Public and Regulatory Law Update April 2015
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Public and Regulatory Law Update April 2015

27/05/2015

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Ireland

Health:

 

  1. Regulation 20: Duty of Candour

The Duty of Candour came into effect in the UK for private providers on 01 April 2015. The Care Quality Commission has now released guidance on the duty of all providers, including an annexe of examples of incidents that may trigger the duty of candour.

  1. Revalidation Process

Nurses and midwives will now be required to revalidate their registration every three years in order to remain on the register. Revalidation is a process that all nurses and midwives will need to engage with to demonstrate that they practise safely and effectively throughout their career.

Further information can be found at http://bit.ly/1GrMbfX 

  1. Raising Concerns: NMC updated Guidance for Nurses and Midwives

An updated version on guidance for nurses and midwives making complaints or raising concerns has been published. It aims to set out broad principles that will help members of the profession think through the issues and make take appropriate action in the public interest.

Liberty and Capacity:

  1. Deprivation of Liberty: a practical guide

The UK Law Society has issued comprehensive guidance on the law relating to the deprivation of liberty safeguards. The safeguards aim to ensure that those who lack capacity and are residing in care homes, hospital and supported living environments are not subject to overly restrictive measures in their day-to-day lives.

  1. Minister Kathleen Lynch published an Expert Group Review of the Mental Health Act, 2001

Minister of State for Mental Health Kathleen Lynch published an Expert Group Review of the Mental Health Act 2001. The report presented 165 recommendations which, if implemented, would bring radical changes to psychiatric care in Ireland. In particular, the changes seek to move away from the paternalistic interpretation of the current legislation, to one where insofar as possible, the individual has the final say on what they deem to be in their best interests in relation to their care.

A link to the full report can be found here.

  1. Care home faces corporate manslaughter charge

Three care home managers have been charged with manslaughter following the death of an 86 year old woman, who died two weeks after the property was shut down by inspectors. Inspectors from the Care Quality Commission investigated the home prior to it closing in November 2012.  The Sherwood Rise Limited is accused of failing to provide Mrs Atkin with adequate food and drinks and failing to monitor that she was taking fluids. The Crown Prosecution Service has confirmed it is the first care home company to be charges under the Corporate Manslaughter and Corporate Homicide Act.

Irish Case Law:

  1. DPP v J.C. 2015 IESC 31

The 25 year old exclusionary rule established in DPP v Kenny 1990, that tightly restricted the State from using evidence it obtained in breach of a constitutional right has been in effect repudiated. In its appeal the State requested that the Supreme Court relax the Kenny Judgment.

The State argued that a middle ground must be found between Kenny, which represents a near absolute exclusion, and the case of The People v O’Brien 1965, which stated that only deliberate and conscious breaches of constitutional rights could lead to the exclusion of evidence.

The two key judgments for the majority are those of Mr Justice Donal O’Donnell and Mr Justice Frank Clarke.

The new test is set out by Mr Justice Clarke, who states “from now on, evidence obtained unconstitutionally will be admissible if the prosecution can show the breach was due to inadvertence”. The implication here is clear that the majority believes DPP v Kenny was incorrectly decided and that is has now been overruled.

In a strong dissenting judgment, Mr Justice Adrian Hardiman states that he believes the decision of the court in DPP v J.C. has effectively given An Garda Síochána “immunity from judicial oversight” by rewriting a key rule on evidence in criminal trials.

The full judgments of Mr Justice O’Donnell, Mr Justice Clarke and Mr Justice Hardiman can be found here.

UK Case Law:

  1. Malhar Soni v General Medical Council 2015 EWHC 364

Dr Malhar Soni recently succeeded in his appeal against a decision of the Fitness to Practise Panel for a finding of dishonesty and the imposition of a six month suspension. Justice Holroyde concluded that the Fitness to Practise Panel had made a wrong determination. It had “conflated separate issues, and made unjustifiable assumptions…it must have confused grounds for suspicion with evidence sufficient to prove”.

It was held that no future panel would be able to make a finding of dishonesty on the evidence and it was not appropriate to remit the case. The determination of the Panel was quashed.

