Public and Regulatory Law alert
08 March 2010
Case Laws
Regulatory News
|
Regulatory News
This was an application by the Nursing and Midwifery Council
(NMC) for an extension to the interim suspension order of Ms
Akinleye's registration for a further 12 months beyond the 18
months already imposed. An allegation of misconduct was made
against Ms Akinleye, who was midwife to a patient who arrived in
labour at hospital whose antenatal notes revealed no test or scan
results. In the course of an investigation, Ms Akinleye admitted
falsifying the notes stating that she just wanted to help the
patient but without providing an explanation of the reason. The NHS
Counter Fraud Service investigated the case with a view to
preparing it for a prosecution, so the NMC investigation was put on
hold pending the criminal investigation. The case was referred to
an interim orders hearing, at which Ms Akinleye was present and
represented and did not seek to challenge the allegations. An
interim suspension order of 18 months was imposed in July 2008 and
in March 2009, the NHS Counter Fraud Service confirmed that it had
decided not to proceed with a criminal prosecution against Ms
Akinleye. At an interim suspension review hearing in July 2009, the
suspension order was continued on the basis that the NMC was
obtaining the investigation documentation from the NHS Counter
Fraud Service, so that they might take the investigation
forward.
The High Court confirmed that the principles set out in GMC
v Dr Stephen Chee Cheung Hiew [2007] EWHC Civ 369, applied
when considering an application for an extension of an interim
suspension order; the factors for consideration are the gravity of
the allegations, the seriousness of the risk of harm to patients
and the reason why the case had not been concluded.
In relation to Ms Akinleye, the interim suspension order was
continued on the basis that it was necessary for the protection of
the public; the allegations were serious as she was purporting to
treat a patient under the NHS when in fact the treatment was being
supported by a GP and consultant. Ms Akinleye's conduct included
falsifying documents and putting a patient's health at risk. The
interim suspension order was continued despite Ms Akinleye's
difficult personal circumstances and the considerable delay in the
progressing the investigation, blame for which could not be laid at
the door of the NMC. It had been in Ms Akinleye's interests to
await the conclusion of the criminal proceedings before the
disciplinary proceedings could continue. Mr Justice Kenneth Parker
did however indicate that the matter should be listed for a hearing
as soon as possible and if a further request for an extension were
made by the NMC, it would most likely be refused unless there were
overwhelming reasons in favour.
Duncan v General teaching Council for England QBD (Admin) 11
February 2010 [Extempore]
This was an appeal by Ms Duncan, a head teacher, against a
decision of the General Teaching Council to remove her name from
the register and forbidding her to seek to restore it for 5 years.
The removal was on the basis that she had made two expense claims
for the cost of a "swimming with dolphins" excursion for herself
and her partner in Antigua in 2004 and a trip to Jamaica in April
2006. Ms Duncan claimed the expense was incurred for risk
assessment purposes for later school trips to Jamaica in 2005 and
May 2006. Ms Duncan claimed she had completed the necessary
approval form and had informed the school governor in advance and
had reported back on the risk assessment upon her return. The
governor gave contradictory evidence and the risk assessment
advisor gave evidence that the second trip in April 2006 was so
close in time to the school trip in May 2006, that the risk
assessment could have taken place upon arrival of the May 2006
school trip and therefore the separate April 2006 trip was
unnecessary. It was also unclear why it was necessary for both Ms
Duncan and her partner to undertake the excursions and the expense
claim form made no mention of Ms Duncan's partner.
The Conduct Committee found that the expense claim was false and
dishonest and Ms Duncan should have been transparent about any
financial matters involving her partner. Ms Duncan appealed the
decision on the basis that it failed to give adequate legal
reasons, ignored her evidence, reached conclusions unsupported by
the evidence, relied unfairly upon the evidence of the risk
assessment advisor and had reached an irrational decision.
The High Court held that the Committee was under a duty to give
reasons for its decision including an outline of the circumstances
giving rise to the complaint, a summary of the factual conclusions
and a statement of reasons. The two purposes behind the requirement
were fairness and that a deficiency in conclusion or reasoning
might conceal legal error, irrational reasoning or lack of
evidence. It was not necessary to give explicit reasons for every
factor raised.
