Professional Regulatory Bulletin – November 2018

7th November 2018

Welcome to another of our professional regulatory case law updates. You have not heard from us since our update on the Bawa-Garba case in the late summer, but it’s fair to say our update is back with a bang this month.

As always there’s a lot going on in the professional regulatory space, not least in the solicitors’ disciplinary field where, finally, lay majorities and the civil standard of proof are surely on the way… and not before time. While the legal sphere continues to catch up with what some might say are the basics, the healthcare regulators are further expanding their impressive joint working protocols.

As for the case law – well, the Administrative Court and Court of Appeal have both been busy disagreeing with each other. The Raychaudhuri case is another reminder, if needed, that the higher courts are not likely to overturn the factual decisions of well-informed Conduct Committees. The Chandra case provides very helpful guidance on the application of the restoration test to be applied at the MPT. There then follow two more unusual cases which discuss considerations to be applied when deciding whether to disclose mixed data expert reports (B v GMC) and, crucially, in the Eurasian case, what remains of litigation privilege when organisations undertake internal investigations.

In three of the above cases the Court of Appeal overturned the judgments of the High Court. There is further proof, if needed, of the complexities of the arguments run in this area of law.

Raychaudhuri v General Medical Council and PSA [2018] EWCA Civ 2027

The GMC (and any comparable regulator) must ensure caution is exercised when using its power of appeal in order to challenge a finding of fact which fell in a registrant’s favour. The Courts will not entertain an appeal in instances where a regulator seeks to overturn a decision made by a well-informed Committee simply on the basis that it disagrees with it.

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B v General Medical Council [2018] EWCA Civ 1497

This case reminds us that healthcare regulators in particular may often find themselves in control of “mixed data” documents, which contain sensitive personal data regarding both patients and the healthcare professionals under investigation. This decision gives important clarity to the data controllers of the test to apply when considering subject access requests for disclosure of such data, if the other party objects.

A careful balancing exercise should be carried out, weighing up the interests of both parties, and only if the outcome of that exercise is equal should there be a presumption in favour of the objecting party. This judgment will apply to mixed data cases subsequently considered under the GDPR and Data Protection Act 2018, the Schedule 2 paragraph 16 of the DPA 2018 largely replicating s7 of the DPA 1998.

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General Medical Council v Shekhar Chandra [2018] EWCA Civ 1898

This case emphasises the importance of the overriding objective and confirms the test to be applied in restoring doctor’s to the register. The Court of Appeal’s judgement also provides a great deal of guidance in terms of the application of the test, particularly regarding the considerations and reasoning of tribunals and courts in doing so.

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SFO v Eurasian Natural Resources Corporation [2018] EWCA Civ 2006

The effect of Andrews J’s judgment had been to effectively reduce almost to vanishing point the protection afforded by litigation privilege in circumstances where an organisation undertakes an internal investigation to establish whether or not a criminal offence may have been committed and how best to respond to a potential criminal investigation. Prior to the decision of the Court of Appeal, material stemming from internal investigations may well be made available to prosecutors and used against defendants.

It will therefore come as a relief that the Court of Appeal has now reasserted the protection of litigation privilege for those conducting internal investigations and left the decision of whether to waive privilege to the potential defendant. However, whilst expressing doubt as to the correctness of the decision in Three Rivers (No.5), the court declined to address it expressly, concluding that that was matter to be left to the Supreme Court. The SFO has recently taken the decision not to appeal the judgment. It may therefore be some time before an opportunity arises for the Supreme Court to reconsider the problems when advising large organisations this case has put back into the spotlight.

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Bawa-Garba v GMC [2018] EWCA Civ 1879

the Court of Appeal unanimously allowed Dr Bawa-Garba’s appeal and set aside the sanction of erasure, restoring the original order of the Medical Practitioners Tribunal (“The Tribunal”)  that she be suspended for 12 months.

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GOC v Clarke [2018] EWCA Civ 1463

This case provides guidance on whether and in what respect a registrant having retired can be taken into account when considering whether fitness to practise is impaired.

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The Williams Review

This review is important because it considers issues faced by all regulators and those who are regulated and is not limited to allegations of gross negligence misconduct (GNM).

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