Cis title of info sheet

Blake Lapthorn Tarlo Lyons' Professional Regulatory Law
update – July 2008
Welcome to this month’s edition of the Blake Lapthorn Tarlo Lyons’ Professional Regulatory Law update – our at-a-glance guide to the important case law and news in the Professional Regulatory field. This month's ebulletin sees the introduction of two new areas of commentary: 'in the news' and 'hot topics'. 'In the news' provides brief details of cases which have not yet been formally reported, but which have appeared in local and national press. 'Hot topics' highlights live areas of discussion, flowing from either specific issues that we have been asked to comment on, or general practice issues which are of particular interest. It is our intention that if there is sufficient positive interest that in due course the 'hot topics' section will develop into a discussion forum, which together with 'in the news' will become regular features in our monthly bulletins. We welcome any comments on the contents of the bulletin, and the potential forum, which we will co-ordinate and include in next months' bulletin. Please feel free to e-mail me at with any feedback in relation to this month’s update. Additionally, if you would like to receive further information in relation to any of the cases or developments referred to below, please e-mail me at the above address and we will be pleased to assist. Past bulletins are available on our websit can be found under the monthly ebulletin menu option. Teresa Murphy
Barrister
Professional Regulatory team
regulatory cases
Ashby -v- Royal Pharmaceutical Society [2008] All ER (D) 81 (Jul)
In upholding the decision to remove the appellant's name from the register, the court held that the appellant
had been fully aware of the case against him, no prejudice had been caused to him as a result of all the
charges having been heard together, the committee were not biased in their decision particularly in light of
the fact that the appellant had admitted most the charges, the committee had been justified in not adjourning,
and given the serious nature of the charges, the committee had reached the correct decision in removing the
appellant's name from the register.
Sinha -v- General Medical Council [2008] All ER (D) 63 (Jul) 4 July 2008
In dismissing the appeal, the court held that the negligence of a legal representative could not form the basis
of an appeal. In addition, it was held that the panel had had in mind, the objections raised by the appellant in
respect of the hearing continuing due to the possibility of unfairness, but that on the facts, there was no
evidence of collusion. Therefore the decision of the panel would be upheld.
Eden -v- General Medical Council [2008] All ER (D) 193 (Jun)
In dismissing the appeal the court held that the intention and purpose of a person who approached a doctor
for advice and medication (in this case undercover journalists) was not determinative of the relationship that
was established, and there was no basis for interfering with the panel's decision to suspend the appellant
for nine months.

general case law
Re B (children) (sexual abuse: standard of proof) [2008] All ER 9D) 134 (Jun)
The standard of proof in finding the facts necessary to establish the threshold for making a care or
supervision order under s 31(2) of the Children Act or the welfare considerations in s 1 of the Act was the
simple balance of probabilities. There was no logical or necessary connection between seriousness and
probability. In addition, the finding of facts in care proceedings was merely part of the whole process of
trying the case. It was not a separate exercise. Once it was done the hearing was part-heard and the trial
should not resume before a different judge, any more than any other part-heard case should do.
press releases
Standard of proof: changes to Fitness to Practise Rule agreed
On 4 July the General Optical Council announced that Council members have agreed the process and draft
timetable for amending the Ftp Rules applying the civil standard of proof.
Rule changes make way for therapeutic prescribing speciality
On 4 July the General Optical Council (GOC) announced that members have agreed amendments to the
GOC Registration Rules that will create a new Independent Prescribing speciality, following changes to medicines legislation. Acting as an expert witness
On 25 July, the GMC issued guidance explaining how the principles set out in Good Medical Practice apply
to the work of the medical expert witness. The guidance also lists other sources of information and advice.
Standard of proof in NMC Ftp hearings
The Nursing and Midwifery Council has announced its plan to introduce the civil standard of proof in October
2008.
A new governance structure for the NMC
The Council of the Nursing and Midwifery Council have agreed to move forward to a new board-like structure
whereby members will be elected as apposed to appointed.
