Professional Regulation Case Law Updater – October 2023

Our case law updater team comprises Joseph Sinclair and Rachel Pain.

Professional Standards Authority for Health and Social Care v Social Work England & MDR

[2023] EWHC 2125 (Admin)

Fitness to practise – misconduct – sanctions – social work – emotional neglect – dishonesty 

Appeal by the Professional Standards Authority following a panel decision on fitness to practise and the imposition of a five-year warning as opposed to a suspension.

The panel concluded that a finding of impaired fitness to practise was necessary to promote and maintain public confidence in the profession and maintain proper professional standards, but was not necessary to protect, promote and maintain the health, safety and well-being of the public. PSA submitted the latter finding was wrong and irrational, and a suspension should have been imposed.

The panel decision followed allegations the respondent had subjected to her children to emotional abuse and neglect against the background of an acrimonious relationship, had failed to disclose fitness to practise investigations in an interview, and had been dishonest in doing so.

The panel were satisfied the allegations were proved but noted the respondent had demonstrated remediation, the dishonesty was isolated, and there was a low risk of repetition. They also noted the respondent had exceptional personal circumstances and suspending her would be at the detriment of service users, the employer, and her children – they were therefore satisfied the appropriate sanction was a warning.

SWE sanction guidance notes that dishonesty is always serious, and dishonesty through misrepresenting qualifications is particularly serious – and usually likely to result in suspension or removal.

Held:

The legal adviser’s advice on this was inadequate and the panel failed to give adequate reasons for not applying the above sanctions guidance. The finding that the conduct was unlikely to be repeated, and the inconsistent findings on insight were wrong and irrational.

[84] “I accept that, to some degree, a social worker may be able to rely on a division between her private and professional lives. A social worker who has a transient personal crisis may not have impaired judgment in relation to his or her professional caseload. If all that the Panel had found was that MDR had used inappropriate language or displayed undue melancholy to her children during an isolated and stressful part of her life, this appeal would be unfounded. 

[85] However, in my judgment, the Panel’s decision cannot be characterised in this manner. The decision is broader and is objectively founded on statutory regulatory principles. In particular, there is no reason for this court to interfere with the Panel’s finding of fact that MDR was dishonest in a job interview in order to obtain employment with DCC. 

[86] The Panel found at para 137 of its decision (cited above) that the dishonesty at interview was an isolated incident carrying a negligible risk of repetition. That finding is unsustainable in light of the Panel’s other findings. 

The appeal was allowed, and the matter remitted to a panel for fresh findings on sanction.

Suleman v General Optical Council

[2023] EWHC 2110 (Admin)

Student dispensing optician – restricted activities – dishonesty – committee members – apparent bias 

The appellant was a registered student dispensing optician, alleged to have carried out restricted activities whilst unregistered. She was also alleged to have dishonestly concealed that she was not yet fully qualified. It was decided her fitness to practise was impaired and she should be removed from the register.

The committee included a member who was formally a director of a Specsavers practice and who, it transpired, hoped to obtain more locum work. It was submitted for the appellant that the committee should have been disqualified and the decision was tainted by apparent bias.

The court agreed the committee member should have recused himself and concluded that if one member is tainted by apparent bias, the committee’s decision is vitiated. Appeal allowed and the matter remitted to a differently constituted committee.

Social Work England v Burnham

[2023] EWHC 1895 (Admin)

Interim suspension order – extensions – protection of the public – delay 

The interim suspension order was initially imposed for an 18-month period, following which a further 12-month extension was refused; 6 months were granted. A further 9-month extension was sought, with no final hearing date set. The defendant submitted the length of the investigation was unjust and having detrimental effects upon his health. The concerns surrounded inappropriate and unprofessional behaviour with a service user aged 17, regarding which no further police action had been taken due to insufficient evidence.

It was noted that the overarching objective of the regulator in exercising its functions is the protection of the public.

[57] “The criteria and approach to be applied in an application to extend an interim order in this sort of context were set out by Arden LJ (as she then was) in General Medical Council v Hiew [2007] EWCA Civ 369. In that case she was considering the then regulatory regime applying to medical practitioners which, so far as material for present purposes, is extremely similar to that applicable in this case: 

“[28]..[T]he criteria must be the same as for the original interim order…, namely the protection of the public, the public interest or the practitioner’s own interests. This means…that the court can take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued. The onus of satisfying the court that the criteria are met falls on the…applicant for the extension…the relevant standard is the civil standard, namely the balance of probabilities….” 

