Professional Regulatory Alert - July 2008
01 July 2008
Introduction
Welcome to the fourth of our monthly case law and regulatory
alerters.
You can find full details of cases or articles by clicking
on the title, where the title is highlighted in
purple.
Case Law
In re B
(Children) [2008] UKHL 35
In re D [2008] UKHL 33
These two House of Lords decisions, both delivered on 11 June
2008, consider the civil standard of proof. In re B related
to the civil standard in relation to finding facts proved under the
Children Act 1989 Section 31(2); In re D related to a decision by
the Life Sentence Review Commissioners not to direct the release of
a prisoner.
These judgments expressed concern that some confusion had arisen
regarding the civil standard and the "degree of persuasion"
required before a Tribunal could decide that the fact in issue did
happen; some courts had been referring to a "heightened civil
standard" and that the "heightened civil standard" was equivalent
to the criminal standard. These Judgments make clear that the
civil standard of proof (on the balance of probabilities) is a
finite and unvarying standard, although in some contexts a Tribunal
has to look at the facts more critically and more anxiously than in
others before it can be satisfied to the requisite standard.
Lord Carswell in Re D indicated that situations which might make
heightened examination necessary may be the inherent unlikelihood
of the occurrence taking place, the seriousness of the allegation
to be proved or, in some cases, the consequences which could follow
from acceptance of proof of the relevant fact. By the
"seriousness of consequences" Lord Carswell indicated that this did
not mean the consequences of the proceedings themselves, but the
consequences of the person having done what was alleged. Lord
Carswell gave the example of a bank manager committing a minor
wrongdoing, which could entail very serious consequences for his
career, so making it less likely that he would risk doing such a
thing. Lord Carswell said all these matters required good
sense on the part of the Tribunal, but did not require a different
standard of proof or a specially cogent standard of evidence, but
merely appropriate careful consideration by the Tribunal before it
is satisfied of the matter which has to be established. In Re
B, Baroness Hale of Richmond took things slightly further and said
that neither the seriousness of the allegation nor the seriousness
of the consequences should make any difference to the standard of
proof to be applied in determining the facts; the inherent
probabilities are simply something to be taken into account, where
relevant, in deciding where the truth lies.
Paul Davies v General Teaching Council for
Wales [2008] EWHC 1175
Mr Davies appealed against a decision by the Professional
Conduct Committee to impose a Prohibition Order on him with a
period of ineligibility to apply for reinstatement of two
years. Mr Davies had a conviction for dangerous
driving. He had received a 15-month imprisonment term and
been disqualified from driving for two years. The car
which Mr Davies had been driving had collided with other vehicles
and had caused very grave injury to one of the passengers, who had
remained in hospital for 10 months and was still confined to a
wheelchair. At the criminal trial, the Judge had described Mr
Davies' driving as "lunatic" and concluded that he had needlessly
destroyed the passenger's life and that of his family, for the
foreseeable future. In October 2007, Mr Davies was released
from prison on licence, which is due to expire on 31 August
2008. On 16 January 2008, Mr Davies returned to his post of
head teacher, which the school had kept open for him.
Mr Justice Blair, hearing the appeal, commented on the large
number of testimonials from teachers, parents, other head teachers
in the area and petitions signed by parents of pupils and school
staff. He commented that "the school itself wanted him
back". The school had held two sets of disciplinary
proceedings. The first was following the Appellant's
conviction, when the school took into account Mr Davies' character
and ability as a head teacher, and the support from the community
and decided that he should continue as head teacher on release from
prison. The second disciplinary proceedings took place after
the GTCW hearing, when the school concluded that given the GTCW
Prohibition Order, the school had little choice but to summarily
dismiss him as head teacher with immediate effect.
The Appellant appealed on three grounds. The ground on
which he was successful was that the Professional Conduct
Committee's decision-making process in deciding the sanction was
flawed, in that the Committee had failed to address relevant
matters. Mr Justice Blair concluded that the Committee had
failed to address the fact that the school's governing body had
been prepared to reinstate him as head teacher, despite his
conviction. The Committee's failure to do so in any
meaningful sense constituted a failure to take into account
relevant factors. The court allowed the appeal. It
concluded that remitting the matter for rehearing would be
counterproductive and instead substituted a Suspension Order
for seven months from the date of the Professional Conduct
Committee's hearing in February 2008.
General
Medical Council v George [2008] EWHC
1337
This was an application by the General Medical Council (GMC) for
a 12-month extension of an Interim Suspension Order made against Dr
George. The doctor had been referred to the GMC by his NHS
Trust, who had suspended him because of concerns about his clinical
practice. The GMC's Interim Suspension Order had been imposed
so that Dr George could undergo a performance assessment.
There were also issues regarding Dr George's health. The
GMC's original Suspension Order had already been extended on
numerous occasions over a period of five years and no
performance assessment had taken place.
The court expressed concern about the length of time for which
the doctor had already been suspended from practice.
Nevertheless, there was a clear need for the GMC to investigate the
doctor's fitness to practise both in respect of his previous
performance and his current health. This investigation was
necessary for the protection of patients and the public which
outweighed the prejudice suffered by the doctor in being suspended
from practice. The court concluded that, assuming full
co-operation from Dr George, it would be possible to conclude the
matter within 6 months and the court therefore granted a six
month extension.
