HM Medical Clinic

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QUARTERLY BULLETIN interest and whether one should regulate to a minimum, good or best practice standard.
Sir Ian is a lawyer who, for the past few decades, haslectured and written on the law and the ethics ofhealthcare. He is also Emeritus Professor of Health ARDL SEMINAR REPORT Law, Ethics and Policy at the School of Public Policy, University College of London and Visiting Professor atthe London School of Economics. He has been EX PARTE NAWAZ AND THE PRIVILEGE involved in public life for 25 years, earning a reputation AGAINST SELF-INCRIMINATION IN for safeguarding the interests of members of the public REGULATORY PROCEEDINGS in healthcare. He led the public enquiry into the deaths in children's heart surgery at the Bristol RoyalInfirmary, establishment of the Healthcare Commission which he IMMUNITY FROM SUIT FOR chaired from its creation in 2004 until its abolishment DEFAMATION IN REGULATORY in 2009. During his time at the Commission, Sir Ian PROCEEDINGS: PUBLICATION OF worked to improve standards across the NHS through access to information and knowledge for patients, clinicians and managers. He also chaired the Nuffield Council on Bioethics and is currently Chair of the UK Research Integrity Office, whose remit covers theproper conduct of research in universities and otherresearch organisations.
Details of ARDL's programme of seminars for 2013will be posted on the website in due course.
ARDL SEMINAR REPORT
EX PARTE NAWAZ AND THE PRIVILEGE
A very successful seminar was held at Gray's Inn last AGAINST SELF-INCRIMINATION IN
Independent Parliamentary Standards Authority, gave a The rules of professional bodies/regulators generally thought-provoking and amusing talk on the subject of what constitutes effective regulation.
information, assistance or cooperation in pursuit of theregulator's investigatory and disciplinary functions. In The event was very well attended by ARDL members the course of their investigations, regulators may find who benefitted from Sir Ian's insights gained from his that members (whether witnesses or individuals under long career in regulation. An enthusiastic audience took investigation) are reluctant to provide such assistance, the opportunity to ask a number of questions which on the basis that to do so may expose them either to generated interesting debate.
Many topics were covered, including the bottom-up proceedings. The issue was considered by the High approach to standard setting, maintaining independence Court and Court of Appeal in R v Institute of
from stakeholders, what it means to serve the public Chartered Accountants in England and Wales, ex

parte Nawaz 1. The effect of Nawaz is that, provided
motives which had seen these immunities become that the regulator exercises functions of sufficient embedded in English law5 : public interest, the member will not be able to claim the The common view that one person should, so far privilege against self-incrimination.
as possible, be entitled to tell another person to Mr Nawaz was a member of the Institute of Chartered mind his own business; Accountants in England and Wales (‘ICAEW'). As part The long history of reaction against abuses of of its investigatory process and under the relevant judicial interrogation, with specific reference to byelaw, ICAEW requested that Mr Nawaz provide the secretive proceedings of the Star Chamber; ICAEW with information and documents. These couldsubsequently be used against him in disciplinary The notion that it is ‘contrary to fair play' to put proceedings. Having taken legal advice, Mr Nawaz an accused in a position where he is exposed to refused, describing the request as an effort to ‘dig the punishment whatever he does; The Investigating Committee laid a formal complaint against Mr Nawaz of, inter alia, failing to The desire to minimise the risk that an accused respond adequately to the request for information. The will be convicted on the strength of an untrue charge was found proved against Mr Nawaz and he was disciplined. He subsequently appealed to the High Sedley J held that none of these motives applied to Mr Court on the basis that the duty to provide information Nawaz, noting that: violated the common law privilege against self-incrimination.
 The Royal Charters constituting ICAEW and the legislation under which it operates make it Privilege and waiver
ICAEW's business to investigate possible The court held that the privilege against self- cases of misconduct; incrimination was capable of applying in relation to all  The requirement to provide information cannot exercises of public power, rather than being confined to be equated with torture and is a reasonable judicial or quasi-judicial proceedings. Notwithstanding function of the public responsibility which an this, by becoming a member of the ICAEW, Nawaz individual undertakes by becoming a chartered was taken to have contracted with the ICAEW on the terms of its charter, byelaws and regulations and,therefore, to have prima facie waived privilege.