It was held there was a risk to the public in the circumstances.

In respect of the earlier decision not to grant a full extension, it was concluded that although the earlier decision could be taken account of, the refusal of a previous court to extend beyond a certain point does not prevent a further extension. The delay and respondent’s ill health did not require the extension to be refused, although it was accepted the extension should not permit for unforeseen contingencies.

[77] delay is not a factor outweighing the public interest in the continuation of the interim order over until after a determination of the final fitness to practise hearing. 

[84] In large part, Mr Burnham’s complaint is not so much about the interim order but about the time the investigation and the fitness to practice proceedings have taken and are taking, However, the Court on this application cannot control that. If appropriate, (and I express no view) Mr Burnham can make an application to the adjudicators handling the fitness to practice proceedings and, if that fails, consider an appeal (if available) or judicial review. [sic]

Shabir v General Medical Council

[2023] EWHC 1772 (Admin)

GMC – appeal – fitness to practise – sexual misconduct – inconsistencies – good character 

Appeal following tribunal finding of impairment due to allegations of sexual misconduct.

Patient A reported the appellant had touched her breasts during a consultation when not necessary. The appellant submitted the tribunal failed to give any proper weight to the fact the allegation by Patient A was inherently improbably in the supervised / open door environment.

The appellant also raised that inconsistencies in Patient A’s account had not been properly addressed by the tribunal, and they had failed to consider the appellant’s consistent account and good character. It was further submitted that although the appellant maintained the touching had not taken place, the possibility of accidental touching should have nevertheless been considered.

Held:

[10] The appeal will be allowed if the court is satisfied that the Tribunal decision was (a) wrong or (b) unjust because of serious procedural or other irregularity in its proceedings.… 

[42] The tribunal was entitled to place substantial reliance on the oral evidence of the respective parties. 

[46] The Tribunal was plainly live to the issue of the inconsistencies in Patient A’s accounts. This had been a key theme of the hearing, having been raised by counsel for the GMC in his opening note and having featured at length in the closing submissions.

[70] the authorities are clear that the matter of weight to be attached to good character evidence is “pre-eminently a matter for the fact finder and ought not to be disturbed on appeal unless the decision is one that no reasonable tribunal could have reached” 

[79] An explanation of accidental touching had never been the Appellant’s case before the Tribunal…it is important to judge the Determination by how the case was put before the Tribunal. 

Metastasio v GMC

[2023] EWHC 1918 (Admin)

Sanction – Sex Workers – Doctor-Patient Relationship

The Appellant (“M”) was a psychiatrist who had treated Patient A. She was a sex worker and had appeared in pornographic films. After she had been an in-patient, M followed her on social media, contacted her on several occasions, and paid for her sexual services. She reported him after further contact was made. The Tribunal found that he had engaged in this conduct knowing that she was his former patient. The Medical Practitioners Tribunal found that his fitness to practise was impaired and directed that his name be erased on the grounds of misconduct.

M unsuccessfully appealed the factual findings to the High Court. In respect of sanction, he submitted inter alia that procuring sexual services was a professional transaction rather than a relationship. There was no grooming, and it was not a relationship with any real personal connection. Therefore it did not fall within the parameters of the patient-doctor relationship envisaged by the Sanctions Guidance. To this, Steyn J held:

[86.] In my judgment, the Tribunal did not err in failing to identify the contact between Dr Metastasio and Patient A as atypical. The Tribunal plainly understood the nature of the contact and that no doubt underlay their finding that Dr Metastasio had not engaged in “grooming behaviour”. He had not used his professional status to secure Patient A’s sexual services: she had accepted the meeting without knowing his real identity. Nevertheless, the transactional nature of the sexual relationship does not make it any less inappropriate than an ordinary sexual relationship. I agree with Mr Mant that the imbalance of power was potentially even greater. 

[87.] Following Patient A on social media, contacting her with a view to meeting for sexual contact, meeting her and paying her for oral sex, and then seeking to do so again, all in the knowledge that she was a vulnerable patient who he had treated in his capacity as a Consultant Psychiatrist, was undoubtedly a serious abuse of his professional position. The Sanctions guidance indicates at §148 that erasure is likely to be appropriate for such conduct.

Cook v GMC

[2023] EWHC 1906 (Admin)

Interim Orders – Sexual Offences – Logical Decisions

This was an appeal of the Interim Orders Tribunal (“IOT”) to maintain an interim order of suspension. The Appellant (“C”) had self-referred after being arrested by the police for offences relating to sexual activity with a person under 13. The arrest arose out of conversations with undercover officers on the internet. C was subsequently charged with offences relating to arranging sexual activity with a child contrary to s.9 of the Sexual Offences Act 2003. He was also charged with offences concerning publishing obscene articles relating to sexual activity with a child. C was acquitted of the more serious charges, and received a 12-month conditional discharge for the publishing offences.