New President for the RCVS
On 7 July the Royal College of Veterinary Surgeons announced the appointment of Jill Nute as the new President. Faculty of Actuaries announces new president
On 24 June, the Faculty of Actuaries announced the election of Ronnie Bowie as the new president. New President for CIPFA
On 17 June the Chartered Institute of Public Finance and Accountancy announced that Caroline Mawhood, assistant auditor general at the National Audit Office, is the new President. CIMA elects new president
On 16 June, the Chartered Institute of Management Accountants announced the election of Glynn Lowth as the new President. in the news
BBC News - Dr Ian Kerr
Dr Ian Kerr was found guilty of professional misconduct in relation to several allegations, which including the prescribing of powerful sleeping pills to a patient with the sole purpose of ending her life. Dr Kerr received a six month suspension order. The Scotsman - GTC (Scotland)
The first GTC (Scotland) hearing under new powers allowing the regulator to hold disciplinary hearings on incompetence and strike such registrants off the teaching register, is due to take place in August. Sutton Coldfield Observer - David Agyeman
David Agyeman, an Optician who fitted 14 patients with contact lenses at Asda Minworth without proper qualification has been struck of by the General Optical Council. The Liverpool Echo - Robert Quaye
Mental Health Nurse received 12 month caution in respect of charges relating to a failure to administer medication, a failure to provide appropriate care, and a failure to respect a resident's dignity and well-being. The Times - Ms Downer
A nurse received a three year caution, following the incorrect administration of medication, and a failure to obtain informed and recorded consent. miscellaneous
Medical revalidation – principles and next steps
On 21 July, the Department of Health published a report setting out the principles and next steps for implementing revalidation in the UK. The report is based on discussions regarding the proposals in the White Paper, Trust, Assurance & Safety – the Regulation of Health Professionals in the 21st Century. hot topics
Without prejudice communications
This month we had a question from one of our subscribers, as to our experience of the status of without prejudice communications in public law/professional conduct cases. Savings & Investment Bank Limited v Fincken [2003] EWCA Civ 1630
This case considered the interpretation of the "unambiguous impropriety" exception to the without prejudice rule. Ashby -v- Royal Pharmaceutical Society [2008] All ER (D) 81 (Jul)
The appellant, a qualified pharmacist in Australia, registered with the Society in 1988. In 2006, he appeared before the disciplinary committee facing several charges including; verbal abuse, supplying patients' drugs to himself, and making false statement to his employers. The appellant admitted all of the charges save for one relating to the assault of a female colleague. The committee found all the charges proved and removed his name from the register. The appellant appealed against the decision on the grounds that he had not been afforded sufficient time in which to prepare and serve his case; the committee should not have considered certain charges due to the period of time since the incidents were said to have occurred; the committee had formed a biased view in relation to parts of the evidence; the committee should have adjourned proceedings due to the appellant's ill-health; and the sanction was unreasonable and unfair. In dismissing the appeal the court held that the appellant had been fully aware of the case against him, no prejudice had been caused to him as a result of all the charges having been heard together, the committee were not biased in their decision particularly in light of the fact that the appellant had admitted most of the charges, the committee had been justified in not adjourning, and given the serious nature of the charges, the committee had reached the correct decision in removing the appellant's name from the register. Sinha -v- General Medical Council [2008] All ER (D) 63 (Jul) 4 July 2008
Having qualified as a doctor in India in 1969, the appellant subsequently practised in the UK. In 2002, police investigated the appellant on suspicion of indecent assault of female patients. Although the police brought charges, the charges were dropped due to negligent investigation, and during the course of the proceedings evidence against the appellant was discredited as being tainted due to collusion. The GMC investigated the same allegations, and from the outset the appellant argued that it was impossible for him to have a fair trial. The matter was referred to the fitness to practise panel, who dismissed what it considered to be an application to adjourn the proceedings, and ordered the erasure of the appellant's name having found certain allegations of sexual misconduct proved. The appellant appealed under S40 if the Medical Act 1983 on the basis that his legal representative had acted negligently in making the application, and that the evidence was contaminated due to the collusion of witnesses thus rendering a fair trial impossible. In dismissing the appeal the court held that the negligence of a legal representative could not form the basis of an appeal. In addition, it was held that the panel had had in mind, the objections raised by the appellant in respect of the hearing continuing due to the possibility of unfairness, but that on the facts, there was no evidence of collusion. Therefore the decision of the panel would be upheld. Eden -v- General Medical Council [2008] All ER (D) 193 (Jun)
The appellant faced several allegations relating to a failure to act in the interests of five patients when prescribing drugs. Two of the 'patients' were journalists investigating the conduct of the appellant. The allegations were found proved and the appellant was suspended for nine months. The appellant appealed against both the findings and sanction on the basis that the journalists could not be 'patients' as they were only interested in the prescription drugs in relation to the appellant's conduct. In dismissing the appeal the court held that; the intention and purpose of a person who approached a doctor for advice and medication was not determinative of the relationship established, rather it was the character of the doctor's actions in responding to such an approach. Motive on the part of the approaching party was peripheral. A doctor accepted the request for treatment by assuming the duties of a professional doctor to that individual. In addition it was held that being in possession of prescribed medicine was what the regulatory system had been designed to prevent. It was not in a patient's interests to be in possession of prescribed medicine for which they had no need. In relation to sanction the court held that there was no basis to interfere with the panel's decision to make the appellant subject to a nine month suspension order, as the judgement of those responsible for regulating the profession was critical. general case law
Re B (children) (sexual abuse: standard of proof) [2008] All ER 9D) 134 (Jun)
