2 Hare Court Professional Discipline Newsletter
Welcome to the latest edition of the Professional Discipline Newsletter.
Christopher Geering
Editor
Foreword
Welcome to the latest 2 Hare Court newsletter. The recent case of Bilta is the latest case dealing with remote hearings and is important reading for anyone making or resisting an application to hear a case in person. Ben Rich looks at Wray, which criticises the way certain regulators treat convictions which have resulted in a conditional discharge. Paul Renteurs and Vivienne Tanchel examine the PSA’s latest appeals in Yong and Dighton. Finally, the clinical negligence cases of Failes and Ismail examine the status of medical notes and whether there is a presumption that such notes are indeed accurate.
Remote hearings and dishonesty
Bilta v SVS Securities and others [2021] EWHC 36 (Ch)
The third national lockdown has seen a shift in the approach of many healthcare regulators. There is now a radically increased drive to deal with cases remotely – even if contested evidence is involved – and even if the allegation is one of dishonesty.
In my view it is an uncomfortable position to take. After all, the absence of dishonesty was a key factor in the decision to proceed with a remote hearing in Re One Blackfriars (in liquidation) [2020] EWHC 845 (Ch), and the extent of contested evidence and cross-examination mitigated against a remote hearing in Muncipio de Mariana [2020] EWHC 928 (TCC). The guidance from the Court of Appeal in Re A (Children (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 required the court to consider – inter alia – both the importance of the issue to be determined, and “The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence”. The guidance – in short – suggests that a case is unlikely to be suitable for a remote hearing where there is extensive cross-examination of lay witnesses in order to determine an allegation as serious as dishonesty.
It is in this context the decision in Bilta should be considered. On the face of it, it offers a sop of comfort to regulators looking to clear their backlog of cases. Bilta concerned allegations of dishonesty, significant factual witnesses requiring cross-examination, and ultimately the court considered such evidence could be heard remotely without rendering the proceedings unfair.
A more detailed examination, however, rather turns the position on its head.
First – the court went to some lengths to stress the benefit of hearing the cross-examination of witnesses in person. It is the “gold standard”. The court added,
“It follows from this that any form of artificial intermediation interposed between the questioners of a witness and the judge hearing that witnesses evidence must be a derogation from the “gold standard”.”
It went on:
“I accept, of course, that an in person hearing in such cases does constitute the “gold standard” and that – particularly in this case, where….
Conditional Discharges in regulatory proceedings
GOsC v Wray [2020] EWHC 3409 (Admin)
How should regulators deal with professionals convicted of criminal offences, but who receive as a sentence nothing more than a conditional discharge?
Most regulators have provisions in their rules for “conviction cases”. Generally the conviction is considered to be conclusive proof of the facts, and the registrant is not permitted to go behind it and suggest that they were not guilty of the offence. They (and the regulator) are allowed, at the post-facts stage, to adduce evidence of the circumstances of the offence, but only insofar as those are not incompatible with guilt. Those circumstances may then be aggravating or mitigating factors when the regulatory panel is considering misconduct, impairment and their equivalents, and what sanction to impose.
The problem arises because s 14(1) Powers of Criminal Courts (Sentencing) Act 2000 (“the Act”) states that, on expiry of the conditional discharge, the conviction “shall be deemed not to be a conviction for any purpose” apart from some exceptions that have no relevance to professional regulators.
How then should a regulator approach such a case?
In Mr Wray’s case, he pleaded guilty in the Magistrates’ Court to possession of an offensive weapon. He had a troublesome daughter who arrived home one day distraught and apparently intoxicated. Shortly afterwards he took a phone call on her phone from a man who said he had attacked and hurt the daughter, and would do so again. Mr Wray agreed to meet the man, and went to a nearby location with his son. His car was attacked by a gang of young men. When he got out, he took with him a softball bat which had been in the car. It was taken from him and he was assaulted with it.
When he told the police this, they decided to charge him with possession of an offensive weapon. Guilt required firstly that he had no reasonable excuse for having it (but the authorities establish that fear of imminent attack can be a reasonable excuse) and second that he had an intention to use it to injure someone (an intention to scare not being enough to establish guilt). He pleaded guilty on legal advice (despite having two perfectly plausible defences) and a later attempt to vacate his plea on appeal was denied as he was….
When does inappropriate behaviour in the workplace amount to harassment?
PSA v HCPC and Leonard Ren-Yi Yong [2021] EWHC 52 (Admin)
In a recent appeal, the Professional Standards Authority (“the PSA”) invited the High Court to overturn findings of the Health and Care Professions Council (“the HCPC”) that certain comments made by Mr Ren-Yi Yong – a social worker employed by the London Borough of Lambeth – were inappropriate but did not amount to harassing behaviour. The PSA also sought to challenge the HCPC’s findings that certain of the comments made by Mr Yong were not sexually motivated. Save in relation to one allegation, the court upheld the PSA’s appeal, and in doing so gave crucial guidance on the meaning of harassment in the healthcare workplace setting.
