2 Hare Court Professional Discipline Newsletter
Welcome to the latest edition of the Professional Discipline Newsletter.
Ben Rich
Editor
Foreword
Hello and welcome to the 2 Hare Court Professional Discipline Spring Newsletter.
Here at 2 Hare Court we approach all our cases with optimism and a belief that we can get a good result for the client, but that cheery outlook is in danger of evaporating where a stay for abuse of process may be the best hope. Over the years, as Marios Lambis KC explains in an article based on his recent ARDL seminar, the possibility of getting a stay has been constrained by the courts. However in the right case it can still work. Marios sets out one such case and analyses the law in this area.
Robert Dacre takes on the issue of the difficulties of charging conduct which is racially offensive, or racially motivated. Regulators should heed the lesson from Lambert-Simpson v HCPC that they need to be clear about what is being judged – is it, for example, the objective nature of the language used, or the intention of the person who used it. Interestingly in that case the right to Freedom of Expression under Article 10 of the European Convention on Human Rights was not raised at all. But it was at the centre of Adil v GMC where a surgeon expressed online some views of Bill Gates, 5G and Covid that are never likely to feature in a medical textbook. I have written an account of the principles to be derived from that case.
Are we about to have Newton hearings in professional discipline cases? It is always tricky to know just how to deal with full admissions from the accused practitioner, where the admissions may be to all the charges, but not to all the facts in the prosecution case. In the Crown Court a mini judge-only trial can be held in which witnesses are called and other evidence adduced. Vivienne Tanchel considers whether the recent case of PSA v GMC & Professor Lingam means they could become common in professional tribunals.
Finally, Nikita McNeill writes on the tragic case of Jodey Whiting who took her own life at the age of 42, not long after her benefits were stopped. The Coroner at the original inquest declined to look into the issue of how and why her benefits were cut off. After the inquest further evidence emerged about this, and the court has now decided a new inquest should be held. The judge had some important things to say about the extent to which factors which might not have led directly to a suicide should still be investigated by a coroner.
We hope you enjoy the newsletter. Regular Editor Christopher Geering is away on paternity leave – normal service should be resumed for our Autumn edition.
Abuse of Process in Regulatory and Disciplinary Proceedings: A Case Study
When, as law students we are taught about abuse of process we feel it unlikely we will either deploy it or succeed in deploying it. That reticence is understandable given that for the last 20 years or so the courts have seemingly narrowed the areas where it can or should succeed and reiterated it is an exceptional remedy that should only sparingly be used.
The starting point must be to accept that it is indeed a remedy of last resort: it brings proceedings to an abrupt end. However, it is in my view, a fundamentally important one that we should not be reluctant to deploy in the appropriate circumstances.
In Connelly v DPP [1964] AC 1254, Lord Devlin noted that the courts have:
‘an inescapable duty to secure fair treatment for those who come or are brought before them’.
In R v Horseferry Road Magistrates Court Ex p. Bennett (No.1) [1994] 1 AC 42, a New Zealand citizen alleged to have committed criminal offences in England, was forcibly returned to the UK by British police. He alleged that he had effectively been kidnapped to be brought before the court. Whilst the court noted there was no suggestion that the appellant could not receive a fair trial or indeed that it would be unfair to try him (if he had been returned to the UK through extradition or lawful means), it was the backdrop of how he was brought within the jurisdiction that was significant. Lord Grifiths said:
‘If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law which embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.’
Most recently, in R v Maxwell [2010] UKSC 48, the Supreme Court confirmed the power to stay proceedings in two categories of cases….
Racist or racially motivated? – Lambert Simpson v HCPC
In Robert Lambert-Simpson v Health and Care Professions Council [2023] EWHC 481 (Admin), a registered psychologist posted a series of offensive comments on his social media account. The comments ranged in tone and content; three of them were alleged by the HCPC to be ‘racially motivated’.
Of those three, one was found by the Panel to be ‘racially motivated’. The Panel found that the comment contained a ‘combination of a blatantly racist description with a highly derogatory remark… his intention had been to use race as a cheap way of getting a laugh’. The post read “I have decided to self-isolate. Not because of any [racial epithet for Chinese people]-based “it’s got a pulse let’s eat it” stuff but mainly because I really hate people”.
The Registrant appealed the Panel’s determination that this comment had been racially motivated (amongst other complaints, all of which were rejected by the High Court). The case illustrates, though, how a regulator’s charging approach can widen or narrow the ambit of a tribunal in considering the allegations involving racism, and gives a clear steer on how tribunals are to approach the issue of ‘racial motivation’.
Alleging that comments were ‘racially motivated’ marks a departure from the approach taken by some regulators in other cases involving the use of racist language. PSA v GPhC & Nazim Ali [2021] EWHC 1692 arose from comments made by a pharmacist during a rally held to demonstrate support for Palestinian rights. The allegations brought were that the comments were antisemitic and offensive (but not that they were ‘racially motivated’). The Fitness to Practise Committee found (having first established that what was required was an objective test) that the words used had not been antisemitic, but that they had been offensive. In reaching a conclusion, the FPC considered the use of the language ‘in the context of the day and the explanation provided by the Registrant’. In other words, the FPC set out to apply an objective test, and then applied a subjective test….
