Professional Discipline Summer Newsletter
Welcome to the 2 Hare Court Professional Discipline summer newsletter.
In coronial proceedings, I look at the Court of Appeal’s judgment in Maughan, which has confirmed the appropriate standard of proof for suicides.
Alexandra Tampakopoulos considers the recent decision of Maguire, and the scope of Article 2.
As for the MPTS, Ben Rich reflects on the fraught issue of demonstrating insight at a review hearing whilst continuing to deny the charges.
Charlotte Watts considers the case of Sastry and what standard of practice should a doctor be judged by when he treated a patient in Mumbai.
The High Court continues to struggle over the issue of integrity. Lewis MacDonald analyses the latest development.
Finally, Gavin Irwin summarises the recent developments from the SRA – is its bark worse than its bite? It seems not.
R (Maughan) v Senior Coroner for Oxfordshire  EWCA Civ 809:
Suicide, Unlawful Killing and the Standard of Proof
During the inquest into the death of Mr Maughan, an inmate at HMP Bullingdon, the coroner ruled that there was insufficient evidence upon which the jury could reach a short form conclusion of suicide. However, he posed three questions for the jury to answer as part of a narrative conclusion, applying the civil standard of proof, which in essence invited a finding of suicide.
On appeal in July last year the Divisional Court took the opportunity to reformulate the appropriate burden of proof for a finding of suicide. Undaunted by 35 years of apparently settled law, it considered the civil standard, not the criminal, should apply.
The Court of Appeal has now endorsed this view.
In doing so…
Case Commentary: Maguire  EWHC 1232 (Admin);
The Applicability of Parkinson in a DOLS case
In this Judicial Review the High Court considered the decision of R (Parkinson) v Kent Senior Coroner  EWHC 1501 (Admin),  4 WLR 106 in a case where the deceased was subject to DOLS under the Mental Capacity Act 2005 and died whilst a patient in hospital.
Summary of Facts
Jacqueline Maguire (Jackie) died in hospital of a perforated ulcer with peritonitis and pneumonia. She had Down’s syndrome together with moderate learning difficulties and had lived for more than 20 years in a care home in Lytham St Anne’s, Blackpool. Like other residents, Jackie had been deprived of her liberty under the Mental Capacity Act 2005 to the extent that she was prevented from leaving the home without supervision.
In the week prior to her death, Jackie appeared to become progressively and seriously unwell. Against that background there was evidence of a series of failings by different medical professionals and carers at the care home to appropriately triage, act or communicate in a timely or adequate manner in relation to Jackie’s worsening condition. There was also evidence that there had been inadequate consideration of Jackie’s history of Down’s Syndrome and learning difficulties…
Blakely v GMC  EWHC 905: Deny, Deny, Deny (But Try to Show Insight)
Everyone who practises in professional discipline faces the problem of how a registrant can demonstrate insight, when he or she has denied the charges. This is difficult enough at a substantive hearing; on a review, when the registrant has had time to reflect and remediate, it can seem impossible.
The High Court has tried to avoid encouraging the view that if the registrant does not in the end change their denial into a confession, then he or she lacks insight and may remain impaired. For defence advocates this principle was most strikingly expressed in Amao v NMC  EWHC 147 (Admin) where cross-examination of a registrant at impairment stage on whether, having denied the charges, she now accepted the findings of her regulator was described as “thoroughly inappropriate, almost Kafkaesque”. However Amao, as the court pointed out in that judgment, was an unrepresented registrant who had not even had a chance to exercise her right of appeal…
Sastry v General Medical Council  EWHC 390 (Admin)
Dr Sastry faced allegations relating to his treatment of Patient A when he was working as a Consultant Medical Oncologist in Mumbai. The issue arose whether his conduct should be judged according to the standards of professional conduct that the GMC were entitled to expect in the UK or instead by reference to local standards and practices in Mumbai. The legal assessor advised the Tribunal:
“[M]y advice in relation to the Indian issue would be that the doctor needs to be judged by UK standards, GMC standards, but having regard to appropriateness the tribunal should take into account the circumstances—the hospital, the patient, and the facilities, etcetera—that were available to the doctor in India”
The tribunal at first instance heard expert evidence from a UK specialist for the GMC, and a UK specialist and an Indian consultant oncologist instructed by Dr Sastry. It found that the Indian consultant was neither an independent nor impartial expert witness and went on to reject much of his evidence…
Lacking Integrity – The Waters Re-Muddied in Adetoye v The Solicitors Regulation Authority
After Wingate v SRA  EWCA Civ 366 it was thought that Lord Justice Jackson had brought some clarity to the meaning of ‘lacking integrity’.
Whilst the definition remained wide, it was clarified as different from, and involving adherence to a higher standard than, dishonesty:
“Integrity connotes adherence to the ethical standards of one’s own profession. That involves more than mere honesty. To take one example, a solicitor conducting negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse.”
Pre-Wingate, Mostyn J had expressed…
SRA Developments in 2019
2019 has seen the Solicitors Regulation Authority (SRA) taking an increasingly assertive approach towards the regulation of solicitors and the protection of consumers of legal services.
A New Enforcement Strategy
On 7 February 2019, the SRA announced a new Enforcement Strategy to ‘focus on serious issues’ and confirmed that action will be taken against solicitors in relation to breaches which are ‘serious, either in isolation or because they demonstrate a persistent failure to comply or a concerning pattern of behaviour’.
The SRA stated that it will take action where an individual is personally responsible for such a breach. Individuals cannot avoid accountability and/or repeat similar behaviour simply by moving firms. In addition, the SRA will usually take action against firm – alone or as well as against an individual – where there it has breached its code of conduct. Action would be taken, for example…