Professional Regulation – Case Law Update – February 2024

This edition of the case law updater is compiled by Joseph Sinclair, Fatima Jama and Georgia-Mae Chung.

PSA v GDC & Patel [2024] EWHC 243 (Admin)

Convictions – Sanction – Fleishmann Principles

Mr Patel (“NP”) was convicted of causing death by careless driving for which he received a 15-month custodial sentence, suspended for 2 years. The GDC brought charges before the Professional Conduct Committee, who found that he had been convicted of the offence, that he misled the GDC in that he had failed to inform them of the charges before conviction, and that both impaired his fitness on public interest grounds. The Committee imposed a reprimand. The PSA referred the matter to the High Court under its sufficiency for public protection powers under s.29(4) of the National Health Service Reform and Health Care Professionals Act 2002.

In respect of assessing serious convictions and sanction, Sweeting J concluded that the principle in Fleishmann [2005] EWHC 87 (that unless the circumstances plainly justify a different course, a practitioner should not be permitted to resume his practice until he has satisfactorily completed his sentence [54]) “…cannot be applied as if it were a rule; both it and the “general principle” derived from it in the GDC Guidance must bend to the overarching requirement to impose a sanction which is just, proportionate and only that which is necessary to maintain public confidence”: [19]. Further at [22]:

Equally, Fleischmann does not suggest that suspension falls away as an available sanction just because a criminal sentence has been “completed” nor that the date of completion of a sentence necessarily sets a cap on the period of suspension. That would incentivise delay and fetter the Committee’s powers. It must remain a sanction open to the Committee where appropriate even if the criminal sentence is complete. In many cases, no doubt, a suspension running concurrently with the period or part of the period over which the criminal penalty is served or is to be completed may be appropriate. That will follow the general principle in Fleischmann and meet public expectations. In other cases, an approach fitted to the particular circumstances will be required. 

As to its application to the facts of NP’s case:

57. The principle in Fleischmann can only be engaged once there has been a conviction and sentence. The 1984 Act refers to impairment by reason of a conviction, which is the matter the Committee had to assess. At the time of the hearing Mr Patel was still subject to the suspended sentence order imposed by the Crown Court and was disqualified from driving. It may be that the age of the predicate offence will have some impact on an objective assessment of a conviction on public confidence but it is difficult to see how on the facts of the present case this could be regarded as a factor which plainly justified a departure from Fleischmann. The Committee was considering the matter a year after conviction and during the operational period of the sentence imposed.

58. Mr Patel’s good standing as a dentist was a mitigating feature, but the role of personal mitigation was limited. He had, at the age of 32, established a dental practice, was well thought of and had no other blemishes on his practising record. This is likely to be the position in many conviction cases; it was not exceptional or a matter which plainly justified a departure from Fleischmann.

… 

60. Both Mr Tankel for the PSA and Ms Hearnden, on behalf of the GDC, submitted that the Committee could not have arrived at a reprimand as an appropriate sanction had it properly assessed the seriousness of the criminal offence and the application of the guidance at paragraph 10 of Appendix A. I agree. An offence which results in a sentence of imprisonment whether immediate or suspended should normally be regarded as a serious criminal offence for the purpose of the guidance. Any doubt about that in this case could quickly be dispelled by reading the judge’s sentencing remarks. Suspension from practise (in a case not requiring erasure) was the starting point in accordance with Fleischmann and the GDC Guidance. It was “the least severe sanction” (see the GDC Guidance at paragraph 6.5). It was then necessary to consider whether there were circumstances plainly justifying a different course and, if not, the appropriate period of suspension. The factors identified by the Committee did not in my view justify any different course being taken for the reasons discussed above.

Ali v The General Medical Council [2023] EWHC 2984 (Admin)

GMC – appeal – sanctions – application of the burden of proof 

The Appellant faced numerous complaints, including actions that were “sexually motivated” and appealed the Medical Practitioners Tribunal Service (“The Tribunal”) sanction on the following grounds;

[54]“The decision of the finding the Appellant to have acted towards a patient for reasons of sexual motivation, and consequently to find his fitness to practise impaired and to erase his registration were: 

1. 1. wrong, and
   2. unjust, in that they relied on partial and inadequate reasoning, and
   3. because they erred in the proper application of the burden of proof.”

