A new frontier in the boundary between professional and private life – solicitors’ undertakings
The allegation in Fitness to Practise (FTP) proceedings is often made up of different heads of charge or particulars which form the factual matrix underpinning the overarching allegation of impairment. It is the allegation of impairment and not the separate pleaded incidents that constitute the allegation against the Registrant. Thus if one or a number of heads of charge are not made out, the allegation can still stand: Reza v General Medical Council  2 AC 182 PC, at 197C:
“…several facts may be presented as constituting one charge, such that, if some facts fall by the way side, other facts may remain in relation to which it is open to the Committee to find the practitioner guilty of serious professional misconduct.” Per Lord Lowry
In FTP proceedings, the domestic common law, European Union law and the European Convention on Human Rights together afford Registrants important safeguards with regard to the drafting of the allegation, including requiring specificity in its drafting (‘knowing the case against you’) and requiring that any findings made by the Panel are returned on the basis of the allegation alone.
Under Article 6(3)(a) of the European Convention on Human Rights, a defendant has a right “…to be informed promptly…and in detail, of the nature and cause of the accusation against him”. This principle applies equally to disciplinary proceedings: Albert and Le Compte Belgium (1983)5 EHRR 533 at para 39.
The European Court of Human Rights has held that the information provided should:
“…list the offences of which (the defendant was accused), state the date and place thereof, refer to the relevant Articles of the Criminal Code and mention the name of the victim”: Brozicek v Italy (1989) 112 EHRR 371
B. ADEQUATE PARTICUALISATION
1. Too much detail
Whilst accepting that a Registrant must know precisely what is alleged against him or her, in the Fifth Report to the Shipman Inquiry, Dame Janet Smith was critical of the level of detail that is often provided in FTP allegations (underlining added):
[i]t does appear to me that, in some types of case (for example, one that depends to a large extent upon a performance or health assessment), it would be sufficient if the doctor were to be told (adopting the words of the adjudication stage test proposed by the GMC) that it was alleged that his/her fitness to practise was impaired (to a degree justifying action on registration) by reason of the matters contained in the assessment report. Even in conduct cases, I doubt that the degree of particularity that appears to have been given in the past is necessary for the giving of proper notice to the doctor. Reading some PCC decisions, it appears that the proceedings have been broken down into the consideration of every single element which must be proved in order to support the allegation of SPM. I do wonder whether this is really necessary; it fosters the impression that these are criminal proceedings, whereas they are not.”
Over the years, FTP allegations have shown a marked tendency to express in ever greater detail the nature of the conduct alleged against a Registrant. Regulators often err on the side of caution and provide more,
rather than less, detail, often setting out the factual particulars as a full narrative of events.
One effect of this ‘over-particularising’ is that heads of charge often exist which are not relevant to the basis of the alleged impairment. This can lead to a disproportionate focus on the factual matrix which has the effect of obscuring the basis of the alleged impairment itself. The exercise of reaching numerous factual determinations, many of which are unrelated to the allegation itself, can be time consuming for Panels and increase costs for regulatory bodies considerably (these conclusions are drawn from the GMC Consultation document for the Pilot Scheme, published April 2011).
2. Just right
Allegations should be sufficiently particularised for a Registrant to know what is alleged that he failed to do and in what respects he has failed: R (Wheeler) v Assistant Commissioner House of the Metropolitan Police  EWHC 439 (Admin):
“Vagueness is a ground for judicial review it if leads to unfairness in the proceedings, and the danger with a vague charge is that the parties, and in particular the respondent,…do not know with some precision which
is alleged against them and therefore are not fully able to address those matters in the course of the hearing”, per Burton, J
Registrants need to know the factual matrix of what is alleged to have occurred as well as the ways that those alleged events are said to constitute impairment of FTP, in order that they prepare a meaningful defence.
