Christopher Geering
Editor
Foreword
Welcome to the 2 Hare Court Christmas newsletter! As you will know, the chair of the MPT has proposed a significant new approach to determining impairment and sanction, more akin to the structured criminal sentencing regime used in the Crown Court. Ben Rich and Chris Gillespie provide alternative analyses of whether this model will work in a regulatory context.
Lewis MacDonald recounts his recent success in removing a solicitor’s indefinite suspension, and the lessons to be drawn from it. Vivienne Tanchel provides an update on the issue of witnesses giving evidence abroad, and looks at the SDT’s approach to dishonesty in Abbas v SRA. Jack Gilliland examines the recent PSA appeal of GMC v Dugboyele touching on sexual harassment. Neelam Gomersall returns to the issue of credibility in Masood and the extent to which this can be appealed. Finally, I summarise the decision of Danial and its criticism of Aga v GDC.
Happy reading over a glass of mulled wine!
HHJ Deborah Taylor was a familiar face in the criminal courts where in recent years she has presided over some of the most complex frauds as Resident Judge at Southwark Crown Court and Recorder of Westminster. She also sat in the Court of Appeal (Criminal Division). Now in her capacity as the Chair of the MPTS she is bringing that expertise in the criminal justice system to bear on the way doctors are sanctioned.
Anyone who has practised in crime will get a strong feeling of familiarity from proposals in the new consultation document Methodology of MPTS Decisions and Sanctions Banding which HHJ Taylor has circulated to attendees at the recent ARDL Annual Conference. In style and structure it is closely modelled on the successful format of the Sentencing Council’s Sentencing Guidelines which now cover a wide range of criminal offences tried in the Magistrates’ Courts and the Crown Court. Comments are requested by the end of the year.
The proposals contain a number of tools to help with the sanction procedure:
There is much to be commended in the thinking behind the draft guidelines, in particular the recognition that not all dishonesty is so serious that it must sit on the cusp of a lengthy period of suspension or erasure. Ben Rich has already highlighted the absence of any reference to misconduct and the focus on risk to the public rather than the impact on the reputation of the profession. These are matters that are capable of rectification in any future draft. However, there is an argument that the guidelines are ill-suited to the regulatory process and overly complex. They will lead to increased hearing lengths at both stages 2 and 3 and will almost certainly lead to an increase in appeals by registrants, the GMC and PSA on the basis that either the guidelines have not been followed or have been followed too rigidly. There is nothing in the principles underlying the draft guidelines that could not be achieved by revision of the current Sanctions Guidance.
Those who practise or have practised in the criminal courts are very familiar with sentencing guidelines. Depending on the offence, the judge must evaluate, inter alia, the seriousness of the offence compared to other offences of the same type, the role of the offender in the offence, any loss sustained and the level of harm or the risk of harm. The purposes of criminal sentencing and regulatory sanction are completely different. Remediation plays no part in the sentencing process for obvious reasons: it is difficult to see how a drug dealer could remediate his criminal conduct. On the other hand, remediation plays a central part in healthcare regulation to the extent that on occasions even serious misconduct can be remediated fully in relation to all aspects of the public interest. Whether a registrant has or has not remediated and, if so, to what extent and how a registrant’s remediation should be weighed against the seriousness of the misconduct and the wider public interest are complex, nuanced issues that do not naturally fit within a schematic approach even where there are opportunities in the process to “stand back”…
In this recent case, in which I acted for the applicant, the SDT lifted an indefinite suspension after over 12 years, despite opposition from the SRA. The SDT’s judgment is an important example of the practical application of the Tribunal’s guidance in such cases.
Mr Reeves was admitted to the Roll in 1986, and had no fitness to practice history. However in 2005 he became a sole practitioner, and by 2009 had run into substantial administrative problems. Tribunal proceedings were brought by the SRA, largely deriving from the Applicant’s failure to deliver accountant’s reports for his sole practice between September 2006 and September 2009 (four sets of accounts). The Applicant was experiencing financial difficulties and had substantial personal problems including a young son with significant health problems. He admitted the allegations and was subject to financial orders, but also an order to submit the relevant accountant’s reports by January 2012, failing which an indefinite suspension would come into force.
Unfortunately the Applicant’s financial and personal difficulties continued and he was not able to complete and return the relevant records. He was therefore indefinitely suspended.
Since his suspension, the Applicant had worked in a bank instructing solicitors on behalf of the bank in litigation similar to that which he had been conducting when a practicing solicitor, but had not sought permission from the SRA to work for a regulated entity nor done so. He had resolved the problems which had led to his suspension…
As regular readers of this newsletter may recollect, exactly 12 months ago Ben Rich and I wrote about our experiences at the GMC and the GDC (here) in respect of witnesses giving evidence from abroad.
At that stage it appeared settled that the MPTS considered that a witness could not give evidence in court proceedings in the United Kingdom from a foreign country, unless that country had provided its permission. In contrast, on 9 November 2023 the GDC published a short note setting out that it did not consider that its committees were prevented from hearing evidence from abroad.
