2 Hare Court Professional Discipline Newsletter
Welcome to the latest edition of the Professional Discipline Newsletter.
Christopher Geering & Ben Rich
Editors
Foreword
Hello and welcome to a bumper Winter/Christmas edition of the 2 Hare Court Professional Discipline Newsletter.
This edition starts with an issue that might seem a little obscure. We live in an era of remote hearings, so what does it matter where a witness (or the accused professional) is when they give their evidence? Quite a lot as Vivienne Tanchel and Ben Rich have discovered a number of times this year. The rules on witnesses giving evidence from abroad bring the sedate world of professional regulation into contact with the dramas of international diplomacy and, despite the problems being clear since at least 2011, it seems that it is only now that regulators (and advocates) are really grasping what a nightmare it can be.
Chris Coltart KC examines the age-old issue of disclosure. The Financial Reporting Council has issued its latest disclosure policy. However, as Chris observes, it remains to be seen if this has cured the defects of its predecessor, or only opened the door to further concerns over fairness.
On a more upbeat note, Michael Rawlinson writes about a recent and, he reports, rare success in Administrative Court in resisting appeals by Chief Constables against decisions of police misconduct panels. The Court gave short shrift to the Chief Constable’s argument that, so to speak, the cart should be put before the horse and the Panel should have had regard to guidance on outcomes, when considering its determination on the facts. Time’s Arrow may have been restored to its customary direction.
Peter Lownds considers Professional Standards Authority for Health and Social Care v General Medical Council [2023] EWHC 2391 (Admin). This is the latest PSA’s ‘undercharging’ case, in which the Authority appealed against the failure of the GMC to lay charges explicitly recognising the vulnerability of a patient with whom a doctor had a sexual relationship. Peter suspects it will lead to more allegations of vulnerability off the back of an embarrassing miss by the GMC.
Meanwhile in Shabir v General Medical Council [2023] EWHC 1772 the High Court re-emphasised two important principles – the great difficulty any registrant faces in challenging findings of fact based on witness credibility, and the more limited weight that may be given to testimonials where a practitioner is in the early stages of their career. Neelam Gomersall examines the court’s approach.
Finally Vivienne Tanchel and Ben Rich bookend the newsletter. Vivienne reports on her recent challenge in the High Court to the extension of an interim order. The case is important for the emphasis the High Court put on the need for tribunals reviewing an Interim Order to make sure they are consistent with the decisions of earlier tribunals. Ben provides an update on the case of Adil v GMC, which he wrote about in an earlier edition of this newsletter. The Court of Appeal endorsed the approach of the High Court to a doctor who promoted a wide variety of Covid conspiracy theories. The judgment gives useful insights into how the court thinks the balance should be struck with Article 10 freedom of expression rights.
Christopher Geering and Ben Rich
Are the medical regulators waking up to the nightmare of taking oral evidence from witnesses abroad?
- As a witness faced with giving oral evidence to a court or tribunal you will be told how long you may have to make yourself available for, and the unpredictability of the time, sometimes even the day, on which you will be called. What could be better then, than to carry on your normal activities and wait to be summoned to your laptop to join the hearing remotely? Some will go further and seek to join from abroad, either because they are on holiday or perhaps have family or other connections outside the UK.
- Remote and hybrid hearings have become commonplace since Covid, accelerating a trend for taking evidence by video-link or phone that was well established even before the virus struck. As the quality of internet connections improves around the world, the physical location of the witness matters less and less. Now, it seems, the medical regulators are waking up to a significant problem which arises when witnesses want to give oral evidence from abroad – is it lawful?
- This is something of a late awakening, as the first decision on this issue was as long ago as 2011 [Nare (evidence by electronic means) Zimbabwe][1] and was reaffirmed in 2021 [SS for the Home Department v Agbabiaka][2]. However, the restrictions these cases appear to impose are not widely appreciated. Between them, over the last few months, the authors of this article have three times been before tribunals where a regulator has wanted to call a witness who is abroad, but has not jumped through the required hoops.
- Case One: Vivienne faced this issue at a fitness to practice hearing before the MPTS in July of this year. It was not until shortly before the hearing that the GMC disclosed that one of their witnesses was intending to give evidence from Jordan. The matter came to light as part of an application for the witness to give evidence via a video link. It was apparent that the GMC had not even turned its mind to the issue of location….
Drawing the net too tight? Does the new Financial Reporting Council policy for the disclosure of unused material meet the basic requirements of fairness?
