Blake Morgan's Professional Regulatory Bulletin - February 2017

Posted by Nick Leale on
Welcome to our latest edition of Professional Regulatory newsletter.  

This month's edition is more bulky than usual but all the cases that we report on cover at least one important issue. In fact anyone seeking to substantially develop their knowledge of a number of the key concepts of professional regulatory law will make significant progress by reading this month's case commentaries that follow below.

The Squire Police Tribunal case (not to be mixed up with the Squier case which we also report on in this edition mainly due to its interesting commentary on the use of 'judicially experienced' Legal Chairs) is an interesting, although rather fact specific, discussion relating to the care needed when planning the calling of uncorroborated hearsay evidence. In addition, Mandic-Bozic takes a rare foray into the world of 'res judicata'  - a concept often spoken of but perhaps rarely fully understood or applied to professional disciplinary proceedings. This is what happens when there is a United Kingdom Council for Psychotherapy and, in case that was not enough, also a British Association for Counselling and Psychotherapy  - both keen on assessing the same set of facts! I am not sure Sigmund Freud anticipated this back in the day.

I imagine the GPhC FTP Committee also did not envisage their decision in the Khan case proceeding all the way to the Supreme Court, although it probably would not have done but for the 'too ingenious' and 'alien' approach of the Scottish Court of Session. The Supreme Court's judgment is an important reminder of the fairly simple question to be asked when decision-making at any review hearing ie does a registrant's fitness to practise remain impaired.

Perhaps the most significant matter in this month's review is the Kamberova case which makes it clear that time spent interim suspended can, and perhaps is now likely, to  be relevant to the length of any subsequent substantive suspension. Quite how this will practically play out is somewhat unclear but the concept is an important one that will no doubt be referred to by representatives with some regularity with immediate effect.

Finally, Clare Strickland has written an article considering  the position of the  Chief Inspector the Healthcare Safety Investigation Branch concerning the government's recent consultation on the concept of the 'safe space'. Clink on the link below to read Clare's summary of the relevant interview with Keith Conradi.

Squire v R (on the application of the Chief Constable of Thames Valley Police) and the Police Appeals Tribunal [2016] EWCA 1315

This appeal (and the decision of Mitting J prior) offers some guidance on witness case management when dealing with hearsay evidence. The relevant indication is as follows: "Whilst the order of witnesses was a case management decision for the panel, with which any appellate tribunal will be slow to interfere, it would have been prudent to adopt a different approach, hearing the quoted witnesses first. If they or any of them failed to come up to proof on what [the hearsay witness] was capable of saying they said, the clearer, simpler, and more logical route would have been not to admit the hearsay evidence at all."

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R. (on the application of Mandic-Bozic) v British Association for Counselling and Psychotherapy [2016] EWHC 3134 (Admin); Wisniewska v NMC [2016] EWHC 2672 

Despite the almost unique regulatory regime that exists within the factual background of this case, the judgement does provide a useful reminder of the key principles underlying the doctrine of res judicata, its application within disciplinary proceedings and the hierarchy of the types of case that fall within it. The unusual circumstances are acknowledged within the judgment and the Court observed that had the two bodies regulated different activities or had applied different ethical standards, the outcome would have been quite different.    

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Habib Khan v General Pharmaceutical Council and ors [2016] UKSC 64

This case confirms that the role of the Review Committee is to assess a registrant's fitness to practise at the time of a review hearing and not to analyse the FTPC's original sanction choice. Although the Review Committee may impose further periods of suspension (for example if the registrant has committed further breaches), they should not impose further periods in order to create a new sanction of extended suspension and one that the FTPC were not lawfully permitted to impose. 

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Kamberova v Nursing and Midwifery Council [2016] EWHC 2955 

Whilst clarifying the part an interim order will have to play in the consideration of a panel at sanction stage, this Judgment does not serve to alter the established principles that the purpose of sanction is to maintain public confidence in the regulatory body and to declare and uphold proper standards of conduct and behaviour. Whilst the principal function of sanctions is not to be punitive, they may have punitive effect and any sanction must be proportionate- this now includes the need to take into consideration any time spent subject to interim suspension. 

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Squier v GMC [2016] EWHC 2739 

This case raises two significant issues. It consolidates guidance on the approach to be taken when calling expert evidence, as well as reiterating the core duties of an expert when citing the works of others (paragraph 34). It also raises the question of the need for qualified legal chairs in complex cases where expert evidence is given.

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Press releases:

Key press releases include those from the: CQC; BSB; HCPC; GOC; GDC and GMC.

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

About the Author

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

Nick Leale
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