Public and Regulatory Law Group Alerter June 2013
Welcome to Fieldfisher's Public and Regulatory Group Alerter, highlighting the key cases and events taking place in May 2013.
Next month, we will be launching our blog, the Public Eye, with an up to the minute insight on new case law developments as well as topical public and regulatory law issues. So next month, in place of our alerter, expect to receive an email with a link to the blog and details of its subscription services.
In the case law section below, we highlight the following:
In General Dental Council v Jamous, the High Court considered whether tooth whitening treatment fell within the definition of “the practice of dentistry” in section 37(1) of the Dentists Act 1984. The appeal was brought by the General Dental Council ("GDC") following an unsuccessful case against the respondent for the illegal practice of dentistry in the Magistrates Court.
In the cases of Siddiqui v General Medical Council and Hassan v General Optical Council, two High Court judges gave different views in relation to the application of SRA v Sharma (a case in relation to the sanction for dishonesty by a solicitor) to other, non legal regulators. The cases may be distinguished on the basis that in Siddiqui, the reference to Sharma related to the harm done to the public when a professional behaved dishonesty, whereas in Hassan, the Committee had been directed towards it as an example of the fact that, in relation to solicitors, dishonesty would lead to striking off save in exceptional circumstances. However, going forward, it appears that the Court will not apply Sharma blindly, without looking at the relevant regulatory scheme and any guidance provided by the regulator, as well as a careful examination of the individual facts.
In R (on the application of Erenbilge) v (1) Independent Police Commission (Defendant) (2) Chief Constable of Essex Police (Interested Party), the High Court rejected a challenge by way of judicial review, holding that the IPCC had been entitled to conclude that the force used by two officers in arresting the claimant had been reasonable.
In Matthews v Solicitors Regulation Authority the Divisional Court held that a solicitor's means were relevant both to the financial penalty imposed for misconduct, and to the costs imposed. In this case, the Divisional Court considered and reduced the award of costs against the solicitor from £16,000 to £4,500, and the fine from £5,000 to £500.
Finally, in R (on the application of Hill) v Institute of Chartered Accountants in England and Wales (2013) the Court of Appeal concluded that there had been no breach of natural justice where a defendant or his duly authorised advocate made a voluntary, informed and unequivocal agreement that a member of a tribunal could be absent for a part of the hearing but read into the transcript before returning for the remainder of the hearing and contributing to the decision.
Health and Care Sector
Care Quality Commission
Health and Social Care Act 2012 – secondary legislation and guidance:
The CQC has issued guidance in relation to the Health and Social Care Act 2012 and sets out the changes to public health functions affecting local authorities. The new system has been in force since April 2013 and delegates certain powers to local health authorities and the Secretary of State for Health. To view this guidance in full please click here
Department of Health
The DoH published the Care Bill in May which aims to consolidate and modernise the existing care and support legislation and introduce measures such as a national eligibility threshold for care and support and a universal deferred payment scheme. It also takes forward matters identified in the report of the Francis Inquiry, introducing Ofsted-style ratings for hospitals and care homes and making it a criminal offence for health and care providers to supply or publish false or misleading information.
The Bill also establishes the Health Education England and Health Research Authority as statutory non-departmental public bodies. For further details please click here
General Osteopathic Council
Equality and Diversity Action Plan:
The GOsC has published its new equality and diversity action plan for 2013-14 which sets out how the organisation intends to meet its objectives. To find out more about this policy and action plan please click here
Federation of (Opthalmic and Dispensing) Opticians
Annual Report 2013:
FODO has issued its annual report which includes details regarding developments in the optical sector, confederation partnerships and a financial report. To read the report in full please click here
General Medical Council
New Rules – Fitness to Practise:
The GMC implemented its new fitness to practise rules on 8 May 2013. The introduction of these rules is intended to improve hearing efficiency and follows a series of reforms by the GMC. The Medical Practitioners Tribunals Service which operates separately to the investigations process conducted by the GMC was established last year. We outlined a summary of the Rule changes in our last Alerter, here, and for further information from the GMC website please click here
General Optical Council
Council Meeting May 2013:
The GOC council members met to discuss key issues concerning regulation for the optical profession. One of the areas considered included the implications of the Francis Inquiry on the GOC and how the recommendations affected them. This will be taken forward as part of the organisation's business plan which includes a review of its standards. For more news from the council please click here
Fluorescein Strip Update:
The GOC has issued an update regarding fluorescein products, following a decision by Bausch and Lomb to withdraw its licensed fluorescein ocular strips (Fluorets) from the marketplace. The GOC has confirmed that they are in the process of working with the optical professional and regulatory bodies to consider the patient safety implications concerning other fluorescein products. For further details and guidance please click here
