Newsletters Professional Discipline 5th Apr 2024

Has Fleischmann been put in its proper place? PSA v GDC & Naveed Patel [2024] EWHC 243 (Admin)

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.

The Committee thought that a reprimand would meet the case. The PSA disagreed, and the principle in Fleischmann (which has also been written into GDC guidance) had to be considered as part of the appeal.

The problem with Fleischmann is the anomalies it can create, particularly with suspended sentences. For example, if a registrant is sentenced to six months immediate custody then the sentence would be complete within a 12-month GDC suspension no matter how soon after sentence the sanction was imposed. However if s/he received three months, suspended for 18 months, this lighter sentence might not be completed within a 12-month suspension and so, the Fleischmann argument might go, s/he would have to be struck off. The case of Khan v GPhC [2016] UKSC 64 prevents a reviewing Committee extending the suspension merely to cover the criminal sentence.

Sweeting J dealt with this risk of anomaly. “Fleischmann” he says [at para 19] “cannot be applied as if it were a rule” and both it and the GDC guidance based on it must “bend to the overarching requirement to impose a sanction which is just, proportionate and only that which is necessary to maintain public confidence”. Indeed, a similar point had been made in less strident language in Opare v NMC [2019] EWHC 1851 where it was said that the principle “can bow to the particular circumstance of a particular case”.

The court has now unambiguously set out that the justice of the case comes before a mechanical application of Fleischmann. Practitioners will be able to argue that a sentence has in effect been “satisfactorily completed” if, for example, the main requirements of a suspended sentence (e.g. unpaid work) have been completed. If a long suspension period has been imposed with a short custodial term, it will be possible to argue that the registrant should be able to resume practice even if the short sentence is still hanging over them. The sort of anomalies Fleischmann created discredit the regulatory process, and taint it with arbitrariness. Removing that taint is a welcome development.

 

Ben Rich


 


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