The limits of free speech for regulated professionals – Adil v General Medical Council [2023] EWHC 797 (Admin)
Anyone who followed social media after the Covid 19 virus took over our lives in early 2020 will be depressingly familiar with the range of conspiracy theories that flourished in cyber-space. Users assertions included that the 19 virus did not exist, the ‘pandemic’ was a conspiracy brought about by the UK, Israel and America or a multi-billion pound scam for the benefit of Bill Gates and pharmaceutical companies, or (in contradiction) that Bill Gates had infected everyone in the world with the virus so he could make everyone take vaccines, which contained microchips which would further the 5G agenda and that a new world order was being imposed. Mohammed Adil, a consultant colorectal surgeon, subscribed to all of these views, and set them out in a series of videos on social media. In June 2022 he was suspended by a Medical Practitioners Tribunal for uploading the videos.
It was never suggested that he had expressed these views in the course of his work, or to patients directly, but in the videos he had traded heavily on the fact that he was a doctor with an unblemished career. At one point he promised to remove the videos, but then did not remove them and uploaded some more.
Mr Adil appealed against the decision mainly on the grounds that it was an unjustified interference with his Article 10 right to free expression, under the European Convention on Human rights, in that it was not “prescribed by law”. He further contended that one of the allegations (that his views were “outside widely accepted medical opinion”) could not amount to misconduct or be justified in the face of Article 10. Mr Adil’s appeal was dismissed, but in doing so the court had a number of significant things to say about Article 10 in its application to medical professionals.
Mr Justice Swift accepted that the point of the requirement that any interference should be prescribed by law was to provide foreseeability for people when they express their views. The GMC argued that Section 1(1A) and (1B) of the Medical Act (the overriding objective) when read with Section 35 (the power to provide advice to members of the profession on standards of conduct etc) were sufficient to provide certainly. Swift J disagreed. In fact he found that while Good Medical Practice was the most important to providing certainty, the GMC’s Social Media Guidance played an important role in explaining to any doctor how the general provisions of GMP would be applied in practice….
NEWTON HEARINGS IN ALL BUT NAME? – PSA v GMC & Professor Lingam [2023] EWHC 967
Many regulated professionals facing allegations in the course of their professional lives admit that things may have gone wrong. Professor Lingam qualified with a diploma of Licentiate of the Royal College of Physicians from the Royal College of Physicians of Edinburgh in 1974. He worked for over 30 years in the NHS, retiring in 2004. He was also the medical director of an entity known as the Medical Express at the relevant time. He was accused of improper prescribing. By the time of the Tribunal hearing, he admitted every one of the allegations and that they amounted to misconduct.
Professor Lingam faced allegations that he had completed the prescriptions at the request of a company called Kool Pharma Ltd. The charges alleged that Professor Lingam had been provided with information by the Pharmacy that was insufficient to allow safe prescribing. It did not contain the patient’s gender, contact details, GP or specialist medical records, community GP contact details, proof of identity, medical history, prescribed medication and/or over-the-counter medication, allergies etc. It was alleged and accepted that Professor Lingam had also failed to identify certain “red flags” including that overseas consultants requested medication to be written for patients who lived in a different country from themselves.
The admitted allegations included prescribing medications in inappropriately large quantities without knowing what they were for or the monitoring arrangements that they required. He was ignorant as to who was collecting them, or where they were being sent. He also admitted acting outside his level of competence by prescribing a medication in a wide variety of specialist areas. It was also admitted and found proved that this could have led to very serious consequences indeed. None of the allegations asserted a motive for the behaviours. Professor Lingam admitted in his evidence that he had been reckless although it had not been alleged in terms that his disregard of GMC Guidance was reckless. His evidence was that he was aware of and had looked at the Guidance before acting as he did….
The consideration of “why” in cases of Suicide – Dove v HM Assistant Coroner for Teesside and Hartlepool [2023] EWCA Civ 289
Jodey Whiting died in February 2017 as a result of an overdose. She had a complex history of physical and mental health problems. Her death came two weeks after her benefits were stopped by The Department for Work and Pensions (DWP) because she did not attend a Work Capability Assessment.
Following an inquest in May 2017 the Coroner recorded Jodey’s death as a suicide. Jodey’s mother, Joy Dove, made plain that she believed that the stress caused by DWP’s decision to withdraw benefits had been a contributing factor to her death. The Coroner ruled that it was not her function to question any decisions made by the DWP.
In December 2020 Ms Dove, with the Attorney General’s permission, applied under section 13 of the Coroners Act 1988 to quash the Coroner’s determination and order a new inquest. She relied on two pieces of fresh evidence:
- An Independent Case Examiner had reviewed the DWP’s handling of Jodey’s case, detailing a number of criticisms of their conduct before and after her death. Those criticisms, described as “shocking” in the High Court, included breaches of the Department’s own guidance for dealing with vulnerable claimants. It was now accepted that DWP should not have stopped Jodey’s benefits.
- An expert report from a consultant psychiatrist concluded that Jodey’s vulnerabilities would have been “substantially affected” by the decisions of the DWP and that on the balance of probabilities “there was likely to have been a causal link between the [DWP’s] failings…and [Jodey’s] state of mind immediately before her death.” The report did not go as far as to say that the DWP’s decision to stop Jodey’s benefits caused her to take her own life. He did not rule out other stressors as causative of her suicidal state or her suicide.
The Divisional Court refused the application, which was renewed before the Court of Appeal….
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