Public and Regulatory Law Group Alerter May 2013
Welcome to Fieldfisher's Public and Regulatory Group Alerter.
Our annual seminar took place on Tuesday 7 May 2013, and we heard a fascinating account of the work of the Public Accounts Committee from the Rt Hon Margaret Hodge MBE, as well as interesting talks from partners Richard Kenyon and Judith Chrystie. Following the discussion at the seminar, see our Comments section below for our top tips for those in public office when weathering public scrutiny.
We also highlight the key cases and events taking place in April 2013. In the Case Law section below, we highlight the following:
In R (on the application of Patel) v General Medical Council (2013), the Court of Appeal looked at the issue of legitimate expectation in the context of a change by the GMC to its registration rules.
In Ashton v General Medical Council (2013), the High Court looked at whether a single clinical incident could amount to misconduct and a finding of impairment in an otherwise unblemished career, and also considered the issue of the six month suspension imposed and whether it was necessary and proportionate to impose that suspension immediately.
In Wisson v Health Professions Council (2013) the High Court confirmed that good character was a factor that could be taken into account by a panel when assessing whether a registrant's evidence was to be believed ('credibility') and whether it was likely that he had done what was alleged ('propensity').
In R v (1) Karen Cosford (2) Carolyn Falloon (3) Jacqueline Flynn (2013) the Court of Appeal concluded, in the context of the appellants' appeals against their criminal convictions for misconduct in a public office, that the appellants, who were nurses in a high security prison, held public office and that this was a question of law for the judge.
In General Medical Council v Adekola (2013) the High Court granted a nine month extension of an interim order of conditions, and declined to vary the conditions imposed, stating that it would be rare for the Court to make such an order without prior consideration by the Interim Orders Panel.
In Bamgbelu v General Dental Council (2013) the High Court confirmed that the burden fell on the appellant dentist, who had been subject to an order of conditions imposed by the Professional Conduct Committee of the GDC, to show that he had addressed the concerns expressed when it originally decided that his fitness to practise was impaired.
In Haye v General Teaching Council for England (2013) the High Court rejected the contention that a prohibition order was unreasonable, unfair and disproportionate, and found there had been no breach of the appellant's Article 9 rightto freedom of religion.
In Dowland v Architects Registration Board (2013) the High Court held that the proper basis of challenge in respect of the refusal of the Architects Registration Board to re-enter the appellant's name on the Register of Architects was not an appeal under the Architects' Act 1997, but a claim for judicial review on conventional Public Law grounds and, in any event, the Board had not exceeded its powers in refusing re-entry.
In Harford v Nursing and Midwifery Council (2013) the High Court held that the decision of a Panel of the NMC's Conduct and Competence Committee on misconduct was well within the reasonable range of decisions open to it and that, although a differently constituted Panel might have viewed the evidence given by the appellant as to her future conduct in a more favourable light, it could not be said that the instant Panel had been wrong in holding that her fitness to practise was impaired.
Health and Social Care
General Medical Council
The GMC has made amendments to its Fitness to Practise Rules 2004. The changes which relate to case management, preliminary legal arguments and more came into effect on 8 May 2013. To view the statutory order please click here and for further details on the rule changes, see our comments section below.
