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Sastry v General Medical Council  EWHC 390 (Admin)
It is not unusual for a healthcare professional to practise in multiple countries over the course of their careers, however standards of care and expectations of professionals can differ significantly between jurisdictions. This case explored whether a doctor would be expected to comply with GMC standards while practising overseas.
S was a GMC registered consultant oncologist. While the index incident took place in India, both before and after the incident he had practised in the UK and had maintained his GMC registration throughout. The allegations related to his treatment of a patient with lymphoma in Mumbai in 2014; S had undertaken a form of autologous cell transplant with allegedly too few stems cells. This resulted in the patient's death shortly after. The patient's son complained about his mother's treatment, resulting in the Medical Practitioners Tribunal Service (MPTS) deciding to erase S from the register.
On appeal, S argued that the MPTS had had no or insufficient regard to the fact that the incident had taken place in India; the MPTS had relied on expert evidence from the UK that S' actions amounted to misconduct, but there were no relevant guidelines in India that could be applied. The GMC's own guidelines stated that "doctors who work wholly outside the UK must abide by whatever regulatory requirements exist in the country in which they practise." However, the MPTS had not taken account of this and had not sought evidence on how such a treatment would be provided in India.
However, the High Court found that the principles of Good Medical Practice, the GMC's key guidance, were sufficiently high level that they could be adapted to apply to practice in another country. While the MPTS would need to take any local limitations or practices into context, it must apply UK professional standards when considering the conduct of a registrant. In this case the expert evidence had not focussed on S failing to meet UK guidelines on such transplants, but on the appropriateness of his actions more broadly. Furthermore, the MPTS' decision had in part been based on S' oral evidence, which it had found to be evasive and unreliable; this was not affected by the index events taking place in India.
With regard to the lack of evidence on the "Indian context" (as described by S' counsel), the High Court referred to R (Johnson) v NMC  EWHC 885 which found that there was no independent duty of the regulator to gather evidence, providing that the registrant had a fair hearing based on all the facts of the case. In this case, the GMC's position had been that the doctor was required to meet the GMC's standards, rather than those for Indian doctors. In any event S had had the opportunity to provide evidence on the "Indian context"; he had obtained expert evidence from a consultant in India, but the MPTS had placed no weight on this evidence as the expert had not been reliable on the basis that he was "neither an independent, nor impartial expert witness".
It is unusual for a UK regulator to bring proceedings relating to acts which take place entirely overseas. However professionals and those employing them should note that their actions overseas could affect their UK registration. This may be particularly relevant for professionals working for multinational companies who may be required to practise overseas, or those involved in health tourism or in relatively unregulated jurisdictions who maintain UK registration for quality assurance/marketing purposes who work entirely outside the UK.
In this recent case, Mostyn J re-affirmed the long-standing principle that respondents at regulatory hearings should be afforded an opportunity to explain or defend themselves during cross-examination in response to serious allegations made against them.
Mr Sait, a consultant orthopaedic surgeon, appealed against a Medical Practitioners Tribunal (the Tribunal) finding that his fitness to practise was impaired by virtue of misconduct. The appeal focussed on the Tribunal's finding of fact that his attempt to progress a relationship with a patient was sexually motivated. These proceedings followed a complaint by a patient who alleged that, although she had initially developed a good doctor-patient relationship with Mr Sait, his behaviour had become increasingly inappropriate. The patient stated that on one occasion he called her 'pretty' and on another had hugged her and attempted to kiss her. These allegations were put in writing to Mr Sait, however his response did not persuade case examiners that the matter should not be referred to the Tribunal.
The first of the appellant's grounds was the Tribunal's failure to observe essential standards of procedural fairness, in that the alleged sexual motivation was never put to him in either cross-examination or the Tribunal's own questions. He was consequently deprived of the opportunity to explain or defend himself against the allegation.
Mostyn J described the failure to cross-examine Mr Sait on this issue as 'remarkable' and declared that it was 'procedurally unfair to such a degree that the appeal must be allowed on this ground'. In support of his view, Mostyn J cited the case of Chen v Ng  UKPC 27, in which the Privy Council held that a decision of the Court of Appeal of the Eastern Caribbean was procedurally unfair, as the reasons given for it in the judgment had not been put to one of the parties in cross-examination.