 The same is true of the argument that an accused is put in a position where he is Potential limits on waiver
exposed to punishment whatever he does. The The main question to be decided was whether the instinct for fair play which ordinarily makes requirement to provide information is so wide that it should be read down to conform with the requirements accommodate the public interest in detecting of public law. If so, this would limit the prima facie malpractice in a profession which is central to waiver of privilege and thus exclude ICAEW's power to call on Mr Nawaz to provide material which may individuals and of the country as a whole; incriminate him. Sedley J considered the decisions of  The final consideration, the risk of untrue the House of Lords in AT and T Istel Limited v Tully2,
admissions, had no bearing in Nawaz's case.
and R v Director of the Serious Fraud Office ex parte
Smith3, which both consider in detail the nature of the
privilege in criminal and civil proceedings.
"intelligible and powerful grounds of public policy"6exist for endorsing the waiver was endorsed by the In Smith, Lord Mustill distinguished six ‘rights to Court of Appeal, Leggatt LJ remarking as follows: silence'4 , the relevant one in Nawaz being ‘a generalimmunity, possessed by all persons and bodies, from "When a person enters a profession he accepts its being compelled on pain of punishment to answer duties and liabilities as well as its rights and powers.
questions the answers to which may incriminate them.' Similarly, he may acquire or surrender privilege and His Lordship then proceeded to discuss four distinct immunities. In my judgment, acceptance of a duty toprovide information demanded of an accountantconstitutes a waiver by the member concerned of any 1 [1997] EWCA Civ 1530 (Court of Appeal, Leggatt J); [1997] privilege from disclosure. It is plainly in the public P.N.L.R 433 (High Court, Sedley J2 [1993] A.C. 453 [1993] A.C. 1 5 Smith p.31 4 Smith pp.30-31 6 Nawaz p.452

interest, as well as the interests of the profession, that the context of the majority of regulatory proceedings the Institute should be enabled to obtain all such (though, Colpus notwithstanding, a failure to caution information in the profession of its members as is could potentially have an impact on the admissibility of any admissions in subsequent criminal proceedings).
Legal Professional Privilege
Other regulators and the importance of the public
While a regulatory body may have the power to The same reasoning has subsequently been applied to communications which are subject to legal professional solicitors' disciplinary proceedings7 and has seen the privilege generally fall outside such a power. Legal courts giving significant regard to the nature of a professional privilege can only be overridden by regulator's responsibilities and the public interest inherent in their work. Provided that the public interest necessary implication12. A notable exception relates to solicitors' accounts. In Parry-Jones v The Law
supervisory functions of its members is likely to be Society13 the Law Society's power to require solicitors
able to require information or assistance from them, to disclose their books was held to be ‘a valid rule notwithstanding that this may expose the member in which overrides any privilege or confidence which question to further regulatory proceedings.
otherwise might subsist between solicitor and client. Itenables the Law Society for the public good to hold an Criminal proceedings and the duty to administer
investigation, even if it involves getting information as to client affairs'14 .
The misconduct identified in Nawaz related to In R (on the application of Morgan Grenfell & Co
unregistered auditing, itself a criminal offence8. In Ltd) v Special Commissioner of Income Tax15
addition, at common law there is no absolute bar on House of Lords held that the true justification for this evidence in regulatory proceedings being adduced in decision was that ‘this limited disclosure did not breach subsequent criminal proceedings9 . Further, there is no the clients' LPP. It does not seem to me to fall within principle in law which debars a claimant in a civil the same principle as a case in which disclosure is action from pursuing an action merely because to do so sought for a use which involves the information being would or might result in the defendant, in taking some made public or used against the person entitled to the necessary procedural step in defending the civil privilege'. The disclosure of the documents in question proceedings, having to disclose his likely defence in must be truly necessary to enable the investigating parallel criminal proceedings10 . The weight of officer to ascertain whether or not the individual in authority therefore suggests that an individual subject question has complied with the Solicitors' Accounts to professional disciplinary proceedings cannot refuse Rules, and the material must only be used for the to engage simply on the basis that to do so may expose purpose of the investigation and any consequent them to criminal charges.
In addition, provided that they are not persons ‘charged with the duty of investigating offences or charging Field Fisher Waterhouse suspected of conduct which may amount to a criminaloffence are under no duty to administer a formalcaution to the effect that the answers given may be used IMMUNITY FROM SUIT FOR DEFAMATION
in criminal proceedings; this exemption will apply in IN REGULATORY PROCEEDINGS:
PUBLICATION OF DECISIONS
7 Macpherson v Law Society [2005] 2837 (Admin) at paragraph 10; The basic ingredients of a libel are satisfied when (1) A Holder v Law Society [2005] EWHC 2023 (Admin) at paragraphs establishes (2) that B has published (3) to one or more 34-42.