Care Quality Commission
The CQC has announced its strategy and business plan for 2013-2016. The CQC plans to introduce some radical changes to the way that it inspects and regulates services. Some of the key changes include developing new fundamental standards of care and introducing national teams into NHS hospitals with specialist expertise in conducting in-depth reviews. For further information on the business and strategy plan please click here
General Dental Council
The GDC has issued a reminder to all of its registrants about the guidance available if they have any concerns regarding the fitness to practise of a fellow health professional. The guidance sets out the action that should be taken and offers support and advice to anyone reporting such concerns. For further information please click here
General Osteopathic Council
The GOsC has issued its latest magazine 'The Osteopath' – this edition includes the latest fitness to practise report (2012-13), an interview with the Chair, a report on the revalidation scheme pilot, an update on the development of the profession programme and more. To find out more on these topics please click here
General Pharmaceutical Council
The GPhC is seeking new legal powers relating to its investigations concerning registered pharmacies and pharmacy professionals. This would enable the use of direct surveillance and covert human intelligence sources when dealing with serious investigations. Although The Office of Surveillance Commissioners has recommended that these powers are granted, a change in legislation would be required before this could be enforced. To find out more please click here
The GPhC has announced the appointment of Claire Bryce-Smith as new Director of Inspection and Fitness to Practise. Claire has held the position of Acting Director since November 2012. To find out more about this appointment please click here
Actions in response to Francis Report
The GPhC has agreed the actions required in respect of pharmacy regulation following the Francis Report. Key issues were considered in relation to the protection of patients and public by healthcare regulators for the GPhC to take forward as specific initiatives; including the role of patients, transparency and whistleblowing. For further information please click here
FTP Case - Sexual Assault
The GPhC proceeded to take action in relation to a fitness to practise case concerning sexual assault, where the registrant had been acquitted of rape for the same offence at the Crown Court. This case has led to the first removal from the register for serious sexual assault following an acquittal in criminal proceedings. It highlights the difference between disciplinary and criminal proceedings in both their purpose and standard of proof. For further details please click here
Fitness to Practise Report
The Professional Standards Authority ("PSA") has published its report on the GPhC following a review of its fitness to practise process. The PSA audited 100 cases which had been closed at the initial stages within the previous six months. Risk assessment of cases was recognised as an area of strength and there was no cause for concern identified in the review. To read more about this report please click here
Health and Care Professions Council (Isle of Man)
The Department of Health has signed a Memorandum of Understanding with the HCPC. The agreement is intended to strengthen the working relationship between the two in the regulation of health care professionals and protection of patients/service users. For further information please click here
Nursing and Midwifery Council
The NMC has appointed three new Directors – Sarah Page has been appointed as Director of Fitness to Practise, Dr Katerina Kolyva as Director of Continued Practise and Alison Sansome as Director of Registration. To find out more about these appointments please click here
A new Council has also been formed to lead the NMC with Chair Mark Addison. The appointment of ten individuals has been confirmed and they will officially become members of the Council from 1 May 2013. To view further details about the new members please click here
The NMC has resumed its overseas registration for nurses and midwives following a recent review to streamline and improve the process. The policy will be reviewed in more detail with the aim of creating a gold standard registrations system for overseas registrants. For further details please click here
Bar Standards Board
The Legal Services Board (LSB) has approved the removal of two rules in a bid to promote greater access to justice. The prohibition on barristers of less than three years' standing undertaking public access work will be removed with the introduction by the BSB of a new training regime, which is due to be in place by autumn 2013. From that point, more experienced barristers who have already completed the existing training will have 24 months to either undertake additional training or apply for a waiver. In addition, the prohibition on accepting cases that may be eligible for legal aid will be removed from 1 April 2013. To find out more about the changes being introduced click here
Solicitors Regulatory Authority
SRA Executive, Samantha Barrass delivered a speech at the recent COLPs and COFAs conference. Key areas of risk were identified for compliance officers. In particular financial instability and changes within the legal market were discussed. To view the speech in full please click here
The Coroners Justice Act 2009 (commencement no 12) Order 2013 2013/705 brought into force, from 22 April 2013, provisions amending section 51 of the Police Reform Act 2002, to ensure particular arrangements in relation to the visiting of terrorist detainees by independent custody visitors are in place. To view the order in full please click on the link above.
Ofqual contacted a number of awarding organisations to review and improve its processes in relation to the production of exam papers. It has specifically requested an additional check for exam papers following a number of serious errors with questions in 2011. A system of reporting question paper errors has also been introduced. To find out more please click here
Ofqual has circulated a letter to all responsible officers of awarding bodies to set out its plans for regulating qualifications based on their 'risk based regulation' consultation. For further information about these changes please click here
P appealed against the order of Hickinbottom J dismissing his application for judicial review of the decision of the GMC to refuse to accept his Primary Medical Qualification ("PMQ") obtained from the International University of Health Sciences, St. Kitts and Nevis ("IUHS") as an acceptable overseas qualification pursuant to section 21C Medical Act 1983.
