Two bites of the apple- limitation in professional negligence cases
High Court allows appeal against sanction from Fitness to Practise Committee of General Optical Council; when does caselaw pertaining to one profession apply to another when it comes to sanction?
Judgment date: 16 May 2013
On 15 March 2012 the General Optical Council’s (GOC) Fitness to Practise Committee (the Committee) found impairment of fitness to practise in relation to the appellant, a student optometrist. The finding of impairment and subsequent erasure from the register was in respect of a caution received by the appellant for fraud by false representation (ss 1 and 2 of the Fraud Act 2006) and dishonesty in failing to report the existence of that caution to the GOC in June 2009 and July 2010 when applying for retention to the GOC register. The instant case was a successful appeal against sanction.
The caution arose out events that had taken place on 27 April 2008 when the appellant was 18 years old. The appellant had become close friends with a fellow student at City University. The friend was 26 at the time and someone that the appellant looked up to by reason of both his age and Islamic religious sensibilities. The friend worked as a bus driver and persuaded the appellant to participate in a fraud whereby the appellant made a false personal injury claim for whiplash, following a staged accident (collision with a car) that took place on the friend’s bus.
The appellant gave evidence before the Committee that he had felt that the scheme was wrong, however he did not wish to lose his friendship with the older man and was persuaded by him that as long as he gave part of his compensation to charity it was not contrary to the Islamic faith. On accepting a caution on 23 January 2009, the appellant said that his legal adviser at the time had confirmed that the caution would not affect his career. He said that for this reason, he had not paid attention to (what was found to be emphatic) wording on the application for retention to the GOC as a student optometrist in respect of declaring such matters.
These matters came to the attention of the GOC in April 2011 when the appellant applied for full membership to the GOC. The appellant said he was prompted to do so on discussing the matter with a friend. Following the disclosure, the GOC had launched disciplinary proceedings.
In providing their decision on sanction, the Committee noted a number of matters, to include: in emphasising his youth and impressionability at the time of the offence, the appellant had not demonstrated sufficient insight into his actions; the appellant had provided no comment interviews to the police and had not approached the GOC of his own volition (prompted to do so by a friend), and the initial self-referral by the appellant was not factually correct in all details, tending to minimise the wrongdoing by omission.
In giving oral advice, the Legal Adviser pointed the Committee to the GOC’s guidance documents in respect of sanction, citing relevant case law on dishonesty. The Legal Adviser also referred to a case not included in the GOC’s guidance, SRA and Sharma (2010) EWHC 2022 (Admin) and in particular the following passage:
save in exceptional circumstances findings of dishonesty would lead to a striking off, but there was a small residual category where striking off would be a disproportionate sentence under the circumstances. In deciding whether a case fell into that residual category relevant factors include nature, scope and the extent of the dishonesty, whether it was momentary or over a long period of time, whether there was any benefit to the individual or had an adverse effect on others.
On appeal, it was submitted on behalf of the appellant that it was wrong for the Legal Adviser to point the Committee to the case of Sharma and in doing so, the Committee had been misled into thinking that there was a strong presumption that any finding of dishonesty would lead to striking off. Counsel for the appellant distinguished between the regulatory and sanction scheme for solicitors (from which the case of Sharma arose) and professions working within healthcare. It was successfully argued that by reason of solicitors’ fiduciary duties to clients, honesty is set at the heart of their professional standing in a way that would not apply to an optometrist.
On appeal, Mr Justice Leggatt found that reference to Sharma had indeed introduced “an improper qualification or restriction on the guidance issued by the [GOC]”, amounting to an incorrect impression that where dishonesty was found, erasure will ordinarily follow.
In considering the suitability of erasure, Leggatt J also found that the Committee had placed greater responsibility on the appellant for the planning of the wider fraudulent scheme than what was supported by the evidence and that they had not given proper consideration to the appellant’s youth at the time. The appellant should have received credit for admitting his wrongdoing to the police and although he did fail to declare the caution on two separate occasions, he had ultimately come forward to refer himself to the GOC.
For this reason, the appeal against sanction was allowed and the case was remitted to the GOC.
Lawyers before professional disciplinary panels will often refer to judicial authority originating from proceedings before a different regulator. This case cautions those appearing before regulatory bodies from ranging too widely when relying on cases before the regulator of a profession operating in an entirely different field. Where such cases are relied on in support, careful and detailed comparisons will need to be drawn to justify the same.
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