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Professional Disciplinary Case Digest – March 2017

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

  • Newell-Austin v Solicitors Regulatory Authority [2017] EWHC 411 (Admin)
    • Challenging a decision by the SRA striking the Applicant from the Solicitors’ Roll for professional misconduct
    • A Solicitor can lack integrity without being dishonest
  • Mirtorabi v Nursing and Midwifery Council [2017] EWHA 476 (Admin)
    • Challenging a decision by the NMC striking the Applicant off the Register
    • The Tribunal was entitled to take previous disciplinary decisions into account when considering the Registrant’s fitness to practice and the appropriate sanction
  • Onwude v General Medical Council [2017] EWHC 601 (Admin)
    • Challenging a decision by the MPT
    • Treating and providing prescriptions to close personal friends was not wrongful conduct
    • Merely finding as a fact that a close personal relationship existed was insufficient to find serious professional misconduct

By Linda Jacobs

Newell-Austin v Solicitor Regulatory Authority [2017] EWHC 411 (Admin)

  • Challenging a decision by the SRA striking the Applicant from the Solicitors’ Roll for professional misconduct
  • A Solicitor can lack integrity without being dishonest

The Appellant Solicitor, the sole principal of a law firm, was charged with allegations of acting with a lack of integrity and dishonesty. The Solicitors’ Disciplinary Tribunal found the allegations proved. She was removed from the Solicitor’s Roll and was unsuccessful in her appeal to the High Court. Morris J made a number of important observations distinguishing between the requirements for dishonesty and a lack of integrity in solicitors’ disciplinary proceedings.

  1. Dishonesty: Twinsectra Ltd v Yardley [2002] UKHL 12
  • the conduct in question must be found to be dishonest “by the standards of reasonable and honest people” and
  • the respondent must have realised that by those standards his or her conduct was dishonest

      2. Lack of Integrity”: from Hoodless and Blackwell v FSA [2003] FSMT 007, Scott v SRA [2016] EWHC 1256 (Admin), and SRA v Chan [2015] EWHC 2569 (Admin) the following principles can be derived:

  • Integrity connotes moral soundness, rectitude and steady adherence to an ethical code.
  • No purpose is served by seeking to expatiate on the meaning of the term. Lack of integrity is capable of being identified as present or not by an informed tribunal by reference to the facts of a particular case.
  • Lack of integrity and dishonesty are not synonymous. A person may lack integrity even though not established as being dishonest.

      3. Contrasting with the test for dishonesty, the test of “lack of integrity” is an objective test alone.

Mirtorabi v Nursing and Midwifery Council [2017] EWHA 476 (Admin)

  • Challenging a decision by the NMC striking the Applicant from the Register
  • The Tribunal was entitled to take previous disciplinary decisions into account when considering the Registrant’s fitness to practice and the appropriate sanction

The Appellant unsuccessfully appealed against the decision of the NMC in 2016 to strike her off the Register.

In 2014, the Appellant made a number of medication errors over a two month period, which amounted to misconduct. In considering her fitness to practice and the appropriate sanction, the Conduct and Competence Committee (“CCC”) took into account the Appellant’s regulatory history, including a finding in 2013 in relation to the delivery and storage of controlled drugs (2011), and a dishonest failure to include details of previous employment on a job application form (2010). The sanction was a Condition of Practice order for two years, which was not in force in 2014.

Lang J held: that the CCC was entitled to take the previous disciplinary decisions into account when assessing the extent of the Appellant’s impairment and the appropriate sanction. The CCC had focussed on the key issues of whether the Appellant’s misconduct was remediable and the likelihood of any repetition. Her history of misconduct was directly relevant to those issues. The CCC concluded that the Appellant had limited insight, did not take full responsibility for her errors, and repeatedly made serious errors which were of particular concern because she was caring for vulnerable nursing home residents. The previous disciplinary charges included errors similar in nature to those currently before the CCC, in connection with the management and administration of drugs. The CCC was justified in concluding that there was a pattern of misconduct.

Onwude v General Medical Council [2017] EWHC 601 (Admin)

  • Challenging a decision by the MPT
  • Treating and providing prescriptions to close friends was not wrongful conduct
  • Merely finding as a fact that a close personal relationship existed was insufficient to find serious professional misconduct

The Appellant, a Consultant Gynaecologist, successfully challenged a decision by the Medical Practitioners Tribunal to erase his name from the register.

The Appellant and two friends (a married couple) entered into a business venture that was to subsequently fail. During that time, the Appellant provided the married couple with general medical treatment and prescribed medication. The tribunal considered whether the Appellant should not have provide treatment and prescriptions to close personal friends.

The Good Medical Practice 2013 guidance states “wherever possible doctors should avoid caring for those with whom they had a close personal relationship”. The guidance refers specifically to treating family members, but is not limited to family members. Collins J stated, “there is no clear indication anywhere as to how far that should extend”. In Hussein v General Medical Council [2013] EWHC 3535 (Admin), the Court held that doctors should not provide medical care to friends. However, Collins J stated that was incorrect:

Certainly there has to be considerable care taken if a doctor is to treat someone who is a close friend and the reason behind that is that it is essential always that the medical practitioner maintains objectivity in his dealing with his patient and should not be influenced to do something because of friendship or indeed because the individual is a member of family. There is an obvious risk in some cases that that might be the position but to say that providing medical care to friends was wrongful puts the matter far too high. Does it mean that anyone who befriends his general practitioner is thereafter excluded from being treated by that general practitioner? That of course would be nonsense because, perhaps more so in the country than in town, it often happens that the general practitioner becomes quite a close friend, it may be, of many of his or her patients. There may be circumstances, of course, where particular treatment is needed when the existence of friendship may persuade, and should persuade, the medical practitioner that someone else should deal with the matter on that occasion but to say as has been said that merely being a friend means it is wrongful to treat cannot possibly be right. The question of course is, where does one draw the line?”

Collins J accepted that a close personal relationship can extend beyond family and can include close friendships. However, in the circumstances of this case, a finding of serious misconduct was not made out. Merely finding as a fact that a close personal relationship existed was insufficient to find serious professional misconduct.

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