Blake Morgan's Professional Regulatory bulletin - review of March and April 2016
Welcome to our May update, which reviews the key case law and professional regulatory sector activity of March and April.
Two important decisions came out of the Court of Appeal and Administrative Court in the period.
In the GMC and Adeogba/Visvardis cases Sir Brian Leveson pulled no punches in rejecting the High Court's earlier conclusion that the FTP Panels of the MPTS had wrongly decided to proceed with hearings in the absence of the Registrants.
Sir Brian drew what Regulators will consider to be a helpful distinction between criminal and regulatory proceedings when considering the issues of proceeding in absence. He emphasised the importance of expeditious disposal of allegations and the importance of the Registrants' engagement with their regulator. This case will apply a significant brake on the previously growing expectation on regulators to go beyond the statutory notice of hearing requirements.
In what might be called a good month for those bringing FTP cases, the judgment in the PSA's successful section 29 proceedings in the GMC Igwilo case, reminded panels of the importance of the maintaining proper standards and public confidence in the professions when considering the issue of current impairment.
This case provided a useful reminder of the ongoing relevance of the Administrative Court's decisions in the cases of Cohen and Yeong and how in a case involving serious dishonesty (such as this one) it is extremely difficult for public interest concerns to be met sufficiently by a Registrant's apparent insight and remorse.
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Please click on the links to view the recent key regulatory cases and press releases.
General Medical Council v Adeogba; General Medical Council v Visvardis  EWCA Civ 162
This case confirms the approach to be adopted by the Regulator when responding to Registrants who have not engaged with the proceedings; it reaffirms the approach to be taken when deciding whether to proceed in the absence of the Registrant. The suggestion that Regulators should take steps above and beyond those prescribed for within the rules in order to effect service, was disregarded by Sir Brian Leveson P as putting a burden upon them which is far beyond that which is appropriate. The panel can exercise its discretion to proceed in absence provided the regulator has taken all reasonable steps to effect service.
Thereafter the panel can take into account the particular circumstances of the case including, notably, the Registrant's behaviour throughout the investigatory stages of proceedings. If a Registrant has chosen not to keep in touch with the Regulator or failed to provide them with an updated address, knowing he is suspended or that an investigation is ongoing, the fact that he was not subsequently aware of the date of the hearing will not be sufficient to justify reversing a decision of a Panel to proceed in his absence. Additionally, if a Registrant challenges the legitimacy of the process, they should do so through the correct means available (judicial review), rather than seeking to frustrate the case management stages so as to prevent a Panel from proceeding in absence. In those circumstances, a Panel would be entitled to conclude that a Registrant had not engaged with the process.
Professional Standards Authority v (1) General Medical Council (2) Igwilo  EWHC 524 (Admin)
This case reaffirms the significance of the wider public interest in a finding of impairment being made, even where there is little likelihood of repetition, to mark serious misconduct. Unlike in proceedings relating to solicitors, dishonesty in the healthcare regulatory sphere can span a wide range of seriousness, and need not always lead to a finding of impairment of fitness to practise, let alone erasure e.g. Professional Standards Authority for Health and Social Care v (1) General Medical Council (2) Parvan Kaur Uppal,  EWHC 1304, a case which was also heard by Laing J, where the Court found that it was not unduly lenient for a Panel not to make a finding of impairment, but was unduly lenient for a warning not to be imposed. It is generally an exceptional case that justifies a finding of no impairment where there is a finding of dishonesty. The facts of Igwilo are demonstrably not one of those cases.
Key press releases include those from the: GDC, DoH, NMC, GOsC, GOC, GPhC, BSB, GMC and the Law Society.
People news includes that from the NMC.