Christopher Geering
Editors
Foreword
Welcome to the latest 2 Hare Court newsletter. Andrew Colman discusses his recent success in the High Court in Professional Standards Authority for Health and Social Care v General Pharmaceutical Council, Nazim Hussain Ali [2024] EWHC 577 (Admin) and reflects on the interplay between regulatory action and the importance of free speech. Ben Rich analyses PSA v GDC & Naveed Patel [2024] EWHC 243 (Admin) and its important revision of the Fleishmann principle. Hannah Thomas examines the controversial decision in Nabeel Aga v The General Dental Council [2023] EWHC 3208 (Admin), and the GDC’s reaction to it. Gavin Irwin revisits the vexed issue of insight in PSA v NMC and Kadiatu Jalloh [2023] EWHC 3331 (Admin). Finally, I summarise two DBS cases, DBS v RI [2024] EWCA Civ 95 and Kihembo v DBS [2023] EWCA Civ 1547. Of note, the Court of Appeal considered the rhetorical question “why should we not believe her” constituted a reversal of the burden of proof. Tribunals should take note.
On the 18th of June 2017, Mr Nazim Ali, a pharmacist, led the annual ‘Al-Quds’ (‘Jerusalem’ in Arabic) rally in support of the Palestinian cause through central London, as he had done several times before. It was a hot day and passions ran high, both among the marchers and counter-protesters supporting Israel.
Mr Ali led chants through a loudhailer, including the now infamous phrase “From the River to the Sea, Palestine will be free.” He repeatedly attempted to distinguish, though, between Zionism and Judaism, chanting “Judaism is OK, Zionism No Way’ and ‘Judaism Yes, Zionism No”.
In a few instances, however, Mr Ali’s remarks crossed the line into objectively antisemitic territory. For example, he said that “Any Zionist, any Jew coming into your centre supporting Israel, any Jew coming into your centre who is a Zionist. Any Jew coming into your centre who is a member for the Board of Deputies, is not a Rabbi, he’s an imposter.” The march was just four days after the Grenfell fire. Mr Ali commented “They are responsible for the murder of the people in Grenfell. The Zionist supporters of the Tory Party.”
The legal consequences of these transgressions were to drag on for nearly seven years. First of all, the Campaign Against Antisemitism brought a private prosecution against Mr Ali under s. 5 of the Public Order Act 1986, but this was taken over and discontinued by the DPP. A judicial review of that decision was rejected.[1]
Thereafter the GPhC gave careful consideration to their regulatory response to Mr Ali’s remarks. They decided to charge Mr Ali with making four remarks which were said to be offensive and antisemitic. These were the two already quoted and “‘It’s in their genes. The Zionists are here to occupy Regent Street. It’s in their genes, it’s in their genetic code.” and “European alleged Jews. Remember brothers and sisters, Zionists are not Jews.” It was not alleged that he intended any of these remarks to be antisemitic, rather that he allowed himself to be carried away in the heat of the moment….
It is nearly twenty years now since Alexander Fleischmann, a dentist, was struck off after the forerunner body to the PSA appealed against his suspension by a Committee of the GDC. Mr Fleischmann had been convicted in the Crown Court of quite serious charges relating to child pornography but after submissions in mitigation he had been sentenced to a three-year Community Rehabilitation Order (CRO) rather than being sent to prison as the Sentencing Guidelines would have suggested.
When he subsequently received a twelve-month suspension from the Professional Conduct Committee of the GDC, the CRO still had some way to run, and it would not have been completed by the time the twelve months would have been up. Giving judgment, Mr Justice Newman had this to say about how such a case should be handled [at 54]:
“… as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained.”
The logic of this, particularly in Mr Fleischmann’s case, can be appreciated. When he resumed practice it could not even be said that his sex offender rehabilitation work had been successful, as he had not completed it.
Although it was expressed as a “general principle”, the following sentence including the need for the circumstances to “plainly justify” any departure from it seem to have led to it being treated on occasion more as a rule of law.
That idea has been firmly laid to rest by Mr Justice Sweeting in PSA v GDC & Naveed Patel. Mr Patel had been convicted of causing death by careless driving. He received a 15-month suspended prison sentence. Before the GDC he was sanctioned for the conviction itself, and a failure to inform the GDC at any point before the conviction that he had been charged. He was not found to have been dishonest….
Introduction
The decision late last year by Ritchie J in Aga v GDC caused uproar in the regulatory and professional discipline worlds.
In a 32-page judgement Ritchie J determined, contrary to established practice, that in cases where immediate suspension is imposed by a Professional Conduct Committee (‘PCC’) under section 30 of the Dentists Act 1984 following a substantive sanction of suspension having been imposed (under section 27), the period of suspension spent awaiting appeal counts towards the ultimate suspension imposed.