Taking the unusual step of citing the US case, Crawford v Washington (2004), Mostyn J iterated that the best way of assessing the reliability of evidence is via 'testing in the crucible of cross-examination'. Moreover, Mostyn J stated that 'if the allegation is serious it must be put in cross-examination to the accused doctor. The content of the doctor's replies, as well as his demeanour, will equip the Tribunal to decide whether the allegation is, or is not, true'.
Mostyn J disagreed with the respondent's argument that, as Mr Sait had denied calling the respondent 'pretty' he would be unlikely to admit to having had a sexual motivation and therefore cross-examination on this issue would have been 'a pointless and futile exercise' . He then cited Lord Herschell's pronouncement in Browne v Dunn  6 R 67 that 'cross examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination'.
This decision serves as a reminder that failure to put serious allegations to a defendant during the course of cross-examination will render any finding of their truth as having been reached unfairly. Regulators should therefore keep this important aspect of procedural fairness in mind during hearings and legal advisors may be wise to prompt regulatory panels to do this by adding a reminder of its importance into their training and guidance.
R (British American Tobacco (UK) Ltd) v Secretary of State for Health  EWHC 3586 (Admin)
In a week in which the UK Supreme Court is considering the rights of third parties to access court documents, we consider a recent judgment on the issue in the high profile tobacco 'plain packaging' judicial review.
The Civil Procedure Rules (CPR) grant non-parties access to particular Court documents (namely Statements of Case and Court Orders) as of right. All other Court documents can be accessed only at the discretion of the Court. The Courts have recently exhibited an inclination to exercise the discretion favourably to those seeking disclosure. The recent BAT decision has the potential to open the door for non-parties even further, particularly in judicial review proceedings of public importance.
Various companies in the tobacco industry sought judicial review of the Standardised Packaging of Tobacco Products Regulations 2015, which imposed limits on the advertising on the packaging of tobacco products. The tobacco companies and the Secretary of State for Health each relied upon their own competing expert evidence that set out economic analyses of the effects of the impugned legislation. The experts' reports were central to the issues considered in the claim and were referred to extensively during the hearings.
Campaign for Tobacco Free Kids (CTFK) filed an application to the Court seeking access to both experts' reports. 5.4(C)(1) of the CPR grants non-parties to a proceeding access to orders made by the Court and the Statements of Case filed by the parties. CTFK had already accessed Statements of Facts and Grounds as of right pursuant to 5.4(C)(1) of the CPR. To access the experts' reports, CTFK needed to apply under CPR 5.4(C)(2) for the court to exercise its discretion to grant disclosure. The Secretary of State opposed CTFK's application on the basis that the court did not have power to make such an order since the documents were not "court records" for the purposes of CPR5.4(C)(2). The Court granted CTFK access to the experts' report that it sought.
Mr Justice Green explained that 5.4(C) of the CPR is an expression of the broader notion of open justice, which is an unwritten constitutional principle. As a constitutional principle, the Courts have inherent jurisdiction to determine how it is to be applied. Thus, the court has power to grant such disclosure independent of the provisions of the CPR, which render irrelevant the Secretary of State's argument that the documents did not fall within the scope of CPR5.4(C).
Green LJ observed that Courts are increasingly relying on documents that it reviews prior to the relevant hearing and does not have read in open Court. That tendency is against the notion of open justice. Observers in the court cannot properly follow the hearing and the press face difficulties in accurately reporting on it. In these judicial review proceedings, the expert evidence was referred to in the pleadings, evidence and submissions, but not read during open Court.
Importantly, the judge remarked that in cases such as that at hand, the principle of open justice means that the discretion should be exercised presumptively in favour of disclosure. That the documents directly related to an issue of public importance further strengthened the weight of the presumption. The economic analysis in the expert evidence and the consequent conclusions made by the Court had far wider implications than the judicial review matter for which they were filed.
