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Brexit "is not popular with large sections of the 'competition specialist' community".  So observed Dr Michael Grenfell, Executive Directive of the Competition and Markets Authority, with wry understatement, in a recent speech (here) on the role of the CMA post-Brexit.

Whilst providing a generally upbeat assessment of the opportunities that will arise for UK competition lawyers as a result of Brexit, Dr Grenfell noted that it was perhaps inevitable that the competition law community should focus on the negative since the practice of competition law has, historically, been bound up with our membership of the EU.  Disengaging competition law and policy from EU membership is, says Dr Grenfell, hard to take for many people. 

This is hardly surprising.  The modern law of competition in the UK – as embodied in the Competition Act 1998 – mirrors almost word-for-word the prohibitions of restrictive agreements and abuse of dominance in what are now Articles 101 and 102 of the Treaty on the Functioning of the European Union - prohibitions which were drafted with considerable prescience by the founders of the European Economic Community in the 1950s and which have been the subject of a vast body of judicial interpretation by the European Courts.

So, for many UK competition practitioners, who are steeped in the institutional and legal constructs of the EU Treaties, the idea of standalone UK competition law may be psychologically hard to come to terms with.

But help is at hand (at least for practitioners in England and Wales).  Far from being a recent European imposition, competition law has, it seems, roots deep in the common law, back even to the Magna Carta. 

It was a case involving playing cards, an Elizabethan courtier and a London haberdasher.[1]

Towards the end of the reign of Elizabeth I, one Mr Edward Darcy, a member of the Royal Household, was granted a licence by the Queen to import and sell all playing cards to be marketed in England. This arrangement was solicited by Mr Darcy and had been granted in part to alleviate the Queen's concern that card-playing was becoming a problem among her subjects.  Her Majesty, in Her wisdom, apparently believed that having one person control the trade would help to regulate the activity.  In other words, she created a monopoly. 

When a haberdasher, Mr Thomas Allin, sought to make and sell his own playing cards in England, Darcy sued for damages in reliance on his exclusive licence from the Queen.  A pretty strong case, you might think, given the Royal approval Mr Darcy had obtained.  However, the Court found against the plaintiff, striking down the operation of the royal warrant and holding that:

"If a grant be made to any man to have the sole making of cards or the sole dealing with any other trade that grant is against the liberty and freedom of the subject that before did use, or lawfully might have used that trade, and consequently against Magna Carta. Generally all monopolies are against that great charter because they are against the liberty and freedom of the subject and against the law of the land." (emphasis added)

So, there you have it: 400 years ago the common law, invoking the Magna Carta itself, recognised the problem of monopolies and outlawed them.  Competition law can, it turns out, join the rules of Association Football, the Industrial Revolution and chopping off the King's head as something that the English did first!

Furthermore, in the specific reasons given by the Court in Darcy v Allin for objecting to monopolies, the antecedents of the modern objectives of competition policy can clearly be seen:

  • Such a monopoly prevents persons who may be skilled in a trade from practicing their trade, and therefore promotes idleness.

These days, reducing idleness does not seem to be top of the list of competition policy concerns. But if idleness mean lack of economic activity and lack of economic activity means inefficiency, then this is of course precisely what competition policy is designed to avoid.  By helping to remove barriers to trade, competition law promotes entry by dynamic competitors increasing overall efficiency.

  • Grant of a monopoly damages not only tradesman in that field, but everyone who wants to use the product, because the monopolist will raise the price, but will have no incentive to maintain the quality of the goods sold.

Whilst the previous reason might be thought to be an expression of the producer interest (protecting competitors), this reason classically emphasises the consumer interest, acknowledging the importance of both price and quality as parameters of competition.

  • The Queen intended to permit this monopoly for the public good, but she must have been deceived because such a monopoly can be used only for the private gain of the monopolist.

The idea of deceiving the Monarch might seem a little curious but it was probably a polite way for the Court of the time to say that HRH had no prerogative to grant the licence because it was at odds with Magna Carta and therefore ultra vires.  However, by acknowledging the private gain of the monopolist, the Court recognises the benefits of monopoly for the monopolist and perhaps sows a conceptual seed for future mechanisms to recover that gain through fines and private damages claims.

