Public and Regulatory Law Group Alert: November 2012
Locations
Introduction
Welcome to the PRG's November alerter. This month's edition sees the release of reports by the Council for Healthcare Regulatory Excellence and Health and Care Professions Council and the launch of three consultations by the General Dental Council.
For this, and more, regulatory news, see here.
This month, we look at the recent case of Harry v GMC in which the Court overturned an interim suspension the basis that it was ‘heavy handed and disproportionate’ and stated that suspension for the maximum period of 18 months should not become the default position.
Continuing the recent focus on the issue of dishonesty, in Nwogbo v GMC, the Court made it clear that in cross-examination, allegations of dishonesty must be put to a registrant in sufficiently unambiguous terms that they can be dealt with in a registrant's evidence.
In Yaacoub v GMC, the Court held that the GMC's Fitness to Practise Panel had to provide clear reasons for preferring the evidence of a complainant where this had changed significantly from the time she first made her complaint.
Finally in Kumar v GMC the Court revisited the principles established in Meadow and Preiss, confirming that in cases relating to challenged expert evidence a finding of bad faith or moral turpitude is not a requirement in order to establish serious professional misconduct.
Case Law
Dr Tubonye Harry v the General Medical Council EWHC 2762 (QB)
H had practised as an NHS-employed consultant in genito-urinary medicine, and maintained a small private practice. He was summarily dismissed following a disciplinary hearing in which it was found that on a return journey from Nigeria in December 2010, H carried two blood samples, one infected with HIV, in his hand luggage against regulations which required such blood samples be stored in the plane's hold. It was found that H also opened the package in which the blood samples had been stored at his home when the regulations required him to open these in a laboratory. In addition, it was found that H was using NHS resources for the benefit of his private practice patients and had asked a member of staff to amend the paperwork relating to a patient (albeit that this request was swiftly retracted)
Following his dismissal, the matter was referred to the GMC. In considering whether to impose an interim order the Interim Orders Panel (IOP) noted that the NHS' disciplinary process found the allegations proved. The IOP found as follows: "in light of the serious concerns in relation to Dr Harry's conduct and probity along with the public safety risks in relation to the transfer of blood samples from Nigeria to the UK…it is necessary than an interim order of suspension be imposed…". The IOP considered that there were no workable conditions which would adequately protect members of the public and the public interest and was, therefore, satisfied that a suspension order was a proportionate response.
H applied to the Court for the suspension to be terminated. The Court decided that the allegations against H raised no concerns about patient safety, in that permitting him to continue to practise would not put patients at a "real continuing risk" (a forward-looking concept). The Court found that there was no evidence before it or the IOP which suggested that H realistically might again transport blood contrary to the established regulations, particularly "in the face of all that had occurred" during the disciplinary processes. The Court was also of the opinion that the alleged misconduct could not justify his suspension in the public interest on an interim basis, pending the resolution of the disciplinary proceedings. The Fitness to Practise Panel would in due course be able to determine the allegations and whether a sanction was in the public interest.
Furthermore, the IOP's reasoning provided no explanation of why suspension was a proportionate sanction. The suspension prevented H from seeking permanent or locum work in the United Kingdom. The Court was of the opinion that even if the public interest would have called for suspension to be considered, given the serious financial consequences to H it was 'very doubtful' that it would have been proportionate in this case. The Court concluded that the decision to suspend H was 'heavy handed and disproportionate'.
The Court also stated that, whilst the pressure of resources on the GMC was "well known", suspension for the maximum period of 18 months would have "very serious consequences" on the doctor concerned and should not become a "default position". The Court therefore terminated H's suspension.
Nwogbo v GMC EWHC 2666 (Admin)
This was an appeal bought by N against the decision of a Fitness to Practise Panel of the GMC to direct that N's name be erased from the register. N was charged with assault in March 2010 and failed to inform the GMC of this "without delay" as required by Good Medical Practice. He was subsequently found guilty in the Magistrates Court and an appeal to the Crown Court was unsuccessful. The allegations against him before the GMC's fitness to practise panel related to his failure to inform the GMC and various employers (including NHS Trusts, locum agencies and hospitals) of his arrest.
