Professional regulatory hearings - 2015 in review

23 December 2015

Corporate Crime analysis: Julie Norris, partner and head of the regulatory and professional disciplinary defence team at Kingsley Napley LLP, looks at the most significant developments in 2015 in the area of professional regulatory hearings.

What legal developments have had the biggest impact on your practice in 2015? How have these affected your ongoing cases and working life? How have you dealt with these on a practical level?

Regulators in the health and social care sector have been particularly active in 2015, continuing to review and revise their disciplinary schemes, making them more streamlined and fit for purpose, some with radical effect. Most notably, following legal challenge on behalf of two of our clients, the British Psychoanalytic Council (BPC) consulted on new rules that allow, for the first time, legal representation at hearings and cross-examination of witnesses. The first disciplinary hearing brought against a legally represented psychoanalyst is due to take place in 2016.

Many regulators, now resigned to live without the benefits of the proposed 2014 Law Commission Bill on the unification of healthcare regulation, have pressed on with some of the proposed changes recommended in the Bill: the General Medical Council (GMC) acquired the right of appeal against decisions of the Medical Practitioners Tribunal Service and the Nursing and Midwifery Council (NMC) introduced case examiners to make case to answer decisions, in substitution for the cumbersome investigating committee procedure. The General Dental Council (GDC) will follow suit next year with the introduction of case examiners.

The courts have also been busy and have considered a steady stream of appeals and judicial reviews brought by regulators and registrants alike, from across the regulatory sectors. Our professional discipline team has been impacted in particular by the decisions handed down on the subjects of: the appropriate test for dishonesty; the specialisation of expert witnesses; and on the revision of mistakes made by regulators. Alongside these key decisions, regulators have continued to develop and improve their disciplinary schemes; a few notable developments are touched on below.

Dishonesty

On dishonesty, the legal landscape has been shifting for some time: in 2012, the court grappled with whether a dishonesty direction needed to be given routinely (Uddin v General Medical Council [2012] EWHC 2669 (Admin), [2012] All ER (D) 229 (Jul)); and in 2014, the court considered whether the test of the reasonable and honest person should reflect the view of a professional person in the same profession as the registrant, or a lay person (Hussain v General Medical Council [2014] EWCA Civ 2246, [2014] All ER (D) 76 (Nov)). The leading case in 2015 was Kirschner v General Dental Council [2015] EWHC 1377 (Admin), [2015] All ER (D) 155 (May). In Kirschner, Mostyn J, giving judgement for the High Court, was concerned that the test for dishonesty deployed in most professional regulatory proceedings, where the civil standard of proof is applied, is the criminal test enunciated in R v Ghosh [1982] QB 1053, [1982] 2 All ER 689 and Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] All ER (D) 321 (Mar) (the objective and subjective tests). Mostyn J (at para [19]) expressed the view that the more appropriate test was the Barlow Clowes International Ltd (in liq) v Eurotrust International Ltd [2005] UKPC 37, [2005] All ER (D) 99 (Oct) test (subjective test only), used in civil cases:

'In my opinion there should be but one test for dishonesty in all civil proceedings, whatever their nature. That test should be the one propounded by the Privy Council in Barlow Clowes and as it was very recently confirmed by it in Central Bank of Ecuador. The Privy Council is the Supreme Court in all but name, and if it propounds a legal test then we should faithfully follow it unless it conflicts with an earlier binding domestic decision.'

The effect of this obiter comment has been the resurrection of arguments surrounding the appropriate test to be deployed in professional regulatory proceedings--confusion abounds and clarity is much needed.

The specialisation of experts

The decision of Pool v General Medical Council [2014] EWHC 3791 (Admin), [2014] All ER (D) 173 (Nov) handed down
by the High Court in October 2014, has continued to have an impact on those seeking to instruct expert witnesses. The court in Pool ultimately determined that Dr Pool had not been sufficiently expert to provide his opinion on the fitness to practise of a registrant in professional disciplinary proceedings, in that he was neither an expert by qualification (as he was not on the Specialist Register for general adult psychiatry), nor was he an expert by experience (as he had no experience of assessing patients in a community setting focussing on occupational functioning). The court, having declared that there was a strong public interest in ensuring that doctors do not act outside their competence and do not put themselves forward as experts in areas in which they do not have adequate knowledge and expertise, determined that
a suspension order was the appropriate sanction. The decision has sent shock waves through the psychiatric profession.

Anecdotally, lawyers are divided on whether the court was correct in its approach and analysis. This case has had a substantial impact on litigation in this field; experts are understandably wary of the reach of the judgment and are seeking reassurance from us that they can accept instructions.

Correction of mistakes

On the correction of mistakes, the court confirmed in R (on the application of Chaudhuri) v General Medical Council [2015]
EWHC 2261 (Admin), [2015] All ER (D) 23 (Aug) that a regulator can revisit any previous decision if that decision was made in ignorance of the true facts and the basis amounted to a fundamental mistake of fact. This has been welcome
confirmation; as Cave J noted, 'to suggest otherwise would be to allow process to triumph over common sense'. This has been a decision welcomed by those acting for regulators and regulated professionals as a useful and practical route to altering decisions taken in error.

How has your business developed in 2015? Has this been a good year for work in your area?

The legal market place for the provision of external legal services to regulatory organisations is changing. Driven primarily by resource considerations, due in part to a higher number of complaints received, regulators are looking at ways to obtain the ever increasing amount of advice they need, while maintaining, or even reducing, their legal spend. Some regulators have reacted by taking more of the investigation and litigation of disciplinary cases in-house, others, by seeking to work with their current legal providers to ensure more efficient processes are in place for the investigation of cases. Our
team has seen the core work undertaken for our regulatory clients remain reasonably stable. We have worked with our existing clients on process improvement projects, through which we have been able to provide measurable benefits, particularly in the area of information assurance.
This year we began a planned and staged diversification programme, building upon existing streams of work and acting as a platform for sustained growth over this business planning cycle. We have launched three new practice areas to complement our existing expertise in advising regulators: financial regulation; advising professionals; and private prosecutions. The steady growth of these complementary new practice offerings has been satisfying, and we believe is due in part to our ability to mobile a cross practice team to advise clients, as well as a result of the firm's reputation for obtaining better than expected outcomes for clients.

How has the profile of your clients developed? Can you identify any trends in your clients or types of cases?

We have seen a continued escalation in the complexity of the disciplinary cases brought by regulators. Allegations are becoming more intricately drafted and more extensive; expert evidence is increasingly commonplace; registrants are increasingly seeking legal representation and cases are more robustly defended.

Julie Norris was interviewed by Kate Beaumont for LexisNexis

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