  • It would set a dangerous precedent to allow a trade to be monopolized - particularly because the person being granted the monopoly in this case knew nothing about making cards himself, and where there was no law that permitted the creation of such a monopoly.

If you are going to grant a monopoly, it had better be to someone who knows what they are doing.  Translated into modern language, is this not an expression of the idea that if the State grants special or exclusive rights, thereby tying up a market, it should select the person to whom that right will be granted using open, transparent and objective criteria?  Some form of public procurement procedure, perhaps? 

Levity aside, the serious – and obvious – point is that the countries which now comprise the United Kingdom have for centuries been an open market economy in which competition plays an integral role. For all the legal and institutional upheaval involved, Brexit is unlikely to change that.

[1] Edward Darcy Esquire v Thomas Allin of London Haberdasher (1602) 74 ER 1131 sub nom Case of Monopolies

 

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Written by Rheanne Laybourn, paralegal

Hussain v GPhC [2018] EWCA Civ 22

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.

Background

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.

Insight

The Court of Appeal distinguished this case from Khan v GPhC [2016] 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. 

Learning points

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.

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Online doctor services are very useful for many thousands of people, but also face real problems in adequately treating people when a physical examination is not possible.  There is a string of cases highlighting the importance of doctors undertaking appropriate examinations before reaching a diagnosis or prescribing: we take a look at those cases and assess what online doctors can do to ensure the safety of their patients and limit their risks.

There have been three recent cases where doctors have faced prosecution for gross negligence manslaughter after missing diagnoses that have resulted in the death of the patient.  In R v Rudling [2016] EWCA Crim 741, a GP did not undertake a Friday afternoon home visit of a boy whose mother reported a range of symptoms; she instead suggested that the boy attend the surgery on Monday morning.  The boy sadly died on Saturday morning of acute Addison's disease.  An expert report seen by the Crown Court suggested that she should have seen the boy to obtain a 'global sense' of his condition and as a matter of risk management.  However, the Court of Appeal ultimately concluded that, while the lack of examination of the patient was serious, the information available to the doctor at the time was not enough for her to consider that the situation was life threatening, and she was acquitted.

In R v Rose [2017] EWCA Crim 1168, the defendant was an optician who failed to adequately review retinal photos of a patient's eyes which showed evidence of optic nerve swelling.  If this had been noticed and escalated earlier, the patient's hydrocephalus would have been discovered.  Sadly, the patient later died of the condition, which if identified earlier would have been treatable. Considering the Rudling case above, the Court considered that in order to be found guilty of gross negligence manslaughter it must be reasonably foreseeable that not adequately reviewing the retinal photographs would give rise to a serious and obvious risk of death.  While she successfully appealed the original conviction and was ultimately not found guilty of gross negligence manslaughter, Ms Rose is currently suspended from practice by the General Optical Council pending a fitness to practise hearing.

Finally, the decision in R v Bawa-Garba 2016 EWCA Crim 1841 is already well known.  Dr Bawa-Garba was working in a busy paediatric admissions unit when she failed to recognise that a young boy was in septic shock, despite seeing blood test results that suggested this may be the case.  She also failed to reassess him after the test results or seek advice from a consultant.  The Crown Court and the Court of Appeal found that, as the boy's death occurred significantly sooner because he had not received the necessary treatment, Dr Bawa-Garba was guilty of gross negligence manslaughter.  In the follow-up case, General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin), the High Court found that it was appropriate to remove Dr Bawa-Garba from the medical register on the basis of the Crown Court's findings that her actions had been "truly exceptionally bad".

These cases are clearly extreme examples, however they all go to indicate the importance of considering all the relevant information when coming to a clinical decision.  In particular, the Rudling decision shows the dangers of assessing patients remotely when it is not possible to conduct a physical examination.  This will be a key risk for doctors working for online GP services, who may have limited information about patients, particularly if they do not have any previous medical records for the patient.

The GMC provides further guidance for doctors engaged in remote patient consultations.  In particular it emphasises that a doctor must satisfy themselves that they can make an adequate assessment, and should consider the limitations of a result consultation, as well as their knowledge of the patient, when making any diagnoses or prescriptions.  Doctors will need to consider carefully the risks of diagnosing and prescribing when they have not conducted a physical examination.

