk of harm to patients, the reasons why the case had not been concluded and the prejudice to S if the interim suspension order was extended.
The Court decided that the new information received by the GMC relating to patient records was significant and that the GMC needed to fully investigate it. It noted that the Panel had considered that there were no conditions which would adequately protect members of the public or the public interest, and that suspension was the proportionate response. The Court 'accord[ed] that view great weight' and expressed agreement with it.
The High Court rejected S' argument that the fact that he had been acquitted of criminal allegations meant that he did not have to answer the GMC's allegations relating to sexual misconduct; the fact of his acquittal 'cannot prove his innocence' in the regulatory proceedings. The interim suspension order was extended for 4 months and the Court warned that if the GMC later wished to extend it then it must demonstrate to the Court that it had since acted with expedition.
Camelot UK Lotteries Ltd (C) applied for permission to judicially review the Gambling Commission's (G) regulatory action in respect of the Health Lottery scheme. G had granted operating licences to the Health Lottery scheme. The Health Lottery ELM Ltd was licensed to manage and operate a weekly lottery on behalf of 51 Community Interest Companies (CICs). The CICs were granted operating licences by the G. They decided to outsource the management and day to day conduct of their lotteries to the Health Lottery ELM Ltd. The CICs had been set up to raise money for health projects, each in a specific area of the UK. Each week the lottery was to be operated and managed for at least one CIC, with additional CICs joining as more tickets were sold in order to prevent any one CIC from exceeding the threshold of proceeds allowed for a single lottery under section 99 of the Gambling Act 2005 ("the Act"). The Health Lottery was launched on 29 September 2011.
C issued proceedings on 22 March 2012. It argued that the CICs had been established for the private gain of the Health Lottery ELM Ltd, in breach of section 19 of the Act which defined the concept of a 'non-commercial society' to which operating licenses could be granted. C also claimed that in reality there was one single Health Lottery, meaning that the restrictions on proceeds in section 99 of the Act were breached. It argued that it had not delayed in bringing the claim so as to disentitle it to relief. In response, G stated that the scheme was legal and complied with the Act. In addition, it contended that permission should be refused on the grounds of delay.
In June 2012, after C had issued proceedings, G informed C that as a result of ongoing compliance work it had commenced a statutory review of the licences that had been granted to the Health Lottery ELM Ltd and the CICs, on the grounds that it had concerns about their marketing of the lottery scheme. In response, C applied for permission to amend its grounds and argued that the review initiated by G was unlawfully restricted and ought to have been broader.
The court refused C's application for permission on the grounds of delay and a failure to establish a claim with a real prospect of success. The court found that C must have been aware of the relevant facts in February 2011 and should have raised the issue with G shortly afterwards. If G had not accepted C's assertions then legal proceedings should have followed immediately. The need for speed should have been clear to C as it must have been aware of the substantial expenditure involved in launching the Health Lottery scheme.
The court found that the CICs were not in breach of section 19 of the Act, which had been correctly construed by G. The Act did not require an external lottery manager (in this case the Health Lottery ELM Ltd) to be non-profit making. It followed that the fact that such a manager would make profits that would involve private gain was not an infringement of section 19(1) by the CICs that contracted with it. Such an arrangement did not mean that the CIC was established and conducted for private gain.
In relation to whether there was one single lottery, the court found that although the CICs were under common control, they were separate legal entities. The fact that they had common directors did not in itself justify their being treated as a single corporate entity. Furthermore if each week's lottery was for a different CIC there was no legal basis for aggregating the proceeds of each of them for the purposes of section 99 of the Act. The fact that the CICs all employed the same lottery manager did not allow their separate proceeds to be amalgamated in order to ascertain whether the limitation on annual proceeds had been breached. For these reasons the court found the claim had no real prospect of success.
In respect of C's application to amend its claim in relation to the 'limited' extent of the review, the Court found that G had not acted outside of its discretion in deciding on the scope of the review that it had commenced. Permission to amend the claim was refused on the ground that the amended claim had no real prospect of success.
Analysis of the Football Association's disciplinary findings against John Terry
The recent and well publicised decision of the Football Association's Regulatory Commission against Chelsea footballer John Terry has presented an interesting reflection of Regulatory bodies' jurisdiction to consider disciplinary allegations after a respondent has been acquitted of criminal allegations.
During a match between Chelsea and Queens Park Rangers on 23 October 2011, Mr Terry was alleged to have racially abused QPR's Anton Ferdinand. After a police investigation, Mr Terry was charged with a racially aggravated public order offence. After a week-long trial, Mr Terry was acquitted by Westminster Magistrates' Court.