Among other things, the Appellant argued that:

[55]“…that the Tribunal committed precisely the errors which arose in Dutta and Khan: it approached the evidence of Patient C on the basis that she was credible overall – illustrated, for example, by its reference at §89 to her being “adamant” Dr Ali’s fingers were not on her wrist when he took her pulse – meaning that it treated her as telling the truth unless there was other evidence to disprove her. The effect of this approach in practical terms, she submitted, was to reverse the burden of proof. 

The Court conlcuded that:

[60]“I should be slow to interfere with findings of primary fact because the Tribunal had the advantage of hearing and seeing the witnesses, as well as having greater familiarity with the evidence over a hearing which lasted many days. While I accept that findings of primary fact are not “virtually unassailable” for the reasons given by Warby J in Dutta at §22, the circumstances in which an appeal court can interfere with those findings are restricted, as illustrated by the various formulations summarised in Byrne at §§14-15, such as a finding must be based on no evidence or “plainly wrong or so out of tune with the evidence as to be unreasonable” (see §50 above). That was the formulation also adopted in Dutta at §21(7).”

And ultimately concluded:

[104]“… my conclusion is that none of the grounds of appeal is upheld. The Determination of the Tribunal was not wrong or unjust and nor did it err in the application of the burden of proof. The consequence is that the appeal is dismissed under s.40(7) of the MA 1983.”

Aga v General Dental Council [2023] EWHC 3208 (Admin) 

GDC – appeal – harassment – immediate suspension order – direction for suspension

The case involved an appeal against a ruling of the Professional Conduct Committee (“PCC”) of the General Dental Council (“GDC”). The Appellant failed to report his arrest and charge by the police for harassment. The Appellant accepted the factual findings and the rulings that his fitness to practise was impaired by his actions and attitude and accepted that suspension from registration was an appropriate sanction.

The Appellant appealed the GDC’s interpretation and practice relating to the effect of the interaction between the immediate suspension order and the direction for suspension on the total duration of his suspension.

Richie J noted that the GDC’s sanctions guidance “creates a problem.” Saying:

[29] “It does not make clear whether the period of immediate suspension served is deducted from the sanction period of suspension. It may be read as implying that the full suspension takes effect (the words used are “substantive suspension”) when the appeal is dismissed.” 

While Ritchie J refused the appeal on all pleaded grounds, the appeal was allowed on:

[102]“the ancillary ground relating to the GDC’s practice or interpretation of making the duration of the direction for suspension consecutive to the duration of the duration of the immediate order for suspension”, saying:

[103]“The direction for suspension for 9 months shall be set aside and in its place I direct that the Appellant shall be suspended for a total of 9 months, from which the duration of suspension already served by the Appellant under the immediate suspension order made by the PCC shall be deducted.”

General Medical Council v Rezk [2023] EWHC 3228 (Admin)

GMC – appeal – sexual misconduct – overarching objective –  impairment

The General Medical Council (“GMC”) appealed against a finding of the Tribunal of the Medical Practitioners Tribunal Service (“The Tribunal”) that no action should be taken against the Respondent, in respect of his sexual misconduct and impairment of fitness to practise.

The allegations against the Respondent involved a referral by a Consultant who referred the Respondent to the GMC on behalf of Ms A, a junior sister on the Medical Assessment Unit at Derriford Hospital, Plymouth. She had disclosed that she had received from the Respondent unwanted sexually explicit messages, including pictures of his genitals. At that time, the Respondent had left Derriford Hospital and was contacting Ms A via social media. A further allegation was received in relation to, Ms B, also a junior sister on the Medical Assessment Unit at Derriford Hospital, who received messages about sexual activity from the Respondent on social media.

The Tribunal found that the matters proved which they characterised as sexual harassment, amounted to serious misconduct and consequently found the Respondent’s fitness to practise was impaired. However, the Tribunal concluded that there were “exceptional circumstances” in this case which justified taking no action. 

The grounds of appeal were as follows:

[2]“i) The Tribunal failed to attach sufficient weight to the second and third limbs of the over-arching objective in section 1 MA 1983, namely, to promote and maintain public confidence in the medical profession and to promote and maintain proper professional standards and conduct for members of that profession. 

ii) The Tribunal erred in finding that there were “exceptional circumstances” which justified a decision to take no action. 

iii) In the circumstances of this case, the Tribunal ought to have imposed an appropriate sanction, namely, suspension.”