General Pharmaceutical Council
Regulate - May 2013:
The GPhC has issued the latest edition of its news bulletin which looks at issues including; the Francis Inquiry, an update for Registrants, new NHS organisations, education and training and the pre-registration programme. To read more about these topics please click here
Health and Care Professions Council
The HCPC has launched a revised set of profession specific standards of proficiency for physiotherapists and radiographers following a review. The standards are designed to ensure safe and effective practise by professionals and allow for appropriate, relevant and flexible regulation of each profession. For further details please click here
Nursing and Midwifery Council
Corporate Plan 2013-2016:
The NMC has set out six key priorities for its development over the next three years to deliver efficient and effective regulation. The priorities include a commitment to continuing improvement in its fitness to practise processes and to achieving financial stability. To find out more about the plan please click here
Fitness to Practise Rules Changes:
The NMC has welcomed a government decision to introduce urgent legal changes to the fitness to practise process. The reforms relate to the creation of a system of professional case examiners to consider cases at the investigation stage and a power to review closure decisions made at the investigation stage. For further details please click here
Financial Reporting Council
FRC Plan and Budget 2013- 2016:
The FRC has published its plan and budget for 2013 to 2016 following a period of consultation. The need to maintain UK's competitiveness in the world markets and contribute to recovery has been acknowledged in the agenda. The plan also highlights the importance of encouraging investment through effective regulation. To find out more about the plan and budget please click here
Audit Quality Inspections Annual Report 2012/13:
The FRC has published its annual report on audit quality inspections which notes an improvement in the overall standard of audit work. However, it concluded that some firms needed to maintain and in some cases, reinforce their efforts on professional scepticism. For further information about the report and its findings please click here
Legal Services Board
Law Firm Comparison Websites:
The standards for comparison websites have been reviewed by the Legal Services Review Panel together with the Solicitors Regulation Authority and the Council for Licensed Conveyancers. The new standards have now been published. These include a voluntary sign up section for service providers to ensure they commit to achieving these standards and to self certify that they are adhering to them. For further details please click here
Solicitors Regulation Authority
The SRA has announced that its Chief Executive, Antony Townsend will be stepping down later this year, once a replacement has been appointed to the post. To read more about this please click here
J had undertaken a day-long course in teeth whitening and gained a qualification from the Fuss Beauty School. It was alleged by the GDC in a private prosecution that J, in performing teeth whitening, had illegally practised dentistry contrary to the Dentists Act 1984. Section 37(1) of that Act stipulates that the practice of dentistry should be deemed to include 'the performance of any such operation…treatment, advice or attendance as is usually performed or given by dentists'.
At first instance, expert evidence was called on the risks of the whitening procedure, and reliance placed on the dental practice guidance which provided that some dental healthcare professionals (i.e. dental hygienists) could only carry out teeth whitening under a dentist’s prescription. It was submitted that this meant that tooth whitening was the 'practice of dentistry'.
The District Judge rejected this argument on the grounds that the purpose of the guidance was to regulate the practice of dentistry, rather than define what amounted to dental practice. The word “usually” in s.37(1) was to be given a broader meaning which necessarily took into account the fact that others outside the profession undertook teeth whitening.
However, on appeal to the High Court by the GDC, it was held that teeth whitening did fall within the definition set out at s.37(1). J had argued that, as tooth whitening treatments could be purchased for use at home (up to a certain strength), they could not fall within the s.37(1) definition, as it was akin to a parent brushing a child's teeth. The High Court did not agree, holding that the public was entitled to protection against being treated by those who were not qualified to do so. The word “usually” was to be given its ordinary meaning and so if the treatment was “usually” administered by dentists it was irrelevant that others also did so in a domestic setting. Parents helping their children to brush their teeth were not acting as professionals. The appeal was therefore allowed and the case was remitted to the Magistrates' Court so that J could be sentenced.
S appealed against a decision of the GMC Fitness to Practise Panel to suspend her registration for 6 months. At the hearing, S admitted that she had failed to provide good clinical care to a patient, and it was also found that she had later dishonestly made amendments to the patient's notes, and had acted dishonestly during a local investigation into the matter. The Panel found that S's fitness to practise was impaired, not in relation to the original examination of the patient, but in relation to her subsequent conduct. The 6 month suspension was imposed primarily for the purpose of securing public confidence in the medical profession.
S appealed, arguing in essence that the effects of the suspension were disproportionate and therefore that the Panel's decision was wrong.