Clearly, the right to access Court documents is not absolute. For example, disclosure may be refused to protect individuals from harm or to avoid a miscarriage of justice in a future trial. In respect of CTFK's application, there was no such reason to refuse disclosure. The absence of any countervailing reason was the key rationale supporting his order in favour of disclosure.
Although the court's reasoning and the basis for a more open-handed approach to access is persuasive – particularly in applications for judicial review, where the court only rarely hears live evidence – it should be noted that on 18 and 19 February the Supreme Court is hearing an appeal in Cape v Dring on the same issue. Parties and litigators alike will be greatly assisted by further principled guidance from the Justices.
Financial Reporting Council Ltd v Sports Direct International Plc  EWHC 2284 (Ch).
In a widely reported judgment, the High Court allowed the UK's audit regulator to access privileged client materials in order to carry out an investigation into the conduct of the client's auditor. The case is a timely reminder that privilege cannot necessarily be relied on as an objection to the production of documents to regulatory bodies.
This case involved an application by the Financial Reporting Council for Court Order requiring disclosure of certain material from Sports Direct International plc ("SDI"). The FRC was investigating the conduct of Grant Thornton in relation to its audit of SDI and as part of this investigation had requested disclosure of material from SDI. SDI had refused to provide certain documents on the grounds of legal advice privilege, which the FRC disputed. The court considered the scope of legal advice privilege in deciding whether to grant an order requiring SDI to disclose the documentation.
The court reached conclusions on three key points:
Legal advice privilege did not attach to documents purely by virtue of those documents having been attached to emails passing between SDI and its lawyers. This is an unsurprising conclusion in line with other recent cases that have considered similar issues;
That where SDI had made a limited waiver of privilege by sending copies of documents to Grant Thornton for the purposes of the audit, this limited waiver did not extend to the FRC as the regulator of the auditor. In reaching this decision the court considered whether or not the regulatory process of investigating the auditor's conduct during an audit was part of the same process as the audit itself. The Court concluded that they were fundamentally separate functions, entirely distinct from each other. Therefore any waiver of privilege made to the regulated entity did not extend to the regulator.
That the production of documents to a regulator by a regulated person solely for the purposes of a confidential investigation by the regulator into the conduct of the regulated person is not an infringement of any LPP of clients of the regulated person in respect of those documents. The same is true of the production of documents to the regulator by a client. Therefore disclosure of the documents to the FRC would not infringe any privilege of SDI (and was consistent with previous authorities such as Parry-Jones v Law Society and R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax). It should be noted that this conclusion was only reached for documents where the privilege belonged to a client of the regulated person, not where the regulated person was claiming their own privilege over material.
This final point in particular has potentially significant implications for regulators, those subject to regulation and their clients. It may discourage clients from disclosing privileged material to regulated persons in case they should subsequently be required to disclose the material to their regulator. It also raises unanswered questions about the extent to which the regulator would be entitled to use the privileged material that is disclosed. The reasoning in the judgment was clear that the documents could only be used for the purposes of the investigation for which they were being sought. However this does raise the question of how these documents would be dealt with where any investigation should lead to a public hearing which might require consideration of the material or where the regulator itself was subject to an order requiring it to disclose material onwards, for example if related criminal investigations were being conducted.
The Court granted permission for SDI to appeal its decision on the third point - that appeal is outstanding.
This decision gives guidance to panels that investigate individuals' misconduct. Here it was held that the Police Misconduct Panel's decision in relation to the conduct of a police officer, DC Smith, was so irrational that the judge quashed the decision and ordered that a new Panel hear the case.
DC Smith was in charge of investigating two alleged rape cases (the "Cases"). Witness A and Witness B were the mother of the first complainant and the sister of the second, respectively. In relation to Witness A, DC Smith allegedly: (i) communicated with her in a sexualised manner on his personal phone; (ii) sought to form a sexual relationship with her; (iii) untruthfully told her that he had split up with his partner; and (iv) said that it was vital no-one knew if they met up. This constituted gross misconduct and breached the behavioural standards of honesty and integrity, duties and responsibilities and discreditable conduct. In relation to Witness B, it was alleged that DC Smith repeatedly communicated with her in a flirtatious manner using his work phone. This constituted gross misconduct and breached the behavioural standards of duties and responsibilities and discreditable conduct.