It is for this reason that many online GP systems limit themselves to relatively minor conditions that can be considered over the phone.  However when considering any patient, even those with apparently minor conditions, online and telephone GPs will need to consider carefully what other symptoms may actually be present but not immediately obvious.

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Clinton v General Medical Council [2017] EWHC 3304 (Admin)

A recent High Court decision considered when procedural errors in a disciplinary proceeding will require a hearing to be stayed.  While the Court relied on accepted case law, it appears to have set a high standard for when a stay will be appropriate and has given considerable discretion to the tribunals.

C appeared before the Medical Practitioners' Tribunal Service (MPTS) in relation to allegations from three individuals that he had conducted unnecessary and sexually motivated physical examinations.  During cross-examination of the complainants it became clear that each complainant had received the GMC's decisions to investigate all three complaints, including details of each other's complaints and evidence.  C applied for the proceedings to be stayed on the basis that each complainant's evidence could be tainted by their knowledge of the other allegations.  The GMC resisted and, after criticising the GMC's rules on disclosure, the MPTS dismissed the application on the basis that the public interest in having effective disciplinary proceedings outweighed the public interest in maintaining public confidence in the regulatory system.  C applied for permission for judicial review and this was granted after an oral renewal.

The High Court considered in detail the existing case law on the power to stay proceedings on the grounds of abuse of process, and most particularly the decision of the Supreme Court in R v Maxwell [2010] UKSC 48.  The Supreme Court there reaffirmed that there were two grounds for staying cases: "(i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case."  This had been expanded on in Warren v AG of Jersey [2011] UKPC 10, which confirmed that the second ground was in the court's discretion, having balanced the interests in play.  While most of the case law referred to was from the criminal law jurisdiction, following CHRE v GMC and Saluja [2007] 1 WLR 3094, the Court proceeded on the basis that the applicable principles also applied to disciplinary proceedings.

Where an application for a stay fell under the second ground, i.e. that the procedure offends the Court's sense of justice and propriety, the Wednesbury unreasonableness standard applied: "The proper approach is to consider whether the tribunal's decision was perverse or one that any reasonable tribunal, properly directing itself, could have reached".  However, the Court found that "When it comes to assessing whether the integrity of the system has been compromised to such a degree as to render it morally repugnant to continue proceedings, the specialist tribunal is well placed to decide that issue." 

While there were serious procedural defects in this case, this in itself was not sufficient for a stay to be granted.  The tribunal must also "consider whether, in the light of those defects, the public interest in ensuring that standards are upheld and grave crimes are prosecuted is outweighed by the public interest in the integrity and the fairness of the process."  In this case, the Court noted that each complainant was giving evidence on different incidents, and none of them had materially changed their evidence since being informed of the other complaints.  On this basis, the Court did not consider that the Tribunal's decision not to grant the stay was not unreasonable or perverse, and the application was refused.

While the legal principles referred to in this case are clearly settled, the Court has set a high bar for when a stay may be considered appropriate.  The potential contamination of witness evidence is a serious issue, particularly in behaviour-related cases when there may be little or no documentary or expert evidence, and regulators must give careful consideration when preparing cases as to how they will prevent this.  It appears that the crucial fact in this case was that the witnesses were giving evidence on separate events.  As such, regulators should be cautious in relying on the high bar set in this case to avoid re-hearings in light of flaws in process.

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David Northfield and Megan Ward have published a short piece on matters those involved in crowdfunded judicial reviews need to take into account. 

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The High Court recently determined the case of General Medical Council v Lamming [2017] EWHC 3309 (Admin), which overturned the decision of the Medical Practitioners Tribunal ("MPT") in granting a dishonest doctor restoration to the medical register.

Background

Dr Lamming was originally suspended from the medical register for dishonestly claiming he had a PhD and for various other false claims about his qualifications and experience. A panel hearing the original proceedings found that he had showed little insight into his actions.

Following his return to practice, in 2007 he was disciplined again in relation to retaining funds paid to him by the NHS in error. His dishonest retention of this money, and further untrue explanations as to why he thought he was entitled to it, resulted in him having his name struck off the GMC's medical register.

Application for restoration

In 2017, Dr Lamming applied for restoration to the medical register. The GMC opposed this application, predominantly on the basis of his dishonest past conduct and demonstrated lack of insight into his dishonest behaviour.