Over the course of around ten months, Mr Yong had made a number of unwelcome comments to female colleagues. These included asking a colleague whether she had ever had a relationship with an older man, suggesting that one of his colleagues and her boyfriend must have been “at it like rabbits”, and commenting that “the only thing that needs resurrecting around here is my libido”. The Conduct and Competence Panel found that all but one of the alleged comments (and one physical interaction) had happened as a matter of fact. It had also found that in relation to all of those actions Mr Yong had “behaved inappropriately”. However, the panel did not accept that any of those incidents amounted to “harassing behaviour”. Nor did the panel accept that any of these incidents were “sexually motivated”. Mr Yong’s fitness to practice was found to be impaired, and he was subjected to a caution order.
In reviewing the panel’s decision, the court noted that there was little to nothing in the decision as regards the definition of “harassing behaviour”. Nor had the panel been provided with much guidance by the legal assessor as to the meaning of that term. Most significantly, the panel had not been advised that, as a public authority, the HCPC was required by section 149 of the Equality Act 2010 to have due regard to the need to eliminate harassment.
The duty imposed by section 149 of the 2010 Act meant that, in determining the question of whether certain conduct amounted to harassing behaviour, the panel ought to have had due regard to the definition of harassment in that statute. S. 26(1) of the 2010 Act provides that a person (A) harasses another (B) if:
- engages in unwanted conduct related to a relevant protected characteristic, and
- the conduct has the purpose or effect of:
- violating B’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for B. [emphasis added]
Section 26(4) goes on to explain that in determining whether something has the effect referred to in section 26(1)(b), the following must….
Interfering with the Tribunal’s discretion?
PSA v GMC and Dighton [2020] EWHC 3122 (Admin)
Before the Medical Practitioners’ Tribunal Dr Dighton faced allegations that – despite lacking the expertise to do so – he had prescribed a number of addictive medications to a vulnerable patient without informing her GP, and had failed to adequately assess her or refer her to mental health services. The conduct had occurred over a six-year period despite Dr. Dighton receiving an advice letter and a warning from the GMC in 2011 and 2016 respectively.
The facts were found proved and right up until the finding of impairment Dr Dighton did not accept any wrongdoing and asserted that he considered himself able to make his own judgment about his expertise in this area. In making its finding on impairment the Tribunal concluded that Dr Dighton’s lack of insight was “intractable.” Nonetheless, it went on to impose a twelve month suspension order.
On 3 January 2020, the PSA launched an appeal of the sanction, on the basis that the suspension did not adequately protect the public even if it was coupled with Dr Dighton’s desire for voluntary erasure. The PSA asserted that a court-imposed erasure was necessary to uphold confidence in the profession and to maintain standards. On 27 February the GMC case examiners granted Dr Dighton’s application for voluntary erasure but subsequently stayed this decision until the outcome of the appeal was known.
The PSA submitted that (1) the only reasonable conclusion was that Dr Dighton’s behaviour was incompatible with his remaining on the register; (2) that the Tribunal had failed to properly apply the Sanctions Guidance; (3) The Tribunal had acted irrationally in concluding on the one hand that Dr Dighton’s lack of insight was “intractable” whilst on the other imposing a period of suspension which inferentially meant that remediation was a possibility.
At the appeal hearing the GMC’s position was that voluntary erasure would adequately protect the public interest. Dr Dighton did not attend the appeal hearing but, in correspondence, he submitted that voluntary erasure was sufficient to protect the public because if in time he applied for re-admission onto the register the burden would be on him to demonstrate that he had fully remediated. The court was invited to direct that the appeal was otiose.
In granting the appeal and erasing Dr Dighton from the register, the court unequivocally rejected the argument that the appeal was otiose. Such an approach would enable doctors to circumvent the appeal process by applying for voluntary erasure.
Mrs Justice Farbey concluded that the Tribunal had been unreasonable and its decision making flawed in not erasing Dr. Dighton. The doctor’s assertion that he was willing to….
Medical notes: a presumption of accuracy?
The status of medical records is a key consideration in many regulatory cases. It may often be critical. Indeed, it may sometimes be the only bulwark against a patient’s vehement recollection – years after the event – that a particular symptom was present on a given day, or some specific advice was not given by the registrant.
Two recent decisions touch on this issue and reinforce the status of such notes.
In Daniel Failes v Oxford University Hospitals NHS Trust [2020] EWHC 3333 (QB) the court drew assistance from the decision in Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283:
“Clinical records are made pursuant to a clear professional duty, serious failure in which could put at risk a practitioner’s registration. Moreover, they are not compiled simply as a historical record, they fulfil an essential and ongoing purpose in informing the care and treatment of a patient. Contemporaneous records are for these reasons alone inherently likely to be accurate.”
It also cited HXC v Hind [2020] EWHC (QB) where the court considered that the “logical corollary” of the teaching rule, “if it is not recorded, it did not happen”, must be “if it is there; it did happen”. It added:
“The court can and often will take a starting point, but no more than a starting point, that a contemporaneous entry made by a medical professional is likely to be a correct and accurate record of what was said and done at a consultation/examination.”
In Failes the court adopted just such a starting point in its consideration of key entries in a laminectomy chart – namely “I took as a starting point a presumption that they accurately recorded the belief of the relevant nurse after some form of investigation or assessment”.
In a similar vein, in Ismail v Joyce [2020] EWHC 3453 (QB) the court also had to consider the conflict between witness evidence and the GP’s record. In doing so….
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