In relation to disciplinary proceedings brought against accountants and actuaries, the FRC has introduced a new policy on the disclosure of ‘unused material’ (ie material gathered during the course of an investigation upon which the FRC does not rely). This replaces the old policy which had been in force since 2013. The changes bring with them a number of practical consequences which defence practitioners should have on their radar.
Firstly, whilst the FRC will continue to apply the same test to the disclosure of unused material as arises in criminal cases (ie. whether the material undermines the prosecution case or assists the defence), there is no mention in the new policy of the legislation under which that test arises (ie. the Criminal Procedure and Investigations Act 1996 (‘CPIA’)). This statute was expressly referenced in the old version of the FRC disclosure policy, which cited also the accompanying Attorney General’s Guidelines on Disclosure. Given the FRC’s historic reluctance to acknowledge that it was bound by this guidance, one suspects that removal of these references is designed to fortify the FRC’s position in this regard. In the same way, however, that declaring a particular country to be safe does not necessarily make it so, removing reference to the AG’s Guidelines does not mean that the FRC is not bound by the spirit of that document, which exists to ensure that the CPIA test for disclosure is fairly applied. In circumstances where the FRC continues to adopt that test, even if the express link to the CPIA has been decoupled, it plainly ought to conduct itself in accordance with the guidelines.
The second significant change is that under the new policy, the FRC will supply the defence with a schedule of the unused material in its possession, such that the respondent can identify material which meets the test for disclosure. The refusal of the FRC until now to adopt this approach was always unfair, leaving respondents having to recall, sometimes years after the event, what material exists which may assist them. In a move which smacks of tokenism, however, the new schedule will not list individual documents in the possession of the FRC but only categories of documents instead….
An Improper Pursuit: R (On the application of The Chief Constable of Cleveland Police) v A Police Misconduct Panel (Interested Party: PC Paul Faulkner) (Unreported)
Yet another successful judicial review by a police force of the findings of the police misconduct panel you say? Not quite.
The reader will be no doubt delighted to know that this article represents something rather different to my usual lament, involving (as it usually does) sorry tales of the writer valiantly snatching defeat from the jaws of victory.
As those now familiar with the well-trodden path know, it usually goes something like this:
- Defend a police misconduct hearing at first instance,
- Obtain a glorious acquittal and/or superbly unexpected result in terms of avoiding dismissal at the sanction stage,
- Application for judicial review by the relentless, heartless and deep-pocketed force in question,
- The High Court (often, rather uncharitably in my view) classify my stunning victory as an ‘error of law’ or ‘unduly lenient sanction’ by the Panel or similar,
- Final Written Warning replaced by a sanction of dismissal, or,
- Case remitted back to the original Panel – who then see the error of their ways and dismiss the unfortunate officer.
- My initial legendary status is summarily revoked.
[I have deliberately not included the potentially inevitable Stage 7 of all vanquished advocates, which involves them cursing angrily, and falling into a pit of regret and despair whilst questioning both their self-worth and reflecting on their life and career choices.
Stage 8, involving a full and complete recovery after the weekend and/or when the cheque arrives, is also entirely optional.]
Anyway, this case concerned a renewed application for permission to apply for judicial review made by the Chief Constable of Cleveland Police, permission having initially been refused on the papers….
Lessons to be learnt from a failure to properly evaluate evidence of vulnerability: Professional Standards Authority for Health and Social Care v General Medical Council [2023] EWHC 2391 (Admin)
The Issue
The PSA appealed against the decision of the MPTS to impose a sanction of six months suspension on Dr Onyekpe (“Dr O”) following a hearing at which he had admitted that he had a sexual relationship with a patient (“Patient A”). The relationship had taken place over a period of two months and began after he had treated her in his capacity as a locum registrar at an A&E department.
The primary ground of appeal was that the decision of the MPT was wrong because the charges against Dr O did not include an allegation that he knew or ought to have known that Patient A was vulnerable or likely to be vulnerable, and that consequently the full gravamen of his misconduct was not considered at the MPT.
Outline of the Facts
Patient A attended an A&E department with a spinal complaint that included severe back pain. Prior to leaving the hospital, Patient A gave Dr O her mobile phone number. He subsequently contacted her by WhatsApp. They then had extensive WhatsApp communications that rapidly turned to sexual matters and culminated in them meeting and engaging in a short-lived sexual relationship.
A short time later Patient A made a complaint of rape to the police. In interview Dr O admitted consensual sexual activity. Criminal charges were not brought.
The police notified the GMC who then conducted their own investigation.
