Blake Morgan's Professional Regulatory bulletin - December-2016
Welcome to Blake Morgan's latest update for the Disciplinary sector.
In another busy month, the High Court was highly critical of an NMC Conduct and Competence Committee's reasoning when striking a nurse off the register. The judgment is a useful reminder of the importance of logical reasoning being produced to show the Committee's thought processes and conclusions with regard to key issues such as risk of patient harm, mitigation and remediation. The court appears to have had great difficulty assessing how the Committee had evaluated and reached conclusions on such issues.
One assumes that a different Committee and Legal Assessor were responsible for the decision and reasons in the other reported NMC this month, given that their document was described by the Judge as "a model of succinct and clear reasoning". This case, somewhat logically, states that a Registrant's anxiety and illness caused by the FTP process is not a good reason to apply for an adjournment.
The GDC Rothschild judgment, in dealing with a number of important issues, offers some important commentary for when dealing with the issue of criticism of previous Counsel in an appeal.
Finally, the case involving the National College for Teaching and Leadership serves as another reminder of the importance of a proper disclosure exercise taking place in every case and real thought being given to the procedural approach where there are numerous professionals charged with matters of misconduct based on the same facts in several separate hearings. A failure to disclose documents relating to those involved in one hearing on those in another proved fatal to the NCTL's defence of the appeal.
All of the judgments are a very interesting read and each case discusses at least one key principle of professional regulatory proceedings. There can be no better way to enhance one's knowledge of the sector than to read our summaries that follow and/or the judgments themselves. As always we have tried to draw out the key points arising into a quick read.
We wish you a very Happy Christmas and New Year. Could 2017 be the year that the government finally begins to address the various issues that beset the professional regulatory world by progressing new legislation? We shall see!
Wisniewska v NMC  EWHC 2672 (Admin)
This decision serves as a reminder not only that fitness to practise committees must ensure that they take all relevant matters into account at the appropriate stage, but also that they must show that they have done so in their reasoning.
R(on the application of Rothschild) v GDC  EWHC 1632
This case is significant in two respects. First, it confirms that section 40 of the Dentists Act 1984, which precludes unregistered persons (which encompasses suspended dentists) from receiving payment for dentistry carried out by other people, does not preclude suspended or erased owners of dental practices from engaging locums to ensure continuing care for their patients. The only restriction is on them earning money for doing so.
Second, and more importantly, it suggests for the first time that where the representation of previous counsel is criticised in an appeal arising from proceedings before a professional regulator, a similar process should apply to that utilised in criminal proceedings. No explicit guidance was given by the court in that regard. However, where Grounds of Appeal are being settled which involve criticism of the conduct of previous representatives, careful consideration should be given to ensuring the following steps are taken:
- Obtaining a written waiver of privilege from the client;
- Obtaining copies of the client files and inviting the previous representatives to respond in writing to the client's allegations; and
- In the event that there is a material dispute of fact, put the previous representatives on notice that they may be required to give evidence.
In June 2016, around the time this case was heard, the Bar Council issued guidance to counsel instructed to settle allegations of incompetence. Following this case, this guidance may be of assistance for those instructed to allege incompetence to ensure that they comply with their own professional duties.
Anwar and Ahmed v National College for Teaching & Leadership (1) The Secretary of State for Education (2)  EWHC 2507 (Admin)
A timely reminder for all prosecutors of their disclosure obligations, especially in proceedings where there are a number of hearings arising from the same facts.
Whilst Phillips J declined to make a concluded view on whether having separate hearings was fair, Regulators should consider his dissatisfaction that those respondents who could be deemed more senior did not have their cases dealt with first.
Ogunlola v NMC (Admin Court, 19 October 2016, unreported)
The Appellant did not have strong grounds to bring an appeal and it is of note that a significant ground was instantly rejected as it had not been pursued via the correct route. Nonetheless what is interesting is the finding that stress and anxiety, caused by the FtP process, could not in this case be relied upon to seek an adjournment as inevitably relief from illness can only be sought via a conclusion to the proceedings.
Key Regulatory press releases
Key press releases include those from the: GDC; GPhC and Bar Council.