Public & Regulatory Law Alert - June 2011
- General Medical Council v Dr. Sethna Saverymuttu  EWHC 1139 (Admin)
- Ahmed Zia v General Medical Council (2011) CA (Civil Division)
- Rice v Health Professions Council (2011) QBD (Admin)
- R (on the application of D) (Claimant) v Independent Police Complaints Commission (Defendant) & Fiona Fraser (interested party) (2011) QBD (Admin)
- GCC - New appointment: Chief Executive and Registrar
- GDC - Chair Resigns
- GDC - New appointment
- GDC - Consultation on temporary registration guidelines
- BSB - CPD Review Group Report Published
- SRA - Key roles for major review
- SRA - Plans for conveyancing firms
- CQC - New Excellence Award Consultation
- GSCC - Press Release: Munroe Report
- FRC - FRC Plan & Budget 2011/12
- FRC - New appointment for BAS
- GOsC - Consults on guidance about students' fitness to practise
- LSB - Licensing Authority
- LSB - Approach to overseeing regulation
- NMC - Government response on Commission report by PM
- NMC - Government safeguarding adult plans
On 5 April 2011 the High Court delivered its judgment in the above appeal which questioned whether the General Medical Council’s Fitness to Practice Panel’s determination was fair. The Appellant, a consultant physician with an interest in gastroenterology, appealed the decision of the FTP Panel that his fitness to practise was impaired and that a sanction of suspension should be imposed for 12 months.
The charge related to claims that the Appellant had been misleading insurance companies by making claims for procedures using the incorrect 'code', which resulted in over-payments being made to the Appellant. The codes, based on the model set out by the Office for Population, Censuses and Surveys (OPCS) were used and revised by BUPA and AXA PPP (two of the insurers involved). The revisions to their codes had been sent to the Appellant on four different occasions, and these occasions were specified in the charge against the Appellant at the GMC's hearing. However, the Panel placed reliance on a fifth letter from AXA PPP (dated 17 March 2005), which had not specifically been detailed in the charge. This letter stated that the Appellant had been using the incorrect codes and they would be seeking remuneration for his consistent errors. The Appellant’s counsel argued that had the letter of 15 March 2005 been included in heads of charge, his line of questioning of the GMC's witnesses would have differed and this may have prejudiced the outcome. The GMC argued that the charge was wide enough for the Panel to rely on this letter, having made clear that it was alleging a continuing pattern of dishonesty by the Appellant until the introduction of a new coding system in early 2006.
The Panel's view had been that any potential unfairness could be counteracted by an adjournment, which had occurred after the first part of the hearing went part-heard. When the hearing reconvened, the Appellant had been given the opportunity to recall witnesses and make further submissions. However, the Appellant chose not to recall any witnesses from AXA PPP.
The Appellant's counsel also argued that there had been inconsistencies in the Panel’s determination in relation to his dishonesty over claims he had not read earlier documents detailing the correct codes. However, the Court decided that there had been no inconsistency; that the Panel were entitled to find that the Appellant had not read the letters sent to him before 17 March 2005, and therefore did not appreciate that he was using incorrect coding, but that he had read, and understood the letter of 17 March 2005. It was after this date that the Panel found Dr Saverymuttu's actions to be dishonest.
Following submissions from the Appellant and the GMC, the Court found that the Panel had been entitled to make the findings that they did. The Judge stated that it was a 'striking feature’' of this case that the Panel heard evidence from live witnesses over 20 days, in addition to the several days of evidence from the Appellant; this placed the Panel in an advantageous position from which to judge the issue of the Appellant’s dishonesty. Further, that the Appellant had been fairly given the opportunity to re-call witnesses after the Panel made clear their intention to rely on the 17 March 2005 letter. The Court found that 'the duty to act fairly can be discharged even if the Appellant and his representative have to deal with matters in a slightly different order than would have been their ideal. While of course the Panel had to treat Dr Saverymuttu fairly, it had also to be conscious that it had a public duty to perform in relation to its' investigation of the allegation of serious misconduct by a senior doctor.' The Court found that the Panel’s determination that his Fitness to Practice had been impaired was just and to be upheld.
On 18 May 2011, the Court of Appeal considered the application of the Rules set out in accordance with Schedule 1 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004. The schedule gave the GMC's Registrar the power to refer allegations about a doctor to the GMC's Fitness to Practise Panel ("FTPP") even though a referral to case examiners had not taken place. The matter was not always required to be considered by the case examiners before proceeding further.
In 2010, the FTPP found allegations of misconduct and deficient professional performance by the Respondent doctor were proved and an eight month suspension was imposed. The High Court had quashed that decision and the GMC appealed to the Court of Appeal in May 2011.
