Public and Regulatory Law Group Alert: April 2012
Locations
Case Law
SRA v Dennison [2012] EWCA Civ 421
The Appellant, D was a partner in a law firm who had entered an agreement with a company L, to provide medical reports for personal injury claimants. D did not disclose to his partners or clients that he owned one third of the shares of L, which provided services to the firm for five years, and as a result of which he made substantial profits. D eventually disclosed his interest and paid a substantial commercial settlement to his former partners.
The Solicitors Disciplinary Tribunal held that D had acted dishonestly and that the matter was very serious. However, it held in view of the time that had passed, the settlement made by D and the fact that in its view D did not pose an ongoing risk to the public, a fine rather than striking off or suspension was the appropriate sanction.
The Solicitors Regulation Authority appealed this decision and the Divisional Court held that the matter was so serious that D ought to be struck off. D appealed against this decision, arguing that the Tribunal had been in the best place, having heard the evidence, to determine the risk to the public and the risk that public confidence would be undermined if he were allowed to continue to practise. D argued that this was an unusual case in which striking off was not the appropriate sanction notwithstanding a finding of dishonesty.
In dismissing D's appeal, the Court held that although this was not a case where D dishonestly used clients' money, it was a case of serious, persistent and knowing dishonesty towards D's clients and partners. The Court considered the Tribunal's reasons for imposing the sanction it did, and found that none of the factors it took into account carried much weight. The passage of time, although a factor, did little to detract from the serious nature of the conduct. The fact that D made a settlement to the firm did nothing to preserve the reputation of the profession and the sanction would tend to reinforce the perception that the profession was willing to tolerate dishonest practitioners. Whilst a fine might be appropriate in cases of less serious dishonesty, this case did not fall within that category.
SRA v Rahman [2012] EWHC 1037 (Admin)
The Solicitors Regulation Authority appealed the decision of the Solicitors Disciplinary Tribunal to impose a 12 month suspension on R, arguing that the sanction was too lenient.
R had been dismissed from his employment due to poor performance. He wrote letters to his mortgage insurer purporting to be from his previous employer and using the firm's letterhead, stating that he had been made redundant. His former employer, having found copies of drafts of these letters, confronted R who said he had not sent any forged letters. The firm then contacted the insurer and discovered that letters had in fact been sent. R finally admitted that he had sent the letters.
The Court in considering the appeal, found the SDT's reasoning in this case was seriously flawed. It held that in almost all cases involving dishonest conduct, the appropriate sanction is usually striking off. In order to make that determination, the Court had to consider the nature, scope and extent of the dishonesty, the length of time over which the dishonest conduct had taken place, whether R benefitted from it and whether it adversely impacted on others.
The Court held that the SDT had erred in its finding that R had acted in a moment of 'panic' and his acts were premeditated and persistent over a period of more than a week. The SDT had been wrong to take into account R's youth and inexperience; he was a qualified and practising solicitor and was under the same obligation to act honestly as any other solicitor. His conduct in using the firm's letterhead and preparing and sending forged letters was of the utmost gravity and had adversely affected a former colleague of R who was investigated by the firm. Any display of candour and remorse occurred after he was caught and he had fully intended to benefit from his dishonesty. Accordingly, the Court held that the SDT had been too lenient and striking off was the only appropriate sanction.
Garner v GTCS [2012] CSIH 39
The Appellant G had been a mathematics teacher at Alva Academy when concerns about her performance came to light. Between September 2004 and April 2007, formal competency proceedings were commenced by Clackmannanshire Council which culminated in a formal disciplinary hearing on 22 August 2007. G did not attend and she was dismissed.
G's case was referred to the Disciplinary Sub-Committee in May 2008 and the notice of hearing was served on her alleging that between 3 November 2003 and 29 August 2007, G failed to meet the level of competence and performance required. The hearing took place over 14 days from 1 November 2010, and 9 witnesses gave evidence in addition to G. Both parties produced extensive documentation and lengthy written closing submissions were served by both parties. The Disciplinary Sub-Committee delivered its decision on 16 July 2011, finding that the allegations proved amounted to serious professional incompetence which warranted G's removal from the register. G appealed this decision
Section 11(11) of the Teaching Council (Scotland) Act 1965 requires that when the Disciplinary Sub-Committee makes a direction that a person's name be removed from the Register, it should serve on that person a notice including reasons for the direction. G argued that the Disciplinary Sub-Committee had failed to give adequate reasons for its decision and its findings and determination did not begin to reflect the extent and complexity of the evidence led before it. The summary of the evidence extended to little more than four pages and there was little reference to the documentary evidence. There had been instances in which evidence given by GTCS witnesses was contradicted in the documentary evidence and inconsistent with evidence given on cross-examination, but there was no indication in the Disciplinary Sub-Committee's decision that it had made any attempt to resolve these disputes and G's documentary evidence appears to have been ignored.
