Controlling and Coercive Behaviour: Widening the Net
Professionals who have disciplinary findings made against them by their employer and who are subsequently referred to their regulatory body, often fear that this spells the end of their career. There can be a concern that the conduct committee of a regulatory body will simply adopt the decision made at local level and that the professional will inevitably be struck-off following a dismissal from a substantive post. However, as emphasised by the judgments referred to below, this need not be the case.
Dental Nurse Susan Dryburgh was dismissed by NHS Fife at a disciplinary hearing in October 2015. NHS Fife did not allow SD to have legal representation at the disciplinary or appeal hearings. Following the hearing, NHS Fife referred the reasons for SD’s dismissal to her regulatory body, the General Dental Council (GDC).
SD sought to judicially review the decision by NHS Fife not to allow her legal representation. SD’s petition for judicial review was considered by Lord Burns in the Outer House Court of Session on 2 August 2016. (The Court of Session is Scotland’s supreme civil court, an appeal from which lies to the Supreme Court of the UK. Decisions from the Court of Session are binding only in Scotland but may be of persuasive value in the English courts.)
It is only possible to judicially review certain decisions. SD’s representative put forward various arguments to support her case that NHS Fife’s decision was susceptible to judicial review. One of these arguments was that Article 6 of the European Convention on Human Rights (the right to a fair trial) was engaged because the disciplinary hearing would, in practical terms, deprive her of her right to work in her profession. This was based on the argument that the GDC’s practice committee would be profoundly influenced by the decision of the disciplinary panel.
It was argued that:
“The disciplinary proceedings and any unsuccessful appeal hearing would have a substantial influence on the decision of the practice committee of the GDC. It would take into account the findings of fact made by the respondents’ disciplinary proceedings and the outcome thereof. It would have access to and rely upon documentary evidence prepared for those disciplinary proceedings. Accordingly, the petitioner’s article 6 rights were engaged and the petitioner was entitled to legal representation at the disciplinary proceedings and failure to allow her such representation breached her article 6 rights.”
This argument was rejected by Lord Burns, who found that SD’s right to continue to practise as a dental nurse had not been determined by the decision of NHS Fife to dismiss her. He concluded that the disciplinary findings would not have a decisive influence on decision of the GDC’s practice Committee.
Conduct committees of each regulatory body are charged with investigating and determining allegations which are referred to them. They must consider the evidence presented to them afresh and make their own decision on whether the factual charges are made out, whether they are sufficiently serious to amount to misconduct or lack of competence, and whether the professional is currently fit to practise. While a committee may be made aware that a professional has been dismissed from their substantive post, this should in no way fetter their discretion.
This point was also emphasised in the case of Enemuwe v NMC  EWHC 2081 (Admin). In this case, not only was it decided that the findings of a local disciplinary body are not binding on a conduct committee, but that these are in fact irrelevant and should be excluded from their consideration of the case.
The NMC’s Conduct and Competence Committee had sight of a report by the supervisor of midwives who had conducted an investigation into allegations concerning Ms Enemuwe. The Committee found certain charges proved and that Ms Enemuwe’s fitness to practise was impaired. An appeal was launched on various grounds, including the panel’s apparent reliance on the outcome of the previous investigation. The appeal was allowed on this ground. Justice Holman was held that:
“…this sort of situation where there has been a prior investigation and prior findings by a local disciplinary or investigatory person or body, the findings of that person or body are not, and should not be, normally admissible in proceedings before the NMC, nor put before the Committee…”
Justice Holman acknowledged that the Committee would need to be informed that a registrant has been suspended or dismissed, but said “there is a world of difference between their knowing that there has been some investigation, and their actually paying regard to the factual outcome of the investigation in reaching their own findings and conclusions on disputed issues of fact.”
What does this mean for you if adverse findings have been made against you at a disciplinary hearing?
First,if an adverse finding is made against you at local level this does not mean that your regulator will automatically follow suit. The outcome of the disciplinary hearing may well be communicated to your regulatory body, but that body must conduct an independent review of the allegations. The committee should certainly not be influenced by any decision made at local level, whether by an investigating officer or by a disciplinary tribunal.
Second, if your case is referred to a conduct committee of your regulatory body, you should carefully scrutinise the material which is provided to that committee. You may be able to argue that certain material should not be provided to the committee to avoid the risk of this influencing their decision.
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