Public And Regulatory Law Group Alerter June 2013

Introduction Welcome to Field Fisher Waterhouse's Public and Regulatory Group Alerter, highlighting the key cases and events taking place in May 2013.

Next month, we will be launching our blog, the Public Eye, with an up to the minute insight on new case law developments as well as topical public and regulatory law issues. So next month, in place of our alerter, expect to receive an email with a link to the blog and details of its subscription services.

In the case law section below, we highlight the following:

In General Dental Council v Jamous, the High Court considered whether tooth whitening treatment fell within the definition of "the practice of dentistry" in section 37(1) of the Dentists Act 1984. The appeal was brought by the General Dental Council ("GDC") following an unsuccessful case against the respondent for the illegal practice of dentistry in the Magistrates Court.

In the cases of Siddiqui v General Medical Council and Hassan v General Optical Council, two High Court judges gave different views in relation to the application of SRA v Sharma (a case in relation to the sanction for dishonesty by a solicitor) to other, non legal regulators. The cases may be distinguished on the basis that in Siddiqui, the reference to Sharma related to the harm done to the public when a professional behaved dishonesty, whereas in Hassan, the Committee had been directed towards it as an example of the fact that, in relation to solicitors, dishonesty would lead to striking off save in exceptional circumstances. However, going forward, it appears that the Court will not apply Sharma blindly, without looking at the relevant regulatory scheme and any guidance provided by the regulator, as well as a careful examination of the individual facts.

The idea of deference to a specialist Panel on sanction was highlighted in the cases of Kibe v Nursing and Midwifery Council, Sultan v GMC, and in Rich v General Medical Council.

In R (on the application of Erenbilge) v (1) Independent Police Commission (Defendant) (2) Chief Constable of Essex Police (Interested Party), the High Court rejected a challenge by way of judicial review, holding that the IPCC had been entitled to conclude that the force used by two officers in arresting the claimant had been reasonable.

In Matthews v Solicitors Regulation Authority the Divisional Court held that a solicitor's means were relevant both to the financial penalty imposed for misconduct, and to the costs imposed. In this case, the Divisional Court considered and reduced the award of costs against the solicitor from £16,000 to £4,500, and the fine from £5,000 to £500.

Finally, in R (on the application of Hill) v Institute of Chartered Accountants in England and Wales (2013) the Court of Appeal concluded that there had been no breach of natural justice where a defendant or his duly authorised advocate made a voluntary, informed and unequivocal agreement that a member of a tribunal could be absent for a part of the hearing but read into the transcript before returning for the remainder of the hearing and contributing to the decision.

Regulatory News

Health and Care Sector

Care Quality Commission

Health and Social Care Act 2012 - secondary legislation and guidance:

The CQC has issued guidance in relation to the Health and Social Care Act 2012 and sets out the changes to public health functions affecting local authorities. The new system has been in force since April 2013 and delegates certain powers to local health authorities and the Secretary of State for Health. To view this guidance in full please click here

Department of Health

Care Bill:

The DoH published the Care Bill in May which aims to consolidate and modernise the existing care and support legislation and introduce measures such as a national eligibility threshold for care and support and a universal deferred payment scheme. It also takes forward matters identified in the report of the Francis Inquiry, introducing Ofsted-style ratings for hospitals and care homes and making it a criminal offence for health and care providers to supply or publish false or misleading information.

The Bill also establishes the Health Education England and Health Research Authority as statutory non-departmental public bodies. For further details please click here

Healthcare

General Osteopathic Council

Equality and Diversity Action Plan:

The GOsC has published its new equality and diversity action plan for 2013-14 which sets out how the organisation intends to meet its objectives. To find out more about this policy and action plan please click here

Federation of (Opthalmic and Dispensing) Opticians

Annual Report 2013:

FODO has issued its annual report which includes details regarding developments in the optical sector, confederation partnerships and a financial report. To read the report in full please click here

General Medical Council

New Rules - Fitness to Practise:

The GMC implemented its new fitness to practise rules on 8 May 2013. The introduction of these rules is intended to improve hearing efficiency and follows a series of reforms by the GMC. The Medical Practitioners Tribunals Service which operates separately to the investigations process conducted by the GMC was established last year. We outlined a summary of the Rule changes in our last Alerter, here, and for further information from the GMC website please click here

General Optical Council

Council Meeting May 2013:

The GOC council members met to discuss key issues concerning regulation for the optical profession. One of the areas considered included the implications of the Francis Inquiry on the GOC and how the recommendations affected them. This will be taken forward as part of the organisation's business plan which includes a review of its standards. For more news from the council please click here

Fluorescein Strip Update:

The GOC has issued an update regarding fluorescein products, following a decision by Bausch and Lomb to withdraw its licensed fluorescein ocular strips (Fluorets) from the marketplace. The GOC has confirmed that they are in the process of working with the optical professional and regulatory bodies to consider the patient safety implications concerning other fluorescein products. For further details and guidance please click here

General Pharmaceutical Council

Regulate - May 2013:

The GPhC has issued the latest edition of its news bulletin which looks at issues including; the Francis Inquiry, an update for Registrants, new NHS organisations, education and training and the pre-registration programme. To read more about these topics please click here

Health and Care Professions Council

Revised standards:

The HCPC has launched a revised set of profession specific standards of proficiency for physiotherapists and...