8 Sedley J remarking at p.451 ‘that such auditing can also be a third persons (4) words which refer to A and (5) are criminal offence emphasises, if anything, that it is not merely the defamatory of A. Words are considered ‘defamatory' if accountant's private business' they tend to lower A in the opinion of others, or if they 9 See, for example, Colpus [1917] 1 K.B. 574 where evidence givenbefore a military Court of inquiry was admissible in criminalproceedings.
12 See, for example, B & Others v Auckland District Law Society 10 Jefferson v Bhetcha [1979] 1 W.L.R. 898, though the court may and Another [2004] 4 All E.R. 269 exercise its discretion to stay the civil proceedings pending the 13 [1969] 1 Ch. 1 outcome of the criminal proceedings in the interests of justice.
14 Parry-Jones, judgment of Lord Denning at p.8.
11 Police and Criminal Evidence Act 1984 s.67(9) 15 [2003] 1 A.C. 563, opinion of Lord Hoffman at p.612.

have or tend to have a substantial adverse effect on the the Board must publish the report in such manner as it sees fit.
‘Publication' means communication to one or morepeople other than A. A does not need to prove malice In all cases, the decision-makers have a duty to on the part of B. In addition, B is responsible for republication of the words if republication is a circumstances where republication of the decision is a foreseeable, natural and probable consequence of the foreseeable, natural and probable consequence of the initial publication. The burden of establishing a defence lies on B. This article considers defences which may beavailable to independent tribunals tasked with making Such tribunals will generally be able to claim common decisions in relation to fitness to practise and to the law privilege in relation to their decision. The test is regulators in question.
that set out in Adam v Ward16:
Under s.14 of the Defamation Act 1996, fair and ‘A privileged occasion is, in relation to qualified accurate reports of court proceedings which are privilege, an occasion where the person who makes a published contemporaneously are absolutely privileged; communication has an interest, or a duty, legal, social this privilege does not extend to the fitness to practise or moral, to make it to the person to whom it is made, tribunals of regulators, who therefore have to look and the person to whom it is made has a corresponding elsewhere for defences for publishing defamatory interest or duty to receive it. This reciprocity is decisions. While justification may provide an absolute defence, a case will need to be litigated to prove In each of the examples cited above, the respective justification; since litigation carries attendant risks and tribunals are under a legal duty to communicate to the potentially significant costs (which, even in the event of success, may not be recouped), it is worth looking corresponding interest or duty to receive it. Even where there is no express statutory or contractual duty, there is significant scope to argue that the tribunal will be undera social or moral duty to report its findings. It could Article 6 ECHR requires tribunals determining an also be argued that the guarantee of a fair and public individual's right to practise their chosen profession to hearing under Article 6 ECHR requires publication of a be independent. The majority of tribunals have a duty decision, constituting a legal duty for the tribunal for to either report their findings or give directions to the the purpose of this privilege.
regulator. Examples include: It is important to note that qualified privilege is vitiated General Medical Council: under s.35B(4) by proof of malice. In Egger v Chelmsford17 a letter
Medical Act 1983 the GMC has a duty to published by the Regulations Committee of the Kennel publish, in such manner as it sees fit, decisions Club (which stated that it was unable to approve the of its Fitness to Practise Panel; appointment of the plaintiff to judge Alsatians at a  Nursing and Midwifery Council: paragraph show) was held to be defamatory. A number of 22(9) of the Nursing and Midwifery Order members of the committee were found by the court to be actuated by malice in coming to their decision. The particulars of any orders and decisions made by court held that those defendants actuated by malice did a Practice Committee, while paragraph 29(5) of not enjoy the protection of qualified privilege, while the Order mandates that the NMC's Conduct those not actuated by malice were protected by and Competence Committee (‘CCC') make directions to the Registrar in relation to its findings. Though the Order does not direct theCCC to give specific reasons for its decision, In relation to members of a professional body subject to reasons are required in such cases by Article 6 disciplinary proceedings, the regulator may be able to plead that the contractual nature of the relationship between the regulator and the member is one whereby Accountancy and Actuarial Discipline Board: the member consents to the rules of the regulator, under para 7(10) of its scheme, the Disciplinary including publication of disciplinary findings. Some Tribunal has a duty to make a report setting out bodies (such as the FA) make this an explicit condition its written decision and reasons and must sendthat decision to, amongst others, the Boarditself. Under paragraph 7(12) of the scheme, 16 [1917] A.C. 309 at p.334.
