2 Hare Court Professional Discipline Newsletter
Welcome to the latest edition of the Professional Discipline Newsletter.
Welcome to the Autumn 2 Hare Court Newsletter.
Many of us have wondered why it is a regulator like CMA or the SRA run a much lower risk of a costs order if they lose a case. The Supreme Court considered this issue in Flynn. Lewis MacDonald sets out their new approach to the issue.
Regulators like to anonymise witnesses in their decisions – without cause and without any application being made. The High Court has warned against such practice in Lu v SRA. Vivienne Tanchel summarises this decision.
In healthcare proceedings, Gavin Irwin looks at the new NHS framework for managing patient safety incidents. It is supposed to herald a more proportionate approach. Neelam Gomersall analyses the recent decision of Mok – on the face of it a surprising decision where a doctor found to have raped his partner was not erased. Shusmita Deb reports a recent Scottish case of PSA v Austin where the Court of Session finally allowed an appeal by the PSA. I look at another Scottish case of K v GMC. The court took a dim view of a pointless interim conditions order. Finally, Redmond Traynor summarises the helpful Article 2 decision of Patton.
CMA v Flynn  UKSC 14 – a costly opportunity missed?
In a line of authorities starting with Bradford Metropolitan District Council v Booth  164 JP 485, the Court of Appeal developed a rule that a successful party acting against a public authority will not recover its costs as a starting point, but rather the starting point is that no order for costs should be made. That rule has since been applied before a number of regulators where costs can in principle be awarded against the unsuccessful regulator, but as a result of Booth such awards are rare. The result is that solicitors, accountants or taxi drivers who have in fact done nothing wrong can face costly regulatory proceedings, have their right to practise suspended, and when they are eventually successful have little prospect of recovering the legal fees they have expended. If they are unsuccessful on the other hand, they can expect to pay the regulators’ full fees as well as facing whatever regulatory sanction the tribunal imposes.
Is that fair? On one view it goes against basic first principles. We are all equal before the law. The government does not enjoy some special advantage in its own courts. Why does the rule apply when resisting a cash forfeiture by the police, or when a regulated professional’s fitness to practise is called into question, but not when suing the NHS for negligence, where the general rule is that costs follow the event? Why does the rule apply to a regulator before the tribunal of first instance, but not on appeal (see Walker v Royal College of Veterinary Surgeons  UKPC 20)?
The Appellants in Flynn were partly successful in appealing against the Competition and Market Authority’s decisions to fine them for infringements of competition law. The Competition Appeal Tribunal awarded them a portion of their costs. The CMA appealed to the Court of Appeal, arguing the principle in Booth applied. The Court of Appeal agreed, albeit it clarified that no “exceptional circumstances” are required to overcome the starting point that no costs are awarded. There need only be a “good reason”, which may include unreasonable conduct on the part of the regulator, or substantial financial hardship if no costs order were made. No good reason existed in Flynn, so an order for no costs was substituted….
Lu v SRA  EWHC 1729(Admin): Open justice vs anonymity
It has become common practice for regulators to redact the names of third parties in their decisions, and use letters instead to identify them. This is usually done without application or even notice to the defence and includes names of parties only tangentially relevant to the case as well as witnesses. So commonplace is the practice that until recently it has rarely been opposed or commented upon notwithstanding that it undermines fundamental principles of open justice.
Lu v SRA challenges this practice. Ms Lu had in fact been acquitted of all the allegations she faced, and her challenge was against the SRA’s decision to identify her whilst anonymising others mentioned in the case.
Ms Lu had been an associate solicitor firstly at Cadwalader Wickersham & Taft LLP and then at Pillsbury Winthrop Shaw Pittman LLP (referred to as firms Y and X in the Tribunal’s ruling). She was dismissed from Cadwalader for alleged performance related issues although it was her case that the real reason was that she had complained of harassment by a senior colleague, referred to in the proceedings as Person B.
Following her termination from Cadwalader, she joined Pillsbury. She raised a grievance against a person referred to as Person C and during the internal investigation allegations were made against her by several people at the firm, and in particular one of the partners referred to as Person A…..
Gavin Irwin comments on the new Patient Safety Incident Response Framework
On 14 September 2022, NHS England (‘NHSE’) published the New Patient Safety Incident Response Framework (‘PSIRF’), “set[ting] out the NHS’s approach to developing and maintaining effective systems and processes for responding to patient safety incidents for the purpose of learning and improving patient safety”.
Patient Safety Incidents (‘PSIs’) are defined as, “unintended or unexpected events (including omissions) in healthcare that could have or did harm one or more patients”.
The need for a new framework
A number of reports (Public Administration Select Committee, Parliamentary and Health Service Ombudsman, Care Quality Commission), had identified shortcomings in the way PSIs were investigated and learned from and in 2018 NHSE began a consultation to determine what action should be taken. The PSIRF emerges from feedback received through that consultation and has been trialled by a group of ‘early adopters’ since May.
The PSIRF replaces the Serious Incident Framework (2015) and organisations are expected to complete the transition by Autumn 2023.
Aidan Fowler, NHSE’s National Director of Patient Safety, has stated that, “[t]he introduction of this framework represents a significant shift in the way the NHS responds to patient safety incidents, increasing focus on understanding how incidents happen – including the factors which contribute to them”….