The matter was referred to the case examiners who referred it on to the MPT. Amongst the charges referred by the Case Examiners was an allegation against Dr O that at all material times Patient A was vulnerable and he knew that she was. In referring the vulnerability charges the Case Examiners referenced a statement from Patient A in which she detailed mental health problems and said she felt she was intoxicated on medication when they had sex….
Junior doctor’s appeal against factual findings of sexual misconduct dismissed and limited weight afforded to good character: Shabir v General Medical Council [2023] EWHC 17
In a judgment handed down on 13 July 2023, Mrs Justice Hill dismissed Dr Shabir’s appeal under s40 of the Medical Act 1983 against the finding of facts of the Medical Practitioners Tribunal (“the Tribunal”) which resulted in his erasure from the medical register.
The allegations arose from Dr Shabir’s consultation with a female patient (“Patient A”) during his foundation year two. He was one month into a four-month rotation in primary care at a GP practice (“the Practice”) and able to see patients independently.
Dr Shabir examined Patient A when she attended the Practice with dizziness and a sore throat.
The following day, Patient A reported to the Practice that Dr Shabir unnecessarily touched her breasts during the consultation.
Before the Tribunal, it was alleged that Dr Shabir touched Patient A’s breasts under her clothing and had failed to (i) explain the nature and purpose of his actions; (ii) obtain Patient A’s verbal consent; (iii) offer her a chaperone; (iv) offer her privacy to get undressed and dressed; (v) ask her to remove her bra; or (vi) record his actions in her medical records. His conduct was alleged to have been sexually motivated.
The Tribunal found all facts proved, concluded that Dr Shabir’s fitness to practise was impaired by reason of his misconduct, and determined that the appropriate sanction was erasure.
Dr Shabir appealed on five grounds which overlapped considerably and made several complaints against the Tribunal including that it failed to….
Interim Order decisions on review must be consistent with earlier decisions in the case: Cook v General Medical Council [2023] EWHC 1906 (Admin)
On 22 May 2021, Dr Cook sent an email to the General Medical Council informing them that he had been arrested by the West Midlands Police for child sex offences. His case was referred to an Interim Orders Tribunal which convened on 28 June and imposed an Order of Conditions. On 2 July 2021, Dr Cook was charged by the Crown Prosecution Service. The charge precipitated a review of the Conditions of Practice Order on 5 August 2021 when an Order of Suspension was imposed.
In September 2022 Dr Cook stood trial on a four-count indictment, two related to child sex offences, and two related to breaches of the Obscene Publications Act. The jury failed to reach verdicts on the child sex counts on the indictment and they were subsequently abandoned by the Crown Prosecution Service. Dr Cook was convicted of the 2 lesser charges relating to the publication of obscene material. The Judge sentenced him to a conditional discharge.
On 10 March 2023, the Interim Order was reviewed. The GMC applied for a continued order of suspension on the basis that the material on which Dr Cook had been convicted for the obscenity offences was sufficiently shocking that an order was required to maintain public confidence in the profession. This was opposed by those who represented Dr Cook. It was submitted that following the outcome of the criminal trial no order was necessary or at the very most a conditions of practice order would be proportionate in the circumstances.
During submissions for Dr Cook, the Tribunal raised the possibility that the two alleged child sex offences (which had been abandoned by the CPS) might be revisited in the regulatory proceedings. In the end this possibility was a major component in the Tribunal deciding to continue the order of suspension….
The limits of free speech for regulated professionals – an update on Adil v GMC
If you are one of our regular Newsletter readers you may remember our article on Adil v GMC [2023] EWHC 797 (Admin). In that case the High Court ruled that Covid conspiracy theories were not protected speech under Article 10 of the European Convention on Human Rights. The case has now been to the Court of Appeal [[2023] EWCA Civ 1261], and in a judgment earlier this month the decision of the High Court was upheld.
Mr Adil was a colorectal surgeon who published, on social media, his beliefs in a positively heroic variety of Covid conspiracy theories. They ranged from the virus not existing at all, to theories referring to the Bill Gates/Israel/USA/5G/microchips, not neglecting his belief that there would be enforced injecting of the population with a bogus vaccine in order to establish a New World Order. He was taken to a tribunal and suspended.
The appeal concentrated on the alleged violation of his Article 10 rights to Freedom of Speech. It was argued that the GMC rules and guidance (specifically Good Medical Practice and the GMC’s social media guidance) were not clear enough to amount to a prohibition on such speech being “prescribed by law”. The other main ground was that even if it was prescribed by law, the interference in his freedom of speech did not meet the required standards of necessity and proportionality.
The Court of Appeal found as follows….
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