As to Witness A, DC Smith said that his texts to her were flirtatious, but not sexualised. He said he suffered from anxiety and depression and the texting boosted his self-esteem. He also said that he did not seek to form a sexual relationship with her, regardless of what impression his texts gave. Additionally, although he accepted that he lied when saying he had split up with his partner, this was not a breach of behavioural standards, just morally questionable. As to Witness B, he accepted he engaged in repeated flirtatious texting, but said he never had any intention of meeting up with her for non-policing purposes and that only 170 out of the 575 texts to her were of a personal nature.
At the hearing, the Panel held that DC Smith's conduct: (i) as to Witness A, amounted to gross misconduct and discreditable conduct, but did not breach honesty and integrity; and (ii) as to Witness B, amounted to misconduct and discreditable conduct. The sanction given was a final written warning.
The Chief Constable of Northumbria Police applied for this decision to be judicially reviewed. Leave was granted on the following grounds: (1) the Panel were irrational in not finding that there had been a breach of the behavioural standards of honesty and integrity and duties and responsibilities in relation to Witness A; (2) it was irrational for the Panel not to find that the allegation in relation to Witness B amounted to gross misconduct; (3) inadequate reasons had been given in relation to the failure to find a breach of the behavioural standards of honesty and integrity and duties and responsibilities in relation to Witness B; and (4) the final sanction was irrational. These grounds were considered at the substantive hearing.
Ground 1: Krammer J accepted the applicant's submission that the Panel failed to consider the fact that DC Smith encouraged Witness A to lie about any potential meetings, and that this is what should have led to a finding of a breach of honesty and integrity. Instead, the Panel focused only on the fact that DC Smith lied to doctors and work colleagues about his poor mental health. This was found not to breach honesty and integrity because the Panel said it was more to do with credibility. The Panel said that the issue of encouraging Witness A to lie was only speculative, because it was not carried through. However, Krammer J concluded that as there was an agreement to lie, it was not speculative, but concrete, and the Panel was incorrect not to give weight to this when deciding if honesty and integrity had been breached. Due to these shortcomings, Krammer J found that the Panel had been irrational when coming to a decision on whether honesty and integrity had been breached. In terms of the allegation that DC Smith had breached his duties and responsibilities through his texting with Witness A, Krammer J said that this had been entirely left out of the Panel's decision and no conclusion on this had been made. Overlooking this was held to be irrational and Wednesbury unreasonable.
Ground 2: Krammer J agreed with the applicant that the Panel had come to the conclusion that DC Smith's conduct amounted only to misconduct, based simply on the level of DC Smith's flirtation. He found that instead the Panel should have come to their decision after considering reputational consequences and what the guidance says about using your position to have improper relationships with the public. Krammer J agreed that as the Cases concerned alleged rape, this made the situation more serious. Therefore, he held that the Panel acted irrationally because they had failed to take into account relevant matters, thus reducing the seriousness of the allegations.
Grounds 3 and 4: As to ground 3, Krammer J found that the Panel failed to give weight to, and put forward as reasons, the factors that should have been considered. As to ground 4, Krammer J held that although the Panel had recited the relevant test and guidance, they had not followed it properly. In absence of reasons as to why the Panel departed from it, the Panel's decision was faulted.
The judgment serves to remind misconduct panels of the importance of (i) carefully considering all of the allegations against an individual before coming to a decision and sanction and (ii) ensuring the reasons given for that decision and sanction are wholly appropriate and line with relevant guidance, for failing to do this could end with a quashing order.
Co-authored by Holly Bontoft and Lauren Howes (trainee)
The Court of Justice of the European Union (CJEU) has recently ruled that the principle of automatic recognition in Directive 2005/36 requires a Member State to accept certain part time and simultaneous qualifications from other Member States (i.e. where passing a single module counts towards two separate qualifications), even if such a method would not usually be permitted. The Directive emphasises that it is for the home Member State to assess whether a qualification meets the basic requirements for automatic recognition, and other Member States are required to accept their decision.
