Fieldfisher | The Public Eye | Public & Regulatory
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While the Bawa-Garba case has understandably attracted a huge number of headlines, on the same day the Court of Appeal also ruled on another GMC appeal, this time on the test to be applied to the restoration of doctors to the register after a previous erasure decision. In Chandra the Court of Appeal found that there is no 'bright line' between the test to be applied at the sanction stage and for restoration, although the weight given to different factors may change. The overall test must still be the overriding objective to protect, promote and maintain the health and safety of the public.
Dr Chandra, a psychiatry Senior House Officer, had previously been struck off of the GMC's register by the Fitness to Practise Committee in 2008 following a sexual relationship with his patient A whom he knew to be a vulnerable person. He denied the allegations, claiming that A was stalking him and that her allegations were a result of her psychological ill health. As a result of this, A had to give live evidence at Dr Chandra's hearing, including substantial cross-evidence. In August 2016 Dr Chandra applied for restoration to the register; his application was heard by the MPTS in March 2017 and allowed. The GMC promptly appealed to the High Court on the basis that the MPTS had not applied the correct test, but in October 2017 the appeal was dismissed. As a result the GMC appealed to the Court of Appeal.
Lady Justice King gave the judgement in the Court of Appeal and focussed on the importance of the overriding objective, which was added to the legislation of all healthcare professional regulators in 2015. She found that the overriding objective was the background to both decisions on sanction and on restoration, although some factors may be balanced differently in the two types of decision:
"Although certain features may carry different weight at the date of the erasure of a doctor from the register from that which it is given upon his or her application to be restored to the register, in my judgment the balancing act itself is the same in respect of each application namely; against the backdrop of the over-arching objective, is the doctor concerned fit to practice."
As part of this test, and the different weights given to certain factors, key factors in a decision on restoration will be both the passage of time and evidence of remediation. Crucially, Lady Justice King adopted the case law relating to solicitors' regulation and specifically Bolton v Law Society. In Bolton, honesty was found to be crucial of the practice of a solicitor as their client must trust them with their most valuable possessions, sexual probity must be equally important to doctors:
"I find it hard to imagine any feature in relation to any doctor, let alone a psychiatrist, which goes so entirely to the essence, or heart, of his role as medical practitioner as the entitlement of each and every patient, (whether vulnerable or not) to be entirely confident in the sexual probity of their physician. To adopt and adapt the words of [Bolton]: "If a member of the public submits him or herself to a physical or mental examination or consultation by a doctor, he or she is ordinarily entitled to expect that that doctor is a person whose trustworthiness and sexual integrity is not and never has been, seriously in question"."
That being said, while the decision does adopt the solicitors' regulation case law, Lady Justice King was keen to emphasise that exceptional circumstances were not necessarily required to allow restoration as was found in Jideofo v Law Society (no 6 of 2006), partly because doctors cannot apply for restoration for at least 5 years from being struck off, whereas there is no minimum period for solicitors. On this basis the GMC's appeal was allowed and the matter was remitted to the MPTS for the decision to be remade in light of this decision on the principles to be applied.
The GMC's appeal power has been particularly controversial in light of the Bawa-Garba decision and may be repealed if the Government submits to public pressure. However in this case its appeal was apparently an appropriate decision, even if this decision will not receive the same headlines as Bawa-Garba.
In addition to some of the headlines we have seen about codes of conduct and discipline within the parliamentary political parties it is worth noting a recent case which considered, and made very clear, the correct process for disciplining local councillors in England.
To recap on some history; for a little over 10 years there was a central body, the Standards Board for England (later known as Standards for England), a non-departmental public body sponsored by the Department for Communities and Local Government and established under the Local Government Act 2000. It was responsible for promoting high ethical standards in local government. It oversaw the nationally imposed Code of Conduct (now abandoned), which covered elected and co-opted members across a range of local authorities. The Board maintained an independent national overview of local investigations into allegations that members' conduct might have fallen short of the required standards. Local authorities had Standards Committees, but in certain cases the Board could directly investigate allegations. It could not impose sanctions on members, but if it considered that further action might be necessary, it referred cases to the Adjudication Panel for England, or to the relevant authority's own Standards Committee for determination, which could include suspension. As part of the 2010 UK quango reforms, the board ceased to function from 2012.
