2 Hare Court Professional Discipline Newsletter
Welcome to the latest edition of the Professional Discipline Newsletter.
Christopher Geering
Editor
Foreword
Welcome to another 2 Hare Court newsletter.
Two recent SRA decisions deserve some attention. Ben Rich considers Maxfield Martin where the court overruled the SDT’s application of the principles set out in Ivey. Lewis MacDonald analyses Gray, and the use of civil judgments as prima facie evidence in disciplinary proceedings. In the world of healthcare, Neelam Gomersall examines the GMC’s failed attempt in Ahmed to review a short suspension imposed for sexually inappropriate conduct. Grace Forbes and Vivienne Tanchel examine two successful IO appeals in MXM and M. Finally, in coronial proceedings, Paul Renteurs examines the limits of a coroner’s power of investigation in HM Coroner for West Sussex.
Maxfield Martin v SRA [2022] EWHC 307 (Admin): Dishonesty finding quashed where a solicitor signed a factually false declaration, in the name of a partner of his firm
MM was a solicitor whose firm had a legal aid contract for mental health work. He needed to be reaccredited by the Law Society. The process required a partner/senior manager of the firm to sign the reaccreditation form and declare that the information was correct to the best of his knowledge, and that he had read the declaration stating that. The partner did not look at the form and it was signed by MM. The declaration MM signed was, then, demonstrably false. An open and shut case you might think on dishonesty and lack of integrity. MM knew it was false and he signed it anyway and presented it to the Law Society.
Not so. Because the partner involved had a habit of allowing his solicitors to sign their own forms in his name. The SRA had actually called as one of its own witnesses another solicitor, Ms Young, who said he did pretty much the same thing with her. She had brought the form to him, he had said “I trust you, put my name to it”. It was found by the Tribunal that in MM’s case he had said something like “get it done”.
Mr Justice Soole found that “get it done” amounted to implied, and probably express, authority from the partner for MM to sign the form. The Tribunal had also found that he had implied authority, but concluded that did not make any difference to the falsity of the statement on the form. They went on to conclude using the Ivey test that reasonable and decent people would consider what MM did was dishonest. Further, it amounted to lack of integrity.
The court disagreed. Going by way of the legal concept of agency, and actual authority as a legal relationship, Solle J concluded that MM had authority to sign the form on the part of the partner. So there was no problem as between MM and the partner. Nevertheless, what mattered for the Law Society was whether the declaration was true, and it plainly was not….
Gray v SRA [2022] EWHC 624: Previous findings before the SDT
Rule 32(2) of the Solicitors Disciplinary Tribunal Rules provides that the judgment of any civil court, or any tribunal exercising a professional or disciplinary jurisdiction, may stand as proof but not conclusive proof of the facts upon which the judgment is based.
Rule 32(2) is to some extent unusual. Whilst tribunals and civil courts have long taken into account criminal decisions, where a higher burden of proof has been used, the opinion, even of a judge, on the balance of probabilities, is traditionally of little weight in other proceedings between different parties. That traditional principle was rejected or substantially eroded in the case of professional discipline tribunals though, in R (Squier) v GMC and Towuaghantse v GMC, and so the Rule 32(2) situation may now apply before a range of regulators.
So to what extent is the prior decision “proof”? How can it be rebutted? And what happens where the evidence before the Tribunal is different to that before the previous court?
The High Court proceedings
Mr Gray represented the Republic of Djibouti in the Commercial Court between 2012 and 2015 when he was a partner at Gibson Dunn, in a claim which concerned the misappropriation of state assets by the Defendant. In March 2015, after a five day hearing at which Mr Gray was cross-examined, Flaux J (as he then was) found that Mr Gray had deliberately and dishonestly misled the Court in the context of an inter-partes application for a freezing injunction. Mr Gray was aware by the time of the hearing of the application that the defendant’s terrorism conviction in Djibouti (not directly in issue but ultimately relied upon by the court as one of four reasons for granting the freezing injunction) had been based upon a mis-dated tapped telephone call. Flaux J found that Mr Gray was aware that the conviction was therefore unsafe, and relied upon the conviction without informing the court of the dating error. Mr Gray had suggested that he had not relied upon the conviction but stated that there was simply a good arguable case against the defendant on the evidence as it was now understood. He asserted that he had acted collaboratively and sought leading counsel’s advice at each stage of the matter. Any misleading was inadvertent….
