Lasting Powers of Attorney: recent key developments
The Queen (On the application of B) v The Office of the Independent Adjudicator  EWHC 1971 Admin
The Claimant was enrolled on the MB ChB medical course at the University of Leicester (the University) between 2002 and 2009. He had a break in his education as his registration with the General Medical Council (GMC) was suspended in 2003 for one year after the Claimant was bound over for affray. The Claimant re-joined the University the following year and began Phase II of the course.
On 15 March 2010, the University decided not awarded the Claimant his medical degree after it was found by the University’s Fitness to Practise (FTP) Committee that the Claimant was unfit to practise as a doctor due to the unprofessional conduct he displayed. The proceedings commenced after the University had investigated an unsubstantiated complaint made by the Claimant in May 2009 into the ‘below standard’ training he stated he was receiving, and into allegations of bullying and discrimination he faced.
The FTP Committee detailed several instances where the Claimant’s conduct was deemed to be ‘aggressive and unprofessional’. This included the Claimant being bound for affray in 2003, his ‘withdrawal from the cardiovascular medicine block making independent unapproved alternative arrangements’ and ‘the sustained intemperate and abusive language of your letter of complaint to the Chancellor in 2009’.
The FTP Committee noted that other evidence gathered during the University’s investigation ‘was more circumstantial, but was consistent with the same picture’. The FTP Committee decision was reinforced by the ‘frequent occasions’ where the Claimant was uncooperative during the investigation process which included his decision not to meet the Dean or Investigating Officer.
The Claimant did not take part in the FTP proceedings, but shortly after the decision appealed to the Office of the Independent Adjudicator (OIA). In a decision dated 2 October 2011, the OIA did not accept the complaint as it ‘was not satisfied that the Claimant was unable to go back to the University to resolve matters’.
The Claimant made two further submissions to the OIA in November and December 2011, however, the OIA reaffirmed their decision on 11 January 2012. The Claimant’s subsequent application for judicial review was not granted.
The breach of contract claim
The University successfully defended a civil claim against the Claimant on 14 October 2016 by way of a strike out application. The Claimant alleged in his claim for breach of contract that the University had:
The relief sought by the Claimant was to have the 2010 FTP proceedings re-opened. The claim was settled by a Tomlin Order with a Confidential Schedule by which ‘the Claimant compromised all claims, rights, demands and set offs’ he had or may have against the University in the future. However, during the negotiations of the order, the Claimant states that both parties were aware of new evidence due to email correspondence between the University and his solicitor whereby she asked the University ‘…..to confirm, for the avoidance of any doubt, that the revised agreement will not preclude the University from reopening the question of his fitness to practise on the basis of further evidence post-dating 11th March 2010 being made available.’
The Claimant submitted new evidence to the University on 22 March 2017, and asked for the FTP proceedings to be re-opened. The Claimant contended that the evidence was out of the scope of the 2015 claim because from the email exchange both parties understood that it was to be judged as a separate matter.
The evidence submitted contested the University’s claim that the Claimant withdrew from the cardiovascular medicine block and provided positive statements from his supervisor. The evidence also raised issues with the University’s response to Claimant’s complaint, and indicated a potential bias in appointing a Panel.
The University responded to the Claimant; however he brought his new evidence before the OIA. The OIA dismissed his claim, and in its decision on 25 August 2017, the OIA stated that ‘all of the evidence he has now submitted relates to the fairness of the fitness to practise case in 2010’.
The Claimant disagreed with the OIA, as he contended that if the new evidence was available at the time of the FTP proceedings, the FTP Committee would have reached a different conclusion. Furthermore, his Counsel noted that the new complaint differed from the breach of contract claim as the Claimant was not suggesting that the FTP Committee acted in ‘a procedurally unfair manner.’
The Claimant applied for a judicial review of this decision.
The Judicial Review
In these proceedings, Counsel for both parties presented differing arguments in relation to the subject matters of the 2015 and 2017 proceedings. Furthermore, Counsel for the OIA contended that had the complaint been eligible, it was ‘highly unlikely’ that the outcome would have been substantially different.
In reaching his decision, John Bowers QC, considered three central issues:
In relation to the first issue, John Bowers QC determined that it was the duty of the Court to determine the similarity of the subject matters in interpreting Schedule 2 paragraph 3(2)(c) of the Higher Education Act 2004, which applied to these proceedings. In doing so, he mentioned that ‘it is appropriate that the court should construe the provision as it is in a better position to decide this than the OIA.’
In determining the second issue, John Bowers QC acknowledged the differences presented by the Claimant but ultimately determined that the claims were similar as ‘both seek to overturn the FTP’, they both ‘point to procedural faults’ and ‘the Claimant’s ultimate objective was to clear his name’. Conclusively, the judicial review was dismissed on this ground because the new evidence presented by the Claimant overlapped ‘greatly with the procedural issues’ in the 2015 breach of contract claim.
After he dismissed the claim, John Bowers QC briefly discussed the final issue and used the high threshold in section 31(2A) of the Senior Courts Act 1981 (the Act) in his determination. Under the Act the court must ‘refuse to grant relief on an application for judicial review…if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. In conclusion, John Bowers QC determined that result would have been the same if the OIA had considered the claim.
We have previously acted for clients whom have been refused their medical degrees, thereby preventing them from graduating. These clients were also subject to student fitness to practise proceedings instigated by their medical schools.
Many do not appreciate the serious ramifications that can flow from issues which arise whilst an undergraduate. Prospective doctors and other healthcare professionals are held to a high standard, and must act in a manner which is congruent with the standards applicable to their profession at all times. A significant failure, or a series of failures to do so, can call into question their fitness to practise, even before they officially graduate.
This decision also highlights the importance of open, effective and meaningful engagement in investigatory processes.
This blog was co-authored by Shannett Thompson and Eguono Ogueh from the Kingsley Napley Regulatory team.
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