This case relates to care proceedings during which, amongst other issues, the standard of proof was discussed at length. Whilst the facts of the case are not relevant to regulatory law, the discussions relating to the standard of proof may be of interest, although it is questionable as to what impact, if any, the decision will have on regulatory proceedings, particularly on a practical level. Whilst concurring with the judgment of Baroness Hale of Richmond, Lord Hoffmann made several observations in respect of the standard of proof. In doing so he referred to the decision in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, the effect of which is that s31(2)(a) of the Children Act 1989 requires any facts used as the basis of a prediction that a child is "likely to suffer significant harm" to be proved to have happened, and that every such fact is to be treated as a fact in issue. Lord Hofmann noted that the standard of proof in such cases appears to have given rise to practical difficulties regarding the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen. According to Lord Hofmann, Re H (minors) made it clear that the ordinary civil standard of proof applies and that the tribunal must be satisfied that the occurrence of the fact in question was more likely that not. In respect of the applicability of the civil standard of proof, Lord Hofmann set out three areas in which confusion has been caused as a result of dicta which suggest that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned. Firstly, cases in which the court has classified proceedings as civil but nevertheless thought that, due to the serious consequences of the proceedings, the criminal standard of proof or something like it should apply. Secondly, cases in which it has been observed that when some event is inherently improbable, strong evidence may be needed to persuade a tribunal that it more probably happened than not. Thirdly, cases in which judges are simply confused about whether they are talking about the standard of proof or about the role of inherent probabilities in deciding whether the burden of proving a fact to a given standard had been discharged. In considering the second category of cases Lord Hofmann identified the Court of Appeal decision in Hornal -v- Neuberger Products Ltd [1957] 1 QB 247 as the leading case until Re H (minors). In Hornal, the question related to the appropriate standard of proof when considering an allegation of fraud in civil proceedings. Whilst in considering such an allegation the normal civil standard should be applied, ie balance of probabilities, the gravity of an allegation of fraud was something which should be taken into account in deciding whether the burden had been discharged. The notion of having regard to inherent probabilities was referred to by Lord Nicholls of Birkenhead in Re H (minors): "The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely that not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required in higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability its occurrence will be established." Lord Hofmann comments on the fact that despite the clarity in which Lord Nicholls explained that having regard to inherent probabilities did not mean that the more serious allegation the higher the standard of proof required, subsequent family law cases have cited Re H as authority for the existence of a 'heightened civil standard'. Lord Hofmann refers to the case of Re U (a child) (Department for Education and Skills intervening) [2005] Fam, and what in his view was a restoration of clarity and certainty in respect of the standard of proof, in the "…the standard of proof to be applied in Children Act 1989 case is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in Re H (minors)…That test has not been varied nor adjusted by dicta of Lord Bingham of Cornhill CJ, or Lord Steyn who were considering applications made under different statute. There would appear to be no good reason to leap across a division, on one hand, between crime and preventative measures taken to restrain defendants…and on the other hand, wholly different considerations of child protection and child welfare…the strict rules of evidence applicable in a criminal trial which is adversarial in nature is to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence are considerably relaxed…" Having considered the decision of Dame Butler-Sloss, Lord Hofmann goes on to state: "My Lords, I would invite your Lordships fully to approve these observations. I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not" Lord Hofmann then goes further in stating that Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. In handing down the leading judgment, Baroness Hale of Richmond was of the view that Lord Nicholls' explanation left room for the nostrum, "the more serious the allegation, the more cogent the evidence needed to prove it". Furthermore, Baroness Hale commented that the situation has been further complicated by subsequent decisions, in which reference is made to a heightened civil standard of proof. In B -v- Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340, the issue was the standard of proof to be applied when finding the facts needed to make a sex offender order under section 2 of the Crime and Disorder Act 1998. Although the Court of Appeal held that the proceedings were civil, Lord Bingham of Cornhill CJ went on to say this about the standard of proof: "It should, however, be clearly recognised, as the justices did expressly recognise, that the civil standard of proof does not invariably mean a bare balance of probability, and does not so mean in the present case. The civil standard of proof is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters (see Bater -v- Bater [1951] P 35, Hornal -v- Neuberger Products Ltd [1957] 1 QB 247, and R -v- Secretary of State for the Home Department, ex parte Khawaja [1984] AC 7). In a serious case such as the present the difference between the two standards is, in truth, largely illusory…" Although Re H was not referred to in B -v- Chief Constable, Baroness Hale highlights the link that could be made through reference to the judgment in Hornal. Re H was cited in R (McCann and others) -v- Crown Court at Manchester [2002] UKHL where one of the issues was what standard of proof should be applied in finding the facts needed to make an anti-social behaviour order under section 1 of the Crime and Disorder Act 1998. In that case, Lord Steyn said this: "Having concluded that the relevant proceedings are civil, it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary (see Re H (minors)…per Lord Nicholls…Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable). I do not disagree with any of those views." The court went on to hold that in anti-social behaviour order proceedings the court should apply the criminal standard of proof. Baroness Hale observed that with the link having been made to Re H in the above cases, "it is not surprising that judges should think that the same 'heightened' standard should also apply in care proceedings". She went on to note that in care proceedings, the status quo was restored by the Court of Appeal in Re U (a child) (Department for Education and Skills intervening); Re B (a child) (Department for Education and Skills intervening) [2004] EWCA 567, [2005] Fam 134 (see the extract of the judgment of Dame Butler-Sloss as quoted above). In considering Dame Butler-Sloss's judgment, Baroness Hale goes on to state: "My Lords, I entirely agree. There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof…but care proceedings are not of that nature. They are not there to punish or deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way. My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding of facts necessary to establish the threshold under section 31(2) or the welfare consideration in section 1 of the 1989 Act is the simple balance of probabilities, neither more or less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies…there is no logical or necessary connection between seriousness and probability…" Commentary