Directive 2005/36 on Mutual Recognition of Professional Qualifications (MRPQ) allows for certain professional qualifications to be recognised across the EU, making it easier for professionals to exercise their freedom of movement. For certain professions (including a number of healthcare professions such as doctors, dentists, pharmacists and general care nurses) this principle has been extended to automatic recognition; for these professions, the Directive sets out the minimum training requirements (including subjects, length of training and minimum hours of education) for each profession, and a qualification from one Member State must be accepted by other Member States as meeting those requirements.
Mr Preindl first obtained a degree in dentistry from the Medical University of Innsbruck in Austria in January 2013. In August 2014 the same institution awarded him a second degree in medicine, on the basis that many of the courses taken as part of his degree in dentistry also counted towards a degree in medicine; taking two qualifications simultaneously and applying courses to both qualifications was specifically permitted in Austrian law. Shortly after each qualification Mr Preindl applied for them to be recognised by the Italian Ministry of Health. While the Ministry recognised the dentistry qualification, it refused to recognise the medicine qualification on the basis that he could not have met the minimum training requirements in the time since his dentistry qualification; Italian domestic law did not allow training to count for two separate qualifications as in Austria. After appealing to the Italian Courts the matter was referred to the CJEU.
The CJEU noted that MRPQ specifically allowed for part-time training, as long as the overall duration, level and quality were not lower than the requirements for full-time training. Furthermore, the Directive did not specifically preclude simultaneous enrolment in multiple training courses. The principles of MRPQ prevented a Member State from requiring an individual to meet further domestic requirements (i.e. that they were only enrolled on one training course at any one time) than those set out in the Directive.
The CJEU went on to find that the responsibility for ensuring that qualifications met the requirements for automatic recognition was with the home Member State (i.e. where the qualification was granted) and the receiving Member State could not question the merits of this decision as to do so would seriously jeopardise the principles of MRPQ and automatic recognition.
At present a vast number of professionals working in the UK, particularly in the health sector, are registered on the basis of EU qualifications (notwithstanding the impact of Brexit); MRPQ allows for their recognition and registration much more quickly than international applicants. This decision will benefit EU nationals looking to work throughout the EU and furthers the principle of automatic recognition. Regulators will need to consider this decision and focus on the fact that a qualification has been recognised, rather than whether it meets the criteria for recognition, even when it may go against the UK requirements for professional education.
This recent decision gives guidance to regulators who are intending to publish a document that has the potential to damage a third party's reputation.
Maxwellisation, a process by which those subject to a potential criticism in a public inquiry are given an opportunity to make representations in response, is an aspect of the public law duty of fairness.
In 2016 the FRC began an investigation into alleged misconduct by PwC and Mr Stephen Denison in relation to the audit and financial statements of BHS. On completion of the FRC's investigation, PwC and Mr Stephen entered into a settlement agreement with the FRC which included a 38-page particulars of fact and acts of misconduct (together the "Sanction Documents"). In accordance with its publication policy, the FRC intended to issue a press release and then publish the Sanction Documents on its website.
The FRC sent Taveta (a subsidiary of which had owned BHS) a copy of its proposed press release and the Sanction Documents, and notified Taveta that they were soon to be published. Taveta responded by identifying statements in the Sanction Documents that it claimed were "materially inaccurate", complaining that they contained "serious criticisms" of Taveta and its personnel, without Taveta being afforded the chance to respond. The FRC did not accept Taveta's complaints and refused to amend to the Sanction Documents. Taveta applied to the court (i) for permission to seek judicial review of the FRC's alleged failure to provide a fair opportunity to make representations, and (ii) for interim relief to restrain the FRC from publishing the parts of the Sanction Documents that criticised Taveta or its personnel.