17 [1965] 1 Q.B 248.

of their rules but the nature of a regulator's supervisory trade, business, industry or profession, or the actions or functions means that it is arguable that such consent conduct of those persons. could be implied. Consent an absolute defence, but will There are two potential obstacles to claiming this not apply to third parties defamed by a decision, since privilege: (1) whether a regulator can be said to report the third party will not have given their consent to its own conclusions; and (2) whether the decision of an prima facie defamatory statements being made about independent tribunal is a decision of ‘an association.
or of any committee or governing body of an The common law privilege discussed above can be held to apply to regulators themselves in the onward Can a regulator ‘report' its own conclusions?
publication of the findings of the tribunal; that said,care needs to be taken. While common law privilege Gatley on Libel and Slander (11th Edition) notes at 16.3 may apply to publication of a decision to a complainant that the law prior to the Defamation Act 1996 confined or to an employer, publication to a wider audience this statutory reporting privilege to newspapers or (such as on the regulator's website) may fall foul of the broadcasters. Gatley goes on to state that ‘the policy of reciprocity required for common law privilege. While it the statute would seem to be aimed at protecting the could be argued by a regulator that statute, the public reporter and the originator cannot fairly be said to be interest and/or the requirements of Article 6 ECHR "reporting his own words".
place it under a legal, social or moral duty to publishfindings of its disciplinary decisions to the general In a footnote to this comment, however, Gatley public, this approach carries an inherent degree of risk mentions the unreported case of Lloyd-Allen v Adams
and the point has not been tested.
in which it was held that the statutory privilege inquestion applied to a councillor in respect of a Statutory reporting privilege – s.15 Defamation Act
newspaper report of her speech which she had caused or authorised. Further, the notion that a regulator‘cannot fairly be said to be "reporting his own words"' An alternative option for a regulator would be to seek stems from a time when tribunals were not independent to rely on the reporting privilege contained in s.15 of from the regulator. Though the point has not yet been the Defamation Act 1996: decided, there are good reasons to think that a court s.15 – Reports etc protected by qualified privilege would accept that the distance between a tribunal andthe regulator as a result of the requirement for The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged privilege held to encompass regulators publishing unless the publication is shown to be made with decision of their independent disciplinary tribunals.
malice, subject as follows. In McCartan Turkington Breen v Times Newspapers18
In defamation proceedings in respect of the Lord Bingham stated (referring to the fact that press publication of a report or other statement conferences were ‘unknown' when the operative statute mentioned in Part II of that Schedule, there is no in McCartan was enacted) that statutes ‘must be defence under this section if the plaintiff shows interpreted in a manner which gives effect to the that the defendant – intention of the legislature in the social and other a) was requested by him to publish in a suitable conditions which obtain today'19.
manner a reasonable letter or statement by wayof explanation or contradiction, and b) refused or neglected to do so. Schedule 1, Part II, sub-paragraph 14(b) contains therelevant provision: 18 [2001] A.C. 277, a case regarding qualified privilege as it relatesto published reports of a public press conference.
A fair and accurate report of any finding or decision of 19 Ibid p.292. See also Lord Steyn at p.296: ‘There is another [an] association. any committee or governing body preliminary matter to be considered. Counsel for the solicitors of. an association formed for the purpose of promoting emphasised that the wording of paragraph 9 can be traced back to or safeguarding the interests of any trade, business, the Law of Libel Amendment Act 1888. He observed that at thattime the phenomenon of press conferences was unknown. This was industry or profession, or of the persons carrying on or an invitation to the House to say that press conferences could not engaged in any trade, business, industry or profession, have been within the original intent of the legislature. There is a and empowered by its constitution to exercise control clear answer to this appeal to Victorian history. Unless they reveal over or adjudicate upon matters connected with that a contrary intention all statutes are to be interpreted as "alwaysspeaking statutes".'

BOOK REVIEW
‘association', ‘committee' or ‘governing body' of an
association?
THE REGULATION OF HEALTHCARE
On a strict interpretation of the statute, an independent PROFESSIONALS: LAW, PRINCIPLE AND
tribunal may not be considered to be an association, or a committee, or the governing body of an association inthat As the authors rightly say in their introduction, association in question. Notwithstanding this, there are healthcare regulatory law is now an established good reasons to suggest that a court would take a discipline. Whilst there are similarities and points of purposive approach to the construction of the statute.
