When is the right time to question a medical decision?
Decision date: 30 October 2012
SRA successfully appeal decision of SDT to restore solicitor to the roll.
A solicitor (K) had faced allegations of failing to properly keep accounts and offences involving dishonesty before the Solicitors Disciplinary Tribunal (SDT). K had admitted the he had not adequately complied with the accounting rules but said that at the relevant time he was on a prescription drug which resulted in his not being in control of his actions such that he should not be considered culpable. The SDT had nonetheless ordered that he be struck off.
K then faced a criminal trial, where he faced charges of theft and false accounting. A professor gave evidence on K’s behalf about the effects of the relevant drug, including its ability to affect short-term memory, judgement and understanding. K was acquitted.
K subsequently applied to be restored to the roll. At the appeal hearing a different professor provided written evidence that the drugs may affect someone such that they may have known something was wrong but simply not care enough to act differently. His application for restoration was nonetheless unsuccessful.
The professor gave oral evidence at a further subsequent application for restoration, K submitting that the Tribunal could properly take into account that new evidence. It was decided by the Tribunal that the fact that K was under the effect of the drug when he committed the alleged offences amounted to an exceptional circumstance that should result in his being restored to the roll.
The SRA appealed that decision.
The Court found that the key question was whether the professor’s oral evidence amounted to an exceptional circumstance. It was not the Tribunal’s role to retry the issues which had led to K being struck off; the oral evidence of the professor had added nothing of import to the written evidence before the appeal judge or indeed the other professor at the criminal trial. It was noted that none of the experts had given evidence as to the specific effect of the drug on K but only referred to its general effects. The decision was accordingly not one which the Tribunal could reach as a matter of law.
Further, such were the serious consequences of the behaviour that it was not possible for restoration without affecting public confidence in the profession.
Tribunals must not simply pay lip service to ‘not retrying the issues’ at restoration hearings and stay within their remit. Further, in order to be restored to the roll, it has to be demonstrated that it would not affect public confidence in the profession.
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