Nicklin J first granted permission for the application for judicial review to proceed. The principle issues were whether the FRC owed a duty of fairness to Taveta (in its capacity as a third party which was not itself subject to FRC investigation), and whether the FRC had satisfied or breached that duty. Nicklin J acknowledged that it is in the public interest for the FRC to make public statements of sanctions that are imposed on an auditor and the reasons for it, but that additional requirements of fairness to a third party will arise when:
(i) The criticism of the third party is necessary; and
(ii) It is impossible or impractical for the regulator to protect the third party's interests by anonymising him/her/it.
Nicklin J found that it was arguable that the FRC had breached its duty: Taveta was given three days to respond to the Sanction Documents (the minimum period), and he concluded that this advance notice was driven more by a concern to avoid a complaint by Taveta rather than to provide it with a fair opportunity to respond to the documents.
The application for interim relief failed. Nicklin J concluded that the threshold for obtaining an injunction to prevent a public authority from publishing information in the exercise of its functions was "very high indeed". He explained that in order to be granted interim relief "the most compelling reasons" or "exceptional circumstances" were required, and whilst he had serious reservations about whether the bar should this high, he could not depart from the authorities. Although he found that the Sanction Documents contained defamatory statements, these were not exceptional circumstances and therefore Taveta could not be granted an interim injunction. Subsequently, on 10 August 2018, the FRC published the Sanction Documents on its website (albeit with a disclaimer).
This case serves to remind regulators that where it is necessary to criticise a third party in its post-investigation publication it is prudent to ensure a process of Maxwellisation is carried out as the duty of fairness can extend to third parties. This case also illustrates the competing interests that can arise when a regulator investigates. Whilst there is a public interest in transparent regulatory investigations, this must be balanced against the interests of those who are potentially defamed in publications; these bodies will want to protect their reputation and be given time to consider the criticisms against them.
Although the judgment provides a useful guide for the process regulators should follow where they hand down judgment, it may be more difficult to apply in the context of other regulators who deliver 'live' judgments at the conclusion of proceedings where third parties may not have a similar opportunity to comment. Given the interests at stake it is likely that we will see similar issues come before the courts again and the case may lead to greater caution in relation to any determination that criticises a third party.
Co-authored by David Northfield and Lauren Howes (trainee)
SRA v James; SRA v MacGregor; SRA v Naylor  EWHC 3058 (Admin)
The Solicitors Disciplinary Tribunal's judgment in the case of Sovani James made a number of sector headlines; Ms James had been dishonest as to the progress of a matter but was not struck off due to the impact a particularly poorly managed workplace had on her mental health. The High Court has now heard appeals on this and two similar cases, finding that although mental health should be considered when deciding whether a solicitor has acted dishonestly, in these cases it was not sufficient to justify reducing a sanction from removal to suspension.
The three cases of James, MacGregor and Naylor followed similar patterns: in each case the solicitor had been dishonest in the conduct of their work, which had subsequently been reported to the SRA. In each case the solicitor stated that they had been suffering from poor mental health as a result of workplace conditions (including poor management and high workloads) which had led to their dishonesty. As a result, the SDT had found that there were "exceptional circumstances" (as referred to in SRA v Sharma  EWHC 2022) not to strike them off, but instead to suspend. The SRA appealed each of these decisions to the High Court under Section 49 of the Solicitors Act 1974.
The High Court quashed each order for suspension and replaced them with striking off orders. In a clear decision, Lord Justice Flaux returned to the fundamental case law set out in Sharma and Bolton v Law Society  1 W.L.R. 512, which found that a finding of dishonesty would lead to striking off in all but the most exceptional cases. The reason for this again went back to Bolton; the principal purpose of the regulation of the profession was to maintain the reputation of the profession and to address to the risk of harm to the public.
With regard to the registrants' mental health, Lord Justice Flaux found that the medical evidence would go to the finding of dishonesty, and particularly whether the registrant was able to recognise right from wrong at the time of their actions. In each case the expert reports found that the individuals would have been able to recognise at the time that their actions were wrong, even if the difficult environment had influenced their decision to take and maintain the wrong course. Because they could tell the difference between right from wrong, they met the test of Ivey v Genting  UKSC 67 and could be considered to have been dishonest.