Whilst recognising that there may be cases which although considered civil cases, it may be appropriate to apply the criminal standard (paragraph 69 of the judgement), this case suggests that the courts have interpreted the judgment in Re H incorrectly as it was never intended to give rise to a heightened civil standard of proof (paragraphs four, 12,13,62,64) Whilst this judgment invariably deals primarily with care proceedings, if the thrust of the judgment is that courts have been incorrectly interpreting the judgment in Re H, then it is arguable that the judgment in Re B may effect regulatory proceedings due to the fact that Re H is often cited as authority for a using a heightened civil standard of proof in regulatory proceedings. Furthermore, Baroness Hales' comments regarding the difference between care proceedings, and other civil or criminal proceedings where it may be appropriate to apply the criminal standard, or heightened civil standard (paragraph 69) can be applied, by analogy to regulatory proceedings. As in care proceedings, the purpose behind regulatory proceedings is the public interest, and public protection. As readers will appreciate regulatory proceedings are not intended to punish or deter anyone, and the consequences of a failure to comply with the terms of any sanction are not penal. In addition, care proceedings are arguably serious proceedings in which there is a lot of stake as recognised by Baroness Hale in paragraph 69 where she states that the consequences for the child of getting it wrong are equally serious either way. Therefore if, given the serious nature of care proceedings, it has been deemed appropriate that the ordinary civil standard of proof must apply, then one could argue that it would be appropriate for such an approach to be adopted in regulatory proceedings by analogy. Having said this, on a practical level, it is questionable as to whether adopting such an approach would have any real effect on regulatory proceedings (or in fact any proceedings). At paragraph 14 of the judgment, Lord Hofmann refers to an extract of Lord Nicholls' judgement in Re H: "The court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability." Lord Hofmann's comment that Lord Nicholls was not laying down any rule of law is potentially an important one, because often advice is given in regulatory proceedings which would suggest that the notion that the more serious the allegation the stronger the evidence needed, is a matter of law. However, even if common sense, as opposed to law "requires that in deciding this question, regard should be had to whatever extent appropriate, to inherent probabilities" (paragraph 15), it is arguable that decision makers will continue to approach regulatory proceedings in much the same way as they have done in the past, and when applying the civil standard of proof, will continue to require stronger evidence, where an allegation is less likely to have occurred, even if as a result of a common sense approach as opposed to applying any legal principle. In summary, this judgment may re-inforce arguments that the ordinary civil standard of proof should be applied in regulatory proceedings and this, as we know, is the direction being taken by healthcare regulators. In applying the civil standard, the court is solely concerned with whether the incident was more likely to have happened than not. The seriousness of the incident and/or the seriousness of the consequences of the courts' decision are not components of the standard of proof itself, nor is the consideration of probabilities. Probabilities are taken into account when considering the facts of the case as a whole. In practical terms, such an approach is likely to have a greater impact on legal advice given during the course of hearings, as opposed to the way in which panels consider the evidence itself, when determining the facts of a case. press releases
Standard of proof: changes to Fitness to Practise Rule agreed
Under the provisions of the Health and Social Care Bill, all nine UK healthcare regulatory bodies will be required to apply the civil standard of proof in their fitness to practise (ftp) disciplinary proceedings. Council members of the General Optical Council have agreed the process and draft timetable for amending the ftp Rules accordingly. Members agreed to a 'virtual meeting' in September 2008, when the Rules will be formally made. The Rules are not expected to come into force prior to November 2008, from which point all ftp cases will be based on the civil standard of proof. Decisions as to whether actions found proved amount to impairment, and decisions regarding sanction, will remain matters for the professional judgment of the panel. Rule changes make way for therapeutic prescribing speciality
Following changes to medicines legislation, enabling optometrists to independently prescribe medicines for the treatment of ocular conditions, the General Optical Council (GOC) has announced that members have agreed amendments to the GOC Registration Rules that will create a new independent prescribing speciality. In addition to these amendments, members also agreed changes to the Continuing Education and Training (CET) Rules to simplify CET requirements for optometrists who hold more than one therapeutics speciality. In light of this, a two-phase calculation of the required number of CET points will stand as: for the period before the new CET Rules are implemented: each therapeutics speciality will have to be treated separately once the new CET Rules are implemented: optometrists with multiple therapeutics specialities will be required to gain the number of points equivalent to half the number of whole months in which they have held those specialities during the current CET cycle
Acting as an expert witness
On 25 July, the General Medical Council (GMC) issued guidance explaining how the principles set out in Good Medical Practice apply to the work of the medical expert witness. The guidance also provides sources of information and advice. Good Medical Practice is the core GMC guidance setting out principles underpinning good care. Those principles apply to doctors working as expert witnesses recognising that doctors acting as expert witnesses take on a different role to that of a doctor providing treatment and advice to patients. In particular the GMC guidance highlights the following principles as set out in paragraphs 63-67 of Good Medical Practice: you must be honest and trustworthy when writing reports and when completing or signing forms, reports and other documents you must do your best to make sure that any documents you write or sign are not false or misleading. This means that you must take reasonable steps to verify the information in the documents, and that you must not deliberately leave out relevant information if you have agreed to prepare a report, complete or sign a document or provide evidence, you must do so without unreasonable delay if you are asked to give evidence or act as a witness in litigation or formal inquiries, you must be honest in all your spoken and written statements. You must make clear the limits of your knowledge or competence The guidance sets out the role of the expert witness in assisting the court on specialist or technical matters within their expertise, with an overriding duty to the court. In particular expert witnesses must ensure that they understand the questions that they are asked and where necessary seek clarification. Where it is not possible to obtain sufficiently clear instructions, experts should decline to provide expert advice or opinion. When giving evidence or writing reports, experts must