Professional Regulatory - April 2017

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Welcome to our latest update on all the relevant case law and important news in the Professional Disciplinary legal sector.

The BSB v Howd judgment (which is an interesting read for a number of reasons!) turned out to be something of a forerunner to the comments of Mostyn J that have followed in recent days in the case of Malins and the SRA concerning his clear view as to the alignment of the concept of integrity and the concept of honesty. We do not report on the latter case in this edition as we are preparing more substantial comment for you on that case that you will see soon.

We report on a number of other cases this month, including the case of Newell-Austin v SRA. You will see that Morris J's comment in this case that lack of integrity and dishonesty are not synonymous has been quickly supplanted!

The judgment in Oyesanya v GMC is a stark reminder of the length that High Court Judges are ready to go to, to restrict appeals to the key issues by way of the use of case management powers.

There have been further developments concerning the 'safe space' powers of the HSIB and how these will not be extended for application by local NHS organisations. Like the Malins case this is somewhat hot off the press and Clare Strickland will therefore comment in more detail on these developments in next month's update. In the meantime you may want to cast your eye over the consultation response.

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

BSB V Howd [2017] EWHC 210 (Admin)

Inappropriate social or sexual behaviour cannot amount to a breach of Core Duty 3 of the Code of Conduct in the Bar Handbook, as the term "integrity" must be read by reference to the term "honesty" which is incorporated into the drafting of the duty. However, in principle such behaviour would be a breach of Core Duty 5, as it would be likely to diminish the trust and confidence placed in the barrister by the public. The principles in Walker v BSB PC 2011/0219 as to the definition of 'misconduct' apply equally to breaches of the Core Duties in the Handbook as they do to breaches of the 8th edition of the Code of Conduct. On the facts, the medical evidence established that Mr Howd's inappropriate sexual behaviour towards two female barristers and a female administrative assistant during a chambers party was caused by factors beyond his control.

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Newell-Austin v SRA [2017] EWHC 411 (Admin)

Considering the number of charges not proved due to the second limb of Twinsectra, it is almost inevitable that a 'lack of integrity' will become a phrase of increasing use. Regulators will view it as an attractive, practical and proportionate opportunity to swerve the potentially significant evidential difficulty that is inherent with matters of dishonesty.

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Oyesanya v GMC [2017] EWHC 409 (Admin)

Professional regulators will be assisted by this decision relating to robust case management orders when dealing with appeals involving voluminous, document heavy cases and Appellants raising issues which are "quintessentially" case management decisions of the first instance Tribunal.

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Onwude v General Medical Council [2017] EWHC 601 (Admin)

The Court's conclusions in relation to the dishonesty are, put simply, a victory of common sense. More interestingly, and of wider application, was the way in which the Court approached the issue of providing treatment to friends, in particular, that the case of Hussein was not followed. It is suggested that to prevent doctors from providing any medical care to friends under any circumstances is unrealistic and too inflexible for the realities of medical practice. The most important issue is whether the proximity or type of relationship affects a doctor's ability to be objective and to provide the appropriate treatment or advice. This, it is suggested, should be considered on the facts of each case. No doubt further guidance either from the Courts or the GMC would be welcomed by practitioners. 

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Taylor v General Medical Council (Queen's Bench Division – Administrative Court)

This case reiterates that the weight to be placed on a particular witness' evidence is a matter for the professional Tribunal to judge. 

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R (Oriaku) v NMC [2017] EWHC 235 (Admin) 

This case confirms that delegated Registrar powers are governed by strict statutory provisions and exist to protect Registrants, protect the public and ensure proper expediency and fairness of regulatory processes. It is further important to note that complainants, informants and/or referrers, by the virtue of having brought a complaint in relation to another registered professional, can be awarded the necessary standing to bring judicial review proceedings. 

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Press releases

Key press releases include those from the GPhC and BSB.

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