PRG Alerter: February 2013
Locations
Introduction
Welcome to Fieldfisher's Public and Regulatory Group Alerter, highlighting the key cases and events taking place in January 2013.
In our new comment section we explore the judgment regarding the scope of legal professional privilege in the Supreme Court case of Prudential PLC and Prudential (Gibraltar) Ltd –v- Special Commissioner of Income Tax and Philip Pandolfo (HM Inspector of Taxes).
In other regulatory news, consultations have been published by the HCPC, GOsC, FRC and SRA, and the Administrative Court in the case of Andersons Solicitors confirmed that the defendant SRA's policy and procedure for publication of allegations against solicitors is lawful.
Regulatory news
Health and social care
HFEA and HTA to be retained as independent regulators
The Department of Health has reported on its plans to transfer the functions of the Human Fertilisation Authority and the Human Tissue Authority to the Care Quality Commission and the Health Research Authority, as part of its cutback to reduce bureaucracy and increase efficiency. It has responded to messages from consultees about the risks of losing specialist expertise, and has announced that both bodies will be retained at this time. The Department has however instigated an independent review of how both bodies operate their functions in order to consider how to achieve further efficiencies. The independent review, which will report to ministers in April, will consider the feasibility of a merger of the HFEA and the HTA.For more information on the decision, please click here
HTA, HFEA and CQC sign Memoranda of Understanding
The Human Tissue Authority and the Human Fertilisation and Embryology Authority have entered into Memoranda of Understanding with the Care Quality Commission. These agreements set out the ways which they will work together to ensure the safety of those who use these services, and focus on sharing information between the organisations and developing more effective ways of working. For further information please click here
HCPC starts consultation on criteria for approving Approved Mental Health Professional programmes
The Health and Care Professions Council is seeking views from stakeholders on the criteria for approving Approved Mental Health Professional (AMHP) education programmes in England. The HCPC have taken over responsibility for AMHP programmes from its predecessor, the General Social Care Council. The draft criteria focus on the knowledge, understanding and skills necessary to practise as an AMHP. The consultation is open until Friday 19 April 2013 and the HCPC hopes to publish the approved criteria in autumn 2013. To find out more or submit a response, please click here
GOsC starts consultation process on new policy for the retention of data
The General Osteopathic Council is inviting views on a proposed new data policy. The policy is concerned with personal information which is acquired and held by the GOsC. The policy includes maximum period for records to be held. The consultation closes on 28 March 2013. To find out more or submit a response, please click here
GPhC fitness to practise decisions praised
A report by the Professional Standards Authority (PSA) has praised the GPhC's manner in dealing with complaints, following a recent review. The strengths highlighted by the PSA report included timeliness, with cases closed well within GPhC's targets. The PSA report found that risk assessments were being carried out, allowing the regulator to prioritise serious cases. The PSA also recognised the improvements which had been made by the GPhC in its management of fitness to practise cases. Further information about the audit is available here
NMC introduces new rules and standards
New Midwives rules and standards came into force on 1 January 2013 following consultation with nearly 1,000 organisations and individuals. These simplify the rules governing the practice of midwives, and remove those which are covered by other standards or legislation. With the new rules and standards the NMC has also provided guidance outlining how best to deal with issues arising from a midwife's practice. To view the revised rules and standards, please click here
NMC introduces new processes to improve fitness to practise efficiency
The NMC has introduced consensual panel determinations and a voluntary removal process with the goal of improving the efficiency of its fitness to practise procedures.
The changes will allow the NMC to take prompt action to protect patients and the public. In particular, the consensual panel determinations will enable nurses and midwives who admit all charges against them, to provisionally agree a sanction with the NMC. Wherever possible, the proposed sanction will be discussed with the maker of the allegation and will then be accepted or rejected by a Conduct and Competence Committee or Health Committee Panel.
The voluntary removal process comprises a mechanism by which nurses and midwives who admit that their fitness to practise is impaired can voluntarily, but permanently, remove their name from the NMC register. This mechanism will only be used where there is no public interest in holding a full hearing and, where possible, the views of the person who made the allegation will be sought.
