Professional Regulatory E-Bulletin – February 2018

9th February 2018

It has been, as always now seems to be the case, a busy few weeks with the GMC seemingly required to set up camp in the higher Courts.

The BMA challenged them on the way in which their legally qualified chairs deal with legal advice that they may have to give. GMC win.

The GMC then, in the Lamming case, appealed an MPTS decision to restore to the register a Dr who had previously been found guilty of dishonesty. GMC win…and rightly so I might add. I am frequently astonished by the credit registrants often receive for showing insight, having disputed and fought proceedings to the hilt. As is often the case, poor reasoning was at the heart of the MPTS’s decision in this restoration hearing being roundly rejected.

The GMC also had to defend a judicial review in the case of Clinton where complainants were wrongly disclosed information about each other’s complaints and the views on the case of an expert and the case examiner. There had undoubtedly been improper prosecutorial conduct but…where there is no prejudice there will be no stay. GMC win.

Additionally, in the Raychaudhuri case, the GMC appealed the MPTS again following surprising decisions in relation to dishonesty and impairment. This was another one of those matters decided at first instance on the basis of Ghosh but on the basis of Ivey at appeal. That was however of fairly limited relevance when their Lordships got their teeth into the MPTS’s decision. Yet again, cogent reasons for decisions on dishonesty were lacking and the case was remitted. Another interesting read…and another GMC win.

Finally, in the Yusuff case, the GMC defended another appeal by a registrant against an order made by MPTS at a substantive order review. Within this judgment you will enjoy sheer brilliance from Mrs Justice Yip, who had clearly had enough and decided to provide some real help to panels grappling with the question of insight and impaired fitness to practise at a review. I will not ruin it any further for you, but for the record…GMC win!

Have a great February. What’s not to like about February? If the winter is dragging, just speak to someone from the GMC, they are loving it!

R (on the application of the British Medical Association) v GMC [2017] EWCA Civ 2191

An essential decision from the Court of Appeal confirming the responsibilities of legally qualified Chairs and the circumstances when such a Chair’s advice to their fellow panel members needs to be disclosed to the parties for comment. As with all legal matters, the Court was explicit in their position that there has to be an inherent fairness running through the proceedings and, when this fairness is absent from a Chair’s non-disclosure, what remedies are available.

It is perhaps surprising, especially considering the fairness of proceedings is a fundamental characteristic of our law and one upon which countless appeals and reviews have been brought, that the Applicant felt it appropriate for this application to be made.

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GMC v Christopher Lamming [2017] EWHC 3309 (Admin)

The judgment provides a helpful reminder of the relevant principles to be applied where an appeal is being made against the decision of a professional committee and also where an appeal particularly relates to the adequacy of the reasons that have previously been provided.

In addition, the judgment serves to highlight what should be the starting point and main focus of a Committee when considering a restoration application. It also has relevance to other cases where a Committee is reviewing what has happened following a previous decision and where an assessment needs to be made as to whether or not an individual continues to be currently impaired.

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Dr Olumide Lookman Yusuff v General Medical Council [2018] EWHC 13 (Admin)

This case reminds us that panels would be well advised to establish the position a registered member adopts as to previous findings of misconduct before questioning from the regulator or their own number commences. Further, that the seven conclusions of Mrs Justice Yip be borne in mind when considering current impairment at a review hearing.

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Clinton v GMC [2017] EWHC 3304 (Admin)

Whether there has been actual prejudice or cross-contamination of evidence, rather than the risk of such things, following improper disclosure to witnesses, was key to the High Court refusing this application for judicial review. Witnesses were provided with each other’s statements as well as other documents that they should not have been provided with, such as the case examiners’ decision and previous fitness to practice history of the Doctor.

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General Medical Council v Raychaudhuri [2017] EWHC 3216 (Admin)

Interestingly, in this case, the Court found that, whether applying the previous approach in Ghosh or the current approach in Ivey, the MPT had erred in not finding that the Respondent was dishonest when he denied to Dr D having written examination findings on the pro-forma before seeing Patient A. The decision reinforces the need for committees hearing professional regulatory cases involving dishonesty, to make cogent findings and set out full reasons for their decision.

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