Moreover, in McCartan Lord Bingham emphasises disciplinary law, healthcare regulation has nevertheless developed its own principles, policy imperatives and anever-expanding volume of specialist jurisprudence.
‘"Public", a familiar term, must be given its ordinary Joanna Glynn QC is a leading silk in this area and has meaning. A meeting is public if those who organise it or appeared regularly before the Fitness to Practise arrange it open it to the public or, by issuing a general Committees and Panels of the healthcare regulators and invitation to the press, manifest an intention or desire on appeal, conducting cases involving a wide-range of that the proceedings of the meeting should be alleged professional malpractice.
communicated to a wider public. Press representatives regulatory law specialist with extensive experience of may be regarded either as members of the public (as healthcare regulation in practice, including experience made clear by the language of paragraph 10 of the gained from his previous roles as general counsel to the Schedule) or as the eyes and ears of the public to whom Human Fertilisation and Embryology Authority and they report.'20 legal advisor to the Royal Pharmaceutical Society ofGreat It would be a perverse distinction to deny a regulator the defence of the statutory reporting privilege but to substantial and impressive work. The book is divided afford the same privilege to the press, especially Part 1 The Regulators and the considering the fact that, as cited above in relation to Regulatory Landscape; Part 2 The Regulation of the GMC and the NMC, a number of regulators have a Persons Studying or Training for Entry into the statutory duty to publish the findings of disciplinary committees. In addition, one must consider the attendant public interest in relation to the work of such Professional Development and Revalidation; Part 4 Fitness to Practise and Restoration; Part 5 Complaints The right of reply
and Discipline in the NHS in England; and Part 6 TheRegulation of Primary Care in the NHS in England.
s.15(2) gives a claimant the right to request publication Each Part contains extensive detail and in-depth of a reasonable letter or statement by way of explanation or contradiction. Though the onus is on a processes. The book is designed with practicality in mind by the experienced authors. It is a comprehensive circumstances in which it will be prudent for a work which embraces the whole regulatory cycle based on the legislation, case law and information placed in ‘Reasonable' is unsatisfactorily opaque and may have the public domain by the various regulators, the attendant complications of its own.
Council for Healthcare Regulatory Excellence and the With thanks to Mark Warby QC of 5 Raymond Department of Health. In her foreword the Honourable Mrs Justice Nicola Davies commends Joanna GlynnQC and David Gomez upon the quality and detail of their text, and says that the book is of real assistance, Field Fisher Waterhouse not only to those who practise and provide legal advicewithin the regulatory field – it is a source of insightfulinformation for all those who sit upon regulatorytribunals. The book indeed is that, and it provides thereader with expert, detailed and speedy access to allkey provisions.
The Regulation of Healthcare Professionals: Principle and Process is published by Thomson Reuters

Sweet & Maxwell and valued at £170 (ISBN: 978 0 twenty-eight days later—that is, Saturday 17 March.
414 04640 5). It can be purchased by visiting Because the appeal was lodged on Monday 19 March, it was out of time. Rule 34(4) provides: ‘Where any Services on 0845 600 9355, or emailing: notice is sent under these rules, it shall be treated as having been served on the day after it was sent bydelivery service.' The appellant contended that the reference in rule 34(4) to ‘the day after it was sent by Henderson Chambers delivery service' was a reference to the next workingday or business day, so that the notice was deemedserved on Monday 20 February and the time for LEGAL UPDATE
appealing expired on 19 March 2012. The appeal waslodged that day and hence was in time. In dismissing  Gurpinar v Solicitors Regulation Authority [2012]
the appellant's arguments, Hickinbottom J said that the EWHC 192 (Admin)
notice of decision was deemed served on B the dayafter it was posted—that is, it was deemed served on The primary ground of appeal by G is that the tribunal Saturday 18 February 2012. The Court was not wrongly proceeded to hear the allegations in his concerned with CPR Part 52, rules 17.3–17.4A, which absence, despite the fact that it had been told that he appear to give time limits for an appeal based upon was unable to be present owing to a combination of ill different criteria. The wording of rule 34(4) is very health and the disruption to air travel caused by the different—namely, that when a notice is sent it shall be Icelandic volcano in April 2010. Moore-Bick LJ, in treated as having been served on the day after it was dismissing G's appeal, said that he was not persuaded sent by delivery service. On the usual meaning of the that certain letters or emails purportedly sent by G ever words used, that is the next calendar day. If something reached their intended recipients and that the only else had been intended (such as the next working or explanation for that is that they were not sent. At the business day), then that could have been made clear to hearing on 22 April 2010, the tribunal was faced with a rebut the usual and ordinary meaning of the words difficult and frustrating situation. One co-defendant in used—as it is in CPR 6.26, in which all of the periods partnership with G, N, was present, but G was not, nor of time listed for serving documents under the CPR, was anyone there to represent him. He had failed to other than claim forms, refer to ‘business days' as serve his defence bundle. The tribunal thought that G defined in rule 6.2(b). The scheme for service under was ‘playing fast and loose', and Moore-Bick LJ said it CPR 6.26 is very different from service under rule had good reason to think so. In the circumstances, the 34(4) of the NMC 2004 Rules. Under the CPR, service tribunal could not be criticized for proceeding in G's can be effected only on a business day and service can be dispensed with. Under the NMC Rules, there is no such restriction, nor any provision for dispensation.