Between 2005 and 2011, P had undertaken studies at the IUHS, following assurance given by the GMC in email exchanges in 2004 that both the course and its distance learning element satisfied the GMC's requirements for PMQ. Following completion of the course, P wished to take up a post on a foundation programme, prior to which he was required to pass a PLAB examination and obtain provisional registration with the GMC. However, P was informed by the GMC that his PMQ was "not currently acceptable to the GMC" in accordance with the new criteria introduced in 2006 and 2010. It subsequently refused to recognise P's qualification, in November 2011, following his application for provisional registration.
In considering the matter, the Court of Appeal concluded that the statutory scheme that the GMC operated under the Medical Act 1983 did not exclude the operation of the principle of legitimate expectation.
The Court was satisfied that P was given a legitimate expectation when he received a clear, unequivocal and unqualified response from the Registration and Education Directorate of the GMC, in response to his emails requesting clarification of the current regulations concerning the recognition of overseas PMQ courses. The Court was further unable to identify any sufficient public interest which outweighed the unfairness to P of refusing to honour the assurance given and to recognise his qualification.
It was therefore concluded in the particular circumstances of this case that it was not open to the GMC to change its recognition of qualifications policies without adopting some transitional provisions, and the GMC was therefore compelled to recognise P's qualification.
In November 2012, a Fitness to Practise Panel of the MPTS ("the Panel") made findings of fact against A in respect of his failure whilst working as a GP to refer Patient A to a gastroenterology team on an urgent, rather than routine basis. The Panel found that such failure amounted to misconduct. The Panel further determined that the appropriate sanction was that of a six month suspension, which was to be imposed with immediate effect.
A appealed on four grounds: firstly, that the single clinical incident was insufficient to amount to misconduct or, secondly, to justify a finding of impairment; thirdly, that it was not necessary or proportionate to impose an order of six months suspension; and fourthly that it was not necessary or proportionate to impose the suspension with immediate effect.
The High Court dismissed the first, second and third grounds of the appeal, but upheld the fourth ground.
Noting the statutory test for the imposition of an immediate order (that it is necessary for the protection of the public, in the public interest or in the best interests of the practitioner), the Court held that the imposition of an immediate order was not necessary. At the time of the hearing, A was working in a field in which his work was satisfactory. Whilst he remained in that field, the risk to the public was considered negligible. Further, it was unlikely that Dr Ashton would be able to return to work as a GP within the 28 day period before his suspension came into force, as that required acceptance onto the performers list. As such, Mr Justice Steward-Smith considered it 'hard to see why public confidence would be eroded by permitting Dr Ashton to practise in a remote field of medicine during the relatively short appeal period.' As such, A succeeded on the fourth ground of appeal.
W, a podiatrist, was struck off the Council's register in relation to allegations that he had conducted an inappropriate conversation with a member of staff and had shown her pornographic images on his mobile phone, and that he had invited a patient to attend surgery after hours, had asked her to undress and applied a massage to her legs and thighs.
He appealed, arguing that the Panel hearing his case ought to have heard the allegations separately, and that the advice given by the legal assessor in respect of the approach to be taken to good character evidence was wrong.
In considering the appeal, Collins J held that the panel was fully entitled to reach the factual findings it did. In relation to severance, he referred to the Council's Conduct and Competence Procedure Rules and its practice note on joinder, whereby allegations may be joined where they are sufficiently connected in nature, time or by other factors. Collins J noted that the allegations had features of commonality and were of a sexual nature. In the circumstances of the case, he held that any decision other than hearing the allegations together would have been surprising.
In relation to the issue of good character, Collins J noted that the legal assessor had based his advice to the Panel on Council guidance, which stated that 'in deciding whether conduct is easily remediable, has been remedied and is highly unlikely to be repeated, panels may also need to consider character evidence of a kind which in other proceedings might only be heard as mitigation or aggravation as to sanction after a finding has been made' and further stated, citing the case of Campbell v GMC (2005) 1 WLR 3488 that 'the fact that in some cases there will be an overlap, or that the same material may be relevant to both [culpability and mitigation] does not justify treating evidence which is exclusively relevant to personal mitigation as relevant to the prior question whether the allegation has been established.'
