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Professional Disciplinary Case Digest – May & June 2017

A summary of legally noteworthy appeals in the High Court and Court of Appeal against the decisions of professional disciplinary panels.

Professional Standards Authority v (1) Health & Care Professions Council (2) Benedict Doree [2017] EWCA Civ 319

 

  • A decision to impose a caution order for a period of five years on a registered prosthetist found to have bullied and sexually harassed his colleagues was not unduly lenient.

 

General Medical Council v (1) Nilesh Pravin Jagjivan (2) Professional Standards Authority for Health & Social Care [2017] EWHC 1247 (Admin)

 

  • The High Court rules that the GMC has a power to appeal against a determination of the Medical Practitioners Tribunal, under s.40A Medical Act 1983, even when there is no finding that fitness to practise is impaired.

 

Nkosana Brian Lusinga v Nursing & Midwifery Council [2017] EWHC 1458 (Admin)

  • A decision to strike off a nurse who had breached his employment contract by taking additional work without first seeking his employer's permission was overturned and replaced by a 12-month period of suspension.
  • Court’s comment: The Indicative Sanctions Guidance of the NMC ought to distinguish between different forms of dishonesty - fraud should not be classed in the same category as breach of contract.

 By Navid Pourghazi

 Professional Standards Authority v (1) Health & Care Professions Council (2) Benedict Doree [2017] EWCA Civ 319

  The HCPC’s Conduct and Competence Committee (“CCC”) found that Mr Doree, a registered prosthetist, had bullied one colleague and sexually harassed another, which it found amounted to misconduct and impairment of his fitness to practise. It imposed a caution order for five years. The PSA appealed the CCC’s decision, and the High Court rejected the appeal on every ground.

On a further appeal, the Court of Appeal made a number of important findings:

  • The HCPC’s indicative sanctions policy was merely general guidance. It did not have the force of statute or regulation, and was unlike a code of practice, though a panel was not at liberty to ignore it or to fail to give adequate reasons for departing from it.
  • Evidence of a registrant’s insight did not have to be oral and tested by cross-examination, even if the CCC had rejected that registrant’s earlier evidence as to his innocence of the allegations. The CCC had reached a safe conclusion based on the registrant’s attendance on relevant courses, and further evidence from co-workers on his conduct over the last 3 years.
  • While a professional disciplinary committee is entitled to make necessary amendments to the allegations before it, so as to avoid "undercharging", it is not a procedural error not to tailor the allegations to the findings of fact.
  • A caution order was not an insignificant sanction, and was not unduly lenient in this case. The order would appear on the registrant’s online register entry for five years, with a link to the panel's decision for any prospective employer to access, and it could be taken into account if any further allegation was made against him.

General Medical Council v (1) Nilesh Pravin Jagjivan (2) Professional Standards Authority for Health & Social Care [2017] EWHC 1247 (Admin)

The Medical Practitioners Tribunal had found misconduct by the first respondent hospital doctor, but had not found that his fitness to practise had been impaired.

This case is noteworthy primarily because of the High Court’s construction of the GMC’s power to appeal under s. 40A Medical Act 1983.

Section 40A empowers the GMC to appeal against a "relevant decision" if it considers that the decision was not sufficient for the protection of the public. Its jurisdiction under s.40A(1)(d) (the relevant provision in the instant case) depended on the tribunal making "a decision not to give a direction under s.35D" of the Act. Section 35D provides a list of sanctions which could be imposed upon a finding that fitness to practise was impaired.

The court rejected the doctor's argument that s.40A(1)(d) does not provide jurisdiction to the GMC to appeal in cases where there is no finding that fitness to practise is impaired. That construction would mean adding the words "after determining that the person's fitness to practise is impaired" at the end of s.40A(1)(d), when those words were not present and did not need to be read into the section. Therefore, the GMC had jurisdiction to appeal.

Nkosana Brian Lusinga v Nursing & Midwifery Council [2017] EWHC 1458 (Admin)

The appellant nurse appealed against a decision of the NMC’s disciplinary panel to strike him off the register for misconduct.

The nurse had breached his employment contract by working for a second care provider without obtaining permission from first. After a complaint was made against him regarding medication errors during his work at the second care provider, the NMC brought various charges, including that he had been "dishonest" in that he had "sought to conceal" his additional employment.

The High Court overturned the sanction, and found the right course was to impose a 12-month period of suspension on the basis that there had been attenuated dishonesty.

The Court emphasised that ‘dishonesty’ is a serious allegation, and set out the two limb test of dishonesty in Ghosh. In the instant case, the sting of the charge as drafted was that the conduct was dishonest "in that" the nurse had sought to conceal the second job. However, he appeared to have regarded the sting of the charge as dishonesty by not informing the first care provider which employed him about the second job. Thus, the nurse had not admitted to dishonesty in the sense of Ghosh.

Although there was concealment, there was no active deception and no ill-gotten financial gain, and the Court held that it was unsurprising that he had been misled in part by the terms of his contract, which made it plain that there was no limit to the number of hours he could work. The case was at the very bottom end of the dishonesty scale.

In the “Post Script”, Kerr J made the following important comments:

“103. I hope the Indicative Sanctions Guidance will be looked at again in the light of this judgment. The guidance does not differentiate between different forms of dishonesty, and takes one of the most serious forms of dishonesty (fraudulent financial gain) as the paradigm, without alluding to the possibility that dishonest conduct can take various forms; some criminal, some not; some destroying trust instantly, others merely undermining it to a greater or lesser extent.

 104. The guidance, in my respectful opinion, needs to be more nuanced in that respect. It should not lump the thief and the fraudster together with the mere contract-breaker…”

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