General Medical Council v Abdulkhaled Ahmed [2022] EWHC 403 (Admin): Degree of deference in cases of sexual misconduct and the effect of interim orders on sanction
In a judgment handed down on 25 February 2022, Mr Justice Murray dismissed the General Medical Council’s appeal under section 40A of the Medical Act 1983 against a sanction of two months’ suspension imposed by the Medical Practitioners Tribunal (“MPT”). In doing so, the High Court restated the general principle that there was limited scope for the court to overturn a decision on sanction, even in cases of sexual misconduct. The decision also considered the effect of time spent subject to interim suspension.
Dr Ahmed faced allegations relating to two female patients, Patient A and Patient B. Patient A was 14 years old and Patient B was an adult student nurse, albeit one who had never worked with Dr Ahmed.
In relation to Patient A, Dr Ahmed was found to have located her Facebook account and sent her a friend request on Facebook following a consultation in February 2015. The allegation of sexual motivation was not proved. Nonetheless, the MPT considered that Dr Ahmed’s behaviour constituted an inappropriate breach of privacy, confidentiality and trust. On that basis it did cross the threshold of misconduct.
In relation to Patient B, Dr Ahmed was found to have used her medical records to obtain her full name, sent her a friend request on Facebook, contacted her using WhatsApp and, on more than one occasion, sent messages to her on WhatsApp which were (1) sexual in nature; (2) encouraged her to meet up with him; and (3) sought to engage in a personal relationship with her. Dr Ahmed continued to send messages to Patient B on WhatsApp despite her no longer responding to his messages. The MPT considered this was sexually motivated and amounted to misconduct.
The MPT found Dr Ahmed’s fitness to practise to be impaired and suspended him for two months.
The GMC appealed on the basis the MPT (i) failed to address adequately the Sanctions Guidance on erasure, and (ii) imposed a sanction that was simply insufficient to reflect the seriousness of Dr Ahmed’s misconduct. The GMC submitted that this was not a case where the MPT enjoyed a significant advantage over the appellate court. It relied on the principle in GMC v Jagjivan [2017] EWHC 1247 (Admin) that, in cases concerning sexual misconduct, the court will attach less weight to the expertise of the….
MXM v General Medical Council [2022] EWHC 817 (Admin): High Court overturns interim suspension order imposed on GP accused of sexual misconduct
The High Court terminated an 18 month interim suspension order imposed by the Interim Orders Tribunal (‘the IOT’) in a case involving allegations of sexual misconduct by a GP.
Dr MXM was a partner at a GP’s practice. He had been practicing for more than 15 years and had never been the subject of any fitness to practise complaints or findings. He had an extra-marital affair with a woman who he had met outside of his work but who was also a patient at the practice and who worked in a “quasi-colleague” capacity at a pharmacy adjoining the practice.
It was alleged that Dr MXM had engaged in sexual activity at the practice, conducted an appointment with her at the surgery, treated her husband for depression and posted sexual videos online.
The court granted Dr MXM anonymity due to the “genuine and well-founded” concerns for the welfare of his four children and the fact that the matter was still under investigation.
In upholding the Applicant’s appeal, the court rejected the Respondent’s invitation to defer to the “particular expertise” of the Tribunal. It noted that “where allegations of sexual misconduct are raised” the court is “well placed” to assess what is needed to protect the public or maintain the reputation of the profession and is “less dependent upon the expertise of the IOT than would be the case if the allegations concerned questions of clinical knowledge, skill or competence”.
The decision also provides useful guidance on the need for clear reasons. The judgment acknowledges GMC guidance that “discourages the giving of long detailed reasons” but drew an important distinction between lengthy decisions and sufficiently targeted reasoning.
Whilst the court accepted that “inadequate or opaque” reasoning by a Tribunal could not, of itself, provide a ground for terminating an interim order, it found that it would “[diminish] the weight” to be attached to the Tribunal’s professional opinion.
Here, the scant reasoning of the Panel suggested that the principle of proportionality had not been applied properly either when considering the appropriate sanction or the proper length of any order. In relation to the question of which order to impose (if any), the court found that the lack of reasoning in relation to the imposition of an interim suspension was “particularly striking” in circumstances where the GMC had only sought interim conditions….
