Professional Regulatory Alert - June 2008
30 May 2008
Introduction
Welcome to the third of our monthly case law and regulatory
alerters.
Case Law
General Medical Council v Sathananthan
[2008] EWHC 872 (Admin)
This case involved an application by the GMC for an extension of
an Interim Suspension Order imposed by the GMC's Interim Orders
Panel in December 2007, replacing an order for interim conditional
registration originally imposed in August 2006. The GMC
sought from the court an extension for 12 months until February
2009. Dr Sathananthan asked the court to terminate the Interim
Suspension Order.
It was common ground that the appropriate principles to be
applied to an application for an extension of an Interim Order were
those stated by the Court of Appeal in GMC v Hiew (2007) EWCA
Civ 369 i.e. that the decision making to be performed by the
court is that of a primary decision maker, exercising its original
powers under Section 41A of the Medical Act 1983 (as amended);
however, it is not the function of the court to make findings of
primary fact about the events which have led to the suspension;
that the criteria to be applied by the court are the same as for
the original Interim Order, namely protection of members of the
public, the public interest and the practitioner's own interests;
that the onus of satisfying the court that one or more of the
criteria have been met falls on the applicant; that the relevant
standard of proof is the civil standard; that the court can take
into account such matters as the gravity of the allegations, the
nature of the evidence, the seriousness of the risk of harm to
patients, the reasons why the case has not been concluded and the
prejudice to the practitioner if the order is extended; that the
court is not bound to follow the opinion of the GMC or the Interim
Orders Panel, but can take it into account and give such weight to
it as the court thinks fit.
The allegations against Dr Sathananthan concerned excessive and
inappropriate prescribing of controlled drugs and shortcomings in
relation to his treatment of patients at his private addiction
clinic. Dr Sathananthan's Counsel submitted that an Interim
Suspension Order was not justified because the complaints against
the doctor related solely to his practice in the field of drug
addiction, that the doctor had not engaged in this field since
August 2006, that his drug addiction clinic had been wound down and
there were no complaints in respect of his work as a general
psychiatrist. However, the Judge accepted the GMC's
submission that the allegations against the doctor were
wide-ranging and raised important patient safety issues that could
affect not only patients with a dependency problem, but all types
of patient. He concluded that it was necessary for Dr
Sathananthan's registration to be suspended to protect members of
the public. He also concluded that it was necessary to
suspend the doctor's registration in the public interest.
This was he said, because irresponsible prescribing of controlled
drugs is a serious abuse of a doctor's professional position and
one that can lead to the misuse of drugs not only by the patient
but others via the illicit market. He said that irresponsible
prescribing of such drugs in large amounts is plainly liable to
bring the profession into disrepute. When deciding for how
long the Interim Order should be extended, he took into account the
GMC's submissions that more time was needed to prepare the case,
because some additional allegations had been received in December
2007. However, he said that these matters should be dealt
with as speedily as is reasonably possible and therefore granted an
extension of six months, rather than the 12 months requested by the
GMC. It will be open to the GMC to apply to the court for a
further extension, in which case the Judge said that he would
expect the GMC to provide careful, detailed and cogent evidence as
to why any further extension should be granted.
Ellis v Law Society [2008] EWHC 561
(Admin)
Mr Ellis appealed against a decision by the Solicitors
Disciplinary Tribunal to suspend him indefinitely from the role of
solicitors.
In 2005, an adjudicator of the Law Society decided that the
services provided by Mr Ellis in relation to the administration of
an estate, had not reached the standard which it was reasonable to
expect of a solicitor and directed Mr Ellis to pay compensation to
the complainant of £2000. Mr Ellis challenged this decision
unsuccessfully to the Adjudication Panel. He also
subsequently unsuccessfully applied for Judicial Review of the
decision. The Judge who refused permission for Judicial
Review observed that the application was extremely difficult to
follow and consisted, among other things, of allegations of
corruption against the judiciary and very many others. At
that point Mr Ellis' avenues of appeal were exhausted and it fell
to him to observe the original order. He failed to do so and
was referred to the Solicitors Disciplinary Tribunal. The
complaint referred to the Tribunal covered wider ground than simply
the failure to comply with the adjudication order. It also
alleged that he had directed correspondence in inappropriate and/or
offensive terms to the Law Society and/or a complainant and/or
third parties, and that he had written correspondence in terms that
were derogatory of others, including members of the judiciary.
The Tribunal found the allegations against Mr Ellis
substantiated. It decided that, while the allegations were
such that they would not normally warrant indefinite suspension, it
was the appropriate penalty in this case because Mr Ellis'
inappropriate and offensive remarks brought the profession into
disrepute. The Tribunal remarked that even at the hearing, Mr
Ellis had continued to make wholly inappropriate and deeply
offensive remarks to and about those involved in the legal system
and judicial processes.
Mr Ellis appealed against the Tribunal's decision on various
grounds, including breaches of the rules of natural justice and a
breach of the Human Rights Act 1998 (on the basis that decisions
must not be unfair, irrational, biased or disproportionate).