restrict statements to areas within their relevant knowledge or direct experience and should be aware of the standards and nature of practice at the time of the incident. Where issues fall outside of an expert's professional competence, this should be made clear. Any expert opinion provided should be a balanced opinion and where there is a range of opinion on the issue being examined, experts must summarise that range of opinion and where appropriate explain why their view differs from that range. Where experts do not have enough information or their advice is qualified in any way, they are under a duty to make this clear. Any evidence or report provided must be accurate and reasonable steps must be taken to verify any information provided. If an expert is asked to give an opinion about someone who they have not had the opportunity to examine, any limitations should be explained. Experts should use language and terminology that will be readily understood and should explain any abbreviations and medical or other technical terminology. If an expert changes his/her view on any material matter, he/she is under a duty to inform those instructing, and if the instructing solicitor does not disclose this then the expert should inform the court of the change in opinion and where necessary, seek legal advice. All experts are to be honest, trustworthy, objective and impartial. Experts are under a duty to keep up to date in their specialist area of practice and ensure that they understand and adhere to the laws and codes of practice that impact on their work as expert witnesses. In particular the guidance emphasises the importance of the expert understanding how to construct a court-compliant report, how to give oral evidence, and the specific framework of law and procedure within which they work. In addition the expert witness must take all reasonable steps to access all relevant materials and maintain the integrity and security of such material whilst in their possession. If there is reason to believe that the appropriate consent for disclosure of information has not been obtained, clarification should be sought from the instructing solicitors. Confidential information should not be disclosed to anyone other than parties to the proceedings unless: the expert is ordered to do so by a court or tribunal the administration of justice demands the disclosure of the information The guidance also provides details regarding relevant rules and legislation, together with links to other sources of information. Standard of proof in NMC Ftp hearings
The Nursing and Midwifery Council (NMC) has announced, that following the recommendations set out in the government White Paper: Trust, Assurance and Safety – the Regulation of Health Professionals in the 21st century, they will be implementing the civil standard of proof in their Fitness to Practise (ftp) hearings. Currently the NMC uses the criminal standard of proof but has indicated that as ftp hearings are regulatory hearings as opposed to criminal courts, it is no appropriate to use the criminal standard of proof. The first stage of the process for introducing the new standard of proof will be the consultation on the implementation by the Department of Health amongst stakeholders such as unions, employers and patient groups. Once agreed, the Department of Health will issue commencement orders at which stage the NMC will be able to announce when in October the changes will come into effect. A new governance structure for the NMC
Following the recommendations set out in the government White Paper: Trust, Assurance and Safety – the Regulation of Health Professionals in the 21st Century, the Nursing and Midwifery Council (NMC) has announced that the Council has agreed to move to a new board-like structure, whereby nurses, midwives, specialist community public health nurses and lay people will apply for positions as opposed to being appointed. The NMC Governance Committee has recommended a board of 14 members comprising: one registrant member from each of the four UK countries one lay member from each of the four UK countries The new Council will come into effect in January 2009. New President for the RCVS
On 4 July, the Royal College of Veterinary Surgeons (RCVS) appointed Jill Nute as the new president. Mrs Nute has been an RCVS Council Member since 1993, serving on all of its committees. In addition, Mrs Nute has chaired many committees and additional working parties including the Advisory and Public Affairs Committees. The RCVS awards day which took place on 4 July saw several other changes including Dr Bob Moore, the out-going president being appointed senior vice president, and Professor Sandy Trees being appointed junior vice-president. For further details regarding appointments and resignations, please visit Faculty of Actuaries announces new president
On 24 June, the Faculty of Actuaries announced the election of Ronnie Bowie as its new president, with immediate effect. Mr Bowie takes over from Stewart Ritchie FFA. Mr Bowie became a fellow of the Faculty in 1980 and had been vice-president since 2005. He has previously served as the chairman of the Pensions Board and is a member of the Professionals Management Board. Mr Bowie is currently senior partner at Hymans Robertson, where he has worked for 28 years. Mr Bowie will deliver his presidential address on Monday 6 October 2008. New President for CIPFA
On 17 June, the Chartered Institute of Public Finance and Accountancy announced that Caroline Mawhood, assistant auditor general at the National Audit Office (NAO), is the new president. Ms Mawhood's career has been in central government audit. She joined the NAO in 1976 becoming director in 1993, and assistant auditor general in 1996. She is also active in EU affairs and European accounting and general financial management. CIMA elects new president
On 16 June, the Chartered Institute of Management Accountants (CIMA) announced the election of Glynn Lowth as the new president. Mr Lowth has been a member of the Institute's Council for over 18 years. He has chaired and served on several of the Institutes Committees, and his previous roles within CIMA include chairman of the Disciplinary Committee and president of the Nottingham and Derby Branch. Mr Lowth is currently IT manager for the IT services company of BASF. Aubrey Joachim was elected deputy president and George Glass was elected vice president. in the news
BBC News - Dr Ian Kerr
Dr Ian Kerr from Williamwood Medical Centre in Clarkston has been found guilty of misconduct and suspended for a period of six months. An Fitness to Practise (Ftp) panel of the General Medical Council (GMC) found misconduct in respect of several areas of Dr Kerr's practice. In particular, in 1998 Dr Kerr prescribed a patient (patient A) Sodium Amytal (a powerful sleeping pill) "solely for the purpose of ending her life". The panel found that Dr Kerr had showed poor clinical management after the patient had taken an overdoes of the drug in 2005, and that he had prescribed the drug without adequate reason, contrary to guidance, and without making adequate notes. Dr Kerr also prescribed the medication to five other patients despite four of the patients not suffering from insomnia. The panel found that Dr Kerr acted inappropriately in not making a record as to why he had prescribed the medication to four of the five patients, and in respect of the fifth patient, found that he had not kept proper records. The chairman of the panel, John Donnelly stated that the panel was of the opinion that Dr Kerr had allowed his views in respect of physician-assisted suicide to influence his treatment in respect of patient A. Taking into account the mitigating features, the panel was of the view that a six month suspension order was proportionate and sufficient to maintain public confidence, protection of the public, and to uphold proper standards of professional conduct. The Scotsman - GTC (Scotland)