3. Findings confined to pleaded allegation
Accurate and full particularisation of allegations is crucial as in all FTP proceedings, findings of impairment can only be made (or a warning issued) on the basis of the facts as particularised. This is so for all healthcare regulators, although the form of wording through which this is achieved differs. For example, the Health and Care Professions Council’s (HCPC) rules, specifically, Article 29 of the Health and Social Work Professions Order 2001 (as amended), provides that the Conduct and Competence Committee
must consider whether the “allegation” (as formulated under Article 22 and served on the Registrant in advance) is well founded.
The Administrative Court, when asked to look at this very point, albeit in the context of GMC proceedings, ruled:
“…the practitioner faces an allegation which is contained in the notice and no other allegation, unless that notice is amended in accordance with rule 17(3)…No doubt if members of a Panel feel concern based on the material before them on issues which are not contained in the notice of hearing, they are entitled to raise them. But they ought to have been advised that they could not properly rely on them unless they did form part of the allegation made against a practitioner and so they could not properly be taken into account against him unless there was the necessary amendment to the notice”: Mr Justice Collins, Roomi v General Medical Council (2009) EWHC 2188 (Admin) (underlining added).
It is thus essential that it is clear which facts form the basis of the allegation and which are background material only.
Panels must confine their findings of fact to the pleaded heads of charge. In Chauhan v General Medical Council  EWHC 2093, the FTP Panel made adverse factual findings against the Registrant on the basis of matters not pleaded in the Notice of Hearing. King J, in allowing the Appellant’s appeal, rejected a submission by the Respondent that the matters, although not pleaded, were admissible as evidence of propensity.
Panels are not permitted to take into account evidence that does not form the basis of an allegation. In the case of Sharp v Nursing and Midwifery Council  All ER (D) 231, Holman J agreed with the Appellant that the Committee was in serious error when it took into account instances of dishonest
behaviour that it had found in the papers but which were not pleaded in the allegation.
It is possible in certain cases to cure a defective allegation without amending it, so long as the Registrant is afforded the opportunity to deal with the new way in which the case is to be put. In Saverymuttu v General Medical Council  EWHC 1139 (Admin), the Court held that the Council’s approach, in altering the way in which the case was put, without seeking to amend the charge in the Notice, had been fair, because the Registrant had been given the opportunity to deal with the shift in emphasis of the Council’s case (through a two week adjournment and permission to recall witnesses).
4. Criminal rules
Whilst FTP proceedings are not criminal proceedings, the procedure for particularising charges in the criminal sphere provides useful guidance for regulators when drafting allegations of impairment.
Rule 7.3(1) of the Criminal Procedure Rules 2010, states as follows:
An allegation of an offence in an information or charge must contain -
(a) a statement of the offence that –
i. describes the offence in ordinary language, and
ii. identifies any legislation that creates it; and
(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.
It is interesting to compare the level of detail required in criminal charges as against the detail that is often provided in FTP allegations. A defendant facing a criminal penalty is often provided with far less detail in the charge than a Registrant facing a disciplinary finding could expect to receive.
5. GMC Pilot ‘Changing the way we allege impairment in FTP Panel Notices’
The GMC Pilot scheme was introduced in summer 2011 in a selection of cases with the stated aim of reducing the length and complexity of hearings by reducing the detail provided in the allegation sent to the Registrant. The pilot is still on-going; the GMC expect to evaluate its effectiveness “later in 2012” and will decide whether to adopt the new approach to drafting charges permanently thereafter.
The scheme provides for the transferring of the particularisation of the allegation from the Notice of Hearing to the Statement of Case. Thus allegations will be pleaded in short form in the Notice of Hearing with
supporting factual particulars in the Statement of Case. The pilot scheme does not envisage that the Panel see the Statement of Case as a matter of course, although they are not barred from so doing.
The existing procedure under the GMC FTP Rules 2004 (as amended) requires that the Notice of Hearing be served on a Registrant “as soon as reasonably practicable after an allegation has been referred” and that it shall ‘particularise the allegation and the facts upon which it is based’: Rule 15(2) a).