Baines v Nursing and Midwifery Council; Adesina
The CPR do not apply in this case. Accordingly, the v Nursing and Midwifery Council [2012] EWHC
time for lodging an appeal expired on Saturday 17 March, and the appellant's notice lodged on Monday The first appellant, Janet Baines, was the subject of a 19 March was, consequently, out of time.
hearing before the NMC's Conduct and Competence The appeal by the second appellant, Victoria Adesina, Committee on 14 February 2012, when, on the basis of does not turn upon a question of law, but a question of various findings of the Committee, she was ordered to fact. There was a dispute as to when the relevant notice be struck off the register.
was put into the post. The appellant contended that the It was not in dispute that the decision letter dated 17 original decision notice was not posted until 9 February February 2012 was posted by the Council by first-class 2012, which she received on 10 February 2012, and post on that day, Friday 17 February, and was received accordingly her notice of appeal lodged on 9 March by the appellant in the course of the post on Monday 20 2012 was in time. However, the Council's evidence February 2012. The appellant wished to appeal and was that, following the decision of the relevant lodged an appellant's notice with the High Court on committee on 27 January 2012, notice was sent by first- Monday 19 March 2012. The NMC submitted that, the class post, although not by recorded delivery, on 30 decision notice having been posted on Friday 17 January 2012. The affidavit evidence of the Council, February, it was, by virtue of rule 34(4) of the Nursing made on oath, was accepted by the Court and on that and Midwifery Council (Fitness to Practise) Rules basis the notice of appeal was out of time.
2004, deemed served the following day, Saturday 18February. The time for lodging an appeal expired  R (Cela) v General Pharmaceutical Council [2012]
relief has been made promptly, it does not follow even EWHC 2785 (Admin)
where an application is made promptly, that the Courtmust always grant an extension of time. There may be The respondent, the General Pharmaceutical Council, other relevant considerations. Here, in any event, applied to strike out C's notice of appeal on the application had not been made, let alone promptly. As grounds that it was lodged out of time and there were to (c), whether the failure to comply was intentional, it no justifiable grounds to extend time. Article 58(3) of was right to say that C had never furnished positive the Pharmacy Order 2010 provides that any notice of evidence or explanation that failure to comply was appeal must be filed at the High Court and served on caused by mistake or inadvertence. As to (d), whether the Council ‘within 28 days beginning with the day on there is a good explanation for the failure, the answer in which the written notice for the reasons for the decision this case was emphatically not. As to compliance with was sent or within such longer period as the High Court other court orders, rule 3.9(e), it was to some extent may in accordance with the rules of court they allow'.
striking that C was required to serve with his On 12 December 2011, C was informed in writing of appellant's notice a skeleton argument and grounds of the decision of the Council that he be suspended from appeal, and that he had never done so, nor had there practice for twelve months and he was informed that ever been an attempt to remedy that. For these reasons, the expiry of his period for appeal would be 9 January to extend time would be of prejudice to the respondent 2012. C's notice of appeal was issued on 24 January Council, the committee of which had made a decision 2012 and not served on the Council until 2 March that appeared to the Court to be impeccable and which 2012. No explanation was ever furnished to the Court would have be denuded of effect by an extension of and no evidence was ever served on the Court as to time to present an appeal. For these reasons, the Court why the notice of appeal was issued late. His Honour refused to extend time beyond that set out in article Judge Seys Llewellyn QC, sitting as a High Court 58(3) of the Pharmacy Order 2010.