After the conviction, an application was made to extent the interim order further while an investigation by the GMC was on-going. During the hearing, a lay-member of the panel raised a question about C’s underlying motivations for the offending (ie. whether it was sexually motivated). The judge on appeal found that this was not a point the GMC had taken, and was not a basis the GMC had sought a further order. Nevertheless, the application was granted by the IOT with this issue forming a significant influence on their reasons for doing so.

[26] An expert Tribunal such as the IOT has the ability to raise a matter of this kind, but it must also bear in mind that this was not an issue which, in the present case, the appellant and his solicitor had come to the hearing expecting to have to address. It was not, in my view, an obvious issue, for which they should have been prepared. This goes directly to the third of the appellant’s grounds of challenge, namely that the IOT gave undue weight to the “allegation” regarding the alleged sexual abuse of children. Given the way in which the issue had emerged, the IOT’s reasoning in respect of it was, I find, inadequate…

[27] It is not sufficient to point out that these considerations were aired by the appellant’s solicitor. Those considerations had essentially been advanced in the context of the case based on the convictions in counts 3 and 4. All this means that this court cannot afford significant weight to the IOT’s conclusions on this issue. It means that the IOT decision is wrong. I agree with Miss Tanchel that it led to the appellant not being able to understand why he had “lost”.
… 

[32] The fact that we now have the full prosecution evidence, including what the appellant said in his internet exchanges, is nevertheless important. Faced with the deeply unpleasant things the appellant was saying in these exchanges, public confidence is clearly a matter to be addressed. However, because of the way in which the IOT based its decision, the Panel simply did not address the question raised by this evidence, and which was the question which the parties thought was relevant when they remotely attended the hearing; namely, in the light of the change in circumstances whereby the appellant has been convicted on counts 3 and 4 and received a conditional discharge, in part because of his mental illness at the time, did the public interest require suspension or the imposition of conditions? That important question went unanswered because it was subsumed in the Panel’s flawed finding on the issue I have described earlier.

Sun v GMC

[2023] EWHC 1515 (Admin)

Mental Health – Extension of Time – Dishonesty – Sanction 

The Appellant made an out-of-time appeal to the High Court of the Medical Practitioners Tribunal’s conclusions on dishonesty and its direction of erasure. She sought an extension of time on Article 6 ECHR grounds.

In respect of dishonesty, it was accepted that she had engaged in the dishonest conduct, but that it was mitigated by her poor mental health at the material times. However, she argued that “[t]he Tribunal needed to grapple with ‘causation’, not as a simple but-for test, but an overall evaluative assessment. Had the Tribunal grappled with the issues, the only evidentially sound findings fairly open on the evidence would have recognised that there was a material and significant reduction in culpability (or mitigation of the Conduct) by reason of the effect of the mental health condition; and that in any event there was a material and significant ‘personal mitigation’ capable substantially of weighing in favour of a lesser sanction.” Fordham J disagreed at ¶41:

[41]…Whether a factor can be identified as a relevant mitigating factor is one question. The appropriate weight to be given to such a factor, once identified, is another. The Tribunal made this very point when it said this: “The Tribunal must consider any relevant mitigating and aggravating factors, giving them appropriate weight, and address them within the context of the determination”. What the Tribunal was saying was that Dr Sun’s mental health was a relevant mitigating factor but that, when it came to the question of weight, it did not “significantly” mitigate “her persistent and repeated dishonest behaviour”. That was a careful fully justified conclusion. Moreover, as Ms Hearnden pointed out, the idea of “mitigation” – including ‘classic personal mitigation’ – needed to be approached remembering that the Tribunal was not exercising a punitive jurisdiction, but a prospective assessment of fitness to practise applying the public interest imperatives arising from limbs (b) and (c) of the statutory overarching objective. The Sanctions Guidance reflects that truth. So, in my judgment, did the Tribunal’s approach and reasoning.