For more information about these changes, please view: NMC introduces new process to improve fitness to practise efficiency and NMC introduces voluntary removal process
Inquiry into breast cancer surgery at Solihull Hospital
Sir Ian Kennedy, who chairs the Independent Parliamentary Standards Authority (IPSA) monitoring MPs' expenses, is to chair a review into how management handled concerns in relation to incomplete mastectomies carried out by breast surgeon Ian Paterson. The review will also ask if bosses acted appropriately on those concerns and carried out its actions "in a timely manner". For more information please click here
GDC assist CPS in prosecution of dentist
The General Dental Council helped the Crown Prosecution Service and Metropolitan Police Drugs Directorate to prosecute a dentist who continued to practise dentistry despite being suspended in July 2012.
The GDC worked with the Crown Prosecution Service on the case, and on Friday 7 December he pleaded guilty at Lavender Hill Magistrates’ Court in London to fraud by false representation and to unlawfully practising dentistry.
The dentist, Mr Amir Kamburov, was sentenced to 7 weeks imprisonment on 28 December 2012. For more information please click here
Electoral Commission
Electoral Registration and Administration Bill completes report stage
The Electoral Registration and Administration Bill, which seeks to introduce individual electoral registration and improve the administration and conduct of elections, completed report stage in the House of Lords on 23 January 2013. The Bill will now return to the House of Commons for third reading and consideration of the Lords' amendments. Further information on the Bill is available here
Electoral Commission response to Scottish Government proposals for independence referendum
The Scottish Government sought the Electoral Commission's views on its policy proposal for a referendum on independence and the draft Referendum Franchise (Scotland) Bill, which would enable 16 and 17 year olds to vote in the referendum. The Electoral Commission responded to the proposals on 9 January 2013 and a copy of the response can be found here
The Commission further published its views on Scottish independence referendum question having been asked by the Scottish Government to test the question “Do you agree that Scotland should be an independent country? Yes/No”. It has also provided advice on the spending limits for the referendum campaign, having invited views from campaigners and political parties on what the limits should be, and has considered what campaigners will need in order to put their arguments to voters. For more information, click here
Finance
FRC sets out its core projects
Following two years of internal reform, the Financial Reporting Council has published its draft plan and budget for 2013-2014. The draft plan identifies six projects which are intended to deliver more effective regulation and better quality and value. It also addresses the significant challenges which the FRC faces in the near future. The consultation relating to the strategic priorities in the draft plan and its funding will remain open until 28 March 2013. For further information please click here
Legal
LSB indicates support for a simpler complaints regime for the legal profession
The LSB has endorsed the Office of Fair Trading's recommendation that the legal profession should put in place a more simplified complaints procedure. OFT's call for more clarity to be provided to users of legal services on how and where to complain was prompted by research showing that only one in eight dissatisfied customers makes a formal complaint about their solicitor. The LSB supports calls for reform but has indicated that it is already moving in the right direction. OFT's study was also critical of the process for authorising alternative business structures. The Law Society has said that a lengthy process is inevitable given the risks involved. For more information please click here
LSB publish report on the cab rank Rule
The LSB has published research regarding the 'cab rank rule' which aims to achieve access to justice. The rule is set out in paragraphs 601-610 of the Bar Standard's Board code. This research considers the meaning of the rule and its principles as well as its purpose in the new legal services market. To read more about this research and its findings please click here
SRA publish consultation on financial penalty guidance
The Solicitors Regulation Authority is asking for feedback on proposed guidance intended to improve the transparency and consistency of criteria relating to the fines it can levy against firms and individuals that have breached the Code of Conduct. If approved, the policy would involve a three stage approach looking at the seriousness of the conduct, mitigating factors and whether the penalty will remove profit arising from the conduct. The consultation is open until 19 April 2013. For more information or to respond, please click here
Case Law
Andersons Solicitors and others v Solicitors Regulation Authority [2012] EWHC 3659 (Admin)
The Claimants, a firm of conveyancing solicitors and five of its partners, were subject to allegations made by the SRA which were to be dealt with in a substantive hearing scheduled for January 2013. On 27 July 2012, a directions hearing took place in public before the Solicitors Disciplinary Tribunal. It is the policy of the SRA (since 2010) that allegations to be heard by a Tribunal, including names of those against whom allegations were made, are published by the SRA once the Tribunal has certified a case to answer.
