Public and Regulatory Law Group Alerter April 2013

Public and Regulatory Law Group Alerter April 2013

Introduction

Welcome to Fieldfisher's Public and Regulatory Group Alerter, highlighting the key cases and events taking place in March 2013.

In the case law section below, we highlight the following:

In Perry v Nursing and Midwifery Council the Court of Appeal gave guidance as to the extent to which a regulator is able to look into the merits of the evidence underpinning the allegations in deciding whether interim measures are necessary.

In R (on the application of Li) v General Medical Council the High Court examined the factors that a Panel should consider on an application for voluntary erasure and a stay of proceedings on the grounds of ill health.

In Okeke v Nursing & Midwifery Council, the High Court held that under the NMC's legislation, a first finding of lack of competence against a person could not result in a striking off order and that time spent subject to interim suspension could not be taken into account.

In The Queen (on the application of A) v the Chief Constable of Kent Constabulary the Court decided that the Chief Constable had failed to establish that the disclosure of unproven allegations in an Enhanced Criminal Records Certificate was proportionate under Article 8(2) of the ECHR.

In McDaid v Nursing and Midwifery Council the High Court exceptionally permitted the appellant leave to rely on new evidence as this potentially threw a completely new light on the charges against her, and notwithstanding that the issue was not raised in the original grounds of appeal.

In Ighalo v Solicitors Regulation Authority, the Divisional Court held that the mere fact that a solicitor member of the Solicitors Disciplinary Tribunal had previously acted as an Adjudicator for the SRA did not give rise to bias, actual or apparent.

---

Regulatory news

Health and Social Care

Care Quality Commission

Care Update

The CQC has published its second care update which highlights concerns about the quality of services and care for people suffering from dementia, mental health issues and learning disabilities. To view the update in full please click here

Warning Notice Process Review

The CQC has issued a statement in relation to its warning notice process which is currently under review. One of the proposals being considered is to extend the timescale for registered persons to respond to a warning notice, from five days to ten. For more information please click here

---

General Dental Council

Registration Guidelines

Following a recent review GDC has re-drafted its guidelines for the temporary registration of dentists. The new guidelines will come into effect from 1 August 2013 and cover the following areas:

• The definition of temporary registration;
• Posts suitable for temporary registration;
• The responsibilities of applicant when first applying for temporary registration;
• Documents required when applying for the first time;
• How the GDC operates temporary registration;
• Fitness to practise procedures in regard to temporary registration;
• Responsibilities for those involved in temporary registration.

For further details on this topic please click here

Language Skills of Doctors

The GMC has welcomed the Government's proposals to provide the regulator with new powers, to check the language skills of doctors qulaified overseas. For further details and to view the comments by the Chief Executive, Niall Dickson please click here

Duncan Rudkin, the Chief Executive of the General Pharmaceutical Council has also responded to the Government's announcement regarding language tests for doctors. Mr Rudkin welcomed the changes and has suggested that the powers to test language competence are offered to all professional regulators. Further details are available here

---

General Medical Council

Joint Revalidation Handbook

The GMC has launched a revalidation handbook in conjunction with other organisations including the Care Quality Commission. The handbook entitled 'Effective governance to support medical revalidation' aims to ensure that Trust Boards and governing bodies can ensure that their organisations have strong enough systems in place to support quality patient care and revalidation . If you would like to read more about the handbook please click here

Royal College of GP's exam results - Independent Data Review

The GMC has announced that it has commissioned an independent review of data relating to the pass rates for medical graduates taking membership of the Royal College of GPs exams. The review follows concerns expressed by groups acting on behalf of doctors qualified overseas about the difference in pass rates between certain groups. For further details please click here

---

General Osteopathic Council

Consultation on Fitness to Practise Guidance

The GOsC has launched a consultation on proposed new guidance for the Professional Conduct Committee in relation to Conditions of Practice and Indicative Sanctions. The purpose of the new guidance is to assist the PCC in making decisions on the sanctions to be imposed with the aim of creating a more consistent approach, ensure that there is greater transparency and that quality decisions are reached. The consultation will remain open until 31 May 2013 – to submit your views please click here

• The Home Office sets out by May 2014 how it will manage changes to the existing PCC legislation ahead of the next polls in 2016.
• For any new elections which are proposed in future, the relevant Government should make clear at the time of introducing legislation how they will ensure that electors have appropriate access to information about candidates.