On 21 July, the Scotsman reported that next month, the General Teaching Council (GTC) (Scotland) is due to consider the first case under new powers allowing the regulator to hold disciplinary hearings on incompetence and make a striking off order where necessary. The GTC has had this power since 2006, but this is the first case to come to hearing, with a further case expected to be heard at the end of the year. The move has been welcomed by Unions, and is the result of the McCrone deal for teachers, which increased salaries and improved working conditions in return for improved standards. Sutton Coldfield Observer - David Agyeman
On 18 July, the Sutton Coldfield Observer reported that David Agyeman, an optician who fitted 14 patients with contact lenses at Asda Minworth without proper qualification has been struck off by the General Optical Council (GOC). Mr Agyeman was hired through an agency for the Asda store. Although he was a qualified dispensing optician, Mr Agyeman had failed a course which would have enabled him to be a contact lens optician. Despite not having the appropriate qualification, Mr Agyeman carried out consultations during a two month period in which he fitted lenses. Mr Agyeman admitted the facts of the allegations, but denied misconduct. He argued that he had discussed his qualifications with Asda beforehand, and that two optometrists provided sufficient supervision. However, the panel found that Mr Agyeman had not satisfied them, on the balance of probabilities, that he was supervised at the time of fitting the contact lenses. This was Mr Agyeman's second appearance before a GOC panel having previously been fined in February 2002 for failing to obtain registration and fitting contact lenses without qualification. At his most recent GOC hearing, Mr Agyeman was warned that he may face further action in respect of him having left a recording advice in the room during private deliberations. The device will be examined by experts. The Liverpool Echo - Robert Quaye
A panel of the Nursing and Midwifery Council's Conduct and Competence Committee, made Robert Quaye, a Mental Health Nurse with 34 years' experience, subject to a 12- month caution order. The charges related to Mr Quaye having failed to administer prescribed medication to a resident, and having to provide appropriate nursing care. In addition, Mr Quaye was found guilty of having failed to respect the dignity and well-being of a resident, by holding the residents arms/shoulders and telling the resident to 'sit down'. The Times - Ms Downer
A panel of the Nursing and Midwifery Council's Conduct and Competence Committee made Ms Downer subject to a three-year caution. Ms Downer worked at the Calthorpe Clinic, Birmingham. Without checking the identity of the patient, Ms Downer administered Misoprostol, a drug administered at the final stage of a medical abortion, without obtaining informed and recorded consent. The patient in question was more than nine weeks pregnant and therefore not eligible for a chemical abortion. Although the drug did not result in an abortion, the patient returned to the clinic suffering from stomach pains and bleeding and was subsequently taken to hospital. miscellaneous
Medical revalidation – principles and next steps
On 21 July, the Department of Health (DoH) published a report setting out the principles and next steps for implementing revalidation of doctors in the UK. The report is based on discussions regarding the proposals in the White Paper, Trust, Assurance & Safety – the Regulation of Health Professionals in the 21st Century, and follows the work of a group chaired by the chief medical officer for England. The aim behind the revalidation system is to ensure that licensed doctors remain up to date, and are fit to practise. The report identifies three main elements of the system: to confirm that licensed doctors practise in accordance with the General Medical Council (GMC)'s generic standards (relicensure) for doctors on the specialist register and GP register, to confirm that they meet the standards appropriate for their speciality (recertification); and to identify for further investigation, and remediation, poor practice where local systems are not robust enough to do this or do not exist All doctors who hold a licence will be required to participate in revalidation. There are currently 240,000 doctors on the register of medical practitioners, with an estimated 150,000 of these in active practice in the UK. All registered doctors will be entitled to be licensed to practise, and it is hoped that in 2009, legislation will take effect to ensure that all licensed doctors have adequate and appropriate indemnity insurance. Doctors who are currently registered with the GMC but who do not wish to practise in the UK will not require a licence, however, they will not be able to exercise any of the legal privileges associated with medical practice. Such doctors will not be subject to the requirements of revalidation as they will not be involved in practising medicine in any capacity within the UK. relicensing
Doctors will need to renew their license to practise every five years, and relicensing will be seen as confirmation of fitness to practise based on information regarding performance derived from the workplace. The DoH together with the GMC commissioned KPMG to undertake a review of the state of readiness of clinical governance and medical appraisal to support the implementation of medical relicensure. The current NHS appraisal is patchy and is not considered to be fit for relicensing across the country as a whole. However, the necessary foundations, structures and organisational arrangements for clinical governance are in place in virtually all hospital trusts, although primary care arrangements needed strengthening in certain In addition, as systems of appraisal are seen to reflect the diversity of practice settings and employers, the chief medical officer considers that it would be inappropriate and infeasible to impose a new standardised model of appraisal to apply across the board. As a result, the GMC will agree a standardised module of appraisal, which will be included in all appraisal systems, such module being derived from the GMC's Good Medical Practice. According to the report, delivering a system of appraisal that provides a valid evidence base for revalidation which doctors understand, accept and value, is the key challenge, and annual appraisal is considered to be of particular value. The key elements of appraisal will be: a GMC designed and approved Good Medical Practice module, used in every appraisal, whatever the setting, if the doctor wishes to retain a license to practice in England, Primary Care Trust contracts with providers should require their medical staff to undertake appraisal in England, the Care Quality Commission would require the new system of appraisal to support revalidation as part of its registration requirements The appraisal module will include attributes in four key areas: communication, partnership and teamwork; and The appraisal module will require that appraisers take a judgment on whether the appraisee has successfully presented the agreed essential evidence required to support revalidation, engaged in the appraisal, and produced a personal development plan relevant to their learning needs. In addition to appraisal a range of patient and colleague feedback questionnaires (360º feedback) have been developed and are either in use or are being researched. It is envisaged that such feedback will aid the system of relicensure. According to the report, the GMC cannot directly supervise, inspect and evaluate the work of 150,000 doctors, and therefore high quality relicensure depends on good local systems of clinical governance where doctors practise. Many of the proposals are about strengthening local clinical governance and appraisal systems to ensure that they are fit for purpose for employers, commissioners and others who contract with doctors. Legislation will provide for the GMC to withdraw a license to practise where a doctor does not provide the GMC with information it reasonably asks for in order to determine whether the doctor should be revalidated, and such decision will be subject to an appeal process. recertification