The decision is a significant one given that it has turned the previously followed interpretation on its head but more so because of the GDC reaction to it. The GDC has launched an appeal against the judgement and in the interim has directed tribunals to effectively ignore it. In a statement published on 4 January 2024 the GDC said this:
“Until [the determination of the appeal], we have informed independent Committees of the Dental Professionals Hearings Service that the GDC’s submission at hearings is likely to be that the existing guidance remains applicable, and we have drawn their attention to other higher court authorities on the matter. We have also reiterated that the substantive sanction, immediate order and/or any directions are a matter for the Practice Committee to determine in each case as they consider appropriate.”
The facts of the case
Dr Aga faced disciplinary proceedings for his behaviour in stalking and harassing a woman and for failing to report his arrest and charge by the police to the GDC. A Professional Conduct Committee found the various charges against him proved, that his fitness to practice was impaired due to his misconduct and directed that he serve a 9-month suspension. An immediate order was imposed under section 30 of the 1984 Act….
In PSA v NMC and Kadiatu Jalloh [2023] EWHC 3331 (Admin), the Administrative Court allowed the PSA’s referral of the NMC’s decision only to suspend the Registrant, a psychiatric nurse. The proceedings in the High Court were, essentially, an appeal against sanction on the ground that it was too lenient.
In March 2020, Patient A, a psychiatric in-patient, started to behave aggressively towards staff and became violent towards the Registrant, slapping and punching her. While Patient A was fully restrained on the floor by six members of staff, CCTV captured the Registrant thrusting a chair at him in two distinct jabbing motions and then, twice, returning to the restrained patient and kicking out at or stamping on him with her feet.
It was not possible to say whether any of the Registrant’s movements connected with Patient A’s body but they were directed at his head area and he complained of having been kicked in the face three times. The Registrant was suspended and, after an investigation by the hospital, summarily dismissed.
The charges before the NMC Fitness to Practise Committee (the Committee) alleged misconduct in relation to those events (assault) but also to dishonestly:
Inclusion on the barred list(s) may be appealed to the Upper Tribunal if there has been a mistake of law or fact. But just what constitutes a mistake of fact has proved a thorny problem. In particular, to what extent may the Upper Tribunal simply disagree with the DBS’ factual finding and substitute its own judgment?
In PF v DBS [2020] UKUT 256 the Upper Tribunal noted:
“Section 4(2)(b) refers to a ‘mistake’ in the findings of fact made by the DBS and on which the decision was based. There is no avoiding that condition. The issue at the mistake phase is defined by reference to the existence or otherwise of a mistake. If the Upper Tribunal cannot identify a mistake, section 4(5) provides that it must confirm the DBS’s decision. That decision stands unless and until the tribunal has decided that there has been a mistake… It is not enough that the Upper Tribunal would have made different findings…
One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before the DBS. It is sufficient if the mistake only appears in the light of further evidence or consideration”.
In DBS v JHB [2023] EWCA Civ 982 the Court of Appeal developed the position. JHB was barred by the DBS for three instances of sexual assault (two of these findings involving a minor). He appealed to the Upper Tribunal. He did not give any material oral evidence in relation to these findings. Nonetheless, the Upper Tribunal allowed his appeal, considering the DBS had erred in relation to two of these findings. The DBS in turn appealed to the Court of Appeal. The court noted….
Why would they lie? We are all familiar with the oft-repeated refrain of prosecuting counsel – all too often adopted by the tribunal in question. In effect, it would seem it is for the registrant to provide a motive for a false allegation, or an explanation for a misunderstanding. Where they fail, the matter is found proved. It is nice, therefore, to see the Court of Appeal take a robust line in response to this clear reversal of the burden of proof.
Ms Kihembo worked as a live-in carer for SJP who suffered from cerebral palsy and required physical care and support. In 2015 SJP alleged Ms Kihembo had been repeatedly hitting her with a shoe horn and spoon over a period of 3 months. A police investigation over the course of three and half years resulted in no further action. The DBS, however, barred her from working with vulnerable adults and children. It was satisfied on the balance of probabilities that over the course of three months she had hit SJP repeatedly causing red marks to her forehead and thighs, as well as bruising to her knuckles and right eye.
Ms Kihembo appealed to the Upper Tribunal. In doing so, it commented:
“11. SJP has no mental health issues and is mentally competent, so why should we not believe her?”
The judgment went on to consider various explanations advanced by Ms Kihembo setting out why SJP’s evidence should be disbelieved. It did not accept any of them.
Ultimately, whilst in fact rejecting the finding that these assaults lasted three months, the Upper Tribunal upheld the DBS’ decision that Ms Kihembo had assaulted SJP on one occasion.
Ms Kihembo went to the Court of Appeal. The appeal dealt primarily with other matters. For the present purposes, it is enough to note that Ground 3 alleged the Upper Tribunal rhetorical question at paragraph 11 had reserved the burden of proof….
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