Regulatory Digest July- September 2017
Brookman v GMC [2017] EWHC 2400 (admin)
The High Court overturned the MPTS decision to erase from the register a doctor accused of sexual misconduct. HC held that the Tribunal had erred in failing to postpone the hearing and order a further health assessment of the doctor before reaching a decision on impairment and sanction.
The doctor had been accused of sexual misconduct during his short employment as a trainee doctor. An interim set of conditions were imposed upon him, which included conditions to be chaperoned whilst examining women and to inform employers and others of the conditions.
The doctor tried to obtain employment in the education sector, but failed to mention the conditions. When they came to light, the employment offer was also removed.
This was a long and complex hearing, during which the issue of the doctor’s health was raised as well as his misconduct. The Tribunal considered whether to postpone the remainder of the hearing and order a further health assessment prior to deciding the facts. However, they decided not to do so and proceeded to conclude that there was impairment and erasure was the appropriate sanction.
The doctor appealed based on the procedure followed by the Tribunal, as well as a number of other matters, including some which were not considered, as they were raised too late.
The HC held that the decision not to postpone the hearing and to rely only on the medical evidence which was currently before the Tribunal was wrong, as the Tribunal had insufficient evidence to rely upon. As the matter had taken two and a half years to get to the appeal court, it was not remitted.
General Medical Council v Nwachuku [2017] EWHC 2085 (Admin)
The High Court upheld an appeal by the GMC; holding that the disciplinary tribunal had erred and that the doctor's fitness to practise was impaired by his serious misconduct.
The doctor was in his final year of GP training and was working as a locum in a hospital. He was to undertake 3 shifts at the hospital. He asked his supervisor to sign the timesheet for all 3 shifts and in return promised to remain in the hospital to complete the shifts. He then left without completing the shifts himself, notifying anyone that he was leaving, or arranging cover. He submitted the timesheets for payment.
The Tribunal held that he was dishonest (and not merely misleading), but that his misconduct was remediable and that he had written a reflective statement. The Tribunal imposed a warning on his registration.
The GMC appealed against this decision as too lenient. The HC held that the Tribunal were correct to decide that the action of the doctor was reasonably considered as misconduct and that the Tribunal were correct to find dishonest intent or knowledge was obvious, thus properly applying the Ghosh test.
The HC also held that his dishonesty had been serious and that his attempt to avoid responsibility was an aggravating factor. The Tribunal had placed undue weight on his reflective statement, which did not in fact show that there was no risk of repetition of the misconduct. A finding of impairment was substituted by the HC and the matter remitted to the Tribunal for sanction.
General Medical Council v Jagjivan [2017] EWHC 1247 (Admin), [2017] Med. L.R. 380 applied. Dishonesty encompassed a wide range of circumstances and was likely to impair a professional person's fitness to practise
General Medical Council v Theodoropoulos [2017] EWHC 1984 (Admin);
The GMC appealed against the decision of the tribunal in this case. The Greek doctor was found guilty in his absence by the tribunal of dishonestly amending his certificate on the GMC's website and dishonestly providing a copy of the amended certificate to a locum agency to gain employment. His evidence that it may have been someone else who did it, was rejected.
The HC first had to consider whether it was appropriate to hear the appeal in the absence of the doctor (through no fault of his). The starting point was to use the criteria governing the continuation of a criminal trial in the absence of a defendant, Adeogba v General Medical Council [2016] EWCA Civ 162, [2016] 1 W.L.R. 3867 applied. Adeogba had stressed the differences between a criminal trial and a disciplinary hearing in the context of the regulation of the medical professions where the regulator's objective was the protection, promotion and maintenance of the public's health and safety. The extent of the disadvantage in relation to the appeal was limited and hence the HC allowed it to proceed.