In October 2024, the MPTS published new guidance entitled “Receiving witness evidence at Medical Practitioners Tribunal hearings”. At paragraph 29 the Guidance states…
Over the last decade or so there has been an increasing recognition by healthcare professional regulatory bodies that not all dishonesty necessarily requires that a professional is erased.This shift does not appear to apply to legal professionals. Whilst Bolton v the Law Society [1994] 1 WLR 512 states that strike off for solicitors who have been found to be dishonest is not automatic, it is plain that to avoid this sanction there must be exceptional circumstances.This principle was again recently considered by Mrs Justice McGowan DBE in the case of Farrukh Abbas v Solicitor’s Regulatory Authority [2024] EWHC 2775 (Admin).
Mr Abbas was a solicitor working as a self-employed consultant for a firm of solicitors who, together with another employee in the firm, agreed to submit a false claim for damages following a car accident with a third party. When the accident took place, the other employee was driving Mr Abbas’ car and the day following the accident he reported the incident to Mr Abbas. Over a 9-month period, Mr Abbas submitted a false claim to the insurers of the third party involved in the accident. In the claim he purported that he had been the driver and that he had suffered whiplash and soft tissue injuries. In support of his claim, he signed a witness statement which was untrue and claimed for physiotherapy which he received unnecessarily. When the third party’s insurance company asked a number of questions about the claim, Mr Abbas withdrew it. The insurance firm reported Mr Abbas to the SRA. When contacted by the SRA, Mr Abbas accepted that he had acted dishonestly…
In GMC v Dugboyele, Murray J overturned a decision by the Medical Practitioners Tribunal (“the Tribunal”), which had determined that Dr Dugboyele’s fitness to practise was not impaired despite proven allegations of serious professional misconduct.
Dr Dugboyele was found to have engaged in repeated sexual harassment of female colleagues whilst employed at the Harrogate and District NHS Foundation Trust. The misconduct, spanning from 2016 to September 2020, persisted even after a formal written warning in March 2018 for “over-familiarity.”
The General Medical Council (“GMC”) and the Professional Standards Authority for Health and Social Care (“PSA”), appealed the Tribunal’s decision on five grounds, including:
GMC:
(i) When considering impairment, the Tribunal gave excessive weight to remediation and/or failed properly to consider or address in its reasoning the impact of no finding of impairment on (a) public confidence in the medical profession and/or (b) proper professional standards and conduct.
(iii) The Tribunal’s conclusion, that a finding of impairment was not necessary to uphold the overarching objective, was wrong.
PSA:
(i) The Tribunal wrongly failed to address the evidence of Dr Dugboyele’s motive for his misconduct, consequently failing to consider its significance for the issue of impairment of fitness to practise and, in turn, the appropriate sanction…
The Court of Session has again declined to interfere with the findings of the Medical Practitioners Tribunal (MPT) and its sanction of erasure.
The appellant, Dr Masood, was subject to GMC fitness to practise proceedings arising from allegations that he had emotionally, physically and sexually abused his former wife (“Ms A”). Thereafter it was alleged he attempted to interfere with the fitness to practise process by instructing lawyers to send her a threatening and intimidating letter.
Most of the allegations before the MPT, including all those of a sexual nature, were not proved. The MPT made several credibility findings against Ms A, including that she was unwilling to make obvious and necessary concessions when faced with documents that challenged her account, and she tended to exaggerate. Indeed, in respect of unproven allegations of physical abuse, including an attempt to suffocate Ms A with a scarf, the MPT found that Ms A was not an entirely reliable witness and tended to embellish her accounts of her injuries. Her account as to the severity of her injuries on one occasion was undermined by video evidence. Nonetheless, the MPT found proved a number of particulars, ranging from low-level emotional abuse to more serious allegations of physical abuse, together with the allegation of interference. These resulted in erasure…
Does the time spent on an immediate suspension order count as part of the overall period of substantive suspension imposed on a registrant?Before Aga v General Dental Council [2023] EWHC 3208 (Admin), the answer appeared to be “no”. An immediate order was distinct from a substantive direction of suspension.Aga then threw a cat amongst the pigeons. It reasoned – there was only one overall suspension. This started when the immediate suspension order started, and it ended when the period of time specified in the suspension direction ended. It was wrong to make a suspension direction and an immediate suspension order which had the effect of increasing the length of a registrant’s suspension just because the registrant appealed. It considered the suspension direction did not follow consecutively after the expiry of the immediate suspension order.This decision has been subject to considerable debate, and in the instant case the PSA submitted that Aga was wrongly decided. Morris J agreed.The issue was essentially one of statutory construction. The Dentists Act 1984 (“the Act”) made a clear distinction between a “direction” of substantive suspension by the committee, and an “order” of immediate suspension. There was not a single suspension, as suggested by Aga…
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