Collins J considered that the guidance did not entirely accurately reflect what was decided in Campbell. Although it was easy to see from Campbell why matters which strictly related to mitigation were not necessarily material when considering impairment, good character was a factor that could be taken into account when assessing whether a registrant's evidence was to be believed ('credibility') and whether it was likely that he had done what was alleged ('propensity'). As such, the guidance failed to make the point that good character evidence could be material at the impairment stage of a Panel's decision; as such, the guidance was not necessarily correct to assert that good character only becomes material at the point where a panel considers sanction.
Notwithstanding this, W's appeal was refused on the basis that it was clear from the Panel's decision that it had taken the Appellant's good character evidence into account in respect of his credibility, even though it had not said so in explicit terms. Accordingly, it could not be said that the panel only referred to character evidence in relation to sanction.
The appellants, nurses at HMP Wakefield (a high security prison) appealed against their convictions for misconduct in public office.
The first appellant had been discovered to have been having a sexual relationship lasting several months with a prisoner serving a 17 year life sentence. She had also failed to report the prisoner's possession of a mobile phone and had facilitated the use of that mobile phone by buying top-up credits. The second and third appellants had failed to report the relationship and had also covered it up. They too failed to report his possession of a mobile phone and the second appellant had also bought 'top-up' credits for the phone.
At trial, their primary defence was that they did not hold public office. They argued that they acted solely as nurses, albeit in a prison environment with different title. Karen Cosford and Jacqueline Flynn had also distinguished themselves from Carolyn Falloon on the grounds that she was a prison/health officer with the powers of arrest of a prison officer, whereas they had been employed as registered nurses.
The issues presented for the jury to consider were: whether the appellants or any of them held public office; whether they had wilfully misconducted themselves in the performance of their public duties; and whether the conduct of each was as such to be deserving of criminal condemnation and sanction. The latter two questions were determined adversely to the appellants.
The issue for the appeal was whether the appellants held public office and whether this was an issue of fact for the jury or a question of law for the judge.
It was argued by the appellants that the judge had approached the issue of 'public office' too widely, ignoring the strictures contained within the authorities for the group falling within the definition to be "strictly confined". It was submitted that in reality the appellants were no different from nurses employed by the NHS and that their possession of keys and other accoutrements that flowed from their employment in a high security prison setting did nothing to evidence the requisite degree of trust or authority required before criminal sanction could be applied to any misconduct arising from their position.
Their appeals were dismissed. It was held that nothing in the authorities justified the conclusion that the "strict confinement" should be to the position held by whosoever is carrying out the duty. Instead it should be addressed to the nature of the duty undertaken and, in particular, whether it is a public duty in the sense that it represents the fulfilment of one of the responsibilities of government such that the public have a significant interest in its discharge extending beyond an interest in anyone who might be directly affected by a serious failure in the performance of the duty.
The responsibilities of a nurse in a general hospital were said to be towards the patients for whose care they are responsible. However, the responsibilities of a nurse (whether trained as a prison officer or not) in a prison setting were not only for the welfare of the prisoners, but they are also responsible to the public for, so far as is within their power, the proper, safe and secure running of the prison in which they work. Their duties were found to more than amply fulfil the requirements of public office.
It was further added that in the context of a prison system there is no distinction between those who hold public office and those who are in private employment. Whether the prison is run directly by the state or through a private company paid by the state to perform its function does not alter the public nature of the duties of those undertaking the work and the responsibilities to the public are identical. These decisions were also held to be decisions of law and therefore were questions for the judge and not the jury.
In this case, Haddon-Cave J granted a nine month extension of an interim order of conditions in relation to allegations raising concerns about her health, and declined to vary the conditions previously imposed by an Interim Orders Panel of the MPTS.