The Court agreed with G, saying that it was "at a loss to understand how proper conclusions on those matters could have been reached without consideration of the statistical material referred to … It is not indicated by the Disciplinary Sub-Committee whether the inconsistencies undoubtedly highlighted between the oral evidence of witnesses and the contents of contemporaneous documents were taken in to account, or how those conflicts were resolved, if indeed they were. Moreover, [the Court] think it surprising that in view of the length and complexity of the hearing of evidence before them, the Disciplinary Sub-Committee felt able to properly express their conclusions in a decision, the substance of which ran to less than six pages."
The Court was not persuaded that the Disciplinary Sub-Committee, in failing to deal with controversial and potentially significant issues raised before them, together with the reasons set out in their determination, had given proper consideration to all the issues raised in the case. Their decision was therefore quashed. The Court ordered that the case be remitted to the GTCS with a view to their deciding whether disciplinary proceedings should be renewed before a differently constituted sub-committee.
Chief Constable of Hampshire (Claimant) v Police Appeals Tribunal [2012] EWHC 746
The Court considered an application for judicial review by the Claimant chief constable against the defendant Police Appeals Tribunal in respect of its decision that the refusal, in misconduct proceedings, to call witnesses to give evidence constituted unfairness which had materially affected the outcome of the proceedings against a police officer (M).
Several female police officers had complained against M on the grounds that he had engaged in inappropriate sexual conduct. In the notice of referral to the misconduct proceedings which arose from these allegations, the individual complainants were not named. The chief constable expressed his intention not to call any witnesses. M challenged the chief constable's decision and requested that the complainants be present at the misconduct hearing for cross-examination. The chairman of the panel upheld the chief constable's decision, citing Home Office guidance under the Police Act 1996, which stated that misconduct hearings would generally be held without witnesses. At the hearing, two officers did attend to give oral evidence, however the chair reiterated that none of the others witnesses were required. The panel found M guilty of gross misconduct and dismissed him without notice.
M appealed to the Police Appeals Tribunal, which concluded that the refusal to call the other witnesses was unreasonable by the standards established in the case of Wednesdbury.
The Court ruled that the Home Office guidance referred to by the misconduct hearing panel did not have statutory authority, and could only have done so if it had been authorised by legislation. The 1996 Act did not give the Secretary of State the power to issue guidance obliging a misconduct panel to have regard to such guidance.
Considering the construction of Regulation 23(3) of the Police (Conduct) Regulations 2008, this was not a matter of discretion but of judgment: If the chair of the panel had thought that it was necessary for a witness to give evidence in the interests of justice, he had to ensure their attendance. Where there was a dispute on a point of primary fact, and the point turned on one person's word against another's, the interests of justice, the court considered, would ordinarily require both witnesses to be heard unless the complainant's evidence was cogently supported by unchallengeable evidence, or unless the disputed events were not central to the misconduct allegations.
In respect of the Tribunal's powers, the Court confirmed that where the Tribunal quashed a finding of a disciplinary panel, it had no power to remit the case, only to reinstate the police officer in question.
Regulatory News
CQC adopts a four region structure
The Care Quality Commission has announced that it has moved to a four region structure – South, London, Central and North. The regions correspond to the structure of the NHS Commissioning Board and it is intended that inspectors in each region will be responsible for a fewer number of services than in the past.
