Tag Archives: regulatory

News

Social Media – A Dangerous Place for Professionals?

Many professionals are held by their regulators to a higher standard than other members of the public. Conduct which may fall well short of being criminal in nature may nonetheless excite the interest of a regulator, with the potential for censure.

In the most recent case of Diggins v Bar Standards Board [2020] EWHC 467 (Admin), a barrister failed in his challenge to a sanction being imposed in respect to an unpleasant social media post.

 

No ‘second bite of the cherry’

The court emphasised that an appeal was not a de novo exercise, allowing for another chance to litigate the same points in the hope of a different finding.

The court held:

“There is another strand to the self-restraint required of an appeal court that is relevant here. This is an appeal against a professional disciplinary Panel.  Where the Court considers on appeal a decision of a profession’s regulatory or disciplinary body it:

“…will place weight on the expertise brought to bear in evaluating how best the needs of the profession and the public should be protected” (Council for the Regulation of Healthcare Professionals v General Medical Council [2005] EWCA Civ 1356 [2005] 1 WLR 717 [78]).

In the context of sanctions imposed by regulators of the legal profession, the Court will keep in mind that the tribunal “.. comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are J required to deal with defaulting solicitors and to protect the public interest.

Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal.

Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.””

This part of the judgment is a salutary reminder that it is all essential to get things right at the first hearing. Any professional who faces regulatory proceedings should take particular care to ensure that the solicitors and barristers instructed are sufficiently expert in this field of law.

Right to a private life?

The central ground of challenge was that the regulator had no jurisdiction to deal with disputes of this nature, with Diggins arguing that:

“…participation in a “twitter spat” was an aspect of his private life which, on the proper interpretation of the BSB’s own rules and guidance and/or as a matter of human rights law, falls wholly outside the proper scope of professional regulation.”

The court emphasised that the regulators own guidance makes very clear that transgressions in a professional’s private life may be considered. The court went on to reject a large number of ECHR human rights challenges.

Rather tellingly the court held:

“…[caselaw does not] provide any support for the further argument advanced to me by the appellant, that the Panel could not properly find against him because “Twitter is famously rude and offensive and complaining of that is like going to a Motorhead concert and complaining it is too loud”.

It is a notorious fact that many on Twitter use rude and offensive language, indeed that some engage in harassment of others, or wounding “pile-ons”.

But I have no evidence, nor is it a matter of common knowledge, that everybody on Twitter behaves in these ways.

Even if that was so, a descriptive norm of that kind could not confer a right on any individual user to post rude or offensive messages. If the argument is that every Twitter user makes a voluntary submission to behaviour of that kind, no such argument was advanced below, and I consider it to be untenable.

I see no evidential or other basis for concluding that all Twitter users consent to being treated abusively or offensively.”

Conclusion

In all probability, we have not seen the last of these challenges to the jurisdiction of a regulator to police behaviour of this type. It is, however, becoming quite clear that the courts appear to take little issue with the regulatory approach, and all professionals would be wise to reflect on how they interact on social media and other platforms.

Contact a specialist regulatory solicitor

nottingham regulatory Martin Hadley
Regulatory solicitor Martin Hadley

If you are facing proceedings relating to professional conduct and regulation then please contact specialist regulatory solicitor Martin Hadley.

He will be able to provide you with advice and representation at all stages of any criminal, regulatory or disciplinary matter.

Please contact Martin on 0115 9599550 or use the contact form below.

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News

Doctors in the Dock – appealing the Medical Practitioners Tribunal

Many in the medical profession have been up in arms following the recent High Court decision involving Dr Bawa-Garba (General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin), overturning the decision of the Medical Practitioners Tribunal.

medical practitioners tribunal serviceThe case had followed on from proceedings before the Medical Practitioners Tribunal which had ruled that Bawa-Garba should be suspended from practice for a period of one-year. That ruling was challenged by the General Medical Council, resulting in Bawa-Garba being erased from the medical register, which brought to an end her right to practice medicine.

The High Court observed that it reached ‘this conclusion with sadness but no real hesitation’.

Medical Practitioners Tribunal Decision Appealed

On appeal against this decision, the Court of Appeal has heard her removal for a “one-off mistake” had robbed the NHS of a “young and talented” doctor.  The original decision to suspend rather than dismiss the doctor was argued to be “humane and balanced”, whereas the GMC have argued that  “any other sanction undermined its rules and her manslaughter conviction.”

So, what is the background to this unhappy story?

In November 2015 Bawa-Garba was convicted at Nottingham Crown Court for an offence of manslaughter by gross negligence. She was sentenced to two years imprisonment, which was suspended.

This conviction came about due to her negligent care of a six-year-old boy, who died. An appeal against conviction in December 2016 failed.

In the later High Court proceedings, it was observed that ‘her failings on that day were “truly exceptionally bad” and that this must be reflected in the sanction.

So, why did the Medical Practitioners Tribunal (MPT) only order a suspension?

When the MPT heard the case, it had the benefit of hearing a substantial body of evidence about the pressures placed on Dr Bawa-Garba and the failings of others. In essence counsel for the GMC submitted that the Tribunal had in effect allowed evidence of systemic failings to undermine Dr Bawa-Garba’s personal culpability, and to do so even though those failings had been before the Crown Court which convicted her.