Judge Pelling QC, in considering the matter, noted that although the appeal was by way of rehearing, the onus rested on the doctor to demonstrate that the Panel's decision was a wrong one. With respect to dishonesty, he drew attention to SRA v Sharma (2010) EWHC 2022 (Admin) in which it was held that there is harm to the public every time a solicitor acts dishonestly and that it is in the public interest to ensure solicitors can be trusted. This was applied to nurses in Ajala v NMC (2012) EWHC 2976, and Judge Pelling QC held it was equally applicable to registered medical practitioners. Attention was also drawn to Bolton v The Law Society (2004) 1 WLR 512 on the issue of proportionality.
Judge Pelling QC further noted that the High Court was required to give full respect to the decision of the Panel as a specialist tribunal and particularly in relation to sanction. There was nothing in S's submissions that would lead to the conclusion that the decision of the Panel had been wrong. The Panel had also set out detailed reasons and had balanced all of the relevant factors. The Panel had put proper emphasis on the effect on the standing of the profession in the mind of the public of dishonesty displayed by any professional, and the appeal was therefore dismissed.
When H was 18 years old, he had been persuaded by a friend to board a bus which was to be deliberately crashed by his friend, with the aim of making a false personal injury claim against the bus company. As a result, H had received a caution from the police for fraud by misrepresentation.
H did not declare this caution when applying to remain on the register of student optometrists as he believed that he was required to declare convictions only. H subsequently declared the caution when he realised his error.
The GOC charged H with dishonestly failing to declare his caution. The GOC's guidance to its Fitness to Practise panels stated that erasure from the register was the most severe sanction and was to be imposed only if necessary to protect the public or was otherwise required by the seriousness of the misconduct. The guidance stated also that dishonest misconduct might undermine trust in the profession, and provided that failure to disclose a caution could constitute such misconduct.
The Committee's legal adviser referred the panel to SRA v Sharma (2010), EWHC 2022, which, in relation to solicitors, stated that dishonesty would lead to striking off unless there were exceptional circumstances, and that this was applicable in the current case. The Committee concluded that H's failure to disclose the caution constituted very serious dishonesty and, therefore, misconduct. It determined that H's name should be erased from the register of student optometrists.
H appealed to the High Court. The High Court held that the legal adviser's reference to SRA v Sharma suggested that there was a presumption in favour of striking off those found to be dishonest in the case of optometrists, as well as solicitors. This was an improper reading of the GOC's guidance to its Fitness to Practise panels. The High Court further considered that it was incorrect to assume that the legal position of one profession (or regulator) was automatically the same as another. The GOC Committee had, therefore, been misdirected as to the law.
The court also decided that the Committee had been entitled to take its own view of H's conduct, based on the evidence. The CPS' view (in the form of H's caution) was a relevant but not determinative consideration.
Finally, the Committee's reasons indicated that they had treated H as being responsible for more than his role in the offence, and had in some way planned it. There was no evidence in the material before the committee to support such a finding. As a result, H's appeal was allowed.
The NMC commenced proceedings against K, a nurse, on the basis that she had failed to state in an application form that she previously been employed in a substantive post as a staff nurse by the Queen Elizabeth Hospital NHS Trust at the Queen Elizabeth Hospital. It was further alleged that K had failed to make clear in the supporting statement provided with her application that she had previously been employed in a substantive post as a staff nurse, and had been dismissed from her position as a staff nurse. Finally, it was also alleged that K had made a dishonest statement during an investigatory interview conducted in her new post, following staff concerns of unacceptable performance, to the effect that she had not previously held a substantive post or had any period of preceptorship.
The Panel found all but one of the allegations against K proved, and, finding her fitness to practise to be impaired by reason of misconduct, directed that K should be struck off the nursing register. K appealed against that decision, submitting that the Panel's finding of dishonesty was wrong. She contended that, at interview, she had provided certificates showing her previous employment, and said that the finding that she had been dishonest by stating that she not previously undergone a preceptorship was unreliable. In any event, K argued that her dishonesty did not necessarily mean that she was unfit to practise or that she should be struck off the register.
Noting that the Panel had not found K to be an impressive witness, Holman J considered, in relation to the first ground, that it was certainly possible that K had deliberately and dishonestly failed to refer to her previous employment when completing her application and that only after she was interviewed realised that she would have to show the certificates. He held further that it was open to the Panel to find dishonesty based on the quality of K's evidence and the impression she made upon it. Again, in relation to the interview allegations, the Panel had been satisfied that K had undertaken a preceptorship but that it was not completed, and Holman J considered that it was entirely open to the Panel to conclude that she was dishonest in this regard.