FRC announces Richard Fleck as Chairman of the FRRP
Richard Fleck will succeed Bill Knight as the Financial Reporting Review Panel's Chairman, the Financial Reporting Council has announced. Mr Fleck previously practised as a lawyer specialising in corporate and regulatory law, and sat as Chair of the Auditing Practices Board. Mr Fleck's comments on his appointment can be seen here
FRC begins consulting on Codes and Auditing Standards
The FRC has begun consulting on proposed changes to the UK Corporate Governance Code, the Stewardship Code and International Standards on Auditing (UK and Ireland). The Codes set out good practice for UK listed companies on issues such as board composition and risk management, and for institutional investors on monitoring and engaging with investee companies. The proposed changes can be seen here
GOC appoints Mandie Lavin as permanent Director of Regulation
The General Optical Council has announced that Mandie Lavin who has been acting its Director of Regulation on an interim basis since October 2011, has been appointed in a permanent capacity. Ms Lavin has previously held a number of senior positions including Director of the Bar Standards Board, Director of Fitness to Practise and Legal Affairs at the Royal Pharmaceutical Society of Great Britain, and Director of Fitness to Practise at the predecessor body to the Nursing and Midwifery Council. The announcement can be seen here
GCC carries out internal review of fitness to practise systems
The General Chiropractic Council has announced that it has reported findings of an internal review into its fitness to practise process, resulting in steps to make the process more cost effective and significant proposals to the to the Council for Healthcare Regulatory Excellence and Department of Health for legal change. The GCC says it found a substantial number of complaints had not been appropriately dealt with, and that these, together with other systemic failures, indicate that substantial improvements need to be made and that steps are currently being undertaken to this effect. The full announcement can be seen here
LSB publishes Business and Strategic Plan
The Legal Service Board published its Business Plan on 4 April, setting out the LSB's vision for the coming years. The focus is on improving performance of the legal sector's regulators and embedding better regulation. More information can be seen here
NMC comments on CHRE interim report
The Nursing and Midwifery Council says it welcomes the interim report published by the CHRE as 'an opportunity to look forward'. Professor Judith Ellis, Interim Chair of the NMC, acknowledged and accepted the criticisms made in the report and confirmed that the regulator is moving quickly to recruit to strategic roles within the Council in order to deliver stability and change to the organisation and declared that it must have an 'unremitting focus for improvement'. She added that the NMC needed to become a 'very different organisation, committed to effective regulation and putting the needs of patients first ' Professor Ellis noted the CHRE's acknowledgment of the interim executive team's focus on regulation. Her full statement can be seen here
GMC preparing draft guidance on use of social media
The General Medical Council is seeking doctors' views on its proposed guidance on the use of social media. At the heart of the guidance, is the notion that the standards expected of doctors do not change, just because communication may be through social media rather than more traditional methods. The GMC is also updating a number of other guidance documents including Ending your professional relationship with a patient and Maintaining boundaries. The consultation which runs until 13 June 2012 and can be accessed here
GPhC announces consultation on changes to rules
The General Pharmaceutical Council is asking for views on changes to how the GPhC carries out some of its core functions, including fitness to practise procedures and rules governing its statutory committees. The proposals include measures to increase the flexibility and capacity of its hearings function, making the Council responsible for policies regarding the criteria for referral of cases to the fitness to practise committee and appropriate sanctions, and changing the requirements for identity checks on registration. More details on the consultation which runs until 12 July 2012 can be seen here
BHA makes statement about horse deaths in Grand National
The British Horseracing Authority has announced that circumstances around the death of two horses, Synchronised and According to Pete will be examined closely. The BHA says that as with any serious equine injury, the incidents will be reviewed to see if any action can be taken to minimise the risk of recurrence in future race meetings. In the statement which can be seen here, the BHA confirms its commitment to reduce injuries and fatalities in horseracing whilst maintaining the character of the race.
HPC launches consultation on profession-specific standards of proficiency
The Health Professions Council is consulting its stakeholders for their views on its review of the profession-specific standards of proficiency for arts therapist, dietitians, occupations therapists, orthoptists, physiotherapists and radiographers. Under the HPC's new structure for standards of proficiency, the standards will be profession specific. In this consultation, the HPC aims to ensure that the standards of proficiency are relevant, applicable and appropriate to each profession. Each respective professional body will review the existing standards and recommend changes. The HPC will review the standards of proficiency of the other professions it regulates on a rolling basis over the next 18 months.
For further information please contact Sarah Ellson, Partner or Juliet Oliver, Partner in the Public and Regulatory practice at Fieldfisher.