To read more about this report please click here

---

Case Law

R (on the application of Li) v General Medical Council (2013) EWHC 522 (Admin)

Dr Li was facing allegations regarding his work as a paediatric locum in 2008 during which he administered a fentanyl patch to a post-operative patient to manage the pain, following which the patient suffered a cardiac arrest and died. The GMC obtained an expert report which was highly critical of the high dose of opiate provided which was contraindicated and carried significant risk. A direct causal link was made between the prescription and the death of the child.

Dr Li (who at the time of referral to the GMC was in his late sixties and suffering with mental health problems) was referred to a Fitness to Practise Panel ("FTPP"). At the hearing, Dr Li applied for voluntary erasure (VE) from the medical register. Alternatively, it was argued on his behalf, the proceedings should be stayed as the health of Dr L was such that he was unable to participate in any hearing.

Three psychiatrists provided evidence to the FTPP.  They all agreed that Dr L's mental health was such that (a) he was unfit to participate effectively in the GMC proceedings, (b) he was unfit to practise medicine now or at any time in the future and (c) participation in the process would have a profound effect upon Dr L’s psychiatric wellbeing, and the suicide risk that arose.

At hearing, the GMC adopted a neutral position; they did not dispute the medical evidence and conceded that should the panel stay proceedings at some point in the future, it would not be the GMC's application, at any point in the future, that the case should proceed in the absence of Dr L.

The FTPP determined that voluntary erasure would not be adequate to maintain public confidence in the regulatory process. In relation to that issue, the FTPP noted that there was "a parallel interest on the part of the bereaved parents in seeing that any professional culpability is identified and risks appropriately managed" and concluded that where there were issues relating to the death of a patient and there was a realistic prospect that the doctor would be able to continue working abroad (Dr Li had talked about working in Australia), potentially posing an ongoing risk to patients. Further, the panel was clear that voluntary erasure would not be adequate to maintain confidence in the regulatory process.

With reference to the submissions on Dr L's health, the FTPP felt that with appropriate psychiatric support, any suicide risks could be adequately managed. The FTPP's overall conclusion on the question of the application for voluntary erasure was that it was a finely balanced decision, but that the public confidence issues, and the obligation to protect patients in another jurisdiction, outweighed the arguments for granting voluntary erasure on the grounds of health and limitations of Dr L's capacity to defend himself."

As well as refusing Dr Li's application for voluntary erasure, the FTPP further refused the application to stay proceedings.

Dr Li appealed. The High Court held that the FTPP's decision to refuse voluntary erasure was irrational, and a conclusion which no tribunal properly directing itself on the unchallenged evidence could have arrived at.  Reference was made to the fact that the declared intention to work overseas did amount to a valid consideration for public protection purposes (as although the GMC is a UK domestic regulator, it does have a wider public protection role where a practitioner is planning on working overseas) but if a panel is to attach weight to such a consideration, it should only do so where there is compelling evidence that the doctor has not only expressed a wish or an intention, but also that it is a realistic one. In this case, it was clearly just a distant hope.

The Court also considered that the interests of the bereaved parents should not have had any relevance, and that there was no sound evidential basis to the FTPP's conclusion that the identified suicide risks could be adequately managed.

Finally, it was held that the decision not to stay the proceedings was more irrational, with the High Court considering that the concession made by counsel for the GMC that it would not proceed to a hearing in the absence of Dr Li at some stage in the future, was significant.

As a result, the Panel’s decision in relation to both voluntary erasure and the stay application was quashed.

---

Okeke v Nursing & Midwifery Council (2013) QBD (Admin) 27/02/2013

The appellant nurse and midwife (O) appealed against a decision of the respondent NMC to strike her off the register. It was alleged that O's fitness to practise was impaired as a result of her incompetence and misconduct.  During the investigation process, the NMC initially placed an interim order of conditions on O's registration. This was later replaced by an interim suspension order. O remained subject to an interim suspension order for over four and a half years until the NMC's Conduct and Competence Committee found the allegations proved and determined that public confidence could only be maintained in the profession if O was struck off the register.