judge, said that he turned first to consider whether C'sappeal was one that may have merit, because ultimately  Uddin v General Medical Council [2012] EWHC
it is the interests of justice that are likely to determine whether time should be expended: see Gilthorpe v
U, a GP, together with her husband, owned a care General Medical Council [2012] EWHC 672 (Admin).
home. The manager of the care home referred U to the In the instant case, C was a pharmacist who was GMC after U referred the manager to the Department convicted in the magistrates' court on 11 January 2010 of Health under the Protection of Vulnerable Adults of theft by an employee, to which he was sentenced to a (POVA) scheme, under which H was placed on a list community order. The offence was carried out in barring her from working with vulnerable adults. The breach of trust and when employed in the practice of a decision was later reversed. In its determination, the pharmacist, and involved taking money from the hands GMC's fitness-to-practise panel, applying the test in R
of customers and not putting it into the till or v Ghosh, made five findings of dishonesty against U.
registering the relevant order or prescription that he had The panel concluded that U's conduct in referring H received the relevant monies. Before the fitness-to- practise committee, C admitted the allegations. The irresponsible, and that witness statements submitted by decision of the committee as to impairment was U had been falsified and that the material sent to POVA unappealable and its decision on sanction, to impose a to substantiate the referral was inaccurate. The panel period of suspension of twelve months, was in some included that erasure from the medical register was the respects a humane approach, in that many cases of only appropriate sanction. In allowing U's appeal dishonesty may lead to erasure and this was a breach of against the panel's findings of dishonesty, Singh J held trust to a high degree because it was committed during that the findings were flawed and could not stand. The C's practice as a pharmacist. Under the Civil Procedure Court directed that the case should be remitted to a Rules, rule 3.9, the Court is directed to consider all matters, including the merits. Since in the instant case considering issues of dishonesty, the GMC should take there was a sanction, if the appeal were not brought in care in applying the Ghosh test, which was devised in time and it were not extended, this would be analogous the criminal law context. The standard of proof in to the situation in which a litigant needs to apply for proceedings before the GMC was the civil, and not the relief from sanction under the Civil Procedure Rules.
criminal, standard. Even in the criminal context, it was not the general practice to give a Ghosh direction in all administration of justice, in the instant case the cases and the advice given by the Judicial College to interests of justice did not require an extension of time Crown court judges was that no direction was generally to be granted to the appellant because the appeal was required on the meaning of dishonesty. A Ghosh without merit. As to (b), whether the application for direction was given where an issue was raised as to was it done knowing that it was false or may whether a relevant charge was dishonest by the have been, for example, innocent or even a standards of ordinary people. The real issue in the negligent mistake? instant case was whether the conduct took place and whether it was known that it was false, or that it was Bryant v Solicitors Regulation Authority [2012]
innocent or negligent. Singh J said: EWHC 1475 (Admin)
30. In the appeal before me, the advice of the In October 2007, B, a solicitor, appealed against a legal assessor, and the panel's clear acceptance finding of dishonesty made by the SDT, which ordered of it, were not in themselves the subject of any him to be struck off the roll of solicitors. The finding of challenge. Nevertheless, it was submitted that dishonesty was quashed by the Divisional Court in it might be helpful for this court to make any December 2007 and a two-year suspension from 17 observations which may be helpful for future October 2006 was substituted for the striking-off order: consideration by the respondent in its approach Bryant and Bench v Law Society [2007] EWHC 3043
to cases that may raise issues of dishonesty. I (Admin), [2009] 1 WLR 163. The Court had concluded
that B was guilty of conduct unbefitting a solicitor, but although it is not necessary for a final decision to a much lesser extent than that found by the Tribunal.
in this particular case and I have not heard full Once the two-year suspension period ended, in October argument on the points. Nevertheless, in the 2008, B was granted a series of practising certificates hope that it may be helpful, I would wish to subject to conditions. The conditions were directed make two brief observations which I would towards protecting and reassuring the public. An appeal hope will be considered by the General committee of the SRA dismissed B's appeal against the Medical Council in the future. The first is that conditions on 30 March 2011. It was against that care needs to be taken about applying a test decision that B appealed to the Administrative Court.
which was devised in the context of criminal In dismissing B's appeal, Eady J said that there was no As is clear from the standard of proof dispute as to the appropriate test to be applied on such which is relevant in the present context, the an appeal. In Lebow v Law Society [2008] EWCA Civ
standard of proof is the ordinary civil standard 411, Sir Anthony Clarke MR explained that such an
of a balance of probabilities and not the appeal was by way of rehearing, although it was criminal standard. The question of dishonesty important to have in mind that the imposition of can arise in civil contexts as well as criminal conditions on a practising certificate is a regulatory ones. There can be, for example, torts or other decision, based on the need to protect the public and civil disputes which raise the question of the reputation of the profession. Conditions, however, whether a person did or said what they did or if they are to be imposed, must be both necessary and said dishonestly, for example fraudulently as proportionate; see also Razeen v Law Society [2008]
distinct from negligently.