It was held that although there were some shortcomings in the
Committee's expression of reasons, its conclusions were clear; they
had found that Ms Duncan had been dishonest on her expense claims
and had dressed them up as approved for school purposes. They had
preferred the evidence of the governor and risk assessment officer
over Ms Duncan's evidence and they had drawn the conclusion that
the April 2006 trip was so close in time to the May 2006 trip, that
it was in fact a holiday rather than a risk assessment. The
standard of their reasoning did not show any serious procedural
irregularity and therefore they were not wrong in reaching their
decision.
This was an appeal against the
decision of the Conduct and Competence Committee of the Nursing and
Midwifery Council (NMC) who, following findings of fact in relation
to 3 charges, misconduct and a finding of impairment of fitness to
practise, imposed a striking off order and an interim
suspension order for 18 months upon Ms Ogbonna. Ms Ogbonna was
unrepresented at the hearing which took place on 24 June
2009.
Ms Ogbonna appealed the decision. The first ground of appeal was
that the NMC had applied to amend one of the charges and had
notified Ms Ogbonna of this in correspondence on 6 February 2009.
It was held that since the amendment to the charge amounted to a
clarification of the nature of the charge and no additional
material was relied upon in support of the amendment, it was an
appropriate and fair amendment which could only assist Ms Ogbonna.
This ground of appeal was rejected.
The second ground of appeal was that it was unfair and
prejudicial to Ms Ogbonna for the statement of a critical witness
of fact in relation to one of the three charges to be read, on the
basis that she did not live in the UK anymore. It transpired that
the NMC had made no attempts to request or secure the attendance of
this witness at the hearing or to arrange for her to give evidence
by video link. The basis of their decision was that if their
application to read the statement failed, they would simply rely
upon the other charges. The High Court criticised the NMC on the
basis that every effort should have been made to secure this
witness's attendance at the hearing as Ms Ogbonna was entitled to
test the evidence by way of cross examination, unless good and
cogent reasons could be given for non attendance. The NMC's
pragmatic approach included little by way of fairness to Ms Ogbonna
and the fair course would have been not to proceed with that
charge. This ground of appeal was allowed and it was held that the
Conduct and Competence Committee misdirected itself by allowing the
witness statement to be read on the basis that the witness was
"unable to attend" the hearing.
As the findings of fact in relation to allegation 1 were based
upon the evidence contained in the witness statement, it was held
that the findings of misconduct and impairment were clearly tainted
and could not stand. The interim suspension order was also revoked
for the same reason.
The High Court expressed concerns about the unrepresented status
of Ms Ogbonna and the fact that the Committee placed little weight
on her testimonials and had not taken into account the fact that
she did not have a legal representative. Furthermore, the Court was
concerned with the sanction imposed, which did not appear to take
into consideration the fact that Ms Ogbonna had worked in hospitals
without complaint since 1986. The failure to investigate the
isolated nature of the incident and the subsequent ill health of Ms
Ogbonna (she went on sick leave following the incident) was another
example of the Committee failing to have regard to the fact that Ms
Ogbonna was unrepresented.
The Solicitors Disciplinary Tribunal found Mr Virdi guilty of
serious professional misconduct and suspended him from
practice for 3 years. Mr Virdi appealed unsuccessfully to the
Divisional Court and this was an appeal to the Court of Appeal in
relation to the part played by the Clerk to the Tribunal. She
retired with the Tribunal when they considered their decision and
assisted them in drafting their written findings.
Mr Virdi submitted that it was ultra vires for the clerk to
retire with the Tribunal or to assist them in their findings and
the clerk's role led to the appearance of bias and an infringement
of Mr Virdi's right to a fair trial under Article 6. It was
also submitted that because the hearings occurred over a period of
time when the Law Society was delegating its disciplinary functions
to the Solicitors Regulation Authority (SRA) and therefore the
Clerk was technically a Law Society employee on secondment to the
Solicitor's Disciplinary Tribunal at the time, for her to have
played any part in the retirement or drafting process, was
tantamount to the Law Society being a judge in its own cause.
Mr Virdi submitted that the Tribunal did not have the power to
invite its clerk to join it when they retired to consider their
decisions. Allowing the Clerk to retire with the Tribunal gave the
impression that the prosecutor had access to the Tribunal, which Mr
Virdi did not, which gave an appearance of inequality of arms. The
Law Society and the Solicitors Regulation Authority submitted that
the two bodies, although not separate legal entities, enjoyed
sufficient constitutional independence.
