Newsletters Professional Discipline 5th Mar 2018

Professional Discipline Winter Newsletter

The recent months have raised a broad range of different issues. Paul Renteurs looks at the high profile anti-doping case of Tyson Fury, and the fraught question of the burden of proof in such cases. Grace Forbes examines O’Connor v BSB and racial discrimination claims against a regulatory body. In respect of healthcare regulation, Andrew Hurst provides an excoriating analysis of the recent GMC judgment in Bawa –Garba and its interpretation of the “public interest”. Sarah Przbylska analyses the high bar in abuse of process applications in R (Clinton) v GMC. I summarise the NMC’s investigative and prosecutorial debacle in PSA v NMC and X. Ben Rich returns to the vexed issue of insight where allegations are denied and found proved.

Christopher Geering

The Agreement in the Fury Case and the Vexed Question of the Burden and Standard of Proof for Athletes

Paul Renteurs 

Last December the UK Anti-Doping and cousins Tyson and Hughie Fury, agreed to the former making an Issued Decision pursuant to the UK Anti-Doping Rules, whereby the latter accepted, in effect, a ban of two years, albeit back-dated to account for two years the pair had been provisionally suspended. This pragmatic compromise by all involved represented the conclusion to UKAD’s pursuit of its most high-profile – and costly – scalp in recent times. But for all the simple neatness of the agreement reached, it leaves one potentially significant dispute between the parties unresolved…

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Racial Discrimination by a Regulator: O’Connor v Bar Standards Board, 2017

Grace Forbes

The question of racial discrimination by a regulatory body was indirectly brought before the Supreme Court in O’Connor v Bar Standards Board, 2017 UKSC 78.

The context

The Bar Standard Board (‘BSB’) Complaints Committee had brought six professional misconduct charges against the appellant barrister, Ms. O’Connor. On appeal it was found that none of the charges in fact amounted to a breach of the Code of Conduct of the Bar.

Ms. O’Connor then filed a claim against her regulator, the Bar Standards Board, for violating her right to a fair trial under Article 6 and the prohibition against discrimination under Article 14 of the European Convention on Human Rights (‘the ECHR’)…

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Bye-bye Bijl

Andrew Hurst

The recent case of GMC v Bawa -Garba [2018] EWHC 76 (Admin) could well be taking us all back to the bad old days when the thirst for punitive sanctions outweighed any other more nuanced assessment of the public interest.

The case is a sad one. A child was admitted to hospital, initially misdiagnosed and then died that same evening from multi-organ failure arising from sepsis. The doctor, a junior specialist in Paediatric medicine, was convicted of gross negligence manslaughter at Nottingham Crown Court and was sentenced to a suspended term of imprisonment. In due course an MPTS hearing found her impaired, and imposed a sanction of suspension…

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R (Clinton) v General Medical Council [2017] EWHC 3304 (Admin)

Sarah Przybylska

In the absence of demonstrable prejudice to the registrant, an abuse of process argument will be difficult to sustain.

C was the subject of fitness to practise proceedings in relation to complaints made by female patients that he had conducted physical examinations without clinical reason. Like allegations had been brought some time previously and were not found proven, but the press coverage resulted in the making of further allegations by the three complainants in the instant case…

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PSA v NMC and X [2018] EWHC 70 (Admin)

Christopher Geering

The NMC made a successful application to drop an allegation at the start of the substantive hearing. It did so prior to opening the case or presenting any evidence – essentially presenting the panel with a fait accompli. On an appeal from the Professional Standards Authority (“PSA”), the court savaged the NMC cavalier approach both to the investigation and presentation of this matter. By doing so in such stark terms, this court has effectively curtailed the NMC’s pragmatic attempts to dispose of cases without the expense of a full hearing…

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Remorse, Insight and Continued Denial – the Difficulty of Moving on after Sanction. Yusuff v General Medical Council [2018] EWHC 13 (Admin)

Ben Rich

It is commonly said about expressions of remorse from criminals who plead guilty is that they are only really sorry that they got caught. The problem of sincerity is, of course, further multiplied when the person does not admit they did anything wrong in the first place.

That was the position Dr Yusuff found himself in after his suspension for dishonesty and inappropriate behaviour. In the first review, Dr Yusuff had said he accepted the findings of the original Tribunal but it found that he did not appreciate the seriousness of what he had done, and that there was inadequate evidence of regret and insight. It extended the suspension for a further four months and suggested the next reviewing tribunal would be assisted by a statement reflecting on the Tribunal’s findings and “a full demonstration of meaningful insight into the misconduct”…

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