Counsel relied on the reasoning in the case of SRA v James [2018] EWHC 3058. The judge reminded of the need for caution in drawing parallels between solicitor and medical practitioner cases. However, the following points of discussion in that case were of some assistance:

[49.] Within the judgment in James (at §§103-104), the Court made the following points. First, that “an assessment of the nature and extent of the dishonesty and the degree of culpability will involve an examination of … the ‘mind set’ of the [solicitor], including whether the [solicitor] is suffering from mental health issues …, as part of the overall balancing exercise”. Secondly, that where it is “concluded that, notwithstanding any mental health issues …, the [solicitor’s] misconduct was dishonest, the weight to be attached to those mental health … issues in assessing the appropriate sanction will inevitably be less than is to be attached to other aspects of the dishonesty found, such as the length of time for which it was perpetrated, whether it was repeated and the harm which it caused, all of which must be of more significance”. Thirdly, that “the mental health … issues … should be considered as part of the balancing exercise required in the assessment or evaluation”, engaging in “the balancing exercise which the evaluation requires” between the “critical questions of the nature and extent of the dishonesty and degree of culpability … on the one hand and matters such as personal mitigation” including “health issues” on the other hand. 

In respect of the extension of time, the Appellant had suffered ill mental health on receipt of the decision, loss of her job, a lack of legal support, and then acted on erroneous advice in filing the matter at the Chancery Division. The test and its application to the facts are as follows:

[51] …The applicable Article 6 standards permit the appeal to be excluded – and an extension of time refused – only if the application of the time limit on the particular facts: (i) does not restrict or reduce the access to the court left to the individual in such a way that the very essence of the access to the court is impaired; and (ii) involves a restriction with a reasonable relationship between the means employed and the legitimate aim sought to be achieved (Stuewe §§44-47). Both limbs (i) and (ii) must be satisfied if the appeal is to be excluded and an extension of time refused. It follows that a failure to satisfy either limb (i) or (ii) must lead to an extension of time. 

[58.] If I had decided that there was substantive merit in the appeal I would, at this point in the Judgment, be deciding whether to grant an extension of time. My decision would have been to grant the extension. This is a case of “exceptional difficulties” (Adesina §17) and Dr Sun has provided “evidence” with a full “explanation” (cf. Daniels §34iv). I can find nothing in Dr Sun’s conduct which can properly be criticised, up to the morning of 28.4.22. She did not “do nothing about appealing” until the end of the 28 days (cf. Daniels §§16, 34i). Until 29.4.22 she was in the hands of others. First, there were the representatives and Counsel, who would have drafted the appeal documents and lodged them. After the news on 26.4.22 from the MPS, Dr Sun was trying to get help, waiting for help and drafting her own appeal documents. Ultimately, she was waiting for the morning of 28.4.22 to come, because that was the timing of the informal discussion scheduled with a barrister who was going to help her with the question of how to lodge the appeal. That help had been lined up in a situation where Dr Sun – in her very difficult personal circumstances – had tried and exhausted other avenues open to her to get help. The informal advice from the barrister came on the morning of 28.4.22. It was the wrong advice (albeit not emanating from MPTS or the GMC: cf. Rakoczy §19), and she set about following it. I have no doubt – and I find – that, had Dr Sun been informed or understood on the morning of 28.4.22 to file the appeal papers with the Administrative Court, that is what she would have done. She had drafted her own appeal documents. She would also have had time to deal with the fee. Payment of the fee was something which she raised in the first email she sent to the Administrative Court, and she paid the fee as soon as she understood how to do so. She would also have been able to confirm the position with MPTS. Ultimately, at the heart of Dr Sun’s problems was that on the deadline day of 28.4.22 she received clear but erroneous assistance from a barrister on whom she was relying for help, which pointed her in the wrong direction and which lost her that all-important final day. These are, in my judgment, wholly exceptional circumstances. In my judgment, the very essence of the access to the court would be being impaired. Further, in my judgment, the restriction would – in its operation on the facts – be one which did not have a reasonable (ie. proportionate) relationship between the means and the legitimate aim of certainty and finality. In my judgment, Dr Sun had personally done all that she could –all t

The Appellant lost her appeal. In respect of costs, the court found that CPR 51.19 (order to limit the recoverable costs of an appeal) applied (see ¶62). Costs were reduced to £2,000 because of her limited means and the special circumstances of the case:

Her appeal served to test whether it was justified as necessary that she should have been met with the sanction of erasure, by reference to the statutory overarching objective. The appeal testing that question has arisen in a case where the GMC was itself not inviting the Tribunal to impose erasure, but rather suspension. Testing the justification for erasure, in the circumstances of this case, transcends matters of purely ‘private interest’. Public interest considerations have been engaged, on both sides. The ‘access to justice’ implications of a modified costs order arise, and should be seen, in that light.