Professional Regulatory newsletter - December 2017
Welcome to our Christmas E-Bulletin – some easy reading for the party season – a real pick me up on those dark winter days after a late night!
There is a lot going on in the wild world of Prof Reg. Senior Associate Barrister Guy Micklewright fills you in on the BSB's sudden, although fairly overdue many would say, announcement that, finally, their standard of proof will change to the civil standard.
That is something that no one can really influence now, unlike the future reform of healthcare regulation which is finally back on the agenda and the renewed subject of a Government Consultation Paper. See some comments on this from my colleague Krystal Whyment. After several false starts let's hope this is the start of the passage to something more sensible and sustainable in the healthcare disciplinary field…
There are also three great case summaries to read this month. GMC v Krishnan is very much a first, in that it makes reference to the world famous Ivey judgment, even though the original appeal hearing had been heard prior to the Ivey judgment being handed down. Furthermore, the Michalak case brings employment tribunals into the equation for regulators, who it is suggested have acted in a discriminatory way. Finally, the GMC v Stone case is, for me, the most interesting of them all, by way of the significant comments made about the caution needed to be exercised by panels when considering defence expert evidence at the impairment stage.
BSB Change in Standard of proof
A step in the right direction for regulatory reform?
GMC v Krishnan  EWHC 2892 (Admin)
This decision of the Queen's Bench Division, supports Ivey as good law and as the correct approach to be applied in regulatory proceedings:
"It follows that the advice proffered by the legal assessor and its acceptance by the Tribunal Panel was in error. Had the approach been in accordance with Ivey the Panel should have first determined the Respondent's state of mind as to the facts and then gone on to consider whether his conduct was dishonest by the standards of ordinary decent people. Ivey is clear authority for the proposition that in a case such as this the Tribunal should not have considered whether the Respondent must have realised that his conduct was dishonest by the standards of ordinary decent people."
The decision confirms that Ivey does not simply invert the objective and subjective limbs of the Ghosh test but rather that the objective element of Ivey flows on from the individual's actual state of mind not what he or she should have realised was dishonest by the standards of ordinary decent people:
“… the first stage (objective) Ghosh test is not the same as the second stage (objective) Ivey test. The objective test in Ghosh had to be applied without reference to the actual state of mind as to knowledge or belief as to facts of the individual concerned”.
Beyond that we will have to wait for an appeal on the interpretation of Ivey rather than merely its application to certain facts. The focus is now on the first tier tribunals who will have the task of applying the new Ivey approach as it stands.
The interesting and perhaps instructive thing to have had a determination on would have been the application of Ivey to the case at hand. We will have to wait for the MPT's reconsideration of this case; will they find dishonesty proven or not according to the Ivey test?
General Medical Council and others v Michalak (Solicitors Regulation Authority and others intervening) Supreme Court  UKSC 71
The Supreme Court stated that Judicial Review has its origins in common law and therefore does not exist as a result of any statute. Furthermore, Judicial review is not in the nature of an appeal, as it concerned the legality of a decision, or the procedure used, which is not the same as an appeal, which entails 'the review of an original decision in all its aspects'.
This decision therefore allows professionals to make a claim against their regulators in the Employment Tribunal, which is designed to be accessible to litigants in person and is generally a cost-free jurisdiction, rather than trigger expensive and difficult judicial review proceedings in the High Court.
General Medical Council v Stone  EWHC 2534 (Admin)
A panel will necessarily need to exercise caution and diligence when receiving defence expert evidence at impairment/sanction stage and be mindful not to attach excessive weight to that evidence in evaluating the 3-fold issues of public protection namely:
- To protect, promote and maintain the health, safety and wellbeing of the public;
- To maintain public confidence in the profession and
- To promote and maintain proper professional standards and conduct.
In coming to his determination, Jay J at paragraph 34 considered the case of General Medical Council v Jagjivan  EWHC 1247 (Admin) (see Blake Morgan's summary dated 19 July 2017- insert link) and in particular noted that matters of personal mitigation are likely to carry considerably less weight in regulatory than criminal proceedings. He states "In this regard, I prefer to follow this authority rather than …paragraph 24 of the Sanctions Guidance, to the extent that the latter suggests that more weight may be given to personal mitigation if the concern is about public confidence in the profession."
Whilst each case turns on its own facts, this determination is a useful authority - in the absence of any guidance issued by regulators - as to the approach to be taken to defence expert medical evidence called at impairment/sanction stage.