On appeal, the court held that as a solicitor, Mr Ellis should
have complied with the original adjudication and dealt with it
timiously. As regards the remaining allegations regarding
inappropriate, offensive and derogatory correspondence, the court
concluded that a solicitor is entitled to hold strong views,
however unpalatable others might find them to be, and, furthermore,
the officials of the Law Society and members of the judiciary must
be and are equally robust in being able to ignore observations of
an intemperate or even abusive nature. Disciplinary action of the
type taken in this case should not normally follow for this reason
alone. Neither should it follow simply because of concern as to the
mental health of a solicitor. However, there must be a line beyond
which such proceedings are justifiable and perhaps inevitable. The
court referred to Bolton v Law Society [1994] 1 WLR 512
which refers to the importance of maintaining public confidence in
the profession. The court also said that it was impossible to
see how Mr Ellis could impartially advise and represent clients to
a necessary and high standard in and within a system which he
rejects as forcefully as he does. Indefinite suspension was
an appropriate penalty. The court went on to say that the
suspension imposed should not necessarily be lengthy and expressed
the view that the suspension might be lifted if Mr Ellis fully
reconsidered his position on a number of issues (possibly with the
assistance of medical advice) so that he could once more inspire
confidence as a lawyer.
General Medical Council v Das (2008) QBD (Admin)
7/5/2008
This related to an application by the GMC to extend by 12 months
an Interim Order for conditions imposed on Dr Das' registration. Dr
Das was being investigated by the police regarding various
complaints made in respect of a number of nursing homes which he
owned. The GMC's Interim Orders Panel had imposed certain
conditions on the doctor's practice for a period of 18 months while
awaiting the outcome of the police inquiries. At the time of
the appeal, the police investigations were still ongoing. Dr
Das submitted that it was oppressive for conditions to be imposed
in circumstances where the police were still not able to confirm
how long their inquiries would last.
The court extended the Interim Order for 12 months. It applied
the principles in GMC v Hiew (see Sathananthan case
above). It was unsatisfactory that the police inquiries were
still ongoing, with no charges made and no date set for
trial. However, the subject of the police inquiries clearly
raised important and serious concerns which it was difficult for
the GMC to investigate or pursue to a substantive hearing, while
the police inquiries were ongoing.
Tinsa v General Medical Council [2008] All ER (D)
140 12/5/2008
This was an appeal against a decision by the General Medical
Council's Fitness to Practise Panel to erase Dr Tinsa from the
register. The allegations against Dr Tinsa involved two
convictions for driving offences and two findings of
misconduct.
On appeal, Dr Tinsa submitted that his ability to argue his case
before the Panel had been hampered by his depression. He also
argued that the Panel should have adjourned the proceedings to
allow him to instruct a legal representative to conduct his plea in
mitigation. The Administrative Court dismissed the
appeal. It concluded that there was no basis on which it
could be said that the Fitness to Practise Panel proceedings had
been unfair, or that the Panel erred. On the evidence before
it, the Panel had been entitled to conclude that the Appellant was
in a fit state to conduct his own defence, particularly since Dr
Tinsa had not adduced any evidence relating to his stress or
depression during the Fitness to Practise Panel proceedings.
Carter and Ors v Chief Constable of Cumbria
Constabulary [2008] ALL ER (D) 188
The Claimants were serving police officers of the Cumbria
Constabulary. They had been the subject of misconduct proceedings
which were subsequently abandoned or dismissed. The
misconduct proceedings related to allegations regarding the private
use of police vehicles and regarding expenses. The Claimants
alleged misfeasance in public office against the Chief Constable on
the basis that the misconduct proceedings were unlawfully
brought. As regards the alleged private use of police
vehicles, the Claimants submitted that it was unlawful to continue
an investigation against them without evidence (they said that the
investigation should have stopped when the Investigating Team had
tried and failed to find any evidence). The Claimants also
submitted it was unlawful to refer the case to a hearing without
there being evidence of misuse of police vehicles. In
relation to the allegations regarding expenses, misfeasance was
alleged because of inconsistency of treatment, in that proceedings
had been brought against some officers, but not others.
The Defendant Chief Constable, made an application to strike out
the claim, and for summary judgment to be entered.
The court considered the principles regarding misfeasance in
public office set down in Three Rivers District Council and
Others v Governor and Company of the Bank of England (No. 3) [2003]
2 AC 1 at pp189-190. Tugendhat J said that allegations
of misfeasance in public office are amongst the most serious that
can be made against any public official. Anxious scrutiny had
to be made of this case to ensure that the Chief Constable's
immunity against actions for negligence was not circumvented by the
pleading device of converting what was in reality no more than
allegations of negligence, into claims for misfeasance in public
office. The Claimants had made a number of allegations, but
there were few particulars in support of them: To say that an
alleged defect in the prosecution's case was so obvious that the
Presenting Officer must have recognised it, was not sufficient in
the circumstances of this case. Nor did a lack of evidence at
the time of serving the Notice of Investigation make the service of
the Notice unlawful.