In addition to the requirements of relicensure, doctors on the GP register or specialist register and those doctors working in the UK who are not on those registers or in substantive training posts will need to demonstrate that they continue to meet the standards that apply to their medical speciality in order to achieve recertification. Recertification will involve the specification of a clear set of standards formulated by each medical Royal College working in collaboration with specialist associations and others. The recertification will need to be rooted in the evidence of doctor's actual practice and will need to be proportionate to the benefit that they bring. The standard for remaining on the specialist register or GP register will be the same as the standards currently required for entry to those registers, and work will be required to establish what standards are expected of doctors, relating to the context of their work. At a local level, the responsible officer, usually the medical director or equivalent, will ensure that appraisal is carried out to a good standard, and arrangements are being agreed to ensure that all doctors can relate to an appropriate responsible officer whatever environment they are working in. The report stresses that whilst there is a broad distinction between relicensure as a local process of performance review, and recertification as a College-led process, there are significant areas of overlap. In order to bind the two aspect, and ensure that the process is fair and efficient, the GMC will need to receive a single recommendation for revalidation that covers both relicensing and recertification. In respect of CPD, the report recognises that whilst CPD belongs to the individual, there is a need for the organised collection of evidence regarding the adequacy of any individual's programme and it will be desirable to increase the linkage between CPD and appraisal. The system of revalidation is a continuous five year process, and therefore the responsible officer will need systems to review the practice and conduct of all the doctors for whom they are responsible. Where significant concerns are raised, the responsible officer will need to ensure that they or another senior doctor review the evidence and decide whether there is an issue that could affect revalidation. If such a risk is identified, they will need to consider what remedial or developmental action is needed. The White Paper also outlined a model for GMC Affiliates in England who would provide a link between national and local workplace regulation. The role of affiliates has been developed further since the publication of the paper and initial piloting in England will test ideas about the role that they will play. The report emphasises the importance of local systems in ensuring high standards of practice, and that the GMC must be in a position to act where local systems are weak or absent. The delivery of the revalidation system will be incremental, as the capacity and capability of local clinical governance and appraisal systems develop, and as the standards and assessment work of individual Royal Colleges is implemented. A preliminary timetable for England is set out in the report and it is envisaged that the component parts of the system will be put in place over the next 18 months to two years. There will be piloted initiation in early adopter sites, specialties and sectors in late 2009 and 2010, and this will be spread across the country with all specialities gathering pace in subsequent years. The introduction of revalidation, through which doctors regularly demonstrate their continued commitment to meet high standard, is seen as a means of further reinforcing the trust that patients and public have in doctors. hot topics
Without prejudice communications
We were unable to find any specific public/professional conduct case law that dealt with without prejudice communications were dealt with. We have attempted to seek the views of those involved in the area in order to put together a practical response to what may be a developing issue, and we welcome any feedback in respect of any experiences of without prejudice communications within this area. One of the issues raised in respect of the status of without prejudice communications within a public law setting, is that there may well be strong arguments in favour of not applying the without prejudice rule. This is particularly so baring in mind that such cases do not involve the settling of disputes between private individuals, but rather, are concerned with matters of public significance, where the wider public interest consideration may fall in favour of communications and documentation being rendered admissible in order to achieve a result that would be in the public interest. Having said that, members of our team have had experience of defence representatives approaching them on a without prejudice basis, seeking to agree a way forward, and as yet, we have not sought to rely on such communications in the course of a subsequent hearing. One of the views is that such discussions are generally a helpful way of potentially moving matters forward, and avoiding a full hearing where such a course would be unnecessary and contrary to the public interest. In the context of Nursing and Midwifery Council (NMC) work, such communications have often arisen in cases where a registrant is seeking to plead on the basis of lack of competence as opposed to misconduct. In such circumstances, where we have decided to proceed on the basis of the original charge, the view has generally been that any admissions previously put forward by the defence were purely on the basis of lack of competence and therefore would not be relevant to misconduct proceedings. That is not to say that there may not be circumstances where it may be appropriate to rely on such communications. In addition, as regulatory bodies have their own rules in respect of the admissibility of evidence, eg the NMC requires evidence to be both relevant and fair, an application to rely on without prejudice communications may be dealt with by reference to that particular rule as opposed to civil procedure, although such material may fall short of the 'fairness' requirement. Where regulatory bodies have a process of conciliatory settlement, whereby a registrant may be encouraged to enter into conciliation proceedings with a view to avoiding substantive proceedings, the view is that matters discussed as part of that procedure should not be relied on later if the conciliation attempt fail, as such an approach may well undermine the system itself which would be contrary to public interest. Included in this commentary, are the names of some general cases in which the status of without prejudice documents are considered, together with the main exception to the without prejudice rule (unambiguous impropriety). The courts appear to adopt a relatively narrow interpretation of the rule, stressing the public interest in parties being able to communicate freely in attempting to reach a settlement, without fear of such matters being later relied on in court. An attempt in the Finken case to adopt a less restrictive interpretation of the rule was overturned on appeal. Savings & Investment Bank Limited v Fincken [2003] EWCA Civ 1630
