2 Hare Court Professional Discipline Newsletter
Welcome to the latest edition of the Professional Discipline Newsletter.
Welcome to the latest 2 Hare Court newsletter. Vivienne Tanchel examines the basis for the GDC’s default position in favour of remote hearings – a position unilaterally imposed by the GDC without any apparent basis in the rules or Dentist Act. Ben Rich and Kenniesha Stephens summarise the recent appeal of Arowojolu v General Medical Council and the issue of bad character in Professional Discipline proceedings. Lewis MacDonald sets out the way Frensham v Financial Conduct Authority builds on Beckwith and the interplay of integrity, private life and public regulation. Alexandra Tampakopoulos and Nikita McNeill tackle the thorny subject of Article 2 – again – in Joy Dove v HM Assistant Coroner for Teesside and Hartlepool. Finally, I look at MHPS proceedings, and the need for procedural fairness in managing such investigations as examined in Kamath v Blackpool Teaching Hospitals NHS Foundation Trust.
Creeping unfairness and remote hearings at the General Dental Council
At the start of the pandemic almost 19 months ago, there was an urgency to keep the wheels of justice moving and for cases to continue to be heard if at all possible. Technology, regulators, practitioners and registrants all rose to the challenge and within weeks of the order to work from home, interim order hearings began being heard remotely with full hearings recommencing in the following months.
This was always understood to be an extraordinary response to extraordinary times and in fact there is no power within the Fitness to Practice Rules which govern either the Medical Practitioners’ Tribunal or the General Dental Council Fitness to Practice Proceedings for hearings to be heard remotely. Whilst the MPTS has in the main adopted a pragmatic approach and facilitated live hearings where requested by the Registrant, the GDC has unilaterally decided that the default position should be for all hearings to be conducted remotely.
In the final quarter of last year, and it appears without consultation, the GDC informed stakeholders that hearings listed for the first quarter of 2021 would by default be heard remotely. We are now in the final quarter of 2021 but this remains the case. There is no coherent reason why this position has been adopted and little guidance or explanation as to when and how exceptions will be made to this blanket policy. In addition, the procedure adopted for making an application to a Preliminary Committee for full a hearing to be heard live is itself opaque at best. The GDC maintain – based on no authority in the Dental Act or the rules – that these applications must themselves be heard on the papers and not by way of oral submissions.
Rule 51(4) of the General Dental Council Fitness to Practice Rules 2006 (as amended) provides Practice Committees with case management powers. It is noteworthy that Rule 51(4) does not include a specific power to order remote hearings. Rule 2(3) of Schedule 3 and Rule 2(3) of Schedule 4B of the Dentists Act 1984 do not include a specific power to order remote hearings. The Schedules do not in fact identify any case management powers available but state: “Each stage in proceedings before a Committee under Part 3 of this Act shall be dealt with expeditiously and a Committee may give directions as to the conduct of the case (my emphasis) and the consequences of failure to comply with such directions (which may include the making of an order or refusal of an application if the failure to comply was without reasonable excuse).”….
Complainant Bad Character in Disciplinary Proceedings
Arowojolu v General Medical Council  WL 04751428
It is commonplace, especially in cases involving sexual misconduct, for the accused registrant to assert that the complainant made the whole thing up – either for specific reasons, or because that is the sort of thing they do.
In that context evidence that the complainant has previously made a similar false accusation would clearly be of the utmost importance to the defence. The difficulty is, absent the complainant having a conviction for perverting the course of justice or similar, how is a tribunal to deal with such evidence, without in effect trying the previous allegation?
In Arowojolu v General Medical Council  WL 04751428, the High Court has provided guidance as to the correct approach. The court held that it is necessary firstly for the Tribunal to decide whether it is satisfied (on the balance of probabilities) that the previous complaint was false, before then deciding how this impacts on the credibility or character of the witness. If the tribunal is simply unable to decide whether the previous allegations were true or fabricated, the evidence is disregarded and plays no further part in the proceedings.
This case concerned an appeal by Dr Arowojolu (“The Appellant”) under section 40 of the Medical Act 1983. Both the Appellant and the complainant, Ms A, worked at a health centre in Essex. Both were working during the night on the evening of 21-22 July 2013. Ms A was concerned about the weight she had gained around her stomach after having her two children. Ms A and the Appellant discussed this. The Appellant offered to examine Ms A’s and Ms A alleged that during this examination the Appellant sexually assaulted her by touching her genitals. The Appellant flatly denied anything improper had taken place.
During protracted Crown Court proceedings, in which the Appellant was finally acquitted, the prosecution disclosed evidence relating to Ms A’s claim that when she was younger her grandfather had, over a two-year period, sexually assaulted her and attempted to rape her (“the historical allegation”). The grandfather denied the allegations and was not charged….
An end to non-professional professional misconduct?
Frensham v Financial Conduct Authority  UKUT 0222 (TCC)
In December last year I wrote about the High Court’s decision in Beckwith v SRA; where the High Court gave a clear warning to regulators about the need to specifically address why a transgression arising in a professional’s private life breaches their professional code of conduct and engages the jurisdiction of the regulator. Frensham v The Financial Conduct Authority continues that trend in a much more serious factual context.
Mr Frensham was an independent financial adviser who was convicted of attempting to meet a child under the age of 16 following acts of sexual grooming. He was sentenced to 22 months’ imprisonment. The FCA, after a significant delay, made an order under section 63 of the Financial Services and Markets Act 2000 prohibiting Mr Frensham from performing a regulated activity, due to him not being a fit and proper person. The FCA contended that Mr Frensham’s conviction suggested that he lacked integrity.