Chapter 7 of the Localism Act 2011 ushered in a new approach, with local authorities (and other bodies eg the National Park Authorities and Fire and Rescue Authorities) having to adopt their own (local) code of conduct and (under s.28(6)) "arrangements" under which allegations could be investigated and decisions could be made. Standards Committees ceased to be compulsory and no sanctions are provided for in the Act, in the event that a member is found to have breached the local authority's code of conduct. The arrangements under s.28(6) must however include the appointment of an independent person whose views must be sought in respect of any allegations under investigation by the authority, prior to any decision being made in respect of those allegations.
Cllr Harvey was a Ledbury town councillor; complaints of bullying and harassment were made against her by the Town Clerk and Deputy. A decision was made to deal with allegations of bullying under a grievance procedure which was considered to be more expeditious than using the process under the authority's Code of Conduct. Cllr Harvey disagreed with this approach and self-referred a Code of Conduct complaint to the monitoring officer of Herefordshire Council (the principal authority for the area).
Ledbury Town Council proceeded under its grievance and appeals procedure, found against Cllr Harvey and imposed various disciplinary sanctions. These sanctions were maintained even after external investigators, instructed by Herefordshire Council’s monitoring officer, found that Cllr Harvey had not failed to follow the Town Council’s Code of Conduct. The successful judicial review case by Cllr Harvey challenged the Town Council's decision to use the grievance and appeals procedure. In particular the case highlighted that the procedure adopted failed to provide the safeguards of an independent person being involved both in the decision as to whether there had been a breach of the Code and in any decision to impose a sanction.
The local authority specific learning point is that the Localism Act procedures have to be adopted and given precedence in formal cases arising from "complaints" which might be considered a breach of the Code of Conduct.
There are however wider considerations raised by the case, including Cllr Harvey's rights to a fair hearing. The Councillor's concerns about the grievance procedure included; a lack of initial investigation, a failure to provide details of the complaint or the content of staff interviews which would form part of the evidence, a lack of an effective opportunity to respond to the complaint or address the decision makers, and a failure to identify the conduct upon which the adverse recommendations/sanctions were based. Paragraphs 165 onwards helpfully restate key principles that a fair procedure requires:
Complaints to be investigated and precise allegations identified
Evidence should be clearly identified and disclosed
The respondent to an investigation should be given an opportunity to respond to the investigatory process
The response to the complaint should demonstrably engage with the concept of proportionality
These are key qualities that any fair procedure, addressing breaches of a code of conduct should include both in the written procedures and the implementation of their processes.
Wingate and Evans v SRA; SRA v Malins  EWCA Civ 366 (March 2018)
Following a multitude of case law, the Court of Appeal decided that lack of integrity and dishonesty are not synonymous in the context of a solicitor's professional conduct.
This combined appeal focussed on the concepts of dishonesty and integrity in separate instances of professional breaches of the Solicitors' Code of Conduct ("the Code").
In Wingate, a law firm partner signed a loan agreement in the knowledge that he could not fulfil the contractual terms, assuming that the agreement would be superseded by a separate, orally agreed version. The Solicitors Disciplinary Tribunal ("SDT") found that the partner lacked integrity by virtue of him signing the sham agreement, applying a purely objective test, but did not make a finding as to dishonesty as the SRA did not pursue this allegation. Upholding the finding, the High Court held that Mr Wingate did not act with integrity, in breach of Principle 2 of the Code; the judgment did not refer to dishonesty.
In Malins, a partner backdated a notice of funding which was sent to the other side in order to circumvent a bar to recovery of an insurance premium where the original notice had been lost. Overturning the SDT's finding, the High Court found dishonesty and lack of integrity to be one and the same. Since the Solicitors Regulation Authority ("SRA") had failed to plead dishonesty in the first instance, the matter needed to be re-tried.
Court of Appeal decision
The case focused on whether the integrity that is expected from professionals, particularly those in professions which involve adherence to ethical standards (such as solicitors), requires more than mere honesty.
In his judgment, Jackson LJ distinguished honesty and integrity, stating that honesty is "a basic moral quality which is expected of all members of society". Integrity, on the other hand, is "a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members". Jackson LJ accepted however that "the duty of integrity does not require professional people to be paragons of virtue".
