Public And Regulatory Law Group Alerter May 2013


Welcome to Field Fisher Waterhouse's Public and Regulatory Group Alerter.

Our annual seminar took place on Tuesday 7 May 2013, and we heard a fascinating account of the work of the Public Accounts Committee from the Rt Hon Margaret Hodge MBE, as well as interesting talks from partners Richard Kenyon and Judith Chrystie. Following the discussion at the seminar, see our Comments section below for our top tips for those in public office when weathering public scrutiny.

We also highlight the key cases and events taking place in April 2013. In the Case Law section below, we highlight the following:

In R (on the application of Patel) v General Medical Council (2013), the Court of Appeal looked at the issue of legitimate expectation in the context of a change by the GMC to its registration rules.

In Ashton v General Medical Council (2013), the High Court looked at whether a single clinical incident could amount to misconduct and a finding of impairment in an otherwise unblemished career, and also considered the issue of the six month suspension imposed and whether it was necessary and proportionate to impose that suspension immediately.

In Wisson v Health Professions Council (2013) the High Court confirmed that good character was a factor that could be taken into account by a panel when assessing whether a registrant's evidence was to be believed ('credibility') and whether it was likely that he had done what was alleged ('propensity').

In R v (1) Karen Cosford (2) Carolyn Falloon (3) Jacqueline Flynn (2013) the Court of Appeal concluded, in the context of the appellants' appeals against their criminal convictions for misconduct in a public office, that the appellants, who were nurses in a high security prison, held public office and that this was a question of law for the judge.

In General Medical Council v Adekola (2013) the High Court granted a nine month extension of an interim order of conditions, and declined to vary the conditions imposed, stating that it would be rare for the Court to make such an order without prior consideration by the Interim Orders Panel.

In Bamgbelu v General Dental Council (2013) the High Court confirmed that the burden fell on the appellant dentist, who had been subject to an order of conditions imposed by the Professional Conduct Committee of the GDC, to show that he had addressed the concerns expressed when it originally decided that his fitness to practise was impaired.

In Haye v General Teaching Council for England (2013) the High Court rejected the contention that a prohibition order was unreasonable, unfair and disproportionate, and found there had been no breach of the appellant's Article 9 rightto freedom of religion.

In Dowland v Architects Registration Board (2013) the High Court held that the proper basis of challenge in respect of the refusal of the Architects Registration Board to re-enter the appellant's name on the Register of Architects was not an appeal under the Architects' Act 1997, but a claim for judicial review on conventional Public Law grounds and, in any event, the Board had not exceeded its powers in refusing re-entry.

In Harford v Nursing and Midwifery Council (2013) the High Court held that the decision of a Panel of the NMC's Conduct and Competence Committee on misconduct was well within the reasonable range of decisions open to it and that, although a differently constituted Panel might have viewed the evidence given by the appellant as to her future conduct in a more favourable light, it could not be said that the instant Panel had been wrong in holding that her fitness to practise was impaired.

Regulatory news

Health and Social Care

General Medical Council

The GMC has made amendments to its Fitness to Practise Rules 2004. The changes which relate to case management, preliminary legal arguments and more came into effect on 8 May 2013. To view the statutory order please click here and for further details on the rule changes, see our Comments section below.

Care Quality Commission

The CQC has announced its strategy and business plan for 2013-2016. The CQC plans to introduce some radical changes to the way that it inspects and regulates services. Some of the key changes include developing new fundamental standards of care and introducing national teams into NHS hospitals with specialist expertise in conducting in-depth reviews. For further information on the business and strategy plan please click here

General Dental Council

The GDC has issued a reminder to all of its registrants about the guidance available if they have any concerns regarding the fitness to practise of a fellow health professional. The guidance sets out the action that should be taken and offers support and advice to anyone reporting such concerns. For further information please click here

General Osteopathic Council

The GOsC has issued its latest magazine 'The Osteopath' - this edition includes the latest fitness to practise report (2012-13), an interview with the Chair, a report on the revalidation scheme pilot, an update on the development of the profession programme and more. To find out more on these topics please click here

General Pharmaceutical Council

GPhC Investigations

The GPhC is seeking new legal powers relating to its investigations concerning registered pharmacies and pharmacy professionals. This would enable the use of direct surveillance and covert human intelligence sources when dealing with serious investigations. Although The Office of Surveillance Commissioners has recommended that these powers are granted, a change in legislation would be required before this could be enforced. To find out more please click here

New Appointment

The GPhC has announced the appointment of Claire Bryce-Smith as new Director of Inspection and Fitness to Practise. Claire has held the position of Acting Director since November 2012. To find out more about this appointment please click here

Actions in response to Francis Report

The GPhC has agreed the actions required in respect of pharmacy regulation following the Francis Report. Key issues were considered in relation to the protection of patients and public by healthcare regulators for the GPhC to take forward as specific initiatives; including the role of patients, transparency and whistleblowing. For further information please click here

FTP Case - Sexual Assault

The GPhC proceeded to take action in relation to a fitness to practise case concerning sexual assault, where the registrant had been acquitted of rape for the same offence at the Crown Court. This case has led to the first removal from the register for serious sexual assault following an acquittal in criminal proceedings. It highlights the difference between disciplinary and criminal proceedings in both their purpose and standard of proof. For further details please click here

Fitness to Practise Report

The Professional Standards Authority ("PSA") has published its report on the GPhC following a review of its fitness to practise process. The PSA audited 100 cases which had been closed at the initial stages within the previous six months. Risk assessment of cases was recognised as an area of strength and there was no cause for concern identified in the review. To read more about this report please click here

Health and Care Professions Council (Isle of Man)

The Department of Health has signed a Memorandum of Understanding with the HCPC. The agreement is intended to strengthen the working relationship between the two in the regulation of health care professionals and protection of patients/service users. For further information please click here

Nursing and Midwifery Council

New Appointments

The NMC has appointed three new Directors - Sarah Page has been appointed as Director of Fitness to Practise, Dr Katerina Kolyva as Director of Continued Practise and Alison Sansome as Director of Registration. To find out more about these appointments please click here

A new Council has also been formed to lead the NMC with Chair Mark Addison. The appointment of ten individuals has been confirmed and they will officially become members of the Council from 1 May 2013. To view further details about the new members please click here

Overseas Registration

The NMC has resumed its overseas registration for nurses and midwives following a recent review to streamline and improve the process...

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