Blake Morgan's Professional Regulatory Bulletin - July 2017

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Well, this was the month when the PSA suffered multiple stinging defeats at the hands of three different regulators in two different courts.

I will let you see the stories develop yourselves via the summaries and links below, as the three cases are all very interesting reads. It is fair to say though, that the PSA may be doing some soul-searching currently, its approach to a number of appeals (including an appeal of an appeal) having been roundly rejected on issues ranging from under-prosecution, inadequacy of reasons and the extent of the relevance of indicative sanctions guidance and written stage two registrant evidence, to name but a few.

During the course of a lively few weeks, the PSA have struck back with some thumping criticisms of the Government in their Annual Report to Parliament. Here is the link to that report, criticising the Government for its "contradictory" policies on healthcare professional regulation and for continuing with an "outdated" model.

There were two other cases of interest that do not involve the PSA – both are significant. The GMC v Jagjivan case was the GMC's first 'self-appeal' to reach the High Court. They won.

Finally, the SRA v Libby case is a reminder that we should not forget about Principle 6 and its very clear requirement that no solicitor should conduct themselves in such a way that involves a failure to show the required level of care and attention and therefore undermine the trust that the public would place in a solicitor. An important point to remember, when we may be side-tracked by the ongoing debate about whether lack of integrity equals dishonesty.

PSA v HCPC & Doree [2017] EWCA Civ 319

In this case, the PSA appealed the decision of the High Court in respect of the HCPC's imposition of a five year caution order on a registered prosthetist who was found to have bullied one colleague and sexually harassed another. It is of significance in respect of the approach that panel should take towards their use of the regulator's Indicative Sanctions Guidance (or equivalent), the significance of a registrant not giving oral evidence at the misconduct/impairment/sanction stage of proceedings, and factors which may be relevant to very late applications to amend charges.

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GMC v Jagjivan [2017] EWHC 1247 (Admin)

In this case, the court found the tribunal had erred in failing to address the question of whether the carelessness exhibited by the respondent in dealing with the loan money, and failing to ensure that it was only used for the permitted purposes, amounted to a breach of Principle 6 (falling to behave in a way that maintains the trust the public places in legal professionals), notwithstanding an absence of dishonesty or lack of integrity. The court also found that the tribunal erred in its decision on costs.

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SRA v Libby [2017] EWHC 973 (Admin)

In this case, the court found the tribunal had erred in failing to address the question of whether the carelessness exhibited by the respondent in dealing with the loan money, and failing to ensure that it was only used for the permitted purposes, amounted to a breach of Principle 6 (falling to behave in a way that maintains the trust the public places in legal professionals), notwithstanding an absence of dishonesty or lack of integrity. The court also found that the tribunal erred in its decision on costs.

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PSA v NMC [2017] CSIH 29 (Inner House, Extra Division)

This is an important case for regulators and parties involved in the professional regulatory process, as it reinforces the trend (also followed in PSA v GMC and Uppal [2015] EWHC 1304 (Admin)) of accepting that a finding of misconduct can function to uphold the professional standards and public confidence, without need for a finding of impairment. 

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PSA v GDC (First Respondent) S T (Second Respondent) 2017 S.C.L.R. 185

Whilst the court elected not to clarify the power of s29 of the National Health Service Reform and Health Care Professions Act 2002, it was demonstrated in this case that if other material is seen and not considered to have materially altered the potential outcome, then under prosecution is unlikely to be proven. The case also shows that if the court considers that the public is sufficiently protected, irrespective of the type of sanction which is determined, that an unduly lenient appeal is unlikely to be upheld.

Press releases

Key press releases include those from the: BSB, GPhC, GMC and NMC.

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