The misconduct in the instant case involved dishonesty, which was a breach of a fundamental tenet of the medical profession, namely that a doctor should act with integrity and honesty at all times. It was therefore an error to suspend his registration for 12 months, as this was not appropriate or proportionate as a sanction. The decision to suspend the doctor's registration was quashed and substituted with a direction that his name be erased from the medical register.
A round up of some other important decisions:
Neumans LLP v Law Society (Solicitors Regulation Authority) [2017] EWHC 2004 (Ch)
The High Court declined to withdraw the intervention by the SRA. It concluded that whilst there were some considerations to be made as to whether intervention continued to be necessary after the resignation of one of the partners, on balance it was safer to continue the intervention than not.
The rules of natural justice do not apply in SRA matters. However, a failure to allow a solicitor or recognised body to answer allegations where that would have been a viable course, could bear on the rationality and proportionality of a decision to intervene.
Hayat v General Medical Council [2017] EWHC 1899 (Admin);
Held that the Tribunal should not have continued in the absence of the doctor. The Tribunal were provided with a certificate which said that the doctor was not fit to work, it did not address the issue of fitness to attend the Tribunal. Further investigation should have been undertaken to establish whether he was not well enough to face a lengthy disciplinary hearing.
The appellant was deprived of the opportunity to give his evidence and to challenge the evidence of the GMC's witnesses at the fact-finding stage. He did not receive a fair hearing and the tribunal's decision was unjust because of a serious procedural irregularity.
The matter was remitted for rehearing before a fresh panel.
Ivanova v General Dental Council [2017] EWHC 1992 (Admin)
The dentist appealed against the imposition of restrictions on her registration for a period of 12 months.
She had previously been suspended from practice on a number of occasions by way of review after an initial suspension in July 2014 (having previously also been subject to conditions)
The High Court held that the Tribunal were correct to impose conditions on her practice and that there was insufficient evidence to support the contention that these prevented her from practice in the UK.
Shaw v Solicitors Regulation Authority [2017] EWHC 2076 (Admin)
The solicitor’s appeal against his removal from the roll was dismissed. Whilst it was not a blanket rule that a solicitor found to be guilty of dishonesty in civil litigation would be struck off, it was generally inevitable. The solicitor had been found to have given false information in an affidavit sworn by him for High Court litigation.
Williams v Solicitors Regulation Authority [2017] EWHC 2005 (Admin)
The High Court quashed the striking off order of the solicitor and replaced it with a nine-month period of suspension. Whilst the making of several misrepresentations to a bank during a conveyancing transaction was serious, it was not a matter of public or professional protection which justified striking him off the roll.
The High Court considered whether to remit the matter to the Tribunal, but concluded to impose their own sanction instead.
Akhtar v General Dental Council [2017] EWHC 1986 (Admin);
High Court held that it was appropriate for GDC to impose 6 months suspension against Dentist who had practised for 4 years with no professional indemnity insurance.
HC also held that fact that interim suspension was imposed did not make 6 months suspension inappropriate.
Estephane v Health Professionals Council [2017] EWHC 2146 (Admin);
High Court held that it was an abuse of process for a biomedical scientist to attempt to appeal against decisions of the HCPC conduct panel in 2013 and 2017. A civil restraint order was made against him.
The Appellant had brought an appeal against the initial decision to suspend for 12 months. That had been dismissed and he had not appealed to the Court of Appeal within the time limit.
The appeal against the decision of 2017 was not a separate substantive appeal, but a complaint about the 2013 decision. It was therefore a third attempt to appeal the same points.
R. (on the application of ZAI Corporate Finance Ltd) v AIM Disciplinary Committee of the London Stock Exchange Plc [2017] EWCA Civ 1294
The Court of Appeal held that the AIM Disciplinary Procedures and Appeals Handbook did not entitle a nominated adviser to demand a public hearing. The rules allow the adviser to request such a hearing but the Disciplinary Committee of the London Stock Exchange had a discretion whether or not to allow it, as such hearings were normally heard in private.
This summary has been prepared by Sally Cowen.