All but one of the findings of dishonesty were upheld by the High Court (which also held that the finding of impairment and the sanction of erasure should stand) but the panel's finding of dishonesty in relation to N's failure promptly to inform the GMC of his arrest was held to be unsustainable. This was on the basis that there was no indication in the transcript that it was put to him, in terms, under cross-examination that he had been dishonest in this respect: “…since dishonesty was a serious allegation which was being distinctly made against him, it was necessary for that allegation to be put to him in unambiguous terms so that he had a fair opportunity of dealing with it in his evidence."
The Judge made clear that he was concerned that N had been found guilty of dishonesty in relation to this allegation on the basis of what he should have known rather than what he did know, suggesting that this reinforced the Court’s “misgiving” that the Panel may not have given full and proper consideration to what was required in order to find an allegation of dishonesty proved.
Yaacoub v General Medical Council EWHC 2779
The appellant General Practitioner (Y) appealed against a decision of the GMC's Fitness to Practise Panel to suspend him for sexual misconduct in relation to a female patient (X). X originally complained that during two home visits, Y had used inappropriate sexual language and had attempted to inappropriately touch her. X's account developed over time to include further allegations of sexual misconduct, and in her oral evidence to the panel she went further still and asserted that Y had attempted to rape her. The panel found X to be a credible witness and suspended Y from registration.
The Court held that the Panel's findings were not perverse and that whilst X's account had changed over time and the Panel did not accept some of her evidence, this did not fatally undermine her complaint.
However, the Court did find that the Panel's reasoning was inadequate. It found that the facts of this particular case were exceptional and the assessment of X's credibility therefore required full and careful reasoning. X had gone from complaining of minor sexual misconduct to giving evidence that Y had committed a very serious criminal offence. The Panel had not, in its reasoning, fully accounted for how it dealt with such a fundamental shift in the evidence and the issues around her credibility that this raised. The Court therefore allowed the appeal.
Kumar v General Medical Council EWHC 2688 (Admin)
The appellant (K), a Consultant Psychiatrist, appealed against a decision of the GMC's Fitness to Practise Panel to suspend K for four months. K had been instructed by the Defendant in a murder trial to give evidence as an expert witness. The Defendant was running a defence of diminished responsibility. K prepared a report in which he concluded that the Defendant suffered from a condition called Intermittent Explosive Disorder (IED) but he did not explain that IED was not recognised in the International Classification of Diseases and was a controversial diagnosis.
During the course of giving evidence, K admitted that although he had previously prepared a report on IED in connection with a bail hearing on a murder charge, he had little experience of the defence of diminished responsibility and he had never considered IED in the context of such a defence. He admitted that he had also never given oral evidence in a homicide trial before. The trial judge considered that K's performance as an expert witness was so deficient that a referral ought to be made to the GMC.
The Fitness to Practise Panel concluded that K had acted recklessly and that his fitness to practise was impaired by reason of misconduct. It found that K had failed to disclose to the Defence his lack of previous experience in acting as an expert witness in homicide cases and his lack of experience of diagnosing IED. The Panel found that he had not read the prosecution statements, and he had not made it clear in his report that his opinion was provisional on that basis.
K argued before the Court that the Panel had not been clear as to what was meant by "reckless", and had failed to consider the context in which he had prepared his reports and given evidence. The Court held that K's experience could not constitute experience of acting as an expert in a homicide case and he had not told his instructing solicitors that that was the position. It was not relevant that the he was not asked for more information or that his published CV said nothing about any criminal experience. It had been open to the Panel to find that K had acted recklessly in accepting instructions and in not disclosing his lack of experience in acting as an expert witness in a homicide case.
Following Meadow v General Medical Council EWCA Civ 1390, an expert should know his limits and be alert to them. The comment of the Court of Appeal in Meadow to the effect that the giving of honest but mistaken expert evidence would only rarely amount to misconduct, absent bad faith or recklessness, did not mean that misconduct could only arise in cases where recklessness or bad faith were proven. The overriding test remained that in Preiss v General Dental Council UKPC 36 that serious professional misconduct did not require moral turpitude and gross professional negligence could fall within it. The giving of evidence in court or the preparation and content of a report for use in court might be of such a nature or degree of incompetence or negligence that it amounted to misconduct without bad faith or recklessness. In this case, K knew the limits of his expertise and experience in the area upon which his opinion was sought. K would have been expected to alert those instructing him to the controversial nature of an IED diagnosis and to know how diminished responsibility operated as a defence. The Court held that the Panel were wholly justified in its findings of reckless conduct.