Despite the GMC’s own view of the new regime that “…the combination of the Notice and the Statement of Case should aim to meet the objective of the practitioner understanding the case he or she has to meet…” there is widespread doubt both as to the fairness and legality of this short-form approach to charging. The scheme has no statutory footing (and does not appear to comply with Rule 15(2)(a)). It also appears to conflict with relevant case law in this area (see above Part 3) and has a number of potential consequences so far as the procedural safeguards afforded to Registrants are concerned (for example should a half time submission be made on the basis of the Notice or the Statement?).
A successful challenge has already been brought in relation to a new short-form Notice of Hearing in the case of CM v GMC unreported (Christina Lambert QC acting for CM). In this matter, the applicant sought to challenge, by way of judicial review, the new regime on the basis of its non-compliance with the GMC’s statutory duties. Following the granting of permission by the single judge, the GMC withdrew its original charges and served a fully particularised Notice of Hearing. Although not a judicial pronouncement on the legality of the new scheme, this case may be indicative of its future at the end of the pilot. The intention behind the scheme is perfectly laudable; its precise effect on the fairness of the proceedings is yet to be determined.
C. SPECIFIC PLEADING REQUIREMENTS
The dishonest conduct of a practitioner is a fact in the case as it describes the mental element of the conduct alleged. It is a fact that the regulator bears the burden of proving to the requisite standard.
It is a fundamental principle of fairness to a Registrant that an allegation of dishonesty should be “unambiguously formulated and adequately particularised”: Salha and Abusheika v the General Medical Council  UKPC 80 (see also Singleton v Law Society  EWHC (Admin) and R (on the application of the Council for the Regulation of Healthcare Professionals) v (1) NMC (2) Michelle Kingdom  EWHC 1806 (Admin)).
The question for the Administrative Court in Moneim v the General Medical Council  EWHC 327 (Admin) was whether the Appellant had been prejudiced by the ‘ambiguous’ way that the case of dishonesty was advanced against him during the course of the hearing. Whilst a case very much on its own facts, this decision is good authority for the proposition that even if the allegation as pleaded is not explicit as to the precise nature of the dishonesty alleged, there will be no unfairness to a Registrant if the Council
makes explicit the basis of the allegation during the hearing and the Registrant is afforded sufficient time to deal with the case against him. This is consistent with the decision in Saverymuttu v General Medical Council (above), although may be at odds with the decision in Fabiyi v Nursing and Midwifery Council (see below).
Pleading dishonesty alone as the relevant state of mind may not be adequate in all cases: dishonesty can be difficult to prove; the Registrant’s case on this critical issue may not be clearly known until the proceedings have commenced; and amending an allegation to include alternate states of mind once the hearing has commenced is, understandably, met with a good deal of resistance by FTP Committees.
A practical alternative to pleading dishonesty alone as the requisite state of mind, is to plead all possible degrees, up to an including dishonesty, so as to capture all possible findings by the Panel e.g. your conduct was:
b. Intended to mislead
Of course, simply pleading dishonesty will not be sufficient to ensure that a Registrant is afforded a fair hearing. As the case of Nwogbo v General Medical Council  EWHC 2666 (Admin) makes plain, allegations of dishonesty must be put to Registrants in cross examination in clear and unambiguous terms so that the Panel can make a fair assessment of a Registrant’s express state of mind on the issue.
The Administrative Court in the recent case of Fabiyi v Nursing and Midwifery Council  EWHC 1441 (Admin) appears to call for greater specificity in the drafting of dishonesty allegations, accordingly, these must now include: (i) details as to the precise acts which are said to be dishonest (nothing particularly new or controversial in this); and (ii) a clear explanation as to the specific state of mind of the Registrant which supports the pleading of dishonesty. Whilst arguably, this case represents a march towards the ever
over-particularisation of allegations, in some cases of alleged dishonesty, such an approach is not only to be encouraged, but is positively necessary to ensure fairness to a Registrant.
