News Professional Discipline 20th Feb 2020

Professional Discipline Group Newsletter

Welcome to the first 2 Hare Court Professional Discipline newsletter of 2020!

Paul Renteurs looks at the unsual case of Bramhall and considers whether a warning given for misconduct can be properly set aside, and a case referred for a full hearing, when the same conduct subsequently results in a conviction.

Vivienne Tanchel examines the application of the Ivey test in Uwen and also a rather alarming comment by the High Court that sanctions are imposed – among other things – to punish the registrant.

Ben Rich examines a rare example where a lack of integrity by a solicitor did not result in erasure in Dar.

Finally, Grace Forbes and I examine two recent decisions regarding extensions of time limits, contrasting the different regimes for healthcare regulators on the one hand, and Disclosure and Barring on the other.

 

Christopher Geering
Editor

 


Replacing a Warning:

R (Bramhall) v. GMC [2019] EWHC 3525 (Admin)

Paul Renteurs

In the widely reported case of Simon Bramhall – a surgeon who branded the livers of patients on whom he had performed transplant surgery – the High Court has ruled that, following Mr Bramhall’s conviction, the GMC’s decision to effectively reverse a warning he had previously been given, and refer the matter to the MPTS for consideration of his impairment, would not be quashed.

In 2013 it emerged that Mr Bramhall, after completing a liver transplant procedure, had used an argon beam coagulator to mark his initials onto the patient’s new liver. Evidence later emerged that he had…

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Dishonesty re-visited

Uwen v General Medical Council [2019] EWHC 3483 (Admin)

Vivienne Tanchel

On December 20th 2019, Mrs Justice McGowan heard an appeal brought by Doctor Uwen against a decision of the Medical Practitioners’ Tribunal that she had behaved dishonestly and erasing her from the register.

The facts of the case were very simple: Dr Uwen, a consultant psychiatrist had been asked to confirm that she had adequate insurance or indemnity cover in place. She asserted she did and repeatedly relied on a solicitor’s letter which referred to her having “legal cover”.  She had apparently considered this meant she had adequate indemnity cover in place. The question for the MPTS was whether she had….

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When is strike-off all but automatic?

SRA v Mohammed Dar [2019] EWHC 2831

Ben Rich

There has long been an issue with some regulators wanting to establish something of a tariff for certain disciplinary offences, particularly dishonesty. Many defence practitioners will remember the overuse of Parkinson v NMC [2010] EWHC 1898 (Admin) where a rule of law seemed to be created from an (obiter) reference to nurses who fail to turn up or apologise sufficiently forfeiting “the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct erasure”.

The idea that nurses who did turn up had only a slim chance of avoiding erasure was never an accurate reflection of actual panel decisions, even where the nurse denied dishonesty and it was proved. The tribunals overseeing some other professions, for example doctors, were perhaps a bit…

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What is a rare and exceptional circumstance?

Gupta v GMC, [2020] EWHC 38 (Admin)

Grace Forbes

In a judgment handed down last month the High Court maintained its steadfast approach to appeal time limits. The message that emerged from the ruling was clear: absent something truly exceptional, a late appeal will mean no appeal at all.

Dr. Gupta had been erased from the medical register following convictions for possession of extreme pornography and indecent images. He appealed against that decision. However, before the merits of the appeal were examined, it was struck out because it had been filed late.

In its ruling, the High Court acknowledged that a discretion to extend the time limit does exist, but emphasised that it would only be exercised in….

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Safeguarding and extending time limits

BB v Disclosure and Barring Service (extension of time) [2019] UKUT 366 (AAC)

Christ Geering

The Disclosure and Barring Service’s (“DBS”) public function runs in parallel with that of our medical regulatory bodies. It exercises its brutal binary function, barring or not barring professionals from working with children and vulnerable adults, without anything in between. It does so largely on the papers, without the benefit of seeing witnesses questioned and without the benefit of independent legal advice. Many a professional who survives their NMC or GMC investigation, will nonetheless find themselves effectively barred from their profession by the DBS. In one regard alone is its regime fairer to the registrant – its approach to appealing out of time.

There is no discretion for allowing appeals out of time written into the Medical Act 1983, for example. An appeal must be brought within 28 days. The limited discretion to extend this time period – as read into the Act by the courts – is so limited as to be….

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