Finally, the Court concluded that the sanction imposed on K was justified in the circumstances. It was vital to uphold the confidence of the criminal justice system that medical witnesses would have the requisite expertise and provide balanced and accurate expert reports. K's appeal was dismissed.
Regulatory news
Health and Social Care
GPhC warns pharmacy owners to get ready for changes to pharmacy regulation
The General Pharmaceutical Council has launched new standards for registered pharmacies: Pharmacy owners and superintendent pharmacists have been advised by Chief Executive, Duncan Rudkin to familiarise themselves with the new standards and begin preparations for their introduction. The plans which include bringing in full enforcement powers are not expected to take place before October 2013. To find out more and to view the presentation please click here
CHRE release GOsC audit report
The Council for Healthcare Regulatory Excellence has released its report following an audit of nine General Osteopathic Council cases closed at the initial stages of the Fitness to Practise process between July 2011 and June 2012. The CHRE did not identify any issues that might pose a risk to patient safety. The report can be accessed here
GDC launch consultations
The General Dental Council is seeking views on three consultations launched in relation to its proposals to change dental regulation in the UK. The first relates to changes to its guidance on direct access, and considers whether this should be expanded, allowing a patient to see other registered dental care professionals without the need to see a dentist first. The GDC also wants to hear opinions on its new standards, including nine principles covering a range of themes including communicating effectively with patients and making sure personal behaviour maintains patients’ confidence in the profession. The third consultation relates to Continuing Professional Development. To find out more and respond to the consultations please click here
HCPC fitness to practise annual report published
The Health and Care Professions Council has released its annual report covering the period 1 April 2011 – 31 March 2012. The report provides key statistics about the way in which fitness to practise cases have been dealt with, together with other fitness to practise news and developments. To access the document, click here
CQC launches Speaking Up Charter
The Care Quality Commission has joined other regulators and organisations to launch the Speaking Up Charter. This signifies a commitment to work together to support people who raise concerns in the public interest. It aims to provide support when concerns are raised and to ensure that safety issues are dealt with fairly. Further information can be found here
NICE expand into social care
Following the new responsibilities set out in the Health and Social Care Act 2012 for NICE to develop quality standards and other guidance for social care in England, it has announced it will be expanding its role from April 2013, to include standards for social care. The Department of Health has asked NICE to pilot quality standards in the areas of Care of people with dementia and Health and wellbeing of looked-after children. A consultation process will be taking place before NICE publishes its final quality standards. It has issued an Invitation to tender for the procurement of a NICE Collaborating Centre for Social Care. To find out more please click here
Registration of domiciliary care agencies in Wales
A consultation has been issued by the by the Welsh Assembly Government in relation to the new system of registration being introduced for domiciliary care agency managers in Wales. The registration requirement is expected to come into effect in January 2013. If you would like to find out more or respond to the consultation please click here
HTA publishes final response to Government consultation
The Human Tissue Authority has published its final response to the Government's consultation relating to the transfer of its functions to other organisations. The HTA is in support of option three which would allow it to retain its functions whilst improving efficiency. To view the response in full please click here
Legal
LSB recommendation on will writing
The Legal Services Board has proposed that will writing, estate administration and probate services should only be provided by regulated legal professionals. This is intended to provide a greater level of protection for consumers. A recommendation will be made to the Lord Chancellor for these services to be classified as “reserved activities”. To read more on this proposal please click here
SRA announces creation of International Support Network
Following the success of the International Conference of Legal Regulators, which was organised by the Solicitors Regulation Authority, legal regulators from around the world have agreed to create a support network. It was a unanimous decision which aims to offer a valuable source of support and information. Further details about this and the conference can be accessed here
Security
SIA warn of Door Supervisor advance fee scam
The Security Industry Authority has released a warning relating to a company which offers to provide free door supervisor training, a free door supervisor's licence and the offer of employment. The company asks for £50 towards CRB checks but this is ordinarily included in the SIA licence application fee. For further information please click here
Sport
BHA charges nine following suspicious betting investigation
The British Horseracing Authority has charged nine individuals following an investigation into suspicious betting activity on a number of races. The allegations relate to serious breaches of the Rules of Racing. For further details on the charges please click here