P v Nursing and Midwifery Council -
19/6/2008
P (a psychiatric nurse) appealed a decision by the the Nursing
and Midifery Council's (NMC's) Conduct and Competence
Committee to remove his name from the register. P had been
part of the NHS Trust team which cared for various mental health
patients, including Patient R. P was the designated community
psychiatric nurse for R, who suffered from bipolar disorder with
associated symptoms including sexual inappropriateness. R had
invited P to attend a music festival weekend. A few days
before spending the weekend with R, P transferred responsibility
for R's care to another nurse. P and R attended the music
festival and shared a tent. R subsequently suffered a
deterioration in her mental condition. The allegations
against P were that he failed to maintain a professional boundary
between himself and R, and failed to communicate the deterioration
in R's mental condition to the responsible medical
professionals.
The basis of P's appeal was that the Committee had erred in
finding him guilty of professional misconduct (particularly because
the Committee concluded that R was his client), given that he had
transferred responsibility for her care to another nurse. On
appeal, the court said that the Committee was entitled to conclude
that R was P's client. The NMC's guidance makes clear that
"client" means a patient who had direct or indirect contact with a
nurse. R was in direct contact with P until a few days before
the music festival, and remained in indirect contact with him
afterwards because P was a member of the team providing mental
health care to R. P was at all relevant times a member of the
NHS team providing care to R. The Committee had also been
entitled to find on the evidence that P had failed to maintain
proper patient/nurse boundaries and had failed adequately to convey
a deterioration in R's mental condition to the responsible medical
professionals. The court also concluded that the Committee
had been entitled to find P guilty of misconduct and that it had
been appropriate to remove his name from the register.
Swanney
v General Medical Council [2008] IHCS 35
This was an appeal to the Court of Session against a decision by
the GMC's Fitness to Practise Panel to impose conditions on the
Appellant's registration for a period of 12 months. The
Appellant had dual registration in Canada and the UK. The
allegations considered by the GMC's Fitness to Practise Panel
related to issues which had already been the subject of
disciplinary proceedings by the College of Physicians and Surgeons
of British Columbia, who had erased his name from the full medical
register in British Columbia and entered his name on a temporary
medical register, which involved certain restrictions on
practice.
The Appellant's grounds of appeal were: (1) The GMC did not have
jurisdiction over the Appellant because he had not been registered
in the UK at the time of the events in question; (2) There was
an issue of double jeopardy, because the matters had already been
tried in British Columbia; (3) That it was unacceptable for
the GMC to rely on an English expert who had never worked in Canada
and had no personal knowledge of the standards or systems operating
in medical practice in British Columbia; and (4) There was no proof
of harm to patients as a result of the Appellant's prescribing.
On appeal, the court found as follows: (1) Section 36(1)(b) of
the Medical Act 1983 gave the Fitness to Practise Panel authority
to explore issues of serious professional misconduct in relation to
actions which occurred while the Appellant was not registered in
the UK. That provision could also relate to conduct outside
the UK; (2) There was no double jeopardy in the Appellant
being subjected to disciplinary proceedings in both Canada and the
UK; (3) As regards the GMC's expert, the Panel's decision had not
been based exclusively on her evidence and the Panel had been
entitled to find serious professional misconduct quite apart from
anything the expert said; (4) Proof of actual harm to patients is
not a necessary ingredient in making a finding of serious
professional misconduct.
Regulatory News
ACCA appoints new Chief Executive
The Association of Chartered Certified Accountants
(ACCA) has appointed Helen Brand as its new Chief
Executive.
RPSGB new approach to
handling less serious complaints
The Royal Pharmaceutical Society of Great Britain
(RPSGB) has introduced threshold criteria, following a
consultation, to enable less serious complaints against pharmacists
and pharmacy technicians to be dealt with by its Inspectorate,
rather than being referred to its Investigating Committee.
GDC - Guidance for Interim Orders Committee and Professional
Performance Committee
The General Dental Council (GDC) has issued guidance for
its Interim Orders Committee when imposing Interim Orders for
suspension or conditional registration pending the consideration of
a case by one of its Practice Committees. It has also issued
guidance for its Professional Performance Committee when
considering cases relating to alleged poor performance.
Link also to
Professional Performance Committee.
NMC Chief
Executive and Registrar announces resignation
The Chief Executive and Registrar of the Nursing & Midwifery
Council (NMC), Sarah Thewlis, has announced her intention to
resign. The announcement follows publication by the Council
for Healthcare Regulatory Excellence of its performance review of
the NMC.
Financial Reporting
Council - ASB issues update of the FRSSE
The Accounting Standards Board (ASB) has issued an updated
version of the Financial Reporting Standard for Smaller Entities to
take into account changes in Company Law brought in by the
Companies Act 2006.
Health Professions Council welcomes proposed regulation of
complimentary and alternative medicine
The Department of Health Steering Group on the statutory
regulation of practitioners of acupuncture, herbal medicine,
traditional Chinese medicine and other traditional medicine systems
practiced in the UK has published a report proposing regulation of
these areas by the The Health Professions Council (HPC). The
HPC has welcomed the report and its proposals.