The Tribunal had therefore decided to find the Doctor less culpable than the jury had as a matter of law, and for that reason, the decision could not stand.

The High Court observed:

“The day brought its unexpected workload, and strains and stresses caused by IT failings, consultant absences and her return from maternity leave. But there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that she was unaware of her obligations to assess for herself shortcomings or rustiness in her skills, and to seek assistance.

There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors. It was her failings which were truly exceptionally bad.”

A crowd-funding campaign to assist Dr Bawa-Garba was set up. One of the doctors behind the crowdfunding campaign, Dr Moosa Qureshi, said:

”There needs to be greater transparency as to why these decisions were made and who made them. Many of us feel that Dr Bawa-Garba was unfairly discriminated against and scapegoated for multiple system failings that could easily have happened to any of us in the current political crisis of the NHS. We want patients to be protected and for this doctors need to be able to look after patients without fear that they will be blamed or worse struck off when working in unsafe and dangerous conditions.’

So, many believe that Bawa-Garba has been made a scapegoat for systemic failings in the NHS.

In a further twist to this story, the previous Health Secretary Jeremy Hunt ordered a review into criminal manslaughter so far as it affects medical practitioners.  The health secretary stated that clarity was needed about drawing the line between gross negligence and ordinary errors, and that ‘Doctors should learn from – not fear – mistakes.’

medical practitioners tribunalThe review, led by Sir Norman Williams (a former President of the Royal College of Surgeons), reported in June 2018.  In the introduction to the report, Sir Norman wrote:

“We hope our recommendations will change the environment by establishing a just culture and providing reassurance to healthcare professionals, patients and their families that gross negligence manslaughter cases will be dealt with in a fair and compassionate
manner.”

The full report can be found here.

By any measure this is a sad case for all concerned and criminal practitioners will be keeping a watchful eye on the outcome of the Court of Appeal case.

Contact a crime and regulatory law specialist

medical practitioners tribunal
Crime and Regulatory solicitor Martin Hadley

If you are a professional person facing criminal proceedings then please contact our criminal and regulatory partner Martin Hadley immediately.

Martin will be able to provide free and independent legal advice in police interview.

If charged, we will provided affordable representation before either the Magistrates’ or Crown Court, and be able to provide advice with an eye to any future potential disciplinary proceedings such as those before the Medical Practitioners Tribunal.

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News

Fitness to Practice Committee – Legal Representation

Regulatory and crime solicitor Martin Hadley recently represented a  pharmacist before the Fitness to Practice Committee.  His client faced allegations of dishonesty as well as  breaches of the Responsible Pharmacist & Controlled Drug Regulations.

A lack of early expert advice

In this case the Local Health Board acted upon issues raised by a “whistleblower”. Once the issues had been raised by the Board, our client’s then employer pursued a further investigation.

What was clearly a lengthy and often fraught disciplinary investigation then followed.  Unfortunately, rather than seek specialist legal advice, our client relied on guidance from informal advisers.  This remained the position throughout this stage of the process.

fitness to practice pharmacist legal advice solicitor

As a result our client had no idea that the evidence from this disciplinary investigation could and would be used in proceedings before the General Pharmaceutical Council and the fitness to practice committee.

Late instructions

Our client came to us very late in the process.  The case had already been heard by the Investigating Committee of the General Pharmaceutical.  A decision had already been made that there was evidence against the pharmacist upon which a decision could be made that fitness to practice as a pharmacist was impaired.

By the time Martin received instructions the evidence in the case was substantial.  The bundle of paperwork provided by the General Pharmaceutical Council was significant.  The page count was well over 500, comprising statements and exhibits.

Martin took our client’s full instructions.  This allowed us to make representations to the Council’s solicitors regarding the strength of their evidence on the dishonesty matters.  They agreed with Martin and the allegations were amended to remove certain aspects of the  dishonesty .

As part of our preparation Martin produced a bundle of documents to go before the fitness to practice committee for consideration.  This not only included documents in support of his client’s case but also admissions to be made by both parties as part of the hearing.

The fitness to practice hearing

At the hearing the General Pharmaceutical Council solicitors called two witnesses in support of their case.  Martin cross-examined them.  The questioning led the members of the Committee to agreeing that there was no case to answer in respect of one of the dishonesty allegations.

Once Martin’s client had given evidence the Committee announced that the Council had failed to prove the remaining matter of dishonesty.

A decision still had to be made as to whether Martin’s client was impaired in relation to practicing.  Martin made detailed representations based following his client’s evidence.  Taking these into account the Fitness to Practice Committee decided that our client was not currently impaired and was free to continue to practice

Contact Crime and Regulatory Solicitor Martin Hadley

pharmacist fitness to practice legal advice
Crime and regulatory solicitor Martin Hadley

Earlier advice and representation by an expert regulatory solicitor may well have made the entire process less fraught for our client.  We will always have an eye on the likely effect of an earlier investigation on later disciplinary procedures.

As a result, if you are notified that there is to be an investigation into any aspect of your practice please contact Martin immediately.  He can be reached by phone on 0115 9599550 or by email here.  Martin will be able to advise you wherever you are based in the country.  This will ensure that you make the correct decisions early on in your case.