A submitted to the High Court that no real clinical concerns regarding her health had been identified, there had been a significant delay in the GMC progressing the matter including an eighteen month delay in obtaining three witness statements, that the continuing inability to work had been harsh, and that the court should consider varying the order.
Haddon-Cave J considered there to be a formidable case for suggesting A's fitness to practise was impaired, and that there was good reason to explain the time taken to progress the case, including A's five month delay in responding to the GMC's invitation to undergo an assessment of her health. He further noted that the conditions did not entirely prevent A from practising.
In considering whether to vary the order, Haddon-Cave J stated that he was satisfied that the case had been progressed with reasonable expedition by the GMC in all the circumstances, that there were good reasons put forward for an extension of time, and that the extension of time requested was reasonable in all the circumstances. He further stated that he was not satisfied that it would be appropriate for the court to seek at this juncture to consider potential variations to the conditions, stating that it was unclear whether or not the court had the power to do so in any event, and that it would be rare that the court would make such an order "without having had the benefit of the deliberations and guidance and first stab by the IOP".
The Professional Conduct Committee of the General Dental Council had previously found that B had provided inadequate clinical treatment, that there were unsafe and unhygienic practice conditions at his surgery, and that he was guilty of dishonest, misleading and unprofessional conduct. His fitness to practise was found to be impaired and it was determined that his registration should be subject to conditions for a period of 12 months. The requirements included that he be supervised and that he participate in an appropriate support group.
At a review hearing, the committee found that B had practised for some time without a supervisor. As a result, they only had limited evidence of his practice. B had also only begun attending support group meetings shortly before the review hearing. It was decided it was proportionate and sufficient to extend the supervision condition for a further 9 months. B appealed against the extension.
The High Court dismissed B's appeal, holding that the court must be slow to interfere with the specialist decision-making body's decision as to the proper sanction and should only do so where the decision is clearly inappropriate.
In addition, the Court held (applying Abrahaem v General Medical Council EWHC 183 (Admin)) that the burden was on B to demonstrate that he had sufficiently addressed the concerns that the Committee had when finding that his fitness to practise was impaired. As a result of the limited supervision, the evidence before the Committee of B's practice was limited. He could not discharge the burden and demonstrate that he had addressed the Committee's concerns.
The Appellant teacher, H, appealed against a prohibition order with a two-year minimum review, which had been imposed in accordance with the recommendations of the respondent's Professional Conduct Committee ("PCC").
H was a Christian had been employed by a school with students from diverse backgrounds with wide-ranging beliefs. The school's ethos was one of tolerance and respect for the beliefs of others. After being shown a video about homosexuality in assembly, H was asked in class for his views as a Christian on homosexuality. He answered by referring to the Bible. Days later, another student asked if it was true that H believed that people who attend church on Sundays worship the devil. H again answered referring to the Bible. The school investigated these events, and H was dismissed and his case referred to the respondent.
The PCC found that H's conduct had fallen significantly below the standards expected of a teacher in the English education system. Specifically, it was not his beliefs that were found to be inappropriate, but how these were manifested in the context of teaching in a school with students from diverse backgrounds, and his lack of insight into the inappropriateness of the comments made. The PCC considered that his lack of insight meant it was likely the incidents would be repeated.
H appealed on the basis that the prohibition order was unreasonable, unfair and disproportionate, in light of the fact he had not instigated the discussions about his beliefs and as there was no evidence of his comments having actually had a detrimental effect. It was also argued there had been a breach of his Article 9 right to freedom of religion.
The Appeal was dismissed, with the High Court holding that the reasons given by the Committee were impeccable. In relation to H's comments, what mattered was the potential for them have detrimental effect, and the Court noted that H's comments were said to be offensive, potentially insensitive and likely to undermine the values of the school. As a role model for his students H was expected to promote tolerance of the rights, faiths and beliefs of others. His comments had encouraged intolerance of homosexuality and attending church on Sundays as well as expressing negative views.