The issues on appeal were twofold. Firstly, it was argued that it was not open to the NMC to make the striking off order in relation to the lack of competence findings as the wording of the relevant provisions (Article 29(6) of the Nursing and Midwifery Order 2001) was to the effect that she could not be struck off unless she had been "continuously suspended" for more than two years immediately preceding the date of the decision). O claimed that her interim suspension did not count towards that two-year period. The second limb of appeal was that the delay between the referral of the allegations and the date of the NMC's decision to strike her off (four and a half years) was so unreasonable that it breached her right to a fair hearing under Article 6 of the European Convention on Human Rights.

In relation to the first ground, the Court looked at the language of Article 29(6), the purpose of an interim order (i.e. to hold the position until the truth or otherwise of allegations can be determined), and the fact that if an interim suspension did count towards the two year period set out in Article 29(6), it would follow that delay in bringing the matter to a hearing, including unreasonable delay, would put a person at risk of a more severe sanction which would not have been available if the matter had been pursued more expeditiously. As a result, the court concluded that only a suspension order, and not an interim suspension order, could count towards the two-year period identified.

As a result, the Court held that the clear scheme of the NMC's legislation was that, by reason of Article 29(6), a first finding of lack of competence against a person could not result in an order that they be struck off the register. O's appeal was therefore allowed and the striking off order was quashed and remitted for reconsideration.

In relation to delay, the NMC had not sufficiently explained, or justified the reason for the four and a half year period that had elapsed between referral and determination. It was found that the delay was unreasonably long, and the panel had not taken account of it when making its decision.

As a result, the Court found that there had been a breach of O's Article 6 right, and stated that although it had concluded in any event on the basis of the first ground of appeal that the decision as to sanction must be quashed and reconsidered, it would also reach that same conclusion on the basis of the second ground of appeal. The Court concluded that fairness required that, on reconsideration, the panel had regard to the unreasonable delay and the effect which that had on the appellant.

---

Perry v Nursing and Midwifery Council EWCA Civ 145 (Court of Appeal)

This case relates to the extent to which an interim orders panel is able to look into the merits of the evidence underpinning allegations in deciding whether interim measures are necessary.

The Appellant was a registered mental health nurse who had been accused of serious misconduct by a patient (including allegations of a sexual nature). The NMC convened an Interim Orders Panel ('the Panel') and the Appellant was suspended for 18 months. He appealed to the High Court on the basis that the Panel had prevented his counsel from exploring the substance of the allegations in evidence before it. His appeal asserted that this was a breach of his Article 6 and Article 8 rights. Thirlwall J rejected the contention that the hearing before the Panel had infringed the Appellant's Convention rights, but held that a suspension order was unnecessary, and that an order imposing conditions of practice would be sufficient and appropriate.

There was no appeal in respect of Thirlwall J's decision that conditions of practice would be sufficient and appropriate. However, the Appellant took his case to the Court of Appeal, and relying on R (White & Others) v Secretary of State for Health UKHL 3, he submitted that the hearing before the Panel engaged Article 8 of the ECHR (on the basis that his suspension affected his relationships with patients, his ability to work and resulted in a stigma that affected his private life) as well as Article 6 (in that while it was in force it prevented him from working in the profession, therefore determining his civil rights within the meaning of that Article). The Court of Appeal was invited to find that the Panel had infringed the Appellant's Convention Rights in that fairness demanded that he should have had the opportunity to give evidence to the Panel addressing the substance of the allegations against him.

The Court of Appeal rejected this. In reaching its decision, the Court cited Micallef v Malta to the effect that interim orders are capable of engaging Article 6, and indicated that it was prepared to proceed on the basis that both Article 6 and Article 8 were engaged in the present case. However, notwithstanding that, the Court noted that Micallef makes clear that while certain procedural safeguards under Article 6 are inalienable (such as the right to an independent and impartial tribunal) others may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue.