Finally, in respect of the sanction imposed, Holman J noted that the question of which level of sanction to impose was particularly one for the discretion of the specialist panel. In this case, Holman J was unable to see anything to suggest that the Panel misdirected itself in its approach to the indicative sanctions guidance, and the ascending order in which sanctions should be dealt with. He concluded that although the actual sanction was very hard for K, it was not one that could be characterised as "excessive". Accordingly, the appeal was dismissed.
In March 2010, R, a doctor, was convicted of wounding with intent to cause grievous bodily harm, following a fight on a bus. He was sentenced to an indeterminate prison sentence with a minimum term of 42 months. The Judge found that R had a deluded belief that he was being followed and monitored, which gave rise to a significant risk of harm to the public and made it necessary for R to be imprisoned for public protection.
R's case was referred to the GMC's fitness to practise panel ("the Panel"), which had previously cautioned him for harassment. In R's absence in prison, the Panel found that his fitness to practise was impaired by reason of his conviction, and determined that it was in the public interest and proportionate for him to be erased from the medical register. In making these findings the panel considered R's departure from the standards of good practice and his lack of insight.
R appealed against this decision on the grounds that: (i) his interim suspension was unjust, as he had served three years of suspension since it had been imposed; (ii) a recent assessment of his mental health revealed that his mental state was normal; (iii) his conviction had been a miscarriage of justice (his appeal had been dismissed but Mr Rich was seeking a review by the Criminal Cases Review Commission); (iv) his prior caution for harassment was unjust; and (v) he had no prior history of convictions.
R did not attend at the appeal and was not represented. The High Court noted that it was established law that the principal purpose of the Panel was the maintenance of public confidence in the profession and the Court had to afford respect to the Panel with regard to the sanction imposed. The High Court noted that R had not challenged his interim suspension at the time and that any challenge was likely to have failed.
The High Court considered that R's mental health and previous caution were irrelevant to the Panel's decision, because the Panel had not relied upon these factors in reaching its decision, but instead on the fact that his fitness to practise was impaired due to his conviction for a serious violent offence and his lack of insight. The lack of prior convictions was also irrelevant, as R's conviction was sufficiently serious to justify the findings and sanction, even for a first offence.
The High Court concluded that the Panel's decision had been the only possible conclusion in the circumstances, which it had been bound to reach by the certificate of conviction and dismissal of the subsequent appeal. The Panel had applied the correct principles. It had properly considered the public confidence in the profession and imposed an appropriate sanction where a doctor had violated normal conduct by committing a violent offence. As a result, R's appeal was dismissed.
S had admitted to a Fitness to Practise Panel of the GMC ("the Panel") that he had instructed a third party, G, to take home and burn bags of patient records. In the event, G burnt some of the records and left others outside his house, where a journalist found them.
The Panel found that S's fitness to practise was impaired by misconduct, and also determined, on the basis of a performance assessment report, that his fitness to practise was impaired by deficient professional performance. The Panel directed that S's name should be erased from the register.
S appealed, on the basis that the Panel had failed to provide adequate reasons for the decision, and that the sanction was disproportionate, in that suspension to address remediation and insight had not been fully considered.
The High Court noted that one of the main purposes of the Panel's jurisdiction in relation to sanction was the preservation and maintenance of public confidence in the medical profession, rather than the administration of retributive justice. The High Court further noted that, in relation to sanction, there should be a degree of deference to the judgment to a professional Panel.
In S's case, it was plain from the Panel's determination on sanction that the Panel had taken all relevant matters fully into account. The Panel was entitled to reach the decision it had, and as the sanction imposed was neither disproportionate or unjustified, there were no grounds for the Court to interfere. In addition, the Court did not consider that there was any issue with the Panel's reasoning, in circumstances where a full transcript of the proceedings had been provided to the appellant and the panel had not been legally qualified.
E had been restrained and arrested after an off duty PCSO had seen him arguing with his girlfriend and throwing juice cartons at her. He made various complaints about the excessive force of the police officers who arrested him, which were initially rejected by Essex Police. He then complained to the IPCC, which upheld his appeal in two respects. The IPCC directed that Essex Police should conduct further enquiries and provide a further investigation decision to E. Essex Police investigated further, but again, found the two complaints unproven.
E again appealed to the IPCC, but the IPCC did not uphold his appeal, concluding that the nature and extent of the use of force by one officer, Acting Police Sergeant Roberts, was proportionate to the level of the perceived threat from E (who, it was alleged by the officer, was trying to bite) and that in relation to the other officer, Acting Police Sergeant Fisher, his use of force was also justified because of the strength, demeanour and actions of E.
