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Professional Disciplinary Case Digest – February 2017

A summary of legally noteworthy Judicial Reviews and High Court Appeals against the decisions of professional disciplinary panels.

By Adam Ohringer

 

R(Oriaku) v Nursing and Midwifery Council [2017] EWHC 235 (Admin)

Challenging a decision by the NMC not to refer a complaint to the Investigating Committee

 

The Applicant, a Nurse, was removed from the register after admitting that she incorrectly procured her entry in the NMC register by wrongly stating that she had undertaken a supervised placement at a nursing home. She subsequently wrote to the NMC alleging that another nurse who had done exactly the same had not been disciplined; however, she was unable to give any details to identify that nurse, apart from her first name and nationality.

The Nurse launched a judicial review against the NMC after it did not refer her complaint to the Investigating Committee.

Lang J made two useful legal declarations before, quite predictably, dismissing the application:

 

  1. The Applicant, as a Nurse herself making complaints about other registrants, had standing to bring a judicial review if the NMC did not process those complaints lawfully, even if it had no direct impact on her.
  2. The Registrar of the NMC ‘has to exercise her own independent judgment and discretion in each case to determine whether an allegation qualifying for referral to the Investigative Committee and to carry out such investigations as she considers appropriate to determine that issue.’

 

The application was refused because the NMC was entitled not to progress the complaint where it could not establish the identity of the nurse complained about.

 

McTier v Secretary of State for Education [2017] EWHC 212 (Admin)

Retrospective application of disciplinary regime over historic misconduct

Secretary of State disagreeing with NCTL recommendation

 

The Appellant, a music Teacher, pleaded guilty to three sexual offences which took place in 1985, 1988 and 1994. The National College for Teaching and Leadership referred him to a Professional Conduct Panel. That Panel decided not to make a recommendation to the Secretary of State that the Teacher be prohibited from teaching. However, the Secretary of State disagreed and decided that the Teacher should be prohibited indefinitely, without a right of review for five years.

 

It was argued that statutory regime for the prohibition of teachers under the Education Act 2002 did not apply where the conduct occurred before it was in force. Kerr J rejected this argument. Although applying the 2002 Act to the Teacher’s conduct was to give it retrospective effect, it was of ‘a weak form’. Various disciplinary regimes had been in place since before 1985. Had the Teacher’s misconduct come to light at the time, he could have been disciplined in accordance with the legislative regime then in force. There was nothing unfair about him being disciplined under the present regime in respect of matters for which he could have been disciplined under previous regimes had his misconduct been uncovered without delay. Indeed, the alternative would have allowed the Appellant to escape sanctions simply because he had escaped prosecution for a long period of time.

 

Nonetheless, the Secretary of State’s decision was flawed. Although the Secretary of State can lawfully depart from the Panel’s recommendation, there were errors in the reasoning and it was not clear if or how certain material factors had been taken into account. The decision was remitted to the Secretary of State.

 

Howd v Bar Standards Board [2017] EWHC 210 (Admin)

Conduct at professional networking events

Medical explanation for conduct

The Appellant Barrister was disciplined and ordered to pay a fine following findings that he had sexually harassed colleagues at a chambers’ party. The Appeal was allowed primarily on the basis that the disciplinary tribunal had misunderstood and misapplied evidence regarding a medical condition which Lang J found to have been the cause of the Barrister’s inappropriate conduct.

Lang J also gave guidance on the following matters:

 

  1. The requirement to act with honesty and integrity in the Bar Code of Conduct and the Bar Standards Board Handbook applies to barristers ‘practising or otherwise providing legal services’. This included a chambers marketing event directed at professional clients.
  2. The requirement to ‘act with honesty and integrity’ however ‘connotes probity and adherence to ethical standards’. This did not cover the ‘inappropriate and offensive social or sexual behaviour’ with which the Barrister had been accused of.
  3. It was argued that the Barrister’s conduct only effected his own reputation and was not ‘likely to diminish the trust and confidence which the public places in you or in the profession’ in breach of the Code of Conduct. The Judge disagreed saying ‘inappropriate, and at times, offensive behaviour towards female barristers and junior members of staff, at a Chambers marketing event attended by professional clients, could be capable of diminishing the trust and confidence which the public placed in him, as a barrister, or in the profession ... since it occurred in the course of his professional life, and was not an entirely private matter.’ However, she continued to find that this would not be the case if the public was aware that the Appellant’s behaviour was the consequence of a medical condition.
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