The FA subsequently charged Mr Terry with misconduct, specifically use of abusive, insulting words and/ or behaviour, including reference to Mr Ferdinand's skin colour and/ or race. Mr Terry denied the charge and, in light of his acquittal by the court of an offence on the same facts, challenged the jurisdiction of the FA to bring disciplinary proceedings against him.
The parties' preliminary arguments on jurisdiction revolved around interpretation of the FA's Disciplinary Regulations and whether the FA was entitled to bring a case before the FA's Regulatory Commission. Mr Terry argued that his acquittal by the court acted as a procedural bar to the FA's pursuit of a disciplinary case against him. The Regulatory Commission disagreed and found as follows:
- As the FA is the governing and regulatory body of English football, there was a public interest in "a proper and effective system of regulation to investigate and discipline those who are subject to its Rules and Regulations", which protected victims of racial abuse, ensured such behaviour is shown to be unacceptable, and protected the reputation of the game; and
- Because of the different standards of proof in criminal and disciplinary proceedings (these proceedings requiring the civil standard of proof), there was no such bar in disciplinary allegations being brought against a respondent where the subject matter was identical to criminal proceedings of which the respondent was acquitted. Rather, such disciplinary proceedings were subject to the rules and regulations of the disciplinary body.
Mr Terry argued also that without new evidence which had not been put before the court, the FA would have an impermissible "second bite of the cherry" whilst only needing to rely on the lower, civil standard of proof. The Regulatory Commission considered that this was only the FA's "first bite" and stated, furthermore, that "the purpose of the criminal proceedings that were brought by the Crown was not to regulate football".
Mr Terry also claimed that the fact of his acquittal, and the facts which had supported it, was all that the Regulatory Commission needed to consider from the criminal trial. The Regulatory Commission found differently, however, and stated that it should have regard to all of the findings material to the Court's decision to acquit Mr Terry. Only by judging such evidence in its full context could the Commission come to a balanced view of the Chief Magistrate's decision.
Having decided that it had jurisdiction to hear the FA's disciplinary allegations against Mr Terry despite his acquittal by the court, and based partly on new evidence which was not put before the court, the Regulatory Commission found the FA's allegations proved. It speculated that the court would not have found in favour of Mr Terry had it considered the prosecution only on the civil standard of proof.
The FA's stance is consistent with and mirrors the authority of Bhatt v General Medical Council  on the question of whether a Regulator can bring disciplinary proceedings against a respondent after the respondent has been acquitted of criminal proceedings arising from the same events. The case establishes that there is no bar to disciplinary proceedings being brought against a respondent despite them previously being acquitted of similar or identical criminal charges.
The High Court disagreed with Dr Bhatt's submissions in that case and decided ultimately that it was not an abuse of process for a disciplinary panel to revisit matters in the course of professional regulation upon which a respondent had been acquitted in the criminal court. The High Court's reasoning was as follows:
- The purpose of disciplinary proceedings, to maintain proper standards in the profession in the best interest of the public and the profession, is different than that served by the criminal courts;
- The 'significantly' different standards of proof in civil and criminal proceedings prevents potential inconsistency between acquittal by a jury and a finding by a disciplinary panel that allegations are proved;
- The admissible evidence before a disciplinary panel may differ to that put before a criminal court, and furthermore the rules of evidence were likely to differ between the two;
- A disciplinary panel's integrity and independence in exercising its jurisdiction over its own affairs is accorded great respect by the Court; citing R (Phillips) v GMC , "responsibility for deciding whether its procedures have been abused should, unless weighty circumstances point to another conclusion, be decided by [the disciplinary panel]". It was held that the Panel had correctly considered that the prejudice that would be caused to Dr Bhatt and his family in facing his accusers once more did not constitute sufficiently "weighty circumstances" here.
See also: R (Redgrave) v Commissioner of Police for the Metropolis , Ziderman v General Dental Council 
The Solicitors Regulatory Authority has launched an investigation into the role and conduct of solicitors involved in legal proceedings following the Hillsborough disaster, after the Independent Panel identified serious concerns. No complaints about any solicitor involved have been made to the SRA. More information about this investigation can be found here.
LSB Discussion Paper 'How can we measure access to justice for individual consumers?'
The Legal Services Board has published a discussion paper setting out a range of indicators in order to baseline access to justice and monitor change over time. This will allow the LSB to evaluate the impact of reform against its regulatory objectives. The discussion paper can be viewed here.
Response to LSB 'quality' consultation
The LSB has published the response to its consultation relating to approaches to quality in the legal services market. It has decided that three key themes should be established as a guide to addressing quality risks, and the LSB will not be prescribing in detail how risks should be addressed. The approach taken and further details about this consultation can be seen here.