The MPT considered the inconsistencies between his evidence during the hearing in 2007 compared to the explanations he was putting forward at the 2017 hearing, which the GMC argued showed a continued propensity to be dishonest. Despite this, the MPT granted the application for restoration to the register. The MPT's reasoning was that it was not appropriate for the 2007 Panel's decision to be 're-litigated' and Dr Lamming had shown insight and reflection into his dishonesty, and completed appropriate ethics training, reflecting his remediation.

GMC appeal

The GMC appealed the MPT's decision. It focussed on concerns that Dr Lamming's accounts differed so materially between 2007 to 2017 that this showed a lack of insight into his conduct and continued propensity to be dishonest. The GMC argued that the MPT's reasons for restoration were flawed because there was a failure to grapple with the gravity of the inconsistencies in his evidence.

The appeal was allowed, with Knowles J confirming that the correct approach to take was to consider the various accounts and come to a conclusion about any inconsistencies and why these had occurred. The MPT had not considered the inconsistencies in enough detail, and so had failed to confront Dr. Lamming's dishonesty and properly determine the impact of this on his propensity and insight.

Lessons learned

The decision confirms that previous findings of misconduct will be highly material in determining restoration applications. In this case, past dishonesty and inconsistent accounts of what had happened demonstrated a continued lack of credibility. However, it was the Panel's failure to properly consider this that led to the collapse of its decision.

Panels must ensure that the reasons they provide for any decisions adequately meet the substance of the arguments that are posed. Any inconsistencies must be considered fully and dealt with appropriately, otherwise any determination may be lacking and susceptible to be appealed and ultimately, to be quashed.

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We have previously commented on the Ivey v Genting decision, which radically changed the test for dishonesty (where the Defendant's state of mind is in issue) in disciplinary proceedings based on the long-standing Ghosh test.  We are now beginning to see the first High Court decisions applying Ivey, which give an indication of how the courts (and disciplinary tribunals) may address cases alleging dishonesty in future.  Although it is likely to be some time until we have full clarity on the point, it is clear that the courts are wasting no time in replacing the Ghosh test in both the criminal and disciplinary contexts.

The first recorded decision to consider Ivey was DPP v Patterson [2017] EWHC 2820 (Admin), an appeal from a criminal matter in the Magistrates' Court which had been decided in February 2017 and had turned on whether the Defendant had considered herself to be dishonest.  Sir Brian Leveson (the President of the Queen's Bench Division) noted that the discussion of dishonesty in Ivey was in the criminal context obiter dicta, and as such not strictly binding on the lower courts.  However, he noted that it would be unlikely that the courts would prefer Ghosh in future "given the terms of the unanimous observations of the Supreme Court… [which] does not shy from asserting that Ghosh does not correctly represent the law."

The courts have elected to apply Ivey in two subsequent disciplinary (civil) decisions so far. GMC v Krishnan [2017] EWHC 2892 (Admin) was the first case to consider Ivey in the context of professional disciplinary proceedings.  The case (decided in April 2017) concerns whether a doctor had been dishonest in working for another organisation while on sick leave from his employer.  While the original High Court hearing of the GMC's appeal (and Dr K's cross appeal) was heard before Ivey (and therefore considered the allegations in light of the Ghosh test), once the decision in Ivey was published the Administrative Court invited the parties to provide further written submissions on the issue of dishonesty.  Both parties agreed that Ivey would now apply.

The original decision turned on whether (in accordance with Ghosh) Dr K had considered his actions to be dishonest by the standards of ordinary people, with the Medical Practitioners' Tribunal Service ('MPTS') finding that he had not been dishonest.  Applying the test formulated in Ivey (namely (1) the Tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts, and the consider (2) whether his conduct was honest or dishonest applying the (objective) standards of ordinary decent people), the court allowed the GMC's appeal, and remitted the case to the MPTS for consideration in line with Ivey.

The most recent post-Ivey case is GMC v Raychaudhuri [2017] EWHC 3216 (Admin), relating to whether a doctor was dishonest in completing part of a treatment record before examining the patient.  The MPTS had found dishonesty not proven, as it could not establish whether he had considered his actions to be dishonest.  However, while the Administrative Court noted the Ivey decision and eventually found that the tribunal should have found dishonesty, it was careful to state that this was not dependent on Ivey being applied instead of Ghosh, although this certainly made the outcome clearer.

