Blake Morgan's Professional Regulatory bulletin - review of July and August 2016

Posted by Nick Leale on
Welcome to our latest update on professional regulatory case law and other news.

The High Court was late to reach for the beach towels this year, remaining active well into the height of summer. Thankfully the summer break is now in full swing but it is noticeable how regularly the Administrative Court is now dealing with professional disciplinary matters, even compared with only 12-18 months ago.

This month's case summaries are particularly interesting and touch on areas that are more than capable of generating some heated debate – the mere mention of adverse inferences often gets the juices flowing – I refer you to the case of Kearsey and the NMC and Ouseley J's contribution to that developing area of contention.

Furthermore, the Alsaifi case is a stark reminder that regulators cannot always rely on a purposive interpretation being put forward by the High Court when statutory meaning is debated.

…And then comes Sharp LJ's consideration of the real meaning of 'lack of integrity' and the sanction that may result from such a finding.

None of the above are cases to miss.

We wish you all a fine end to the summer break.

If you have any comments regarding the e-bulletin we would very much like to hear from you.

Please click on the links to view the recent key regulatory cases and press releases.

Tariq Alsaifi v The Secretary of State for Education [2016] Judgment

The wider impact of the judgment is likely to be limited as the case relates to the interpretation of statute which is specific in its application. The judgment does however make clear that particularly in a case where an appellant is acting for himself, the failure to raise a point at an earlier stage which strikes at the legitimacy or fairness of the proceedings, would be unlikely to prevent such points from being raised on appeal.  In addition, the judgment serves to highlight the importance of the initial stages of proceedings and particularly those which afford an opportunity to respond to the allegations at an earlier stage before any decision has been made to hold a hearing.

It should be noted that the judgment in this case followed the decision in the case of Zebaida v Secretary of State for Education [2016] EWHC 1181 (Admin) which concerned conduct that had resulted in a criminal conviction. The Court largely agreed with the judgment in that case in so far as a person falls within the ambit of the Act if they fulfil the criteria in section 141A at the time that the conduct complained of occurred, regardless of whether that person was engaged as a teacher at the time of the referral. However, the Court in the current case was somewhat more sceptical that a person need not have fulfilled the criteria in section 141A when the conduct complained of occurred (particularly if that conduct was non-criminal conduct) so long as that person met the criteria at the time of the referral.

Kearsey v Nursing and Midwifery Council [2016] Judgment

This case serves to highlight the current issue of whether regulators should consider it appropriate to draw adverse inferences from a registrant's non-attendance at a hearing, and if so, to set out the circumstances in which this should be done. Ouseley J suggests that this is of particular importance in cases where a registrant refuses to engage with their regulator and chooses not to attend a hearing. This could potentially have a large impact, which could result in adverse inferences being drawn at each stage of a hearing:

  • An absence of a registrant's factual account could infer that the registrant does not have a positive case.
  • The absence of insight and evidence of remediation may infer that there are unresolved attitudinal problems and that the registrant lacks remorse.
  • The failure to attend a hearing and demonstrate insight at the sanction stage may result in a panel imposing a severe sanction, as per Parkinson v NMC [2010] EWHC 1898.

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Scott v Solicitors' Regulation Authority [2016] Judgment

Whilst the judgment stopped short of providing a conclusive definition of integrity, it did clearly continue the trend, started in Hoodless and endorsed in First Financial Advisors Limited v FSA [2012] UKUT B16 30 (TCC), that a solicitor who does something objectively dishonest, but escapes a finding of being subjectively dishonest, will be found to have acted without integrity and likely to be struck-off the Roll.

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PSA v GDC and another [2016] Judgment

This case reinforces the reluctance of the High Court to interfere with findings as to credibility, and the deference that is given to first instance committees (who have the benefit of hearing and seeing witnesses giving evidence) when making assessments on credibility. 

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R (on the application of Lovett) v Health and Care Professions Council [2016] Judgment

The Judgment has yet to be released for this case and therefore the summary is based upon the Court reporter's note.  The key issue to be drawn is the Judge's consideration that a delay of 2.5 years did not breach the 'reasonable time' requirement. This can be considered alongside the Judgment in Okeke v NMC [2013] EWHC 714 (Admin) where it was found that 4.5 years was an unreasonable delay. 

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Press Releases

Key press releases include those from the: BSB, GMC, GDC, CIMA, CIPFA, GOsC and GOC.

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People News

People news this month includes that from the GMC.

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About the Authors

Nick is a specialist professional regulatory case manager/advocate and oversees the firm's contracts with a number of professional regulatory bodies.

Nick Leale
Email Nick
020 7814 6923

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Katharine is a barrister with 17 years’ experience. She is a professional support lawyer at Blake Morgan.

Katharine Blackburn
Email Katharine
020 7814 6868

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