The Court of Appeal found that the procedure of the Tribunal
included their withdrawing to consider their decision in private
with their clerk and her role in the case; Rule 31(a) of the
Solicitors (Disciplinary Proceedings) Rules 1994 did not limit this
to the trial process and their provision of formal written findings
is as much part of the Tribunal's procedure as the trial process
and the announcement of their decision. In any event, the Tribunal
had a implied power to permit or invite their clerk to retire with
them and assist them in the manner that she did. The clerk's
assistance to the Tribunal in drafting the written findings occurs
after the Tribunal's decision was given orally, at which point it
is effective and the Tribunal has no power to reconsider it. This
ground of appeal was rejected.
In relation to the issue of bias or apparent bias, the Court of
Appeal found that the issue is whether the proceedings in question
were and were seen to be fair on examination of all the relevant
facts; it rejected Mr Virdi's submissions that an imaginary
observer, whether in possession of all the facts or just publicly
available information, should be used to reach a different
conclusion. The test approved by the House of Lords in Porter v
Magill was still good law –
"The court must first ascertain all the
circumstances which have a bearing on the suggestion that the judge
was biased. It must then ask whether those circumstances would lead
a fair-minded and informed observer to conclude that there was a
real possibility, or a real danger, the two being the same, that
the tribunal was biased".
The Court of Appeal concluded that the Tribunal was impartial
and independent and appeared to be so. It found that the Tribunal
was even more independent than previously; the prosecuting
authority is the SRA, not the Law Society and although the SRA is
not a separate legal body, it has effective independence. The
members of the board determining its activities are not and cannot
be members of the Council of the Law Society. The SRA is not an
agent of the Law Society. The Law Society cannot direct the
activities of the SRA and the SRA's decisions do not bind the Law
Society. Therefore the fact that the clerk to the Tribunal was in
this case an employee of the Law Society, does not assist Mr Virdi.
The SRA exercised disciplinary and prosecution functions vested by
statute in the Law Society, which were effectively delegated to the
SRA. The fact that an order for costs was made in favour of the Law
Society was irrelevant as it was the Law Society that funded the
SRA and the Tribunal, so any order for costs had to be made payable
to it. Any contention that there was any appearance of bias or
partiality on the part of the Tribunal was rejected.
Regulatory News
Under the Legal Services Act 2007, the Solicitors Regulation
Authority will soon have the power to impose a fine of up to
£2,000, without recourse to the Solicitors Disciplinary Tribunal,
if it is able to prove the case against a solicitor on the balance
of probabilities, rather than beyond reasonable doubt. Solicitors
will still have the right to appeal the SRA's decision before the
SDT, where the higher standard of proof will remain, so an appeal
will be more likely to succeed. The SDT has indicated that it is
reluctant to lower its standard of proof. The Law Society opposed
the rule change on the basis that the standard of proof should be
'beyond reasonable doubt', particularly where the allegation was
likely to result in a solicitor being struck off or suspended, or
would lead to a condition being imposed on a practising certificate
which would 'substantially affect the solicitor's ability to
practise'. The SRA has confirmed that it will always refer a matter
to the SDT where dishonesty was involved.
The Health and Social Care Act 2008 (Regulated Activities)
Regulations 2010 will come into force on 1st April 2010 by virtue
of the Health and Social Care Act 2008 ("the Act"). Part 1 of the
Act establishes the Care Quality Commission and provides for the
registration of persons carrying on a prescribed regulated
activity. The Regulations prescribe those activities that
will be regulated activities for the purposes of Part 1 of the Act,
and the requirements that will apply to how those activities are
carried out. It also provides powers to impose requirements in
relation to the carrying on of those regulated
activities.
The Royal Pharmaceutical Society of Great Britain is launching
its new conference at Imperial College in London on Sunday 5th and
Monday 6th September 2010. The conference will discuss how the
RPSGB, as the new professional leadership body (PLB) is supporting
its members to develop their professional, practice and leadership
skills.
The Nursing and Midwifery Council has launched a consultation
which will run until April 2010 in order to canvass the view of
nurses on what qualifications and experience a nurse must
demonstrate in order to be fit to practise at the point of
registration with the NMC. A move to a graduate-only entry
profession in England was rubber-stamped by the government in
November 2009 and the new standards are due to be published in the
autumn.
A draft report commissioned by the General Medical Council and
the Post Graduate Medical Education and Training Board recommends
improving the training and regulation of doctors, following an
independent review led by Lord Patel, chair of the National Patient
Safety Agency. The report also recommends linking the eligibility
for GP posts with the completion of the Certificate of Completion
of Training (CCT). Lord Patel's report recommends the GMC brings in
new regulations requiring European Economic Area doctors to first
undergo revalidation before taking up consultant and GP posts. The
recommendations are out for consultation until March 2010.