The Upper Tribunal disagreed with the FCA’s assessment of Mr Frensham’s conviction. Citing Beckwith v SRA, undertaking a close examination of the relevant Code of Conduct, in this case the FCA Handbook, it found that Mr Frensham’s conduct did lack integrity. But that was not the end of the matter:
“…to justify regulatory action the behaviour concerned, when, as is the case here, it occurred in the person’s private rather than professional life, must engage the standards of behaviour required of the individual concerned by the applicable regulatory provisions. It is not simply a question of assessing whether the behaviour concerned demonstrates a lack of integrity at large, but whether the behaviour engages the specific standards laid down by the relevant regulator.
…The conduct must be qualitatively relevant because it engages the standard of behaviour set out in the regulatory code concerned.”
The Upper Tribunal found that the way the FCA had attempted to link Mr Frensham’s lack of integrity to his professional role on the basis of the nature of the offence alone was speculative and unconvincing. Bare assertions that the public are entitled to expect professionals to be of the utmost integrity and reputation were not sufficient. Whilst Mr Frensham’s offence would undoubtedly result in revulsion on the part of right-thinking members of the public, the question was whether the offence affected the reputation of Mr Frensham as a financial adviser, and therefore had the potential to impact on the FCA’s integrity objective….
Joy Dove v HM Assistant Coroner for Teesside and Hartlepool  EWHC 2511 (Admin)
The deceased, Jodey Whiting, had a history of back pain and mental ill health, including previous overdoses. She died as the result of an overdose of prescription medication. At the inquest into her death, the Coroner heard evidence that Ms Whiting had been suffering from severe stress in the period leading to her death. A decision by officials within the Department for Work and Pensions (DWP) to stop paying Employment and Support Allowance was said to have contributed to that stress. In addition, Ms Whiting had left notes in her home which suggested that she had intended to kill herself.
In the original inquest the Coroner found that the decisions of the DWP were outside the scope of the inquest and returned a short form conclusion of suicide.
Ms Whiting’s mother applied to the High Court under Section 13 of the Coroners Act 1988 for an order quashing the Coroner’s determination and directing that a new inquest take place to look at the failings of the DWP and their contribution to Ms Whiting’s mental state. Ms Whiting’s mother argued,
- There had been an insufficient inquiry in the original inquest under common law and / or Article 2.
- There was new evidence, namely a case examiner’s report criticising the DWP’s handling of Ms Whiting’s case and a report by a consultant psychiatrist.
Sufficiency of inquiry at common law
Section 13(1) of the Coroners Act 1988 provides:
“This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (‘the coroner concerned’) either –
(a) that he refuses or neglects to hold an inquest or an investigation which ought to be held; or
(b) where an inquest or an investigation has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that an investigation (or as, the case may be, another investigation) should be held.”
The Appellant argued that, in section 13 cases, the Court exercised a broader supervisory function than that would be appropriate in judicial review proceedings and should substitute their own view on the appropriate scope for the inquest, particularly in light of the fresh evidence. The court disagreed….
Maintaining High Professional Standards: Procedural fairness and categorisation
Kamath v Blackpool Teaching Hospitals NHS Foundation Trust  EWHC 2811 (QB)
When representing a doctor facing MHPS proceedings, the Case Manager’s decision as to how to categorise the case is critical. Following receipt of the investigation, (s)he must decide: are the concerns best considered as conduct or as capability issues? That decision, of course, will rest largely on the adequacy or otherwise of the investigation. Often the impartiality and fairness of the investigation will be a matter of concern. Does the Case Investigator have the appropriate clinical experience to comment on the case in the way (s)he does? Why have certain witnesses not been interviewed? Why did (s)he not put X or Y suggestion to the doctor when (s)he was interviewed? And so the concerns go on. The recent case of Kamath v Blackpool Teaching Hospitals NHS Foundation Trust sheds valuable light on these issues.
The Claimant worked as a Consultant Orthopaedic Surgeon for the Trust. He faced an investigation into his management of three emergency admissions between 25-28 October 2019. Concerns particularly emerged regarding the delay of certain treatment. This was investigated in line with the MHPS framework. Dr Goode, the interim Medical Director, acted as Case Manager. He appointed Mrs Rose – a retired physiotherapist – to act as Case Investigator, carrying out the investigation in line with the Terms of Reference (“TOR”) provided by Dr Goode. Having considered her report, Dr Goode made the decision to refer the case to a disciplinary hearing on the basis of alleged gross misconduct.
The Claimant challenged this categorisation, and argued his case should be dealt with as a capability hearing. The Trust rejected this argument and alleged that the allegations related to his “conduct and probity”. The Claimant disputed this interpretation, and maintained no probity concerns had ever been raised before. He further observed an important witness had not been interviewed during the investigation. In response, Dr Goode obtained further witness evidence himself and re-affirmed his decision that the case proceed as a conduct case. He alleged the Claimant’s treatment of these patients had been influenced by regard for his own personal convenience, not the patients’ best interests. Amongst other grounds, the Claimant brought a challenge for breach of contract arising out of this categorisation and alleged procedural unfairness.
The High Court found significant procedural unfairness – sufficiently serious to amount to a breach of contract. The TOR provided to the Case Investigator simply did not allege that the concerns against the Claimant amounted to a lack of probity. It was wrong, therefore, for the Case Manager to refer the case to a hearing on that basis. The court made plain,…