The referral from the Hospital Trust and former employers of the doctor, were based on concerns regarding his performance and competence. The GMC's Registrar referred the doctor for a performance assessment as per Schedule 1 r.7 (3) of the FTP rules. The case was referred to the FTPP following the doctor’s failure to comply with the assessment under r.7 (6). The allegations were subsequently found proved and the Panel imposed the suspension.
This decision was appealed by the doctor under s.40 of the Medical Act 1983. The key issue for consideration was whether the Panel had jurisdiction to deal with the allegation. The argument raised by the doctor was that he registrar could only refer to the Panel after a referral to the case examiners, pursuant to r.4 (2) of the FTP rules. He was successful and the Panel's decision was overturned.
The construction and application of the Rules were re-examined when the decision to allow the respondent doctor’s appeal was challenged by the GMC. As part of this process the objective of the Act was highlighted, as outlined in S.1 - for the GMC to protect, promote and maintain the health and safety of the public. It was made clear that a balance was to be achieved between meeting this aim and regulating the procedure.
The Judge held that although the majority of cases were considered by both Registrars and case examiners, there was no inflexible requirement to be considered by case examiners before referral to a Panel.
The Registrar was entitled to direct a performance assessment in this case and due to the doctor's non-compliance it was not necessary for the case examiner to consider the case. The Registrar could refer the allegations directly to the Panel under r.7 (6).
The Judge's order to quash the Panel's decision was set aside and the eight month suspension was reinstated. The matter was then remitted to enable the court to deal with the substantive grounds raised by the doctor on his appeal under s.40 of the Act.
In May 2011, a Paramedic appealed a decision by the Council’s Conduct and Competency Committee to strike him off the register.
The Paramedic had been found responsible for supplying out of date diamorphine, a controlled drug, to a colleague who later died. His colleague had requested the pain relief a day earlier for a forthcoming operation. The Paramedic was charged with an offence under the Misuse of Drugs Act 1971 but was acquitted by the Crown Court, on the basis of his defence that he supplied the drugs believing that his colleague would dispose of them appropriately.
The Committee concluded that supplying the diamorphine did amount to misconduct and that the Paramedic’s fitness to practise was impaired. It was considered to be a serious failing and due to the lack of insight from him they were not able to rule out the possibility of repetition in the future. The only proportionate sanction in the circumstances was believed to be removing him from the register.
The Appellant Paramedic challenged this decision and stated that the Committee had misunderstood his explanation for supplying the diamorphine, which had been accepted in the criminal proceedings.
It was held that the purpose of regulating medical professionals was to protect the public and not to punish the Practitioners with the sanctions that they imposed. The Committee had to take into account his fitness to practise in the future and furthermore, they had been entitled to reject the Paramedic’s account of the circumstances. Supplying out of date pain relief to a colleague was considered to be clear misconduct. The seriousness of this act led to the Panel's finding of impairment and the decision to strike him off the register was said to have been appropriately reached.
R (on the application of D) (Claimant) v Independent Police Complaints Commission (Defendant) & Fiona Fraser (interested party) (2011) QBD (Admin)
On 24 May 2011 the Administrative Court delivered an important judgment in the above case concerning the Independent Police Complaints Commission’s decision not to ask the police to take disciplinary action against a police officer who did not inform a rape victim of the unavailability of key evidence.
Detective Constable Fiona Fraser was assigned to investigate an allegation that the Claimant was raped by the assailant in January 2005, when the Claimant was 15 years-old.
The Claimant asserted that she gave the assailant her telephone number on the first day that they met. The assailant contacted her via telephone and they met again for the second time. The Claimant alleged that during the second occasion that they met the assailant took her to his home and raped her. She also claimed that the assailant had made telephone calls to her following the alleged rape. The assailant contended that the sex was consensual. The assailant asserted that he had not met the Claimant until the day in question and denied contacting the Claimant over the telephone. The police seized their telephones as part of their investigation to establish whether the assailant had made any calls to the Claimant.
On many occasions during the months leading up to the trial the Claimant's mother had asked Detective Constable Fiona Fraser whether the call data was available.
On every occasion Detective Constable Fiona Fraser confirmed that data was available when in fact it had never been obtained. The case was heard at trial in May 2006 and the assailant was acquitted.
The Independent Police Complaints Commission conducted their investigation into the Claimant's complaint that Detective Constable Fiona Fraser did not inform her that there was no call data available. The Independent Police Complaints Commission concluded that Detective Constable Fiona Fraser could not be found guilty of misconduct as there was insufficient evidence and it could not be proven on the balance of probabilities that she had been dishonest or failed in her duties.