GMC Pilot Scheme
The General Medical Council has launched a trial of two new systems to improve the investigation of complaints against doctors. These processes involve meeting with doctors who have been subject to an investigation and also meeting with patients and relatives who have raised concerns about doctors. It is hoped that this might bring about resolution of concerns more quickly and without the need for a hearing. For more information about the schemes please click here.
GMC publishes Child Protection Guidance
New guidance published by the GMC to help doctors protect children from abuse and neglect came into effect on 3 September 2012. The guidance makes it clear that doctors have a duty to find out if a child is at risk, even if only an adult is being treated. For further details and to view the guidance in full please click here.
The GMC recently hosted a conference for healthcare leaders from across the UK, to explore issues and challenges relating to regulating in a fair and impartial way. The conference 'Being fair: challenges and opportunities' was chaired by Dame Julie Mellor on 12 September 2012 and was designed to 'stimulate debate' amongst related organisations. For further details on this conference click here.
Complaints against doctors
A GMC report has revealed that complaints against doctors have hit a record high, increasing by 23% between 2010 and 2011. The GMC says there is no evidence that this indicates a falling standard of care in medical services and it is working hard to better understand the reasons behind the increase. Further information and the full report entitled 'The state of medical education and practice in the UK' can be viewed here.
Professor Sir Peter Rubin becomes as first appointed GMC Chair
Professor Sir Peter Rubin has become the first appointed chair of the GMC which represents a change in the way the GMC will be governed. On the back of a distinguished medical career, he will now lead the appointments process for the other members of the Council. The Council will start its term of office in January 2013. For further details on this appointment click here.
NMC and GMC issue joint statement
The Nursing and Midwifery Council and the GMC have issued a joint statement reminding healthcare providers of their professional values. In particular, it emphasises the requirement for commitment to quality, patient safety, willingness to uphold high standards and to raise concerns regarding poor practice. The statement follows a series of complaints about neglect of the elderly or those with learning disabilities. The statement can be read in full here.
NMC to publish struck off registrants indefinitely
The NMC Council has voted to make the details of nurses and midwives struck off the register available on the online register indefinitely. This decision has followed recommendations made by the CHRE and will take effect from January 2013. Further details can be found by clicking here.
NMC Annual Report and Accounts 2011-2012
The NMC has presented its annual report, accounts and fitness to practise report for 2011-2012 to parliament. Acting Chief Executive and Registrar Jackie Smith, acknowledged that the year had been a challenging one for the organisation, and that it was working hard to carry out its fundamental duty to protect the public. The reports can be found here.
New standards for pharmacy owners and superintendents
The General Pharmaceutical Council agreed new standards on 13 September which aims to secure best outcomes for patients. The standards will set out the requirements for pharmacy owners and superintendents when operating a registered pharmacy. For further information about the standards please click here.
General Osteopathic Council launch new standards for Osteopaths
The new standards introduced for Osteopaths came into force on 1 September 2012. The standards were published in July 2011 following extensive review and consultation. For further details please click here.
CHRE audit of GDC processes
Following an audit of General Dental Council cases by the Council for Healthcare Regulatory Excellence, the CHRE have recognised the positive influence of recent changes to the GDC's processes introduced in 2011/12. It did however also identify areas of concern in their processes which may impact on patient safety and public confidence, although none that posed immediate risks to patient safety. The CHRE's full report can be accessed here.
HCPC launches consultation
The Health and Care Professions Council launched a new consultation on 3 September 2012 in relation to the proposals to amend the standards of education and training, to formally require the engagement of service users in programmes approved by the regulator. The consultation will run until 7 December 2012. For further information and to submit your views on the consultation please click here.
HFEA respond to DH proposals on transfer of functions
The Human Fertilisation and Embryology Authority has published its response to the Department of Health consultation on proposals to transfer the HFEA's functions to the Care Quality Commission and other bodies. The HFEA have maintained their position that they should retain their existing functions whilst delivering further efficiencies. To see the response in full please click here.
HTA to look into 'Matching Donors' website
The Human Tissue Authority has issued a statement in relation to the matching donors website which has been launched in the UK. The HTA intends to obtain more information regarding the
operation and legal implications of the website before advising members of the public. For further details please click here.
Police and Security
Electoral Commission briefing 11 September 2012
The Electoral Commission has prepared a briefing in relation to the first election for Police and Crime Commissioners (PCCs). This will take place on 15 November in England (excluding London) & Wales and sets out what has been done and what remains to be done, in order to ensure the smooth running of the upcoming elections. The PCCs will replace the police authorities, as per the Police Reform and Social Responsibility Act 2011. Further details about the elections can be found here.
SIA announce new appointment
Lord Taylor of Holbeach has been appointed as the parliamentary under secretary for criminal information, with responsibility for the Security Industry Authority. To find out more about Lord Taylor and other SIA news please click here.