Mrs Justice Lang, in upholding the appeal, said:

[111]“In my judgment, I am in a position to reach a conclusion on the issue of sanctions after having heard and read extensive submissions and evidence, and I consider it is appropriate for me to do so. The misconduct occurred as long ago as 2020, and the Tribunal made its determination on 3 April 2023. If I remit the matter for reconsideration by a fresh MPT, it would have to hold a further hearing, perhaps hear evidence, and then reach a determination. That process is unlikely to be concluded until well into 2024. It would take even longer if the previous Tribunal panel has to be re-convened. In any event, in view of my findings, a fresh panel is more appropriate. The delay has been, and continues to be, detrimental to Dr Rezk. Equally importantly, it is not in the interests of the National Health Service for the training of doctors to be delayed, and it is not in the public interest for extensive resources to be spent on protracted tribunal and court hearings.”

She continued:

[122]“Furthermore, in my judgment, taking no action in this case would not meet the overarching objective of protection of the public, in that it would not promote and maintain public confidence in the medical profession or proper professional standards and conduct for members of the profession. It would appear unduly lenient.”

Robert Hawkins v Health and Care Professions Council [2023] EWHC 3256 (Admin)

Health and Care Professions Council – quashing – remittal – misconduct

The Appellant was a registered physiotherapist. The allegation against him was that he had attempted to lower a patient’s underwear in a way that was sexually motivated, while giving her a massage.

Following a hearing, a panel of the Health and Care Professions Tribunal sitting as the Conduct and Competence Committee of the Respondent determined that this had occurred. They found that the Appellant’s fitness to practise was impaired by reason of misconduct and imposed a twelve-month suspension order.

The Appellant contended that the Panel had adopted an unfair procedure, since a finding adverse to him was made on a matter which had not been put to him by way of questioning when he gave evidence. The Respondent accepted that its case was not adequately put to the Appellant. The issue was whether, having quashed the Panel’s determination, the matter should be remitted for reconsideration before a differently constituted panel.

After considering a number of factors, the court held that the matter should be so remitted. In doing so, it applied the following principles:

[43] The court has a discretion. That discretion is necessarily a wide one because of the wide variety of differing circumstances in which it will have to be exercised … The discretion will have to be exercised having regard both to the purpose of the regulatory regime and to the interests of justice. 

[44] First, account must be taken of public interest in the proper regulation of health care professionals and in the maintenance of high standards in the healthcare professions. 

[46] …[A] further factor is the public interest in finality of proceedings and in the prompt determination of allegations against healthcare professionals. 

[47] Next, regard must be had to the requirements of fairness and of justice. To some extent these requirements are elements of the public interest to which I have just referred. However, they are more focussed on the circumstances of the particular case and of the particular healthcare professional. The consideration will necessarily be fact-specific but it will be appropriate to have regard to the circumstances of the proceedings in question; the nature of the allegation being made; the reason why the decision of the original panel has been quashed; the time since the events in question; and whether it will be possible to have a fair hearing if the matter is remitted for rehearing by a new panel (and potentially when such a hearing will be possible). 

[48] Finally, it is necessary to consider the utility or otherwise of remittal for a hearing before a further panel. There will be no point in remitting a matter for a further hearing if on a proper consideration of the evidence the only proper conclusion would be the dismissal of the allegation. 

[65] …[T]here is no consideration in respect either of utility or fairness which can operate against the public interest in a proper determination of the allegation against the Appellant. Similarly, that public interest outweighs the hardship to the Appellant flowing from the prolongation of the matter and from the fact that there will be a further hearing. In those latter regards it is relevant to note that the allegation is not stale and that the remaining issue is a narrow albeit important one.

Nursing and Midwifery Council v Deojlt Persand [2023] EWHC 3356 (Admin)

NMC – Interim Order – Conditions – Suspension – Necessity 

DP had worked as a registered home manager at a care home. The operators alleged that he failed to provide and oversee safe and effective care for a resident and that this contributed to a significant deterioration in their medical condition. Additionally, when applying for a job at a different care home, DP provided incomplete and misleading information about his career history. The case was sent to the Nursing and Midwifery Council (“NMC”) Practice Committee for a possible interim order.