General Medical Council v Jonathan Edward Gar-Wai Mok  EWHC 165: Deference and the adequacy of reasons
In a judgment handed down on 29 June 2022, Mr Justice Lang dismissed the GMC’s appeal under section 40A of the Medical Act 1983 against a sanction of 12 months’ suspension imposed by the Medical Practitioner’s Tribunal (“the MPT”). The decision came not long after the GMC’s unsuccessful appeal against sanction in GMC v Abdulkhaled Ahmed  EWHC 403 (Admin) which similarly concerned the MPT’s decision to suspend rather than erase a doctor for sexual misconduct. Perhaps of wider relevance, the decision also considered the standard required of a professional tribunal in the drafting of reasons.
Dr Mok was alleged to have raped his male partner (“Person A”) on the evening of 26 August 2019, having initiated sexual contact when Person A was asleep. The GMC relied in part on a video recording made covertly by Person A in October 2019 in which he confronted Dr Mok with the allegation. The MPT noted that that Dr Mok did not express any surprise when Person A made the serious allegation. More significantly he appeared to admit it and sought to justify his actions before apologising.
The MPT found the facts proved, and perhaps unsurprisingly, they amounted to misconduct and his fitness to practise was impaired. Having considered the Sanctions Guidance “(“SG”), the MPT decided that the appropriate and proportionate sanction was to suspend Dr Mok’s registration for 12 months.
The GMC appealed on three grounds….
Professional Standards Authority for Health and Social Care v General Medical Council  CSIH 37: a rare success for the PSA in Scotland
Dr Austin qualified as a doctor in 2007. She was highly regarded by NHS Tayside. In 2016, she was employed as a Public Health Trainee on attachment with Health Protection Scotland. In 2017 Dr Austin was referred to the GMC following an internal investigation into allegations of dishonesty that took place in 2016. The allegations of dishonesty included misrepresentations to supervisors regarding the volume of work that she carried out on projects while on attachment. There were also allegations of her having misled colleagues and supervisors as to the status of a journal article.
In May 2019, the Medical Practitioner’s Tribunal (“MPT”) found that Dr Austin’s fitness to practise was impaired due to:
“repeated, persistent and sustained [dishonesty] over a 6 month period. [That] took place in both her email correspondence and during face-to-face meetings with colleagues and was directly related to her professional practice. The last act of dishonesty took place during a formal investigatory hearing at her employing Trust… a further feature of her dishonesty is that in relation to the Mumps Paper it had the potential to have adverse consequences for her co-authors.”
The MPT suspended Dr Austin for six months and informed her that, without an appeal, her suspension would begin from 2 July 2019.
On 2 July 2019 at 13.08, Dr Austin telephoned the MPTS informing them she had appealed, that court staff at the Court of Session had confirmed that she would receive a reference by the end of the week and that she would pass on these details as soon as she received it. On 2 July 2019 at 08:35, however, Dr Austin had received an email from court staff advising her that her appeal had not been accepted. On 12 July 2019 at 09:17, Dr Austin sent a further email to the MPTS stating “my apologies for the delay, I will chase this up with my legal representative today and get back to you as quickly as possible.” As a result, in December 2020, Dr Austin was referred to a further MPT for allegations of dishonesty….
K v General Medical Council  CSIH 44: pointless conditions are not in the public interest
Dr K was arrested for rape in November 2019. He self-referred to the GMC and in due course was suspended by an Interim Order Tribunal (“IOT”) on a public interest basis alone. This was extended by the Court of Session for six months. Dr K was then acquitted and the IOT substituted his suspension order for one of conditions. The conditions amounted to nothing more than notification requirements.
Following further delay, the GMC then had to apply for a further extension, which was granted by the Outer House of the Court of Session. Having summarised the background for an extension, the Lord Ordinary simply commented:
“It is against that background and in that context that I consider the decision making of the IOT requires to be viewed and assessed. On that basis I am satisfied that the relevant statutory tests have been met and that the conditions imposed are both justified and proportionate”
Dr K appealed this decision to the Inner House.
The court enumerated the familiar principles underpinning interim order extensions. The criteria to extend an interim order are the same as for the making of the original interim order – the protection of the public, the public interest or the practitioner’s own interests. The court can take into account the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm, the reasons why an extension is needed, and the prejudice to the practitioner. The court is not a fact finding body – “Rather, it is the function of the court to ascertain whether the allegations made against the practitioner justify the extension of the suspension, rather than their truth or falsity”. The court is entitled to have regard to the opinion of the GMC and the IOT. However, “the court is not bound to follow or defer to these opinions, but should give it such weight as in the circumstances of the case it thinks fit.”….
R (Patton) v Assistant Coroner for Carmarthenshire & Pembrokeshire  EWHC 1377 (Admin): Clarifying the general Article 2 ECHR duty
Kianna Patton was 16 years old when she took her own life. She had been under the care of Specialist-Child and Adolescent Mental Health Services in the community. At the time of her death, Kianna had been living with a friend whose mother had permitted her to use cannabis. Kianna’s mother, Ms Patton, sought assistance from the Council and Police prior to her daughter’s death. She raised concerns specifically about her daughter’s accommodation and the effect of cannabis upon her mental health.
At a PIRH, Ms Patton submitted that the procedural investigative duty contained within Article 2 ECHR applied to the case. Ms Patton did not suggest that there had been any arguable breach of the state’s operational duties. Instead, she contended that there had been an arguable breach of the state’s general duty.
In arguing that the general duty applied to the relationship between the Council and Kianna, Ms Patton relied upon section 76 of the Social Services and Well-being (Wales) Act 2014. Section 76 requires local authorities to provide accommodation for children who are without parents, or who are lost or abandoned.
Ms Patton argued firstly that section 76 had required the Council to provide suitable accommodation, care and support to Kianna. Ms Patton then submitted that the duty under section 76 gave rise to a general Article 2 duty to put in place systems to protect Kianna’s well-being. That duty, Ms Patton argued, had been breached….