This case considered the interpretation of the 'unambiguous impropriety' exception to the without prejudice rule. The claimants made an application to amend particulars, based on admissions made by the respondent during a without prejudice meeting. In the first instance, Patten J gave the exception a wide interpretation. He referred to Robert Walker LJ's dictum from Unilever -v- Procter & Gamble that - "Apart from any concluded contract or estoppel one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or 'unambiguous impropriety'" Patten J concluded that the exception could apply, where appropriate, "not only to instances where the without prejudice occasion is abused by the making of threats but also to cases where there is an equally unambiguous denial of those facts by the same party…" The respondent appealed and the issue arose as to whether the judge was correct to find that the admission fell within the exception to the without prejudice rule. In considering the appeal, LJJ Rix and LJ Carnwath considered the case law regarding the scenarios which may give rise to the unambiguous impropriety exception. They stressed the importance of the public policy that parties should be encouraged to settle their disputes without resort to litigation. It was held that it was not the mere inconsistency between an admission and a pleaded case or stated position, with the mere possibility that such a case or position, if persisted in, may lead to perjury that loses the admitting party the protection of privilege. Furthermore, 'in the tension between two powerful public interests…that in favour of the protection of the privilege of without prejudice discussions holds sway – unless the privilege is itself abused on the occasion of its exercise.' The principles were dealt with in the employment tribunal case of Brodie -v- Nicola Ward (t/a First Steps Nursery) Employment Appeal Tribunal, 7 February 2008, where the claimant argued that if she was prevented from referring to a without prejudice letter, it would have the effect of preventing her from being able to put forward her case regarding constructive dismissal. Although recognising the difficulties that claimants may face in proving their cases, once again the court adopted a restrictive interpretation of the unambiguous impropriety exception. For further discussion of the impact of this decision, please see the New Law Journal article entitled 'An unfair advantage' 158 NLJ 723, 23 May 2008. The case of Rajendra Chaudhary -v- Secretary of State for Health [2006] EWCA Civ 1648 considered more general matters relevant to the without prejudice rule. The Secretary of State made an application to prevent a document recording a without prejudice communication, between those acting for the Secretary of State and Mr Chaudhary, being admitted as evidence. Mr Chaudhary sought to rely on the without prejudice communication in respect of his pending appeal against the British Medical Association (BMA). At the time of the pending appeal against the BMA, there was also a pending application for appeal against the Secretary of State. Both matters were listed so as to be dealt with by the same constituted court. In seeking to rely on the without prejudice communication, Mr Choudhary stressed that the document was only relevant to the appeal against the BMA, and not the pending application for appeal against the Secretary of State. The without prejudice communication in this case was contained in a decision of a tribunal. This case considered a number of points including: whether the without prejudice communication should be treated as an admission for the purposes of upholding the without prejudice rule whether the Secretary of State had waived her right to privilege in light of the without prejudice communication being contained within a tribunal decision within the public domain whether in preventing Mr Chaudhary from relying on the communication, he was inevitably being prevented from presenting his case It was argued on Mr Chaudhary's behalf, that the without prejudice communication was not being relied on as an admission. However, the court found that in this case, the document in question should be treated in exactly the same way as an admission for the purposes of the without prejudice rule. This was particularly so having regard to the fact that in the pending application against the Secretary of State, there were a large number of issues at the stage of liability for discrimination against Mr Chaudhary. The Secretary or State planned on resisting any liability for discrimination and would be embarrassed by the presence of a document recording a without prejudice communication which would undermine its case on the point of liability. In addition, although the without prejudice communication was contained within a decision of the employment tribunal which the public could have access to, the court held that it did not follow that the Secretary of State had waived her privilege. Whilst the court accepted that there were competing interests at stake in terms of Mr Chaudhary being permitted to mount all evidence necessary in support of his case, and the need to uphold the without prejudice rule, the court found that the balance came down in favour of the Secretary of State's application. In reaching this particular decision, the court accepted the argument put forward on behalf of the Secretary of State, that it had always been open to Mr Chaudhary to request that the appeal and the application be dealt with by differently constituted courts. Had such an application been made, Mr Chaudhary would have been able to rely on the without prejudice communication, in his appeal against the BMA, as the Secretary of State was not a party to those proceedings, and would not have been embarrassed by the presence of the communication. For further information or advice, please contact: This publication is not a substitute for detailed advice on specific transactions and problems and should not be taken as providing legal advice on any of the topics discussed. Blake Lapthorn Tarlo Lyons uses the information it holds about you to contact you where necessary if (for instance) you have registered to attend a seminar that we are hosting or have requested information regarding the services that we provide. We will also use it to administer, support, improve and develop our business and to contact you for your views on our services, as well as to let you know about other products and services which we offer which may be of interest to you. We may send them by post, telephone or fax, email or SMS. If you would rather NOT receive further information by any particular format, or at all, or if your details need updating, please contact John Parkinson on 01489 555044 or by email at john.parkinson@bllaw.co.uk. We will not disclose any of your personal identifiable information to any third parties without your express permission to do so, unless we believe that we should do so to comply with the law.

Source: http://www.bllaw.co.uk/pdf/PRT_0708_%20professional_regulatory_e-mail_bulletin.pdf