When considering sanction, the Court acknowledged that the registrants' working conditions and work related-stress or depression could be considered as mitigation. However, because mental health was considered at the misconduct stage, it could not then be considered as an exceptional circumstance at the sanction stage (at least without further exceptional circumstances). When considering whether a case could be considered to fall within the narrow remit of exceptional circumstances, the most significant factor would be the nature and extent of the dishonesty, not the reasons for it.
While this case does not change the underlying principle that there must be exceptional circumstances for a solicitor not to be struck off for dishonesty, it is a somewhat stricter approach to the test than has been seen in recent case law (for example Lusinga v NMC  EWHC 1458 (Admin), which suggested different types of dishonesty might be recognised in healthcare professional regulation), and certainly stricter than the approach the SDT has taken recently. Furthermore, in the past 12 months there has been more of a focus on mental health and wellbeing in the workplace, which may also make this decision appear a little harsh on the registrants in question (particularly Mr Naylor, who had told his employers that his workload had left him feeling "broken", but was still given more cases).
While this case remains good law and reinforces that the number of dishonesty cases with exceptional circumstances should remain as small as possible, it may lead to the SRA considering how it approaches the impact mental health may have on conduct. It is certainly willing to recognise that health can impact on, and may lead to other types of misconduct such as client service and competence. Similar to the major healthcare regulators, the Bar Standards Board already separates disciplinary issues from health matters, and can impose restrictions on practising rights that are entirely non-disciplinary and private. Although s.31 of the Solicitors Act 1974 empowers the SRA to make rules regarding ‘fitness to practise’ which would allow for a similar approach, the SRA has not yet made any such rules and has not indicated to date that it proposes to do so, With most professions now paying closer attention to health and wellbeing in the workplace, it may be that this judgment and the wider issues of stressful environments and workplace culture need to be considered more fully as part of the regulatory landscape.
Although in applications for judicial review most of the information and material which falls to be disclosed pursuant to the duty of candour will be in the hands of the Defendant public authority, the Defendant is not the only party subject to the duty. While there is a small body of authority regarding the Claimant's duty of candour, only one case has sought to address the extent to which it encompasses interested parties ("IP"/"IPs").
In Belize Alliance of Conservation NGOs v Department of the Environment  UKPC 6 the Privy Council considered whether the IP (a developer called the Belize Electricity Company Limited ("BECOL")) was subject to the duty of candour. The Claimant ('BACONGO') argued before the Privy Council that the Defendant's ('DoE') plan to build a hydro-electric dam on the Macal River in partnership with BECOL was unlawful. BACONGO appealed on the basis that the environmental impact assessment ("EIA") which the DoE was required to carry out was so deficient that it could not reasonably form the basis of the decision to approve the plan. Throughout the whole process, DoE and BECOL worked closely together.
Although the Committee dismissed BACONGO's appeal, Lord Walker concluded that:
"Although BECOL has been put forward as an independent commercial concern, it is clear from the evidence […] that there is a very close identity of interest between these parties [BECOL and DoE]. They are in effect partners in an important public works project […] BECOL was also, in my opinion, under a duty to make candid disclosure to the court."
The judgment does not expressly address whether an interested party is subject to an at large duty of candour or whether the operative factor is the fact that the IP shares a commonality of interest/partnership with one of the parties.
Nevertheless, the public interest nature of judicial review, and the expectation that the proceedings are conducted with 'all cards face up on the table' militates strongly in favour of the suggestion that the duty is not circumscribed based on the status of a given party. It is difficult to think of any principled reason why a party with a distinct interest in the outcome of a case and who may have material relevant to its adjudication should be able not to disclose it. Certainly, in a commercial case in which I was recently involved, two Lords Justice of Appeal strongly 'encouraged' an IP's counsel to think carefully about her suggestion that her client was not subject to the duty in respect of material which was potentially highly probative (and which the IP ultimately voluntarily disclosed). Such a suggestion encapsulates the sort of triumph of form over substance that, happily, the courts have progressively abandoned.
Co-authored by David Northfield and Lauren Howes (trainee)
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.