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In this series, Sebastian Winnett identifies some of the common pitfalls which those prosecuting and defending in the Regulatory sphere should expect to encounter, and offers practical suggestions on how these can be avoided or mitigated.
Part 1. Drafting of Charges
Tribunals are human and can fall into error. The risk of an adverse finding, or an inadequate sanction can, however, be minimised by a carefully drafted allegation. Appeals brought by the Professional Standards Authority (‘PSA’) are often framed in terms of “under prosecution”, when a neutral observer might consider that the Panel in question simply accepted an account from a Registrant or struggled with the evidence.
Pleading misconduct relating to acts which are “sexual” has proven to be a common pitfall.
In the widely discussed decision in Haris v GMC  EWCA Civ 763, Mrs Justice Foster proposed that the allegations might have been alleged as “sexual” conduct rather than “sexually motivated” conduct as a means of removing any need for a regulator to have to prove “gratification” on the part of the Registrant and bringing those allegations in-line with the wording of sexual offences in criminal litigation.
The extent to which this judicial intervention clarified matters is open to interpretation. Especially when one contrasts the decision with that in PSA v HCPC & Christopher Wood  EWHC 2819 (Admin).
In Wood, the PSA appealed a panel decision (inter alia) on the basis that the real substance of the misconduct was not sufficiently particularised in the allegations before the Panel, resulting in a sanction which did not offer sufficient protection to the public.
The underlying facts of the case were essentially that the Registrant, a paramedic, had attended an emergency call (with a colleague) at Patient A’s address. They attended because Patient A had by accident cut herself in the kitchen and summoned emergency help. Patient A had various medical vulnerabilities and mental health problems.
During the Registrant’s attendance at Patient A’s home an ECG was undertaken; the Registrant’s language was described as being “flirty” during the procedure.
The Registrant went on to ask Patient A various questions regarding her periods, personal relationships and contraception. He showed Patient A his regulator’s website on his mobile phone and discussed other professionals who had been struck off for having relationships with patients. Shortly after leaving Patient A’s address, the Registrant began to send text messages to Patient A. The content of many of the messages was sexual and included a request to meet with Patient A to engage in sexual activity.
The original allegations read as follows:
“During the course of your employment as a Paramedic, you:
At the final hearing the Registrant accepted the allegations, save for the fact that he disputed that his fitness to practise was currently impaired.
The allegations contained reference to the matters being “sexual” in nature and that the Registrant in engaging in the conduct was “sexually motivated”.
The Divisional Court considered (at paragraph 51), however, that the matter had been under prosecuted, and that further allegations should have been included, which would have allowed the Panel to make a different determination in relation to sanction.
The Court determined that the original allegations had not acknowledged that the Registrant might:
“have pursued Patient A (in a predatory manner) precisely because of her vulnerability. It is said that this predatory dimension to his conduct – and the associated attitudinal problems and future risk such motivations posed – were not explored and specific allegations were not put to him for admission or denial. As such, the case went off on a fundamentally misconceived footing.”
In practical terms, contrary to the decision in Harris it would appear that pleading that conduct was “sexual” or even “sexually motivated” would not have been adequate. The allegations should have made explicit reference to Patient A’s vulnerability and the part this played in the Registrant’s targeting of her as the recipient of his advances.
Those drafting allegations should be mindful that features which aggravate, or might aggravate conduct, such as deliberate targeting of a vulnerable victim should wherever possible be included within the allegation rather than raised as aggravating features at the sanction stage. As in any case, the allegations must be sufficiently particularised that a Registrant is fully aware of the real nature of the case against him (R (Wheeler) v Assistant Commissioner House of the Metropolitan Police  EWHC 439 (Admin)).
In practical terms, any particulars which allege dishonest conduct should do just that: state as an alleged fact the state of mind of the Registrant at the time of the relevant conduct. Simply pleading that the conduct was “dishonest” might seem the most obvious and straightforward way to do this.
A potential risk with this approach is that the allegation may fail to encompass lesser conduct. A Respondent who pleads that their conduct was inaccurate but not dishonest might well be able to defend any later application to amend such an allegation to broaden its scope – especially if that application followed the Registrant’s case, at which point a Registrant might well submit that such an amendment was prejudicial – “if I’d known I had to defend myself against misleading conduct as well as dishonest conduct I would have conducted my case completely differently”.
A safer approach might be to allege that conduct was misleading and/or inaccurate, and/or dishonest. An allegation drafted in this way may also give assistance to a tribunal obliged to confine their fact-finding to the allegations before them, which might otherwise find the particular unproven.
Returning to PSA v HCPC and & Wood. One of the grounds of the PSA’s appeal was that the fact that the Registrant had effectively lied to those who initially investigated his misconduct had not been separately pleaded as an allegation. This resulted in the Panel wrongly concluding that the Registrant had made “early admissions” as to his misconduct, when there was evidence that he had made deliberately misleading comments. Those drafting charges should be mindful that attempts to evade responsibility for substantive misconduct should also be separately alleged in full.
The judgment in Hussain v General Medical Council  EWCA Civ 2246 – whilst predating Ivey v Genting  UKSC 67 – is a good reminder that the word “false” is not synonymous with “dishonest” and can lead to ambiguity when used in allegations.
There is considerable crossover in identifying a specific intention on the part of a Registrant within an allegation, and the allegation sufficiently reflecting the seriousness of misconduct. When in doubt, the safest course appears to be to spell out in as much detail as possible the state of mind of the Registrant, whilst providing a tribunal with alternatives should the specific intent not be found proved.
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