  1. The Professional Standards Authority for Health and Social Care v The Nursing and Midwifery Council & Anor 2015 EWHC 764

The PSA lodged an appeal on the decision made by the Conduct and Competence Committee on the basis that it was unduly lenient. The primary ground of the appeal was that the failings by the Registrant were not adequately encompassed within the charges that had been brought against her by the NMC.

This case reinforces the need for disciplinary panels to play a more active role than a judge presiding over a criminal trial in order to ensure that a case is properly presented, that the charges adequately reflect the real mischief of the case and that the relevant evidence is placed before it.

This case also acts as a reminder to regulators that charges brought against a Registrant must be sufficiently particularised in order to ensure that a panel is able to reach a fully informed decision.

  1. R (Adesina) v Nursing and Midwifery Council 2013 EWCXA Civ 818

An appeal against a disciplinary decision to the High Court which was made outside the Statutory 28 day period was permitted by the UK Supreme Court. This decision was based on Pomiechowski v Poland which established the right of access to the Court under Article 6 could override statutory limits.

Note: such a discretion may only arise “in exceptional cases” and where the appellant “personally has done all he can to bring the appeal timeously”.

  1. Al Nahar v General Dental Council 2015 EWHC 513

Mr Justice Holman of the Court of Appeal has upheld the General Dental Council’s decision to erase Dr Al-Nahar from the dental register. Dr Al-Nahar argued that because of his age, erasure from the register created a very real likelihood he would never return to practice, and that this would be disproportionate. Justice Holman concluded that the General Dental Council’s decision for erasure was justified and therefore the appeal was dismissed.

  1. Squier v GMC 2015 EWHC 863

Justice Ouseley recently delivered his judgment on the judicial review challenge brought by Dr Squier in the above named case. The appellant sought to judicially review the procedure being adopted by the GMC in relation to Fitness to Practise (FtP) proceedings.

The GMC’s case against Dr Squier related to expert evidence given by her in six cases between 2006 and 2010 of non-accidental head injury to infants, ‘shaken baby syndrome’. In all of these matters Dr Squier’s evidence was subject to severe judicial criticism. The National Police Improvement Agency referred a complaint about Dr Squier’s involvement in the cases to the GMC in 2010 and the GMC is pursuing FtP proceedings against Dr Squier, it is alleged that she failed to discharge her duties as an expert, including that her actions were misleading, irresponsible, dishonest and likely to bring the medical profession into disrepute.

The Judicial review challenge was brought in advance of the FtP hearing on the basis that it would be wrong in law to allow the GMC to be able to rely upon the previous judgments as evidence in the prosecution of its cases against Dr Squier.

The judge’s decision in this case provides clarification for regulators, as to the court’s approach to dealing with interim judicial review proceedings in FtP cases, as well as confirming the evidential status of previous judgments that might relate to the case. This judgment also highlights the fundamental requirement for fully particularised allegations to be provided to doctors who are subject to GMC FtP proceedings.

Lobbying:

  1. New Lobbying legislation aims to take on 'closed door' meetings

This article was published in the Irish Times following a recent McDowell Purcell e-zine. The article gives a brief overview of the exceptions under the new Act and the contradictory forces of legal professional privilege and duty of confidentiality.

 

Regulation of Charities:

  1. Minister Fitzgerald extends deadline for charities to register with the Charities Regulatory Authority

Minister for Justice and Equality, Ms Francis Fitzgerald, announced on Friday 17 April 2015 that a one year extension to the period within which charities established before 14 October 2014 must apply to the Charities Regulatory Authority for inclusion on the Register of Charities. These charities now have until the 16th of April 2016 to make their applications.

 

Legal Services Bill

  1. Minister Frances Fitzgerald completes Dáil Stages of the Legal Services Regulation Bill which now goes before the Seanad

The Legal Services Regulations Bill has completed the passage through the Dáil. The Bill now includes new measures for the introduction and governance of new business models for the delivery of legal services in the State. It is expected that the Seanad second stage of the Bill will commence in mid-May.

Remember that this article is for information purposes only and does not constitute legal advice. Specific advice should always be taken in given situations.

For further information please contact:

  • JP McDowell, jpmcdowell@mcdowellpurcell.ie or at 01 828 0630 
  • Eimear Burke, eburke@mcdowellpurcell.ie or at 01 828 0628
  • Aideen Ryan, aryan@mcdowellpurcell.ie or at 01 828 0674