The prohibition order was found to be proportionate given the lack of insight displayed and the likelihood of repeat behaviour. It was a proportionate response for the need to protect the public's expectations of teachers. The two-year review period was the least serious form of sanction the PCC could impose. The PCC were also said to be right to say that if the Appellant wished to return to teaching, he would have to demonstrate genuine insight into the public perception of teachers as promoters of tolerance and respect for the rights and beliefs of others.
Finally, it was held that the prohibition order did not interfere with the Appellant's article 9 rights, as it was a proportionate response to his behaviour.
D was a former architect appealing against the Architects Registration Board's refusal to re-enter his name on the Register of Architects.
D had previously been declared bankrupt after failing to pay judgment debts and had failed to report the fact he was bankrupt to the Registrar. In 2008 the Professional Conduct Committee found that D's conduct amounted to 'unacceptable professional conduct' and he was erased from the Register. D did not appeal that finding.
After two years had passed, it was open to D to apply for re-entry on to the Register. In 2009 the Appellant had been made subject to a 7 year Bankruptcy Restriction Order. In 2010 he applied for re-entry on the Register and the Board rejected the application adopting the recommendations of the Registrar.
D appealed on the basis that the decision was ultra vires, as the Board had applied the wrong test, that it was manifestly unfair to rely on the 2009 Bankruptcy Restriction Order to extend the erasure period beyond the original two years, and that the refusal was disproportionate and contrary to his human rights. He argued that it was not open to the Board to refuse his application to be re-admitted other than on the basis that it took an adverse view of his competence, which had not been called into question.
As a prior issue, the High Court held that the proper basis of challenge in respect of the refusal to re-enter D's name on the Register was not an appeal under the Architects' Act 1997, but a claim for judicial review on conventional Public Law grounds, which he had not issued. The High Court further held that, in any event, the Board had a broad discretion and not exceeded its powers in refusing re-entry.
With respect to the argument relating to the Appellant's Human Rights, although it was accepted that the professional sphere may form part of the individual's private life, it was held not to follow that every interference with professional life engaged Article 8. Even if it did, in this case the interference was in accordance with law and amounted to a proportionate means of protecting the public from unacceptable professional misconduct by an architect.
H appealed against the decision of a Panel of the NMC's Conduct and Competence Committee ("the Panel") to (a) find her fitness to practise impaired by reason of misconduct and (b) to impose conditions on her registration for a period of six months.
H had raised concerns about a colleague's fitness to practise after receiving adverse comments and complaints from patients about the colleague. H was asked by letter on two occasions to provide the names of the patients involved, but she did not reply. The NMC alleged that Ms H had failed to cooperate in the local investigation by failing to provide a list of the relevant patients, and that this amounted to misconduct.
The Panel applied the definition of misconduct in Roylance v GMC and concluded that as a registered nurse, H had a duty to cooperate with internal and external investigations as set out in paragraph 56 of the Nursing and Midwifery Council Code (May 2008). The Panel concluded that H's failure to cooperate potentially caused harm to patients, as their complaints could not be dealt with, and potentially jeopardised their trust and confidence in the nursing profession.
On appeal, H submitted firstly that the Panel applied the wrong test in determining whether misconduct had been proved, and that paragraph 56 of the Code imposed an obligation to cooperate with internal and external investigations only insofar as they related to a registrant, and secondly that the Panel was wrong to conclude that her fitness to practise was impaired, and failed to have proper regard to Ms Harford's evidence that if similar circumstances were to be repeated she would disclose the names of patients because she had come to recognise that patients' safety was paramount.
The High Court dismissed H's appeal, holding that the Panel had not misdirected itself on the appropriate test, making express reference to the leading authority, Roylance and applying it. There was no reason why paragraph 56 of the Code should be interpreted narrowly, as circumstances could arise where it would be wholly unprofessional if a registrant failed to cooperate with internal and external investigations which related to persons other than the registrant. The Court therefore held that the Panel's conclusion that the breach of the Code constituted misconduct in the particular circumstances was not wrong. H had actively refused to engage in the local investigation, making it difficult to ascertain whether or not the colleague was performing her work properly and professionally. As a result, the Panel's decision on misconduct was well within the reasonable range of decisions open to it.
