Professional Regulatory - March 2017

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Welcome to Blake Morgan's latest update for the Disciplinary sector.

Another interesting month of judgments has just passed.

The most interesting one for me is the M v NMC case which provides a stark reminder to regulators and their external lawyers that every line of every piece of correspondence could find itself the subject of scrutiny in the higher courts. Here, the NMC did not make it sufficiently clear to a registrant what was at stake at a suspension review hearing. It becomes more and more vital for regulators to look very carefully indeed at the wording of all key correspondence, particularly when giving notice of hearings. We have all been warned!

In the case of Abbas v GMC, Mr Justice Nicol had no sympathy for a specialist registrar who did not get his house in order with regard to representation and expert evidence prior to his substantive hearing. Furthermore, in Blacker v SRA, a reminder was given that absent practitioners only asserting incapacity at the time of a hearing without providing foundation for their claims would be considered to be voluntarily absenting themselves.

Finally, in the case of Wallace v Secretary of State for Education, Mr Justice Green rather bravely said what a lot of tribunals from my experience feel, that a finding of misconduct is something of a sanction in itself and relevant to the 'public interest' consideration particularly for a regulator that has only one option of prohibition at the sanction stage. The background to the Costs Protection Order that was granted in this case is also of interest.

Our added extra this month relates to the developing area of Criminal Records Disclosure. My partner Eve Piffaretti has considered the Law Commission's very recent report and recommendations on this important issue. The Government's position is awaited. Given the cross-over of this issue with the ECHR I think we can be confident that Mrs May will not be rushing on this one!

Do also have a look at our summary of the press releases, particularly if you missed the article in The Times on February 8th that mentioned rumours of a pending announcement relating to the merger of the health sector regulators…

M v Nursing and Midwifery Council [2016] CSIH 86

This case highlights the importance of ensuring that regulators clearly identify the powers of a panel, when corresponding with an unrepresented registrant. The mere fact that a registrant does not appear to be engaging with the fitness to practise process does not mean that panels should be entitled to conclude that nothing is to be gained from adjourning to invite representations, if it appears appropriate to do so, based on the particular circumstances of the case.

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Ali Abbas v General Medical Council [2017] EWHC 51 (Admin)

Whilst this judgment is predominantly fact-specific; Mr Justice Nicol has reiterated a number of familiar principles, both in relation to the expeditious disposal of proceedings and the importance of the appeal courts being slow to interfere with a decision of a specialist tribunal.

Mr Justice Nicol repeats throughout the determination that the Tribunal, having heard and seen the witnesses, was best placed to reach its own determination on the evidence and were not wrong in their conclusions. Similarly, in relation to the use of videolink, Mr Justice Nicol again held that it was a case management issue for the Tribunal who were not only entitled, but also best placed, to determine the issue.

The judgment also reiterates the importance of proceedings being dealt with expeditiously and is a reminder for all registrants, even if appearing in person, that they cannot expect a Tribunal to delay matters if they have chosen not to take advanced steps to prepare properly for the proceedings.

Finally, the judgment also reminds registrants that a finding of persistent dishonesty without evidence of insight is always going to place a registrant at risk of erasure.

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Greg Wallace v Secretary of State for Education [2017] EWHC 109 (Admin)

The appeal itself is largely legally inconsequential other than giving a nod to the proper consideration of proportionality and the acknowledgement of such, within reasoning - particularly when considering sanction.  It is further useful to note that in this case (NCTL matter) the publication of an adverse finding of misconduct should have been considered as a sanction in itself.

The interesting element of this case relates to costs.  Individuals considering bringing an appeal will note that costs should not be a barrier to proceedings where there is merit.  Green J referenced the specifics of this case when making his determination on the costs order; however, the overarching sense was to facilitate a proper access to justice and thus an application of the considerations within CPR 52.19.

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Blacker v Solicitors Regulation Authority (Admin Court 17 January 2017, unreported)

This case highlights an important distinction between a practitioner genuinely afflicted by an illness (who would be likely to be granted an adjournment) and someone who merely asserts incapacity without providing any evidence of this. It confirms the principles set out in R v Jones to the effect that a panel or tribunal can make the decision to proceed in absence following careful scrutiny of all the circumstances.

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Press releases:

Key press releases include those from the: GDC, GMC, NMC, BSB and the Law Society.

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