Of these cases, Krishnan provides the most insight into how the courts will apply Ivey.  It should be noted that all three of these appeals came out of decisions made and appeals heard prior to Ivey being handed down.  This suggests that appeals currently before the High Court may need to be revisited where the court has not heard argument on the application of Ivey.  While the Supreme Court considered that the difference between Ghosh and Ivey would only apply in a few cases (and it is worth nothing that, as per Singh J (as he then was) in GMC v Uddin, the need for a Ghosh/Ivey direction will only arise in cases where the Defendant's state of mind is in issue), the issue arises in a range of professional discipline cases, and the fact that a line of cases have quickly underlined that the Ghosh test no longer represents the law is welcome news to practitioners vexed by a range of occasionally contradictory judgments handed down by the higher courts over the last six years.  Even so, it will be some time before we see many appeals based on how Ivey has been applied in practice by legal advisors and tribunals, and it will only be at this stage that the courts' position on the new dishonesty test (including formal dicta that Ivey is binding in the context of professional disciplinary proceedings) will become clear.

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The EU Withdrawal Bill has now passed the House of Commons and is being considered by the Lords.  The changes made by the Commons are largely procedural, and may give organisations further time to lobby on amendments to law post-Brexit.

 

For more information, please see our latest article on our Brexit and Beyond blog.

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In the current era, there is an increasing focus on the role of medical and other healthcare professionals in sport. In a high performance environment where results are critical and margins are everything, significant pressure can be placed on the team doctor to ensure that a player is match fit or an athlete is able to race. The doctor's duties are to the athlete as their patient, not to a coach, manager or performance director. Organisations need to consider the structure that a team doctor sits in and who they are answerable to in terms of line management and ultimate professional accountability. For large organisations, there are obvious benefits in separating out the provision of primary care medical services and medical performance support.

Some organisations employ a doctor directly, whereas others engage their services via contractual arrangements. It is critical to understand the regulatory environment medical services are provided in to ensure that the organisation is compliant with their regulatory and due diligence responsibilities. This concept has been frequently referred to as "medical governance". UK Sport has made it very clear in recent weeks that it has high expectations in relation to how this area of provision is managed and any failings could directly impact on the funding of a national governing body. If CQC regulation is not appropriate and healthcare professionals are contracted in, it is still critical for sports organisations to understand and ensure those they engage to provide services are properly registered and regulated.

Regulation by the Care Quality Commission ("CQC")

Sports organisations are providing sophisticated medical services that focus on both primary care and performance related services. The CQC regulate entities that provide medical care by classifying categories of provision as "regulated activity", however with the exception of the English Institute of Sport ("EIS"), there are very few sports organisations that have obtained CQC registration. The general requirement under the Health and Social Care Act 2008 is that if you carry out regulated activity, you must be CQC registered. There are several narrow exceptions to this requirement. CQC registration ensures the provider is compliant with the wider requirements of service delivery around medical records, the procurement of medicines and prescribing and the focus is on athlete centred care.  

To become CQC registered, an application must be made providing details about the applicant, the regulated activities applied for, and the locations where the service will be provided. The CQC assess each applicant and, to grant registration, must be satisfied about the organisation's fitness and compliance with the requirements of the relevant regulations and enactments. In the majority of cases providers must have a registered manager as a condition of their registration who must also apply and satisfy the CQC about their suitability and meet with the other requirements of the relevant regulations and enactments.

More recently the CQC have become interested in the ethos of the organisation starting at the top with the Board. There is the longstanding requirement for the Board to appoint a nominated individual as the designated point of contact, however there is also a general requirement for directors to be fit and proper. This focuses on those who do not necessarily provide clinical care but who shape the organisations direction of travel. There is also a provision that looks at whether a director has been responsible for or privy to any serious mismanagement in the delivery of regulated activity.