The Committee concluded that suspension was not justified but that conditions should be imposed on his practice. At the time of the High Court’s decision, DP worked at a nursing home as a healthcare assistant. The conditions of the order effectively prevented him from being able to work as a registered nurse.

The NMC applied to extend the period to which DP should be subject to an interim order, imposing conditions on his ability to practise as a nurse. It was held that the interim order could be extended in order to protect the public. However, this was only in part and was limited to those conditions which mean that DP was not the sole nurse on duty. In making this decision, the court commented the following:

[19] …[T]he power to impose a suspension or condition arises where: 
“..the Practice Committee is satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, for the registration of that person to be suspended or to be made subject to conditions”

[21] The imposing of sanctions in the public interest should be relatively rare.

 [22] [A]n order on public interest grounds is only justifiable in a relatively rare case… That must be far more than a concern that a hypothetical member of the public might have a concern if no interim sanction was imposed… It follows that this case is solely about whether conditions on Mr Persand’s right to practice as a nurse can be justified on the grounds of public protection.

[37] …[T]he NMC should be more cautious about imposing interim orders in cases where the orders are likely to remain in force for long periods. 

[52] An interim order can only be imposed if, on the evidence for that individual case, a strict test of necessity for the imposition of an interim orders is established. The “necessary” test means that the Practice Committee has to be satisfied to a civil standard that it is really necessary to impose the order for one of the stated purposes and, if some form of sanction meets the necessity test, that no lesser form of sanction can be justified. That is a higher test than it being desirable for such an order to be made, albeit the test is not one as high as being absolutely essential.

Social Work England v William Yalden [2024] EWHC 86 (Admin)

SWE – Interim Orders – Extension – Length of time cases taking to resolve

Mr Yalden was employed by a local authority. He faced allegations of accessing a child’s records without professional cause, fabricating visits to families, false recording, and failure to undertake statutory visits and assessments.

An Interim Suspension Order was already in place and Social Work England applied for an extension of 18 months. Mr Yalden emailed the court to express that he was “not fussed by the interim order being extended or not” and wanted nothing to do with social work.

Mr Justice Fordham ordered that the Interim Suspension Order was to continue. However, the extension was granted for 16 months rather than 18 months, as this was judged to be necessary and proportionate:

[1] They are allegations only. But they are serious concerns. It is necessary for the protection of the public and in the public interest that the ISO should continue. 

[4] This is a case involving two strands of investigation which it may be appropriate to link… The case investigation reports were finalised for disclosure in the two strands in January 2023 and September 2023 respectively. 

[5] The evidence is that SWE has no “current” capacity to list new hearings until “after” April 2025. Mr Harris’s helpful skeleton argument describes a hearing “after” April 2025 as a realistic timeframe. The extension is sought for 18 months to 10 August 2025. I can understand why. That headroom, as Mr Harris explains, reflects that two months of work is needed to prepare to come back to this Court, and there is a risk of some diversion of attention and resource. He also points out that the ongoing prejudice to the Defendant in this case is tempered by the Defendant having recorded that he does not wish to continue as a social worker.

[6] I recognise the position as things stand, including the current resources picture. I recognise of course the importance of due process. I recognise SWE’s case-load. And I appreciate SWE’s predicament. But I am not prepared to adopt, as a premise, that the resources picture will be left unimproved and unaddressed. I also have regard to the prejudice arising from matters dragging on, in light of the Defendant’s expressed and understandable wish to see “the end of it”… If the case is incapable of final resolution within that timeframe SWE will need to return to this Court with an explanation, including what was done about sourcing the additional resources which SWE’s evidence recognises are badly needed, in the context of a picture which is accepted to involve unacceptable timescales.

Mohammed Adil v General Medical Council [2023] EWCA Civ 1261

Doctor – covid-19 conspiracy theories – Article 10 – suspension

Mr Adil was a colorectal surgeon who was found guilty of misconduct by MPTS. This was regarding his behaviour in 2020 when he appeared in YouTube videos and made statements about Covid-19 to the effect that it did not exist and was a conspiracy. He told his responsible officer that he would remove the videos and then failed to do so.