General Medical Council v M [2022] CSOH 25: The proper approach to interim order extensions
The General Medical Council applied for a twelve month extension to an Interim Order of Conditions on Dr M’s practice. An order of conditions for a period of 18 months had first been imposed on 16 April 2019 and renewed on a previous application on 9 September 2020 for a further twelve months.
In making the application, the General Medical Council set out its usual and often repeated grounds. It maintained there may be impairment of Doctor M’s fitness to practise which may adversely affect the public interest. In balancing the doctor’s interests against the public interest an order remained necessary. A reasonable and properly informed member of the public would, in the light of the concerns, be surprised and offended were they to learn that Doctor M had been permitted to return to unrestricted practice whilst the regulatory proceedings remained ongoing. The current conditions were a measurable, workable and enforceable means of addressing the risks identified.
On behalf of Dr M, it was argued that the principles identified in GMC v Hiew applied and, in the circumstances of this case, the GMC had failed to set out clear and cogent reasons justifying the imposition of conditions for a further twelve months. Furthermore, whilst the GMC argued that an order was necessary because “Public confidence in the profession may be seriously undermined if the respondent was allowed to return to unrestricted practice before the conclusion of the regulatory proceedings….”, that did not accurately reflect its own guidance. This identified the correct test as “Whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period.” Thus, the GMC had relied on the wrong test when applying for an extension of the Order. It was further submitted on behalf of Dr M, that the GMC had failed to properly explore the impact of an order on the Doctor’s reputation and finances without which a proper balancing exercise on the proportionality of an order could not properly have been undertaken.
In rejecting the GMC’s application for an extension, the court agreed that the GMC had in fact applied the wrong test in making its application and the test identified by the GMC’s own guidance involved a higher threshold than that contended for in this application. Significantly, the court went on to criticise the GMC for failing to identify cogent and clear reasons for the application. The court robustly rejected submissions which amounted to no more than a recital of the general formula. It stated in unequivocal terms that in making applications it was incumbent on the applicant to apply the facts of the case to the test and a failure to do so meant that there was no real evaluation of whether the order sought was in fact proportionate….
HM Senior Coroner for West Sussex v Chief Constable of Sussex [2022] EWHC 215 (QB): Restrictions on the disclosure of materials to Coroners’ Courts in cases involving air accident investigations
In 2015 at the Shoreham Airshow, a devastating crash during an aeronautical display led to the deaths of 11 individuals and the serious injuring of many more. Miraculously, the pilot of the aircraft involved survived the crash, and was acquitted of any criminal wrongdoing at a trial at the Old Bailey in 2019. However, the Coroner’s inquests charged with establishing how the 11 individuals killed came by their deaths have yet to be concluded. In an application by the senior coroner for West Sussex to the High Court for disclosure of certain materials, the court considered not only the narrow issue of whether such materials ought to be disclosed, but engaged in a wider examination of the interplay between the Coroners’ Courts and other bodies charged with investigating the facts of how such accidents occur.
The context in which these issues arose was, admittedly, somewhat unusual, if not unique. That context is the internationally sanctioned regime provided for the investigation of air accidents. That regime, conceived in the Convention on International Civil Aviation (“the Convention”) signed by states parties in Chicago in 1944, and incorporated into both EU and domestic UK law, stipulates that certain materials shall not be made available for purposes other than the accident or incident investigation unless the competent authority (the High Court in the UK) determines that “their disclosure or use outweighs the likely adverse domestic and international impact such action may have on that or any future investigation” (Standard 5.12, Annex 13 of the Convention). Such material includes “cockpit voice recordings and airborne image recordings”. In the UK, the statutorily recognised body charged with investigating air accidents is the Air Accidents Investigation Branch (“AAIB”). The default position in law, then, is that only the AAIB will have access to such materials for the purpose of completing their investigation.
In the Shoreham Airshow case, the coroner specifically sought the disclosure of footage from a Go-Pro camera that the pilot had activated in the cockpit during the display, and various expert reports that formed part of the criminal proceedings which referred to that footage. Notably, Edis J – the trial judge in the criminal proceedings – had ruled (sitting in his capacity as a High Court judge) that the Go-Pro footage should be disclosed to the police by the AAIB, as the interest in disclosing it for the purpose of fully informing a criminal investigation outweighed the deleterious impact of so disclosing it….
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