In relation to the finding of impairment, the High Court noted that the Panel's decision did not say, in terms, that H's evidence as to her future conduct had been considered and rejected by the Panel. However, that did not mean that the Panel was wrong in its conclusion about impairment. The High Court noted that the Panel had the advantage of seeing and hearing H and it provided sufficient cogent reasoning to justify its conclusion that her fitness to practise was impaired.
The Court held that although a differently constituted Panel might have viewed the evidence given by H as to her future conduct in a more favourable light, it could not be said that the instant Panel had been wrong in holding that her fitness to practise was impaired.
In the eye of the storm – the PRG Annual Seminar, 7 May 2013
The Rt Hon Margaret Hodge MBE spoke at the PRG Annual Seminar on 7 May about the work of the Public Accounts Committee. She advised on what makes a good witness before a Parliamentary Committee, and the best tactics to employ if ever called before one, cautioning witnesses to:
- Be straight and honest – the purpose of a Committee is to understand what has happened. Witnesses who co-operate with an inquiry will tend to be given an easier time than those who are economical with the truth.
- Answer questions directly – similarly, the Committee appreciates a straight answer to a straight question. Discursive, obstructive and over-elaborate answers tend to be given short shrift and only result in further questions.
- Be prepared to follow up any recommendations from or concerns raised by the Committee – No longer can a Committee report be expected just to gather dust on a shelf; rather, Committees actively seek updates on the implementation of their recommendations. Inadequate progress can lead to a witness being recalled before a Committee.
Richard Kenyon, the Head of Fieldfisher's Employment and Pensions Group, also spoke on the employment and HR issues which might ensue in a crisis, and advised organisations to devise a plan, including:
- Identifying who will speak for the organisation, and ensuring they have the necessary skills and training for the job.
- Identifying who will support them.
He also discussed the need to manage the HR issues where employment action is taken, and to consider:
- the statutory and contractual rights of the individuals under fire.
- whether settlement is appropriate bearing in mind that this may need to be justified or approved if being paid out of the public purse.
- whether any confidentiality agreement is required, bearing in mind the need to consider the public interest in facilitating whistleblowing.
One of the key lessons arising from the Sharon Shoesmith case was the importance of giving the individual an opportunity to respond to the allegations before a decision is made.
On 8 May 2013, amendments to the General Medical Council's Fitness to Practise Rules and Constitution of Panels and Investigation Committee Rules came into force. The most significant of these amendments are summarised below.
The Rules remove the requirement for the Registrar to notify the practitioner concerned if a complaint of any nature had been made; the Registrar now only needs to notify the practitioner if the complaint is one which potentially engages consideration of their fitness to practise.
Where the Investigation Committee is to make a decision on a warning, the Rules have been amended so as to allow both the GMC's Presenting Officer and the practitioner to adduce documentary evidence as of right. However, the Committee may only admit oral evidence where it considers this necessary to enable it to discharge its functions.
The amended Rules also expressly provide that a Case Manager may give a direction for evidence to be given by means of a video link or a telephone link, where the parties agree to this. Furthermore, a party may at any time during a hearing, make an application to the Committee or Panel for the oral evidence of a witness to be given by means of a video link or a telephone link. The decision as to whether to allow this ultimately rests with the Committee or Panel if, in their consideration, it is in the interests of justice to do so.
Further, the Rules introduce a presumption that a witness' statement will stand as evidence-in-chief, unless: a) the parties agree; b) a Case Manager directs; or c) the Committee or Panel decides upon an application, that the witness concerned is to give evidence-in-chief by way of oral evidence.
A decision to cancel a hearing will now be made by a Case Examiner, rather a member of the Investigation Committee, as had previously been the case (Rule 28).
Finally, the GMC's Constitution Rules have been amended so as enable legally qualified panellists to act as both a Case Manger and panellist in a case. This is notwithstanding the Rules which otherwise stipulate that no panellist shall sit on the substantive hearing of a case on which they have previously considered or adjudicated in another capacity.