The Tribunal concluded that his actions fell seriously short of the conduct expected of a doctor and amounted to misconduct and that the statements were contrary to widely accepted medical opinion and undermined public health and public confidence in the medical profession. On this basis, they could not fall within the domain of legitimate freedom of expression for a doctor in the context of the pandemic at the time. Additionally, they found that he had limited appreciation of what he had done and its impact. They were not satisfied that he would not repeat his behaviour and they judged that he had limited appreciation of what he had done and its impact.

They concluded that his fitness to practise was impaired by reason of his misconduct and imposed a sanction of six months’ suspension with a review. This was to mark the seriousness of the misconduct and allow sufficient time for him to continue his remediation and reflect.

Mr Adil appealed on the grounds that the Tribunal’s decisions and the guidance used did not meet the requirements of article 10 and that the sanction was disproportionate and inappropriate. The appeal was dismissed.

Regarding considerations of Article 10, the court said the following:

[53] Where statements are made by a doctor invoking his status to engender trust and support in them, the extent to which the views are capable of medical and scientific support is a matter of importance. This is recognised by paragraph 68 of GMP… paragraph 68 is directly applicable to the appellant’s YouTube videos.

[56] The appellant’s views that the virus and disease did not exist, that the pandemic was caused by conspiratorial engineering and manipulation by the UK/USA/Israel/Bill Gates, and that vaccines were intended to serve commercial and world domination purposes not medical purposes, were baseless. 

[59] The views being advanced were not that the restrictions imposed in order to mitigate the effects of an acknowledged disease and virus were the wrong ones. They were, rather, that there was no virus or disease, and accordingly no steps were necessary at all. People were, in effect, being encouraged to behave in the way they would have behaved if the virus and its pandemic spread did not exist. It is self-evident that this would contribute to public harm if accepted. 

[62] In these circumstances, there can be little doubt … that sanctioning the appellant for misconduct was in pursuit of the legitimate article 10.2 aim of protecting public health and safety. 

[65] The seriousness of that conduct fully justifies the conclusion that it fell well short of the standards to be expected of a senior doctor and undermined public trust in the medical profession; and that the application of disciplinary sanctions is a necessary and proportionate interference with freedom of expression in the interests of public health and safety in order to maintain public trust in the NHS and deter others from such unprofessional and dangerous conduct.

The court then turned to consider the suspension:

[88] It has repeatedly been emphasised in the authorities that the principal considerations in determining what sanction to impose are the message it sends to others so as to promote standards of conduct within the profession, and the maintenance of public confidence in the profession, rather than deterrence or retribution for the individual concerned. 

[92] …[T]he six month suspension in this case was both appropriate and proportionate. The misconduct was serious because it was damaging to public health, which was also one of the reasons it undermined confidence in the profession. The Tribunal found that at the date of imposing the sanction, the appellant’s fitness to practice remained impaired by his lack of insight, which meant that they could not conclude that the risk of his repeating his conduct had disappeared. 

[93] A period of suspension was necessary in order to enable the appellant to gain insight into the seriousness of his conduct and avoid the risk of repetition. This directly engaged the need to protect members of the public from harm. Nor would anything less than a suspension be sufficient to mark the seriousness of the offending in order to promote standards within the profession and public trust.

Imani v General Dental Council [2024] EWHC 132 (Admin)  

Dishonesty – appeal – hearsay – suspension

This case involved an appeal against a decision of the General Dental Council Professional Conduct Committee (the “PCC”) suspending Dr Shala Imani’s (the “Appellant”) registration as a dentist with the General Dental Council (the “GDC”) for 12 months.

The allegations faced by Appellant occurred within the period of 2012 – 2018. During that time, she undertook private and National Health Service (“NHS”) dental work from her two dental practices. As part of her NHS contract for each practice, she had a yearly target to submit a certain amount of Units of Dental Activity (“UDAs”). The PCC found that the Appellant had caused or permitted claims to be made for UDAs relating to treatments that had not in fact been provided as claimed. This included claiming for treatments that had not taken place and submitting claims with incorrect premature dates of completion.