The benefits of CQC regulation

For organisations that aren’t involved in the exclusive delivery of healthcare, the policy infrastructure and management of regulated healthcare professionals can be challenging. Obtaining registration and regulation by the CQC requires time and investment; however the organisation can seek comfort in the fact that in order to obtain registration, there must be proper processes in place to ensure that medical staff are working in line with professional requirements. It also ensures there is consistent delivery throughout the wider medical team ensuring that too much responsibility and accountability does not rest with one individual. Issues around medical governance have been highly prominent in the UKAD "jiffy bag" investigation that affected both Team Sky and British Cycling. This was concluded by UKAD last month with no action being taken. Whilst CQC registration does not ensure that doctors make proper medical records, it does ensure that the infrastructure and monitoring is in place to help prevent this becoming a systemic issue through audit, peer review and board level accountability. There would also be periodic inspections by the CQC, the frequency of which would be determined by the risk profile of the organisation.

The CQC monitors the risk profile of a registered entity through intelligence and mandatory disclosure obligations in the event of an adverse incident. Should there be an investigation by another agency such as UKAD, it is common for MOU's to exist around co-operation, support and information sharing.  A CQC registration application will only be successful if there is a commitment from the top of the organisation given there is board level accountability for the regulated activity. There also needs to be constant audit, appraisal and reflection in relation to the service, those receiving it and those tasked with delivery. This approach is line with the calls for more scrutiny in relation to the interaction of coaches and medical staff with athletes and the ongoing work around athlete welfare. In addition, it provides public accountability and transparency given the CQC publish inspection reports on their website.

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The recent case of General Medical Council v Chandra [2017] EWHC 2556 (Admin) explores the fine balance to be struck between ensuring public confidence in the medical profession and taking into account steps undertaken by those applying to have their name restored to the medical register to show that they have remedied their conduct and reduced or eliminated future risk.

Background

The Respondent, a psychiatrist, was found to have engaged in sexual activity with a vulnerable patient. The incident occurred in 2005 and in 2008 his name was erased from the medical register.

In 2017, Mr Chandra applied for restoration to the medical register. The Medical Practitioners Tribunal ("the Tribunal") determining the matter considered various factors including the fact that he had accepted his wrongdoing and reflected on it; and decided to restore his name to the register.

Appeal

The GMC ("General Medical Council") appealed against the decision of the Tribunal, submitting that there was a failure to give proper regard to the overriding public interest and to promoting and maintaining public confidence in the medical profession.

The GMC argued that there had to be "exceptional circumstances" before a doctor struck off for sexually improper conduct should be placed back on the register and that consideration ought to be had to the gravity of the original conduct, the public interest in the decision, and the difficulties of remediating dishonest actions or other serious misconduct. It is worthy of note that Mr Chandra was found to have lied during the original hearing and continually denied that the incident had occurred.

Decision

The GMC's appeal was dismissed and the decision of the Tribunal was upheld. The correct test to be applied in the circumstances was not one of "exceptional circumstances" and there should be no greater weight placed on the need to maintain the public confidence and uphold professional standards than there should be on an individual's remediation.

Moulder J explained her decision as follows:

  1. The Medical Act 1983 ("the Act") gives a Tribunal broad discretion, subject to the overarching objective of the protection of the public. The Act provides a framework for restoration and it is not for the court to rewrite this or impose a higher threshold.
  2. Decisions to erase someone from the register following fitness to practice proceedings are "significantly different" from decisions to restore someone to the register. Each require a different balancing exercising, taking into account different factors.
  3. The primary focus of this case was sexual misconduct, not dishonesty, and the Tribunal had correctly considered the dishonesty of Mr Chandra when making their determination. Moulder commented that "sexual misconduct is as fundamental to the medical profession as dishonesty is to the solicitors profession", however, there is no different or higher test to be applied than is set out in the Act.
  4. Finally, there was nothing in the GMC guidance which called for "exceptional circumstances" in the context of restoration.

Wider significance

The decision reflects a departure from a recent string of successful appeals by the GMC under s40A of the Act in relation to cases where the GMC advanced arguments based on public protection, and provides clarity to the approach to be applied in determining restoration to the register.

It is clear that a balancing act needs to be undertaken between meeting the overarching objective of the protection of the public whilst also recognising the passage of time and any evidence that would support a person's application for restoration, including their insight and fitness to practice. Even if in many cases this will result in a decision not to restore a registrant, the High Court has made clear that this does not give rise to a de facto "exceptional circumstances" requirement.

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