Stanley Burnton LJ also cited a number of authorities relating to the GMC in reaching the view that:

'[a Panel] is entitled to discount evidence that is inconsistent with objective or undisputed evidence or which is manifestly unreliable. The committee may receive and assess evidence on the effect of an interim order on the registrant, and the registrant is entitled to give evidence on this. The registrant may also give evidence, if he can, to establish that the allegation is manifestly unfounded or manifestly exaggerated… what the Committee cannot do, and should not do, is to seek to decide the credibility or merits of a disputed allegation: that is a matter for the substantive hearing…'

To hold otherwise would require that the regulator call the complainant and any other evidence in support of the allegations and the result would be a trial before the trial which would go beyond what fairness requires at the interim stage. As such, the Court held that fairness in IOP proceedings does not require the respondent be allowed to give evidence on the substance of the allegations, and, as the Panel had therefore adopted the correct approach, the appeal was rejected.

---

The Queen (on the application of A) v the Chief Constable of Kent Constabulary EWHC 424 (Admin)

A applied for judicial review, and made a claim under the Human Rights Act 1998 ("HRA"), in respect of the Chief Constable of Kent Constabulary's decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate (ECRC). 

The Chief Constable received a request from the Criminal Records Bureau for an enhanced check to be made in respect of A concerning her proposed employment by Nightingales 24 7 as a registered nurse.

The Chief Constable provided information relating to four separate charges of ill treatment and neglect.  A had been found not guilty of all charges, the prosecution having offered no evidence due to concerns about the reliability of two prosecution witnesses, and the case had been dismissed.  Nevertheless, the Chief Constable stated in the ECRC entry "that this information ought to be disclosed because the alleged incidents occurred less than two years ago and the injured parties were all vulnerable adults in a care home environment.  There is a concern that children and vulnerable adults under the care of may be subjected to mistreatment."

The issue in this case was whether the disclosure was proportionate in light of the potential unreliability of the allegations. A argued that the decision to disclose the information was an unlawful interference with A's right to respect for her private life under Article 8(1) of the European Convention on Human Rights and was disproportionate.  A also alleged that the person who made the decision to disclose failed to apply the correct legal tests in assessing credibility and proportionality.

When considering its powers, the Court stated that as it was determining a claim under the HRA (and not just a claim for judicial review) it was not limited to a review of the decision on the basis of the material available to the decision maker.  It had to decide whether the Chief Constable was right or wrong in deciding that the disclosure would not be in breach of A's Article 8 rights because the disclosure was proportionate. The legitimate aim being pursued in this case was "the protection of the rights and freedoms of others" and the Court identified that disclosure will only be "necessary in a democratic society" where it is justified by a pressing social need and proportionate to the legitimate aim pursued. 

The Court held that the Chief Constable had applied the wrong legal tests and had adopted a decision making procedure which was flawed. The Court was critical of the Chief Constable's evaluation of the evidence and, in particular, the failure to consider the credibility of the allegations when carrying out the proportionality exercise required under Article 8(2). The Court considered that, because of the flawed decision making process, it could only give limited weight to the Chief Constable's view when considering whether there had been a breach of Article 8.  

In this case, the impact of disclosure for A had been grave.  She had an impressive record of employment as a senior nurse and the disclosure had prevented her from obtaining permanent full time employment in her profession. 

The Court decided in conclusion that the Chief Constable had failed to establish that the disclosure of the allegations against A was proportionate under Article 8(2). The Court considered that on the balance of probabilities the allegations against A were either exaggerated or false and that in these circumstances the balance tipped in favour of non disclosure.

---

McDaid v Nursing and Midwifery Council EWHC 586 (Admin)

M had been found guilty of misconduct by a Panel of the the NMC's Conduct and Competence Committee ("CCC") and had been struck off the register following a Fitness to Practise hearing in February and March 2013 at which she was not present or represented.  The allegations which the Panel found proved included breach of confidentiality, dishonesty, unprofessional and aggressive behaviour and the sending of aggressive and inappropriate correspondence to individuals.

M was originally unrepresented and appealed the decision on 23 separate grounds, but the general basis was that the allegations against her were false and were made as a result of a conspiracy by her managers against her because she had acted as a whistleblower.  By the time the High Court heard her appeal (and her application for Judicial Review brought on the basis that the NMC did not give adequate reasons for referring M to the Independent Safeguarding Authority), M had obtained legal representation and refined her grounds of appeal to four main points, these being that:

• one member of the Panel ought properly to have recused himself as there was an appearance of bias;
• the Panel ought not to have proceeded without M being in attendance and M should now be granted a further hearing;
• the Panel failed to conduct the hearing fairly; and
• the 12 allegations against M which the Panel upheld could be explained, and without the benefit of M's explanation, the Panel's findings and decisions were unsafe and should be overturned. 