The PCC found that in total 23 instances where her conduct was inappropriate and misleading and that in 9 of those instances, including all of the charges relating to claims with incorrect premature dates of completion, her conduct was dishonest, as she sought to obtain UDAs to which she was not entitled. In addition, the PCC found that in 1 instance she had acted dishonestly in failing to offer a patient treatment under the NHS, as opposed to exclusively under a private contract. The PCC also determined that the Appellant failed to provide an adequate standard of care in relation to 10 patients and that she failed to provide an adequate standard of record keeping in relation to 12 patients. In turn, the PCC found that the proven allegations amounted to misconduct and that her fitness to practice was impaired by virtue of the proven dishonesty. The appeal related to the 10 findings of dishonesty:

[4]The Appellant’s Grounds of Appeal are that the PCC was wrong and erred in:
“1. Admitting or failing to exclude, multiple hearsay evidence regarding Treatment Acceptance Dates and Treatment Completion Dates contained in Schedule C;
2. Finding dishonesty proved in relation to the allegations 5(g), 6(f), 7(a) – (g) and 17(b);
3. Determining a sanction of suspension for a period of 12 months.”

Mrs Justice Heather Williams in dismissing the appeal stated:

[158]“I do not consider that the PCC’s decision was wrong, unjust or that it involved any procedural or other irregularity. I have explained why I reject both Ground 1, concerning the Committee’s decision to admit the hearsay evidence in Schedule C, and Ground 2, relating to the dishonesty allegations that were found proved. In the circumstances, Ground 3, regarding the sanction imposed, does not arise. This was a careful and detailed decision; charges were considered individually, the evidence in respect of each was evaluated and the PCC’s reasoning was clear and thorough.”

MacCallum vs Secretary of State for Education – [2024] EWHC 87 (Admin)

Prohibition orders – appeal out of time – unacceptable professional conduct

This case involved an application for an extension of time for an appeal against a prohibition order issued by the Secretary of State for Education (the “Respondent”) against Mr Robert McCallum (the “Appellant”). The Respondent adopted a neutral position to this application.

On 11 November 2022, a Professional Conduct Panel of the Teaching Regulation Agency (the “Panel”) found allegations proved which amounted to unacceptable professional conduct by the Appellant which was likely to bring the profession into disrepute. The Panel recommended that he should be issued with a prohibition order, which prohibits him from teaching indefinitely, and that it should be subject to a review in 2 years’ time.  The Respondent imposed a prohibition order, with effect from 17 November 2022, to be subject to a review not before 5 years from the date of the order. The Appellant’s legal representatives at the time failed to file an appeal within the statutory 28-day period due to multiple errors.

The Court found that the Appellant had done all he could to ensure his appeal was filed on time, that the failure to file was the fault of his then legal representatives and was granted an extension of time to file his appeal.

Citing the principle established in the Supreme Court case Pomiechowski v District Court of Legnica, Poland [2012] 1 WLR 1604, and subsequent cases, the Court held that strict application of the statutory time limit would impair the very essence of the Appellant’s right of appeal under Article 6 of the European Convention on Human Rights in these circumstances. The Court also raised the possible consequences of the Appellant losing his employment and his potential claim against his then legal representatives for damages for professional negligence.

[40] I consider that there are exceptional circumstances in this case, and application of the surrogacy principle would have the effect of impairing the Appellant’s right of access to the Court, in breach of Article 6 ECHR. The Appellant “personally has done all he can to bring [the appeal] timeously” (per Maurice Kay LJ in Adesina at [15], citing Lord Mance in Pomiechowski, at [39]). The Appellant was aware of the strict deadline and regularly checked on the progress of the appeal and its preparation. He did everything that was asked of him by his solicitors. The delay in filing was entirely the fault of his solicitors. His solicitors misled him by informing him that the appeal had been lodged on 14 December 2022 when in fact no valid appeal had been lodged on that date. They did not inform him that an extension was needed until 15 August 2023. 

[41]The Appellant has a potential claim against JMW for damages for professional negligence. His employer is willing to continue to employ him for the duration of a 2 year prohibition order, but cannot do so for as long as 5 years. Therefore he stands to lose his employment if he cannot successfully appeal. An award of damages, which would have to be evaluated on a “loss of a chance” basis, would not adequately compensate the Appellant for the inability to pursue his profession. 

[42]For these reasons, the application for an extension of time to file the appeal to 16 January 2023 is granted.