Acting to stop harm: the FCA and Appointed Representatives
Judgment Date - 23 November 2012
The appellant, (A) made an application to appeal an order made by the Fitness to Practise Committee (FPC) of the General Optical Council (GOC) on 16 July 2012. The FPC had found A’s fitness to practise was impaired and imposed a twelve-month suspension from practice.
His Honour Judge Shaun Spencer QC in referring to the decision in Cheatle v General Medical Council  EWHC 645 (Admin), highlighted that the relevant provision for the GMC had no practical difference from that of the GOC, and as such, an appeal is by way of re-hearing.
The Court in Cheatle re-stated the view that appeals of specialist Tribunals with an understanding of the expectations of medical professionals in matters of medical practice deserve utmost respect. Further, the Tribunal has had the benefit which the Court does not ordinarily have of hearing from the witnesses called by both parties, and lastly that the questions are fact and the over-all value judgment made by the Tribunal are “akin to jury questions to which there may reasonably be different answers”.
Frankston J went on to state in Cheatle that the composition of the Tribunal is highly relevant when considering the regard which must be had to the decision made.
On 16 July 2012, A appeared before the FPC of the GOC. The FPC consisted of five members; three lay and two registered optometrists. The allegations against A were in relation to a conviction in April 2011 that A had driven a motor vehicle in excess of the 40 mph speed limit and further that he had wilfully obstructed the Police Constable in relation to the execution of his duties.
The facts of the case were set out by Counsel appearing for the GOC. In short:-
The FPC’s decision was that having heard from A, he had lied to the Police Constable when he was stopped. He repeated those lies in an interview and contrary to the advice of his solicitor, repeated those lies again at the criminal trial. He then lodged an appeal against the Court’s decision and notified the Registrar that he had withdrawn his appeal only on the basis of financial constraints. It followed that the first admission provided by A was before the FPC. The FPC was of the view that A’s explanations for his behaviour indicated a lack of insight and judgement on his part and that his behaviour involved dishonesty over a period of months and was not an isolated incident. The FPC considered that the dishonesty displayed by A would “inevitably tend to undermine the confidence of the public in the profession”.
A appealed the decision of the FPC on the following basis:-
His Honour Judge Shaun Spencer QC stated that this case called for scrutiny “not least because the offending is of a character which does not in any way put into question the clinical expertise of the Registrant or his standards of client care”.
The Judge confirmed that conduct, whether or not connected to professional practice can be considered, but the question was whether the false assertion given by A to the Police Constable, which subsequently persisted throughout the court proceedings, is something which is capable of amounting to impairment. The Judge in commenting on the composition of the FPC stated that to call them a specialist Tribunal would be stretching the definition given that there were three lay members and two registered members. In relation to the case itself, the Judge stated that it was not straightforward, but he took the view that the FPC was not wrong to find impairment.
In dealing with the question of sanction, the argument raised by A in his appeal was that whilst suspension was essentially laid before the FPC as a possible appropriate sanction on his behalf at the hearing, the period of suspension imposed was excessive.
The Judge repeated that like with the finding of impairment, he had to stand back and consider whether the FPC’s decision was disproportionate. Having done so, and considering the mitigating factors, the necessary protection of the public and the maintenance of confidence in the general reputation of the professional as a whole, the maximum twelve-month period for suspension was disproportionate to the finding of impairment and that the appropriate period of suspension was four months.
A’s solicitors had written to the GOC prior to the High Court hearing to set out a Part 36 offer and offering to substitute suspension of 6 months. That offer was rejected. It was argued on behalf of A that that meant that he was entitled credit in terms of costs. Other regulators, namely the NMC and GMC, he argued, did engage with Part 36 offers. Counsel for the GOC argued that it would have been inappropriate for the executive of the GOC to override a decision made by a FPC , or to ‘plea bargain’. The learned Judge stated ‘I do not take the view that the considerations of negotiation as to the outcome after a Committee has pronounced, is something which has parallels to the discussions which might take place in an ordinary civil case relating to money’. There was no order as to costs.
This case reiterates the widely held view that decisions of Fitness to Practise Panels are given high regard by the courts, and as such will not be interfered with lightly. Each case must involve consideration as to just how ‘specialist’ a Tribunal is before considering what deference should be afforded to the decision of the Panel. The issue as to costs is interesting, suggesting that there is far from uniformity in the way in which regulators deal with Part 36-type offers.
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