The first two points were included in M's original grounds of appeal.  However, the second two points were not.  M also sought to rely on 'new evidence' at the appeal which had not been before the Panel. 

Eder J did not consider that any fair minded and informed observer might conclude that there was a real possibility the Panel was biased.

In terms of proceeding in M's absence, in Eder J's view, the Panel had correctly and demonstrably made the decision to proceed in M's absence "with the utmost of care and caution" and was entitled to proceed as it did.  Eder J also dismissed M's submission that in her absence, the Panel failed in its duty to put her case to the various witnesses who gave evidence at the hearing. 

Eder J noted that "any Panel appointed to consider and to determine charges as in the present case carries out an important independent role.  The performance of such tasks is much more difficult if the defendant does not appear....if the panel does decide to proceed in the absence of the defendant, it seems to me vital that it performs its tasks properly and not merely as part of a rubber-stamping exercise".  However, he further that the decision in R v Hayward EWHC Crim 168, on which he relied, did not place any duty on Panels to cross-examine witnesses in the way that a litigant in person or a legal representative may do. He considered it important that the Panel takes "reasonable steps" to expose weakness in the case of the opposing party, but that the scope of this will depend on the facts of a particular case.

In respect of the 12 findings which were said to be unsafe, Eder J held that re-examining these was not an exercise which can or should be embarked upon by the Court exercising an appellate function.

However, in terms of the admission of new evidence, Eder J held that there was no inflexible rule. He did not allow M to rely on a further detailed witness statement, but in relation to a letter from the Newham University Trust (which due to an apparent oversight had not been before the Panel), he considered that the fact that this letter was not before the Panel undermined its decision to find a particular charge proved, and "potentially infected its conclusions in relation to the other charges thereby vitiating the overall conclusion of the Panel" in striking M from the register. 

For that reason alone, Eder J determined that the Panel’s decision must be quashed and the matter remitted to the CCC.

The application for Judicial Review was, however, rejected on the basis that although it was important to give reasons when making a referral to the ISA, it was unnecessary to determine this in the instant case as the NMC gave adequate reasons during the course of the instant hearing.

---

Ighalo v Solicitors Regulation Authority EWHC 661 (Admin)

The Appellant solicitor, I, appealed to the Divisional Court against the SRA Tribunal's decision that he should be struck off the roll. The Tribunal's decision followed findings of misconduct against I which included findings of dishonesty.

On appeal, I relied on two grounds: firstly, that the Tribunal was not independent or impartial because one of its three members was a solicitor who had previously acted as an Adjudicator for the SRA, and secondly that he had not acted dishonestly, and that the Tribunal had erred in law in finding that he had done so.

The SRA argued that ther was no actual or apparent bias, as the solicitor concerned had never been an employee of the SRA and had never had any involvement with the investigation regarding I's practice.

The Court rejected I's appeal. In relation to the bias ground, the Court applied the Porter v Magill test i.e. whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. It concluded that the mere fact that the solicitor concerned had previously acted as an adjudicator for the SRA almost two years before he sat on the Tribunal considering I's case did not of itself give rise to bias, actual or apparent.

The Court noted that the solicitor had had no role in I's case, and also considered that, following Davidson v Scottish Ministers (No.2) UKHL 3, an individual sitting in a judicial capacity was not required to disclose every previous activity or association that he might have had – the duty extended only to activities or associations which might provide the basis for a reasonable apprehension of bias.

In conclusion, the Court held that there was no reason to believe that the solicitor member of the Tribunal did not bring objective judgement in relation to I's case.

In respect of the dishonesty findings, the Court concluded that the Tribunal had made clear findings of fact and gavefull reasons for those findings. It had also identified and applied the correct test for dishonesty and made findings on the basis of the criminal standard of proof, as it was required to do. As a result, the Court held that the Tribunal's decision on dishonesty could not be impugned, and therefore dismissed the appeal.