Two bites of the apple- limitation in professional negligence cases
The Queen on the Application of Lonnie v National College for Teaching and Leadership  EWHC 4351 (Admin)
The applicant teacher Mark Lonnie (L) was cautioned for an offence of common assault following an incident in May 2009 in which he head butted a pupil causing a chipped tooth and some bleeding to the mouth. L was subsequently dismissed by his employer. In March 2014, L was served with a Notice of Proceedings by the NCTL, the body which took over the regulation of teachers from the General Teaching Council (GTC).
The Professional Conduct Panel of the NCTL (the Panel) found that the facts amounted to unacceptable professional conduct and conduct that might bring the profession into disrepute. They duly made a recommendation to the Secretary of State in respect of whether a prohibition order should be imposed and recommended that one should not. In their reasoning, inter alia, they referred to the delay between the incident and the final hearing. Furthermore, the panel did not consider a prohibition order was required on public confidence grounds.
The Secretary of State took a different view upon reviewing the decision and decided to impose a prohibition order with a period of review after two years; the most lenient order available. The Secretary of State’s concern was that the panel had not appropriately balanced the mitigation from L with the level of violence he had used.
L appealed the decision on the grounds that the Secretary of State imposing a prohibition order contrary to the professional conduct panel’s recommendation was wrong. Mr Justice Davis dismissed the appeal. The Court took into account the legal framework within which the panel operates including section 141B(2) of the Education Act 2011 which provides as follows:
“Where the Secretary of State finds on an investigation of a case under (1) that there is a case to answer, the Secretary of State must decide whether to make a prohibition order in respect of the person.”
Plainly, it is the Secretary of State’s decision whether or not a prohibition order is made and having recognised this, the Court maintained that only consideration of a recommendation of the professional conduct panel is required. Mr Justice Davie stated “I cannot find that the respondent to this appeal was wrong in reaching the decision that the panel’s recommendation should not be followed…[ ].”
The cases of Privy Council in Gupta v the General Medical Council  UKPC 61 and Bolton v The Law Society  1 WLR 512 were noted, and in particular Sir Thomas Bingham’s observations in the latter, in that
"…it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when that period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right…[ ]…The reputation of the profession is more important than the fortunes of any individual member.”
An interesting decision specific to the legal framework of this regulatory body, reinforcing the point that the recommendations of NCTL Panels as to whether a teacher should be prohibited or not are just that, and can be ignored by the Secretary of State. The ultimate decision is with the Secretary of State and there is no further fettering of that discretion such as ‘save in exceptional circumstances’, or any such language used in the legislation.
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