The General Medical Council has launched a consultation in
relation to the introduction of a 5 year revalidation process for
doctors. The GMC is writing to the chief executives and medical
directors of every primary care trust in England, warning them that
inclusion on the medical register provides only "limited assurance"
about a doctor's fitness to practice and that employers should bear
in mind that the skills and proficiency in English of any doctor
applying for a job may change over time. The consultation is about
the way revalidation will be carried out, not whether, and it is
expected to roll out in some areas in 2011.
This Order establishes the General Pharmaceutical Council ("the
Council") and sets out the arrangements for the regulation by the
Council of the professions of pharmacist and pharmacy technician in
Great Britain. The Order came into force on 11 February 2010. The
regulation of the professions of pharmacist and pharmacy technician
and the regulation and inspection of registered pharmacies was,
prior to the commencement of this Order, undertaken by the Royal
Pharmaceutical Society of Great Britain in pursuance of
arrangements set out in the Pharmacists and Pharmacy Technicians
Order 2007 ("the 2007 Order") (as amended), which is now
revoked.
The Care Quality Commission has
commenced its review of health care in care homes to see if adults
of all ages living in care homes, have choice and control over
their health care, equal access to NHS services and good quality
health care provided by the care home when needed. Primary Care
Trusts and councils are being asked for information so that the
risks of health care for people living in care homes may be
assessed. This will be followed up by visits to a number of PCTs,
Councils and care homes to assess the quality of health care for
people living in care homes.
Stephen Shaw CBE has been appointed as the first chief executive
of the Office of the Health Professions Adjudicator (OHPA). He will
undertake the task of establishing this new independent body, which
from 2011 will adjudicate on fitness to practise cases brought
before it by the General Medical Council and the General Optical
Council.
The General Social Care Council has appointed Penny Thompson, a
trained social worker and former Chief Executive of the London
Borough of Hackney, as the new Chief Executive. Michael Andrews
will take up the post of Director of Regulatory Operations,
overseeing social work registration and conduct complaints,
investigations and hearings and legal services. Sherry Malik, a
qualified social worker is joining the organisation as Director of
Strategy and Social Work Education. Stephen Williams has been
appointed as the Director of Corporate Resources to oversee
finance, HR, procurement, facilities management and IT.
The Legal Services Board announced on 23 February 2010 that the
first Alternative Business Structures will be licensed from October
2011. The Solicitors Regulation Authority welcomes this
progress.
The House of Commons Science and Technology Committee Report
into homeopathic products has agreed with the Royal Pharmaceutical
Society of Great Britain's recommendation that the Medicines and
Healthcare products Regulatory Agency (MHRA) should not allow
homeopathic product labels to make claims without evidence of
efficacy.
The Law Commission has published a consultation paper suggesting
reform of the law that governs how individuals' needs are assessed,
who is eligible to receive help and what services are provided. The
current law is spread across 38 separate Acts of Parliament and
most services are still delivered under an Act of 1948. The Law
Commission suggests a single, clear and modern statute to replace
the current legal framework. The consultation closes on 1 July
2010.
The Council for Healthcare Regulatory Excellence published the
results of its first audit of the RPSGB on 1 March 2010 – the
report praises the RPSGB's procedures, concluding that patient and
public safety and maintaining public confidence in the profession
and in regulation, lie at the heart of the Society's operations. It
considers that the public can be reassured that the RPSGB's
processes and procedures operate effectively and ensure that cases
are dealt with appropriately and in a timely manner.
The Council for Healthcare Regulatory Excellence carried out an
audit of cases between April and December 2009 and has found that
health professional regulators' decisions in the initial stages of
their fitness to practise procedures to close or refer cases to a
fitness to practice panel, were reasonable and did not present any
potential risk to the public in the vast majority of cases.
Wednesday 14 April 2010
This landmark event for the disciplinary and regulatory
community will be chaired by Matthew
Lohn of Field Fisher Waterhouse LLP and the speakers
include:
- Mary Timms, Field Fisher
Waterhouse
- Joanna Glynn, QC of 1 Crown Office Row
- Antony Townsend, Chief Executive of the Solicitors Regulation
Authority
All Field Fisher Waterhouse contacts will receive a 20% discount
on the booking fee for this conference.