E sought to challenge the IPCC's decision by way of judicial review, arguing that the two decisions were irrational, that one was illegal in that it failed properly to apply the law, failed to take into account relevant factors and took into account irrelevant factors, and finally that the IPCC misapplied the law in relation to its previous decision (ultimately this latter point was not pursued as a stand alone ground, but was put forward as evidence of the confusion in the mind of the second IPCC decision-maker).
Phillip Mott QC, in considering the case, held that the IPCC's decision that the use of force by Acting Police Sergeant Roberts was not irrational, because there was an imminent and real risk of attack and it was an attack of such a nature as justified that degree of force. In relation to Acting Police Sergeant Fisher, Phillip Mott QC held that the IPCC was also entitled to conclude that the force used was reasonable.
In respect of the claim that the IPCC misapplied the law in relation to its previous decision, Phillip Mott QC noted that the decision-maker was well aware that she took a different view from the previous decision-maker at the IPCC and set out her reasons for differing from those views very carefully and fully. He therefore rejected this ground, and ultimately therefore concluded that there was no basis for a challenge to the second IPCC decision.
The case related to M's decision to employ MR to carry out conveyancing work. MR was not a solicitor but M had known him for a considerable period of time, having worked with him previously. MR was initially supervised by M but M admitted that he had failed to maintain the level of supervision required due to the volume of other business.
Disciplinary proceedings had commenced against M following a matter where MR was acting for a buyer, borrower and mortgagee. M was found guilty by the SDT of failing to act in the best interests of his firm's lender clients and failing to make arrangements so as to ensure adequate supervision of an employee. Costs were agreed between the parties at £16,000, and the SDT (which had been aware of M's financial means) also decided to impose a £5,000 fine as a sanction. M challenged this decision and argued that the sanction was excessive.
The Divisional Court noted that a fine could be viewed as a penalty for the misconduct, but costs were separate, and designed to compensate the SRA for the proceedings. M's means were, however, relevant to both aspects. Noting that the SDT had not set out reasons as to why a fine was considered to be more appropriate than a reprimand, and that the significant mitigating evidence should have been taken into account, the Divisional Court concluded that the fine was excessive. The Divisional Court therefore reduced M's total liability to £5,000, being a £500 fine and costs amounting to £4,500.
The claimant, H, was a chartered accountant and respondent in disciplinary proceedings brought by his professional body the Institute of Chartered Accountants in England and Wales, (“the Institute”). The charge was that he had committed an act or default likely to bring discredit on himself, the Institute or the profession of accountancy.
His case was considered by a disciplinary tribunal convened by the Institute, consisting of two professional members and one lay member. At that hearing, which spanned six days across four sessions, H was represented by an experienced solicitor.
On day 4 of the hearing, the lay member had an appointment which meant that he could sit no later than 5pm. At the beginning of the day the Chair said that the hearing would have to conclude for the day at 5pm. At 3pm, when H was still giving evidence in chief, the Chair explained that the reason for this was that the lay member needed to leave at 5pm. H's solicitor, after asking whether a transcript would be available, did not object to the hearing continuing.
It was, however, contended by H that, despite his solicitor's agreement to the way matters proceeded, there was in fact no power on the part of the disciplinary tribunal to permit one of its members to depart during the hearing and then take part in the remainder of the hearing. H also said that there was a breach of the rule of natural justice that “he who decides must hear” and that that breach was not waived. He argued that all proceedings after 5pm on day 4 of the hearing were therefore a nullity including the decision of the tribunal that the charge was proved.
It was held by the High Court that there was power for the tribunal to allow the member to leave and later return after he had read a transcript of the part of the hearing which he did not attend. The High Court considered that there had been a breach of the rules of natural justice, but that this had been waived by H's solicitor's agreement to the procedure which was voluntary, informed and unequivocal.
The Court of Appeal unanimously dismissed the appeal. In giving the leading judgment, Longmore LJ, whilst noting that there would normally be a breach of natural justice where a Tribunal member absented himself without consent, and then later took part in decision making (which could not be cured by reading a transcript, unless the evidence was relatively uncontroversial), held that natural justice would not be breached if the respondent agreed to this, voluntarily, unequivocally, and on an informed basis.
In the circumstances of the case, there had been no breach of natural justice, because there had been an agreement by H to the proposed course of action that was informed, voluntary, and unequivocal. It was considered by all three judges that this was a better analysis than that there was such a breach but that it was waived.