The court struck out the claim and granted summary judgment for
the Defendant.
Chyc v General Medical Council [2008] EWHC 1025
(Admin)
Dr Chyc appealed against a decision in July 2006 by the GMC's
Fitness to Practise Panel that he was guilty of serious
professional misconduct and that he should be erased from the
register. The allegations found proved by the Panel were that
the Appellant had fondled a patient's breast during a domiciliary
visit and asked to kiss her; that he had behaved indecently and
inappropriately towards his Practice Manager; that he has failed to
refer 22 patients to specialist practitioners when they should have
been referred and that he had mismanaged documents relating to 66
patients by failing to file them properly.
In relation to the first allegation, the Appellant submitted
that the finding of fact was perverse; the Panel had failed to
address the gaps and contradictions in the patient's evidence.
However, the High Court noted that the Fitness to Practise Panel
had had the opportunity to observe how the patient dealt with cross
examination and had also questioned the patient itself. The
Panel was entitled to reach the decision which it did.
In relation to the second allegation, the Appellant submitted
that the Practice Manager, in cross examination, conceded that she
could have been mistaken as to her evidence and the Panel should
therefore have decided that it could not be satisfied to the
relevant standard of proof (criminal) that the allegation had been
proved. However, the court said that the weight to be attached to
the concession of a witness that something is "possible" depends
very much on the nature and strength of the concession, how it fits
in with the rest of the evidence and its setting within the whole
framework of the case. The appeal against this factual finding was
dismissed.
In relation to the third allegation, the failure to refer to other
clinicians, Dr Chyc had admitted the heads of charge in relation to
12 patients, but not in relation to the remaining 10 patients. The
Appellant appealed the findings in relation to six patients, on the
basis there was no evidence that the Appellant had seen the letters
requiring him to make referrals to specialists. The court upheld
the appeal in relation to two patients, on the basis that the Panel
was entitled to infer that the Appellant had in fact seen the
letters, but dismissed the appeal in relation to the other
four.
Given the particular way in which the fourth allegation had been
drafted, the appeal was allowed in relation to certain parts of
this allegation, on the basis that it was not open to the Panel to
be "sure" (given the criminal standard) that the charge as
formulated had been made out.
Regulatory News
Nursing & Midwifery Council - the civil standard of
proof
The NMC anticipates that from October 2008, its fitness to
practise hearings will adopt the civil standard of proof.
Currently, such hearings use the criminal standard of proof.
General Teaching Council for England welcomes new
requirements for registration
The GTC has welcomed the prospect of provisional registration
for trainee teachers from September 2008 and for overseas trained
teachers and instructors working in maintained schools from
September 2009.
Financial Reporting Council - APB publishes compendium
of Standards and Guidance 2008
The Auditing Practices Board has published its compendium of
"Standards and Guidance 2008". This includes international
standards on auditing; international standard on review
engagements; standards for investment reporting; ethical standards
for auditors (revised); and ethical standard for reporting
accountants. It also includes selected Practice Notes and
Bulletins likely to be of broad current interest.
General Medical Council - Age Exemptions
Regulations
Since 1970, the age exemption has enabled doctors who have
reached the age of 65 to apply for exemption from paying the annual
retention fee. However, the GMC has recently received Leading
Counsel's advice that the current age exemption is almost certainly
unlawful as it is contrary to provisions contained in the
Employment Equality (Age) Regulations 2006. The GMC is
consequently considering what further action it needs to take.
British Horse Racing Authority - Neville Review
Released
Dame Elizabeth Neville has undertaken a review of horseracing's
security operations, processes and procedures. She was asked
to assess various matters, including the role and procedures that
racing and sports governing bodies should adopt when dealing with
breaches of law, as well as breaches of its own rules.
Dame Elizabeth's review has now been published and makes 16
specific recommendations. One of the review's conclusions was
that the approach adopted by racing is "a model for the effective
investigation of corruption in sport".
Constitution Orders for Health Care
Regulators
A draft of the General Medical Council (Constitution) Order 2008
is out for consultation. It provides details of the composition of
the Council, the terms of office of Council Members, criteria for
disqualification, suspension or removal of members from office. On
22 November 2007, the Health Care and Associated Professions
(Miscellaneous Amendments) Order 2008 was published for
consultation. This put forward a range of amendments to
legislation covering the General Medical Council, the General
Optical Council, the General Chiropractic Council and the General
Osteopathic Council. This draft Order included provisions for a
number of changes to the constitutional arrangements of these
regulatory bodies. The draft Health Care and Associated
Professions (Miscellaneous Amendments) Order will shortly be
brought before Parliament for approval, before submission to the
Privy Council. Subject to approval, a Constitution Order,
like the one mentioned above for the GMC, will be required for each
of the above regulatory bodies.
Hearing Aid Council - Transfer to HPC moves a step
closer
Amendments to the Health and Social Care Bill propose that
responsibility for the registration of dispensers should be
transferred from the Hearing Aid Council to the Health Professions
Council.
On 14 May, the amendments were considered and agreed by the House
of Lords.