7. Sexual motivation
Not to plead sexual motivation has been held to be a serious procedural irregularity and constitute under-prosecution: R (CRHP) v General Medical Council, Rajeshwar EWHC 2667 (Admin). This particular state of mind will have such a crucial impact on the nature of any sanction imposed that the
practitioner must have a fair opportunity of dealing with it during the course of the hearing.
8. Pleading conclusions
Consideration should be given in appropriate cases as to whether or not to include in the allegation the conclusions that are to be drawn from the pleaded facts. Whilst these are, on one view, subjective questions of judgement to which a Registrant cannot truly be asked to enter a plea in respect thereof, the
Court has held that such matters may be helpfully included nevertheless: R (on the application of Bevan) v General Medical Council  EWHC 174 (Admin).
Certainly, and as demonstrated by the cases of Levy v Solicitors Regulation Authority  EWHC 740 (Admin) and General Medical Council v Salha  UKPC 80, para 7, matters which are likely to have an impact on the sanction imposed should be pleaded, so that the practitioner can have the opportunity of dealing with them in a procedurally fair manner. So for example, the following matters may properly be included in an allegation: “your conduct was:
Practical experience has shown that it is preferable to plead the conclusions after the factual particular to which they relate, rather than as a wrap-up paragraph at the end: it is easier from a presentational perspective and Committees find it less cumbersome when formulating their reasons.
Careful consideration needs to be given to the choice of adjective so that the Panel are able to readily distinguish between each of them; many of the commonly used terms have very similar meanings so as to make them virtually meaningless.
9. Pleading alternatives
It is essential that where an alternative basis for an allegation is advanced by a regulator that it is pleaded as an alternative particular, again this allows a fair opportunity for the Registrant to deal with the matters alleged against him. In Farag v General Medical Council  EWHC 2667 (Admin), the GMC
advanced the case of dishonesty against the practitioner on the basis that he had dishonestly faked or exaggerated illnesses with a view to obtaining sick pay. The Committee in finding the charge proved and dishonesty made out, did so, not on the basis advanced by the Council but on the alternative basis that Dr Farag had acted dishonestly in concealing the fact that he had been working for another institution. In the absence of a separate free-standing particular alleging this conduct, this was held to be unfair.
10. Previous untruths
In Misra v General Medical Council  UKPC 7, para 17, the Court was clear that it was both unnecessary and oppressive to include a charge that alleged that a practitioner had, in addition to the substantive allegation, told lies to the Preliminary Proceedings Committee of the GMC. A variation of this
allegation is not infrequently pleaded by regulatory authorities, often citing the telling of untruths during the internal disciplinary investigation. Arguably, the same criticisms could befall such an allegation and they should be avoided.
11. No rule against duplicity
There is no rule in FTP proceedings that is akin to the criminal rule against duplicity. There can be no objection to a number of factual particulars being pleaded together in one allegation: Gee v General Medical Council  2 All ER 193, at para 575F, in which Lord Mackay stated:
“…there is no unfairness in a procedure in which a number of allegations of fact are set out in one charge and it is alleged…that these matters of fact, if established, render him guilty of serious professional misconduct provided that he has fair notice in time to prepare his defence of the nature of evidence to be led in support of these allegations…and provided the [Panel] make plain which of the allegations of fact, if any, they have found proved.”
The position was further clarified in R (Wheeler) v Assistant Commissioner House of the Metropolitan Police  EWHC 439 (Admin) in which the Court held that “duplicity is not a basis for interfering with a disciplinary finding…although of course it may be relevant to the fairness of the proceedings and to the ultimate penalty if charges are found proved…”.
*This document refers to ‘allegations’ rather than ‘charges’ to reflect the terminology used in many of the healthcare regulators already and as favoured by the new GMC rules.
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