Professional Regulatory newsletter - September 2017
I hope you have had a wonderful summer – it is clearly well and truly over. Next stop, Christmas!
The summer would have been quiet for the Admin Court in the world of Prof Reg if it wasn't for a string of dishonesty related cases that reiterate, yet again, that various sanctions remain up for grabs in cases involving such allegations. It is fair to say that patience is wearing thin at the RCJ – the loaded comments are flowing in judgments about the quality of the dishonesty related sections of Indicative Sanctions Guidance documents. The quality of drafting of dishonesty allegations also gets mentioned along the way.
I hope you enjoy reading our summaries of the Ayettey, Watters and Lusinga cases. I particularly recommend to you Louise Culleton's case analysis at the end of her summary of the Lusinga case.
The other of our four case reviews is of that of Akhtar v GDC. This one provides some really helpful clarification of the expected approach by Committees to sanction when a lengthy interim order has been in place. It follows on from the Kamberova case. As usual the judgment is a wonderful example of applied common sense.
Lusinga v NMC  EWHC 1458 (Admin)
An important appeal decision regarding how dishonesty should be approached in regulatory proceedings; care must be taken to consider where on a properly nuanced scale of dishonesty the misconduct falls at all points of the regulatory process.
Ayettey v NMC  EWHC 1462 (Admin)
Walker J's judgment highlights that even where the 'kitchen sink' is thrown during an appeal against sanction, where there has been an adverse finding of dishonesty, unless there are errors of law the bar for a sanction to be viewed as "inappropriate" is a high one indeed. It will rarely be satisfied by generic grounds of appeal arguing that a disciplinary panel has to some extent failed in its duty to consider all evidence properly brought before it.
Watters v NMC (QBD 2017) (unreported)
This unreported case highlights the importance of proportionality when imposing the striking off sanction. The decision of the High Court reinforces the significance of weighing a Registrant's fitness to practise history against the length of their career when considering the requisite sanction. In a case such as this, where the allegations relate to one incident of dishonesty against an untarnished record, Panels should weigh these factors carefully. The Court's recommendation that court guidance on sanctions should be revised to differentiate between different types of dishonesty reflects that dishonesty exists on a spectrum and Panels should be wary of imposing the ultimate sanction in dishonesty cases as a matter of rote, where there is evidence of insight and remediation and previous no fitness to practise history.
Akhtar v GDC (QBD, Administrative Court) (unreported)
This case demonstrates that in each case, the Professional Conduct Committee ("PCC") has a margin for judgment when deciding a sanction and, generally speaking, a sanction imposed in a previous case does not dictate the sanction for later hearings with similar facts. Additionally, where there has been an interim suspension in place, the PCC needs only to have considered its existence when applying the final sanction, rather than apply the effect of the interim suspension to the final sanction.
Key press releases include those from the: GMC, CQC, GDC and CIPFA.