Acting to stop harm: the FCA and Appointed Representatives
Last week, the Court of Appeal handed down judgment in the combined appeals of Wingate and Evans v SRA; SRA v Malins  EWCA Civ 366.
We have covered the key lessons of the case for legal services professionals in our blog, The Quality of Integrity – a review of the Court of Appeal’s decision in Wingate and Evans v SRA; SRA v Malins in the context of Legal Services Regulation, and we summarise the facts of each appeal there.
However, what is necessary for our purposes is to note that both cases concerned dishonesty and lack of integrity in legal services regulation, and in this judgment, the Court of Appeal clarified the definitions of these two terms.
This case may therefore be seen as a continuation of the tumultuous few months in the case law on dishonesty, following the Supreme Court’s decision in Ivey v Genting Casinos (UK) Ltd  UKSC 67 which overturned the definition of dishonesty which had stood for nearly forty years, as well as the High Court judgment in Mr Malins’ case took the novel view that dishonesty and lack of integrity were in fact the same thing.
Although both appeals arose from the jurisdiction of the Solicitors’ Disciplinary Tribunal, there is nothing to suggest that the Court of Appeal did not intend its judgment to have effect in professional regulation more widely, including in the regulation of healthcare professionals.
So what lessons should a healthcare practitioner, their representative, or a healthcare regulator take from this case?
The key paragraphs in the judgment are paragraphs 93-103, and the following principles are established:
This section of general principles concludes with the now usual reminder that there will be deference owing to the professional judgment of a disciplinary tribunal:
“A professional disciplinary tribunal has specialist knowledge of the profession to which the respondent belongs and of the ethical standards of that profession; such a body is well placed to identify want of integrity. The decisions of such a body must be respected unless it has erred in law” (paragraph 103).
Later in the judgment, there is also a reminder of the principle that regulators must give notice of any particular allegation being pursued against the practitioner and to particularise the facts upon which it is based, so that the practitioner knows how the case against him or her is put and is able to seek to answer it (per Chauhan v GMC  EWHC 2093 (Admin) and Fish v GMC  EWHC 1269 (Admin). However, the Court of Appeal rejected the suggestion that the way in which the allegations were pleaded against the solicitor (here, Mr Malins) resulted in any harm or prejudice to him.
The first issue will be whether the question of integrity arises at all in healthcare proceedings.
The definition of integrity matters in the regulation of legal services professionals because both the barristers’ and solicitors’ Codes of Conduct require members to act with integrity (SRA Principle 2, BSB Core Duty 3). Therefore, it is possible for a solicitor or barrister to face an allegation that they have breached a standard or core duty in that they have acted without integrity.
However, what may not be widely known is that there is an equivalent requirement in the codes of conduct for doctors, nurses, optometrists and dispensing opticians, pharmacists, chiropractors, and so on.
For example, the General Optical Council requires its optometrists and dispensing opticians to “Act with honesty and integrity to maintain public trust and confidence in your profession” (paragraph 16.1); the General Pharmaceutical Council explains that “people will receive safe and effective care when pharmacy professionals are trustworthy and act with honesty and integrity”. And under the heading “Duties of a doctor registered with the GMC”, the General Medical Council’s Good Medical Practice provides that a doctor must “be open and act with integrity”; there is a specific requirement at paragraph 67 that a doctor “must act with honesty and integrity when designing, organising or carrying out research, and follow national research governance guidelines and our guidance”.
In fact, each of the main healthcare regulators include a requirement that their members behave with integrity, with the exception of the Health and Care Professions Council (which regulates, among others, social workers in England, and paramedics).
It follows, therefore, that a healthcare professional may also face an allegation that they have acted without integrity – although it appears that allegations phrased in this way have so far been relatively rare.
The second issue is what sort of behaviour might be captured by an allegation that a registrant lacked integrity?
As set out above, the majority of the healthcare regulators’ Code or Standards of Practice refer to integrity alongside a requirement of honesty. By contrast, the Nursing and Midwifery Council’s Code (Professional standards of practice and behaviour for nurses and midwives) requires nurses to “uphold the reputation of your profession at all times” and expects them to be “a model of integrity and leadership for others to aspire to” (emphasis added), while the General Osteopathic Council relates integrity to the professional’s avoidance of being placed under the inappropriate influence of others or of acting in such a way as to gain financially.
However, the implication of the judgment is that integrity should not be considered to be “coloured by” or necessarily similar to honesty, but instead, “professional integrity is linked to the manner in which that particular profession professes to serve the public” (emphasis added). The regulators of solicitors and barristers may have focused on honesty and tied integrity back to that virtue, because that is the most fundamental tenet of the legal professions and without it the system is significantly weakened. Although honesty will always be important, other professions may put more of an onus on other professional skills or virtues. For example, if the profession serves the public by caring for the sick and safeguarding those who are vulnerable, any derogation from the duties to care for and safeguard would imply a want of integrity.
This appears to open the door to a wider definition of integrity which is uncoupled from honesty or dishonesty, closer to the NMC’s idea of nurses as a model and an inspiration for others. For example, a doctor who takes advantage of his or her position and influence to enter into a sexual relationship with a vulnerable patient may well be displaying a lack of integrity.
However, whether the healthcare regulators choose to take this course remains to be seen.
What this case may offer is a new emphasis on the importance of taking care, in the sense of being methodical and particular.
At paragraph 100, two examples are given of integrity in the legal profession: a solicitor conducting negotiations or a barrister making submissions. These professionals, the Court noted, will take particular care not to mislead; they are expected to be even more scrupulous about accuracy than a member of the general public in daily discourse.
And shortly before that, the Court explained that the concept of integrity is “a useful shorthand to express the higher standards which society expects from professional persons”. Integrity is thereby intended to go some way towards encapsulating the extra burden of expectations on a healthcare professional – what is it that sets them apart from an ordinary member of the public?
We may be cautious of strangers, but we will go into a medical consultation and disclose intimate details of our lives and health within seconds. We trust them to advise us in our best interests, to double- and triple-check the accuracy of prescriptions or diagnoses or treatment plans. An understandable oversight which would be forgiven in a member of the public, will be taken far more seriously when committed by a doctor, a nurse or a social worker, and so they are expected to work harder to avoid those oversights.
Integrity could therefore be seen as a distillation of the trust which is placed in a healthcare professional, and a want of integrity is any breach of that trust. It matters less, in this formulation, how the trust is broken. Dishonesty is the fastest way to destroy that trust, as the professional has shown themselves willing to deliberately and actively put forward a falsehood. However, there are other, non-dishonest ways in which a professional may destroy trust, and lack of integrity may be the vehicle for expressing the regulator’s disapproval of that action.
 This is therefore a departure from the case of BSB v Howd  EWHC 210 (Admin), where the High Court found that integrity “takes its colour” from the term honesty with which it appears in Core Duty 3 and so “connotes probity and adherence to ethical standards, not inappropriate and offensive social or sexual behaviour” (at ). As a result of its definitions of professional integrity, the Court of Appeal declined to reach a view on whether Howd was correctly decided.
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