In his judgment, Jackson LJ (referring to relevant case law) set out examples of behaviour demonstrating a flagrant and deplorable departure from the standards of the profession. This behaviour, which might be regarded as reckless, will be required for a finding of a lack of integrity. A few of these examples are:
i. A sole practice giving the appearance of being a partnership and deliberately flouting the conduct rules (Emeana);
ii. Recklessly, but not dishonestly, allowing a court to be misled (Brett);
iii. Subordinating the interests of the clients to the solicitors' own financial interests (Chan).
The judgment confirms that dishonesty and integrity are no longer synonymous, and solicitors do not need to have been dishonest to breach Principle 2 of the Code. The decision, whilst providing long sought after clarity, does pose some interesting questions, such as whether the finding is confined to SRA proceedings or whether it can be extended to other disciplinary contexts such as healthcare regulation. The SRA, and other legal and financial regulators, can now continue to distinguish between lack of integrity and dishonesty charges and can choose to pursue the most appropriate allegation. Some may suggest that proving lack of integrity is a less arduous task than establishing dishonesty (even in the post Ivey v Genting world where a subjective realisation is no longer required). However, if this new approach is rolled out amongst other regulators, it will not necessarily be 'easier' to prove. Regulators will still need to ensure that any dispute as to lack of integrity is linked to the role of that professional and the duty they owe to the public.
It might also be thought that such allegations add little other than an additional aspect to prove in healthcare regulation where we already have the concept of impaired fitness to practise, sometimes described as suitability to be on the register without restriction and captured in types of impairment such as "misconduct" which have to be proved. One argument is that this existing process already effectively determines whether the registrant has met "the higher standards which society expects from professional persons and which the professions expect from their own members".
If allegations of lack of integrity are pursued, codes of conduct may be more closely scrutinised to detail what ethical standards are expected from professionals. In such cases, it is likely that it may be possible for regulators to succeed in establishing a lack of integrity given 'integrity' is a recurring feature of the codes of conduct for doctors, nurses and pharmacists, to name a few.
The Court of Appeal has highlighted the difference that misconduct in a professional or personal situation will have on sanction when there is no evidence of insight, and has provided important guidance on best practice when faced with an unrepresented registrant. The Committee's determination on insight was central both to the removal of the appellants name from the register and the decision of the Court of Appeal to dismiss the appeal.
In December 2012 the BBC aired a documentary which exposed the sales of prescription only medicines without prescriptions. The appellant was the superintendent pharmacist at one of the pharmacies that had unlawfully supplied antibiotics to an undercover reporter.
H continued to deny the factual allegations throughout the Committee hearing, instead claiming that the BBC had maliciously conspired to edit the film footage to present a false picture. The Committee's decision on the factual allegations included that her account was 'rehearsed and manipulative' and that 'she was not a credible or reliable witness.' It found that her misconduct was serious and that her fitness to practise was impaired. The GPhC registrar had recommended suspension, however the Committee instead found that the Registrant's lack of genuine insight, risk of recurrence, denial of the allegations, lack of integrity and the importance of maintaining public confidence in the profession required no less than removal.
The Court of Appeal distinguished this case from Khan v GPhC  UKSC 64, where the Supreme Court overturned a sanction of erasure after a conviction for domestic abuse. While both registrants demonstrated little of no insight, here the misconduct related to professional performance and practice that went to the heart of the margin of judgement afforded to specialist regulatory panels in determining appropriate sanctions. H's lack of insight was so profound that the Committee had questioned whether the Registrant even understood the basic reasons for the Human Medicines Regulations 2012 or the role of pharmacists in acting as a gateway to the public for the use of safe and lawful medicines.
The Court of Appeal emphasised the Committee's right to consider each case on its own merits, without being bound by decisions in similar cases. It was irrelevant whether a differently constituted panel would have opted for suspension rather than removal and, whilst there was sympathy towards the Registrant, the Committee was best placed to decide that the Registrant's lack of insight was irremediable.
The case serves as an important reminder that Court of Appeal will not intervene except in circumstances of a serious procedural failing or irregularity. The judgment also gave some useful comments on procedural best practice when faced with an unrepresented Registrant. Committees should consider carefully their obligations to ensure Registrants understand the procedure at the hearing and the possible sanctions. The Court, however, unanimously concluded that the appeal grounds relating to procedural unfairness should be dismissed as the Committee had discretion as to case management. That being said, it is not inconceivable that similar procedural difficulties in future might not be viewed as favourably.