Blake Morgan's Professional Regulatory bulletin - review of October 2016
Welcome to our latest monthly update of all key professional regulatory case law and sector news.
The most interesting judgment last month was in the case of DB and GMC. Although not presenting any new points of principle, the Court was clear that the GMC had been wrong to disclose an expert report obtained about the registrant Doctor to the complainant in the case when the registrant had refused his consent for disclosure. The GMC's lack of a relevant policy relating to such issues proved costly.
Furthermore the Hindmarch v NMC judgment provides a timely reminder of the principle laid down in Calhaem v GMC concerning the misconduct threshold when considering single clinical mistakes. El-Hussein and GMC reaffirms that statutory appeal time limits will be strictly interpreted by the Administrative Court.
Perhaps most significantly the Professional Standards Authority seem to have been talking to the powers that be and are hopeful of the Government launching a consultation soon, with the possibility of a draft Bill to deal with the reform of professional regulation being published next year. These hopes of course came before last week's Brexit developments, which would appear likely to now lead to rather more important debates using up parliamentary time in 2017!
The PSA has clearly been busy and you can now view on their website the two most recent publications - Regulation rethought (which builds on the previous publication Rethinking regulation) and Right-touch assurance. They must surely be running out of names for these studies…
If you have any comments regarding the e-bulletin we would very much like to hear from you.
DB v GMC  EWHC 2331 (Admin)
It is important to recognise, firstly, that this case is not authority for the proposition that it is always inappropriate to provide patient complainants with expert reports whenever the subject of the report refuses disclosure. Secondly, this case does not establish any particularly new point of principle. Rather, it reflects well-established principles in privacy law and in Durant and subsequent authorities. Where data subjects want to try and seek disclosure of material for the purposes of different litigation, the Data Protection Act is not the appropriate route.
What this case does illustrate, however, is that one of the key areas where the GMC was caught short was not having a policy which entitles complainant's to seek expert reports. Had it had such a policy, it is likely that the court would not have concluded that the GMC was not entitled to give any particular weight to the purported need for transparency of its decision-making process.
Hindmarch v NMC  EWHC 2233 (Admin)
This case confirms the position set out in the case of Calhaem V GMC that a single negligent act or omission is less likely to meet the threshold of misconduct than multiple acts or omissions. The context in which this single mistake occurred was given insufficient prominence at the original hearing. The Panel were wrong to criticise a single omission in a long and hitherto unblemished career in circumstances where the storage of drugs was less than ideal. Ms Hindmarsh did not attend the hearing before the CCC due to a family bereavement. No application to adjourn the case was made by her and she was unrepresented. Yet again we are reminded of the consequences for those who are not present before panels to provide evidence of their remorse, remediation and insight.
EL Hussein and GMC  EWHC 2326 (Admin)
The Court reaffirms that statutory appeal time limits are strictly interpreted and appellants are reminded that the circumstances as described in the case of Adesina are "exceptional". On a practical note, if considering a fee exemption to accompany an appeal, the documentation supporting such application must adhere to the necessary requirements and it would be advised for applications to file such forms in good time to avoid missing crucial deadlines.
Key press releases include those from the: HCPC; GDC; GPhC and GMC.
Terry Babbs will be joining the General Dental Council (GDC) as a newly appointed lay Council member.