The High Court considered that Detective Constable Fiona Fraser should have known that she was giving a vulnerable witness and her mother inaccurate information on a number of occasions. The High Court also noted that Detective Constable Fiona Fraser made an entry in the investigation record which stated that the telephone information obtained was incorrect and further inquiries should be made into whether there was any evidence of phone calls. In October 2005, a further entry was made which stated that further inquiries had not been carried out. The next entry was made in April 2006 which stated that the evidence was not available. The High Court held that Detective Constable Fiona Fraser knew that the information she gave to the Appellant's mother was untrue, up until the time that she made the entry in October 2005. After that time she was obliged to check the progress and should have at least checked the next time that the Appellant's mother enquired about the availability of call data. Whether or not Detective Constable Fiona Fraser positively knew that the telephone call evidence was unavailable, the fact that she informed the Appellant's mother that it was available meant that there was prima facie case that her conduct fell below what was required by the Police (Conduct) Regulations 2004 Sch. 1 para. 5.
Therefore the High Court held that Independent Police Complaints Commission's decision not to request disciplinary action against Detective Constable Fiona Fraser was unlawful. Disciplinary proceedings could not commence due to the passage of time since the matter in question.
The General Chiropractic Council (GCC) has announced the appointment of Satjit Singh as its Interim Chief Executive and Registrar. Satjit joined the GCC on 3 May and previously undertook a similar role at the General Optical Council.
Alison Lockyer has resigned as Chair of the General Dental Council (GDC) and as member of the Council.
Derek Prentice has been announced as Deputy Chair with immediate effect.
The GDC has released details of draft plans to change guidelines regarding the temporary registration of dentists. Views are welcomed for the online consultation process which closes on 22 July 2011. This allows dentists who are not eligible for full registration to practice dentistry in the UK in supervised posts for training, teaching or research purposes only and for a limited period. The online questionnaire can be found here.
The Bar Standards Board (BSB) has commissioned a review of CPD for Barristers in England and Wales. Major revisions of the system have been recommended, including an increase in the required CPD hours from 12 to 24 per year, and that activities should be split into two categories, verifiable and non-verifiable activities.
The Solicitors Regulation Authority (SRA), BSB and Ilex Professional Standards (IPS) have announced key appointments to take forward their Education and Training Review. The joint project which has become known as "Review 2020" aims to take account of the future demands on legal services and the changes that will shape the legal services market of the future.
The SRA has published a draft Supervision and Enforcement Strategy setting out how it intends to engage with firms undertaking conveyancing work. Further details of the strategy can be found here.
The Care Quality Commission (CQC) has started consultation to introduce a new excellence award scheme. The plans for the scheme are for adult social services in England. The award will launch in April 2012 to recognise services providing the best care.
The General Social Care Council (GSCC) has welcomed Professor Munro's final report, entitled 'The Munro Review of Chid Protection, A child centred system'. The report explores some of the current issues faced by the social service. In particular, the report recognises the importance of developing and maintaining the skills of social work professionals, supported at a national level by the regulator. The GSCC currently requires every social worker to complete 15 days of relevant training and learning every three years.
The Financial Reporting Council (FRC) has published its final plan and budget for 2011/12. The focus will be to achieve the following outcomes:
- Stronger and better-informed engagement between institutional investors and company boards.
- Corporate reporting and auditing that deliver greater value to investors and better serve the public interest.
- A strong UK voice in the EU and international debate on the future regulation of corporate governance, reporting and auditing.
- New powers and a new structure for the FRC that reflect the Government’s Agenda for Growth and command widespread support from those who rely on the quality of corporate governance and reporting in the UK.
The FRC has announced the appointment of Paul Kennedy as Acting Director of the Board for Actuarial Standards (BAS). Paul will commence his new role in June 2011.
Views have been invited on the General Osteopathic Council’s (GOsC) draft guidance for student of osteopathy and osteopath advice institutions. The brief report of the Council Meeting on 12 April 2011 can be found here.
The Legal Services Board (LSB) has published a consultation on proposals for appeal arrangements for SRA as a licensing authority. Meanwhile, the LSB has also recommended the CLC as a body to license Alternative Business Structures. Details of the consultation and impact assessment can be found here.
The LSB has launched a new discussion paper outlining its approach to ensure standards of regulation in the legal services sector. The paper can be viewed here.
The Nursing and Midwifery Council NMC has expressed concern over the Government's response to the Prime Minister’s Commission report on the future of Nursing and Midwifery.
The Government's proposal to tighten the law in relation to safeguarding adults has been welcomed by the NMC. The plans will introduce a legal requirement for every local authority in England to set up a Safeguarding Adults Board to protect those adults most at risk in society.