Newsletters 6th Oct 2017

Professional Discipline Autumn Newsletter

Welcome to the Autumn edition of 2 Hare Court’s Professional Discipline Newsletter.

The NMC’s long awaited legislative changes have now come into force. As Grace Forbes notes in her helpful summary, the Case Examiners’ flexible powers are likely to see a significant reduction in the number of cases being referred for a formal hearing.

In the High Court the NMC’s Indicative Sanctions Guidance was heavily criticised – again – this time on the basis it fails to discriminate between different forms of dishonesty. Alex Tampakopoulos addresses this. The NMC achieved more success in the recent registration appeal heard before the Court of Appeal. This decision lays down firm guidance on the proper approach to the issue of registration and roundly rejects the contention that a nurse should only be refused registration if she would have been struck off had she already been on the register. Christopher Geering produces a brief analysis of this judgment.

Ben Rich considers the impact an interim order may have on sanction: it is another factor which must be considered when deciding on the proportionality of a sanction. In addition, the first appeals brought by the GMC under s. 40A Medical Act 1983 have now come to court. These cases – which constitute an unbroken run of success for the GMC so far – are summarised by Tom Day, Vivienne Tanchel and Laura Stephenson.

We hope you find this edition of interest and we warmly welcome any feedback.

Legislative Overhaul for the NMC: Consolidation and Expansion
Grace Forbes

The NMC has introduced a raft of new powers[1], designed to divert cases away from a full hearing where appropriate. ‘Warnings’, ‘undertakings’ and ‘advice’ are new strings in the Case Examiners’ bow.

In the same stroke, the former ‘Conduct and Competence’ and ‘Health’ committees have been consolidated into a single ‘Fitness to Practice Committee’, and review of substantive orders will no longer be compulsory in every case.

The stated impetus behind the move was to “improve the efficiency and effectiveness”…

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Differentiating Dishonesty
Alex Tampakopoulos

Watters v Nursing and Midwifery Council [2017] EWHC (Admin) 1888, Lusinga v Nursing and Midwifery Council [2017] EWHC (Admin) 1458

 Two recent decisions stress the need for Indicative Sanctions Guidelines to differentiate between different degrees of dishonesty.

The appellant in the case of Watters v NMC was a highly experienced, oncology nurse with an unblemished character. The facts of this case centred around a copy of a training certificate in Adult Immediate Life Support submitted…

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Doherty v NMC [2017] EWCA Civ 1344
Christopher Geering

The test for registration should not be confused with the test a strike off in Fitness to Practise proceedings

Ms Doherty first registered with the NMC in 1992. In February 2013 she received a conviction for drink driving (her second in five years). She disclosed this conviction in her registration renewal application that autumn. Her application was refused on the basis she did not satisfy the “good character” requirements. Her appeal to the Registrations Appeal Panel was…

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The Impact of an Interim Order on Sanction
Ben Rich

An interim order is a crucial part of the assessment of proportionality when it comes to sanction.

Until recently, one of the most frustrating things for registrants facing sanction was that no account was taken of how long they had been on an interim order. A registrant who had been suspended or under conditions for a year or sometimes much longer could be subject to the same sanction as a similar registrant who had never been on an interim order at all…

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General Medical Council v Jagjivan & PSA [2017] EWHC 1247 (Admin)
Tom Day

The High Court considered the jurisdiction of the GMC to bring appeals, and proved willing to overturn perverse findings of fact

 The GMC chose Dr J’s case as the first appeal it brought with its new powers of appeal.

Dr J was employed as a cardiology Registrar. At a consultation with a 27-year old patient who had been referred with a history of chest pain, palpitations and dizziness, the patient alleged that Dr J:

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GMC v Theodoropoulos [2017]EWHC 1984(Admin)
Vivienne Tanchel

In its second appeal, the GMC successfully challenged the finding of no impairment in relation to dishonesty.

Following the GMC’s first successful appeal in GMC v Jagjivan, in June the High Court handed down its judgment in a second appeal: GMC v Theodoropoulos [2017]EWHC 1984(Admin).

This case involved an allegation of dishonesty against a consultant ophthalmologist. It was alleged against him that he had altered his GMC register entry to state that he had a licence to practice in the United Kingdom and used the altered document to obtain employment.

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General Medical Council v The Queen (on the application of Dr Iheanyi Chidi Nwachuku) [2017] EWHC 2085 (Admin)
Laura Stephenson

General Medical Council v The Queen (on the application of Dr Iheanyi Chidi Nwachuku) [2017] EWHC 2085 (Admin) The GMC successfully appealed against a tribunal’s finding of no impairment. The case demonstrates the High Court’s robust approach to dishonesty in regulatory cases.

The GMC brought its third successful appeal under s. 40A Medical Act 1983 in General Medical Council v The Queen (on the application of Dr Iheanyi Chidi Nwachuku).

Dr Nwachuku was a full time…

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