EWCA Civ 1220. The Court recognized that previously
the imposition of conditions on a practising certificate
31. The second observation to bear in mind is was compatible with continuing professional life and that even in the criminal context it is not that, subject to a period of suspension, the solicitor general practice to give the so-called Ghosh would be able to resume practice thereafter. According two-part direction. In many cases, the advice to the evidence before the Court, the position has which is given now by the Judicial College to fundamentally changed: the imposition of conditions is judges who sit in the Crown Court is that no now, in practical terms, recognized to be ‘the kiss of direction is required on the meaning of death'. To all intents and purposes, they render the dishonesty. One context in which the twofold prospect of further practice impossible. In a sense, Ghosh direction may be required is where, on therefore, it may be said that what were originally behalf of a defendant in criminal proceedings, intended to be temporary and precautionary measures an issue is raised whether he or she realised have, in reality, become permanent and punitive.
that the conduct charged was dishonest by the However, it is unthinkable that B would apply to any standards of reasonable and honest people.
prospective employer without revealing his disciplinary many cases, there will be no such issue of fact record and that what would trouble an employer is not raised. It will be perfectly apparent that if the so much the mere fact of the conditions, but rather the conduct alleged did take place then it clearly disciplinary hinterland that they represent. In these was dishonest. The real issue in many cases circumstances, even if B were to succeed fully in his may be whether the conduct took place and appeal, in the sense of having the conditions removed with what state of mind. For example, was a from his certificate, he would still face the practical false representation made? But even if it was, difficulties in obtaining employment purely by reason interest, the protection of patients, the maintenance of of his disciplinary record. Considering the five public confidence in the profession, and the declaring conditions in the instant case, it was quite impossible to and upholding of proper standards of conduct and conclude that the imposition of the conditions was irrational, illogical, unnecessary, or disproportionate.
They were sensible and were directed towards proper Henderson Chambers objectives. Furthermore, there was no reason forbypassing the well-established statutory regime andseeking to address the legitimate concerns of the SRAby way of undertakings. Either they would make nodifference or they would be less effective in serving the REQUEST FOR COMMENTS AND
SRA purposes of protecting the public and maintaining confidence in the profession.
We would welcome any comments on the Quarterly Mould v General Dental Council [2012] EWHC
Bulletin and would also appreciate any contributions for inclusion in future editions. Please contact any of M, a registered dentist, faced two allegations in May the members of the editorial committee with your 2011 of prescribing, dispensing, and administering suggestions. The editorial committee is: Nicole Curtis Penningtons Solicitors LLP
occasion at his National Health Service (NHS) place of work during NHS working hours, to two patients forthe purposes of alleviating pain, but in circumstances in Kenneth Hamer Henderson Chambers
which he knew, or ought to have known, that he was not permitted or qualified to prescribe medication fornon-dental purposes. The PCC found the allegationsproved and imposed nine conditions upon M'sregistration for a period of one year. The conditionsincluded that M must identify and appoint within onemonth a mentor, that he must meet his mentor on aregular basis and at least on a monthly basis, and that,at those meetings, he should develop a personaldevelopment dispensing and administering of medication for dentalpurposes.
M was forty-nine date late in complying with appointing a mentor. At the time of the reviewhearing in June 2012, M had met his mentor only threetimes and, despite prompts, no personal developmentplan had been produced. Accordingly, the Committeedetermined that M's name be suspended from theregister for twelve months. On appeal, M contendedthat the Committee's decision-making process wasflawed and that its findings were unjust. The GeneralDental Council (GDC) submitted that the Committeewas circumstances in which it could not be satisfied that Mwould comply with a further period of conditions andin which he showed a continuing lack of insight into hisfailures. In dismissing M's appeal, His Honour JudgeAllan Gore QC, sitting as a judge of the High Court,said at [40] that the Committee considered that M hadnot given any adequate assurance that conditions wouldbe complied with in the future. This was a conclusionthat it was entitled to come to in view of the serial andcontinuing failure to abide by conditions in the past.
The Committee was entitled to consider the public

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