Professional Regulatory newsletter - October 2017

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Happy Halloween – as I suspect you know by now, it's time to Give Up The Ghosh!

My colleague Krystal Whyment has prepared a note for you on the 'Marshmallow Man' of a case that is Ivey v Genting Casinos. It is a real treat, although for me the trick in it is that it may not in fact change the landscape much in a professional disciplinary context.

You can of course judge that better as you head into the cauldron of regulatory tribunals and hear the cackle of any legal assessors who have read the judgement. Here is the link to Krystal's thoughts.

Furthermore, not more than a month could go by without further developments in the dishonesty/integrity debate, and sure enough along came the SRA Williams case. This is all of course the appetiser to appeals in previous contradictory judgments. Watch this space!

The GOC Honey Rose matter is a fascinating read but also perhaps raises as many questions as it answers. I highly recommend Louise Culleton’s commentary on this one.

The other two matters we report on this month involved successful appeals by the GMC and a midwife. In both situations there was no hesitation to interfere with substantive decisions on impairment and sanction respectively. Committees should take note that where appeal issues do not relate to decisions made on the back of Tribunals’ specialist experience or assessment of live evidence, they will be subject to the red pen of the red judges!

Peter Rhys Williams v Solicitors Regulation Authority [2017] EWHC 1478 (Admin)

This case represents the next instalment, albeit via obiter, in the ongoing discussions surrounding the concepts of dishonesty and integrity within regulatory proceedings (with a particular focus on the field of solicitors' regulation). The Judgment in Williamsundermines Mostyn J's findings in Malins and opens the door again for further debate.

We await the SRA's ongoing proposed appeal proceedings in relation to Wingate and/or Malins so that we may get a final determination on the legal positon in relation to dishonesty v want of integrity. 

In the meanwhile, both on the authorities and as a matter of principle, in the field of solicitors’ regulation, the concepts of dishonesty and want of integrity are seemingly to be treated as separate entities.  A want of integrity is appropriate where a solicitor fails to meet the high professional standards to be expected of a solicitor (objective test), it does not require the subjective element of conscious wrongdoing which, is required for a finding of dishonesty.  

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Honey Rose v Regina [2017] EWCA Crim 1168 

This appeal judgment does not lead to anything ground-breaking in terms of dealing with regulatory proceedings, or suggest that a registrant is protected from not doing something that they should have because of a prior breach of duty which would have caused them to be unaware of a certain condition or that certain action was required.  The focus is on the objective, but still prospective, nature of the test of foreseeability, and the requirement of a risk of death and not something less, for criminal liability.

Regulatory bodies and the public will have to take comfort in the fact that such a breach can, and should, still lead to serious consequences for the registrant in their professional capacity.  

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General Medical Council v (1) Nwachuku; (2) Professional Standards Authority [2017] EWHC 2085 (Admin)

This case is a reminder that, in cases where the tribunal's judgment regarding impairment relates to facts where the tribunal's specialist experience does not place it in a better position than the court to weigh the relevant factors, the courts are less inclined to show deference to the tribunal's judgment. The courts may be less willing to interfere with the judgment of the tribunal where the facts of the case relate to clinical matters and/or the practitioner has given evidence as to their insight.

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Patricia Annon v Nursing & Midwifery Council (NMC) (2017) EWHC 1879 (Admin) 

This case provides guidance for Panel members, as it provides some indication regarding the manner in which conditions are drafted, specifically around the inclusion of time limits for training to be completed so as to avoid the “professional limbo” which occurred in this case.

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

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