Blake Morgan's Professional Regulatory bulletin - June 2017
Welcome to our latest update on all the relevant case law and important news in the Professional Disciplinary legal sector.
This month's edition really does deal with some fascinating case law, some of which I suspect we have most certainly not heard the last of!
Every case summary is worth a read, starting with the Malins v SRA matter, which I suspect many of you are already aware of. I personally sit in Camp Mostyn (for now). If you have your smartphone to hand quickly ping the word 'integrity' in and be taken to Wikipedia or somewhere similar. After reading what comes up I reckon you may then join me if you are not there already. However, us regulatory lawyers love to drag out the debate and there is no doubt that this one has some distance to run. The ARDL seminar on this very topic on 20 July will be one not to be missed.
I suggest, however, that your perusal of this update does not stop at the end of James Danks' summary of that case.
We go on to consider the Pitt & Tyas v GPhC case which is a particularly crucial read for those involved in professional regulation who may continue to believe that a professional's behaviour away from the workplace cannot impact on their professional registration. You can of course still have a row over a game of Scrabble, just don’t get physical or discriminatory.
My favourite case of the month is Bale and the GMC, mainly because I have recent experience of regulators edging towards bringing cases on the basis of apparent rejection of professionals' evidence in earlier concluded civil and criminal proceedings. Mr Justice Collins seems to have put the brakes on that idea.
Finally, matters became more akin to a normal professional regulatory appeal in the case of Clarke and the GOC. Here is a judgment that reminds us all of what we are truly up to in our legal sector – assessing risk to the public.
I also refer you to our update on the 'Safe Space' debate that continues to move forward following the Government's publication of responses to its consultation.
Malins v SRA  EWHC 835 (Admin)
There is little doubt that the four weeks of certainty regarding the meaning of integrity created following Newell-Austin v SRA  EWHC 411 (Admin) has been swiftly dispatched as a result of Mr Justice Mostyn's judgment in this case, which has led us to the position that there is no longer any difference between honesty and integrity. Were this not to be the correct analysis, then the SRA principles of only requiring a solicitor to only act with integrity would leave the profession open to clear abuse and criticism.
Historically, the hurdle to cross on an integrity charge compared to that of dishonesty has been easier to cross. Whilst this could create difficulties, certainly for the SRA, for any matters currently pleaded as 'lacking integrity' but there being no charge in respect of dishonesty, it is also worth noting that this judgment has arrived at a time when the SDT's criminal standard of proof is under attack and could prove useful leverage for any representations as to why it should be amended to that of the civil standard.
Clarke v General Optical Council EWHC 521 (Admin)
This judgment reinforces the importance of considering all factors relevant to the assessment of risk when determining current impairment on public protection grounds and in particular the importance of considering a registrant's wider circumstances and future intentions. However, the wider impact of the judgment beyond this established principle could be limited taking into account the fact specific nature of this case i.e. in the current case the public interest element of impairment had arguably already been satisfied previously by the imposition of a substantive suspension order for 12 months. Additionally, the Registrant was in this case also able to consistently demonstrate over a sustained period that he had not practised as an optometrist and also no longer intended to practise as an optometrist.
The Queen (on the application of Pitt and Tyas) v General Pharmaceutical Council  EWHC 809 (Admin)
This decision reinforces the notion that the privilege of being a member of a registered profession comes with the quid pro quo that proper standards of personal behaviour will be maintained at all times. Registrants may take heed of this decision to remember that just because they may consider themselves to be "off the clock" regulators can still apply scrutiny to areas of their lives beyond the day job.
Bale v General Medical Council  EWHC 804 (Admin)
This case provides a reminder that a local denial of allegation which is subsequently found to be proved does not necessarily amount to dishonesty on behalf of a Registrant and highlights the need for motivation charges to be supported by strong and cogent evidence.
Key press releases include those from the: GMC, BSB and HCPC.