The claimants sought judicial review of the SRA's policy and procedure for publication of details of allegations made against solicitors which were to be heard by the SRA, and the implementation of that policy in relation to allegations made by the SRA against them. The application for judicial review was dismissed.
It was held that the principle of open justice meant that once the tribunal proceedings had become public, as they had done at the directions hearing, there could be no objection to publishing the details of the directions hearing and the allegations. Moreover, it was not accepted that there was any wrong motive on the part of the SRA when formulating their publications policy. The policy was consistent with statutory objectives and also provided that each decision be taken on its own merits. This was found to be lawful under statute and Article 8 of the ECHR. There was no unreasonableness or procedural unfairness in publishing the Claimant's details and the allegations against them.
Comment
R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1
Historically, legal advice privilege ('LAP') has applied to all communications passing between a client and its lawyers (acting in their professional capacity) in connection with the provision of legal advice. This appeal concerned the scope of LAP and whether it extends to legal advice given by non-lawyers (in this case, to legal advice given by accountants in relation to a tax avoidance scheme).
The court held (by a majority of 5:2) that the scope of LAP should not be extended, even where that advice is legal advice which the professional in question is qualified to give (and even when the advice, if identical and given by a lawyer would have attracted LAP).
The majority held that to extend LAP to encompass legal advice provided by non-lawyers would be to extend it beyond what are currently and have been for a long time understood to be its limits. These limits are recognised by clear statements of high judicial authority, authoritative textbooks on privilege and evidence as well as official reports.
Further, the majority considered that extending LAP in the manner argued by the Appellants would lead to a clear and well understood principle becoming uncertain because it would be unclear which occupations would be 'professions' for the purposes of LAP. In addition, it may be difficult to deal with documents which contained both legal and non-legal advice.
Finally, the majority held that extending the scope of LAP raised questions of policy which should be left to Parliament. Parliament has, on a number of occasions, legislated in this field on the assumption that LAP only applies to lawyers (namely by creating statutory exceptions for trade mark agents, patent agents and personnel consultants) and the majority held that in those circumstances it would be inappropriate for the Supreme Court to extend the law.
The case has attracted a great deal of comment (much critical) and interveners included the Law Society, the Legal services Board, the Bar Council and the Institute of Chartered Accountants of England and Wales. While the Supreme Court clearly decided the case on the basis of clarity, much of the criticism suggests that this is at the expense of coherence and that it is counterintuitive that the same advice can be privileged when given by a lawyer but not privileged when given by an accountant.
The minority considered that, properly formulated, LAP extends to advice given by members of a profession which has, as an ordinary part of its function, the giving of skilled legal advice. As such, to accord LAP to legal advice given by accountants would not extend its scope. The minority considered that the court ought to take a functional approach to the question and that LAP should be governed by the character of the advice given and the circumstances in which it is given (rather than the profession of the individual giving it).
Even the leading judgment against the appellants, by Lord Neuberger, confirmed that the principled argument for allowing the appeal was strong, and that the limits of the rules of privilege were outmoded. It recognised that in the modern world, a great deal of legal advice is provided by non-lawyers: legal advice is not a reserved legal activity under the Legal Services Act 2007, and that Act has opened the gates to new partnerships between lawyers and non-legal professionals.
The judgment seeks to preserve the clarity of the current position. However in highlighting the uncertainty that might follow should the scope of LAP be extended, Lord Neuberger has identified precisely the questions that we anticipate the Courts will need to grapple with in any event should Parliament decide not to legislate further. In the context of advice provided by a multi disciplinary partnership under the Act, there may well be difficult questions to resolve regarding which documents attract privilege, and a single document may represent a combination of legal and other professional advice, requiring an analysis of the extent to which the legal advice is “subsidiary”. We eagerly await further developments.