Mallon v General Medical Council

In March 2007, the Inner House of the Court of Session considered the first appeal heard in Scotland against a decision of a Fitness to Practise Panel of the GMC.   

Background

The appeal was taken by a Scottish general practitioner against the Panel's decision to find her guilty of serious professional misconduct in respect of aspects of a consultation with a child suffering from asthma that took place in August 2002, and the subsequent decision to suspend her from practice for a period of three months. In refusing the appeal, the three-judge bench issued an opinion which affords guidance as to the likely approach to be taken by the Scottish Courts to such appeals by Scottish registered doctors, which now devolve to them for consideration under the Medical Act 1983 (as amended).

Decision of the Inner House

The Court found it unhelpful to set down or rely upon a stated definition of the threshold for "serious" professional misconduct.  They stated that this was in every case a matter for the disciplinary panel exercising its own skilled judgement on the facts and circumstances and in light of the evidence.

As to the powers of the appellate court, citing previous case law in Scotland, the court approved the test that provides that:

• the court should look at the whole circumstances of the case while having due respect for the expertise of the panel;
• when invited to disturb a finding of serious professional misconduct, the court should defer to the panel to the extent appropriate in the circumstances;
• where the conduct complained of concerns a technical question of medical malpractice, the court would be at a serious disadvantage to the disciplinary panel.

Comment

Of note in this case was that, while the conduct complained of principally concerned matters of medical practice, the composition of the panel was half lay, with a lay chair.  It will be an interesting observation as to whether  the courts will be less deferential to panel expertise on technical matters as the trend of increasing lay membership continues.

Nevertheless, with this decision the Scottish court endorsed the traditional view that considerable deference will be shown to the skilled judgement of the panel.  It gives little encouragement to appeals "on the merits", and perhaps suggests that only appeals on grounds of procedural impropriety or unfairness will have real prospects of being upheld.

28 June 2007

The EU Service Directive - How Prepared Are you?

Professional services associations across the European Union were asked by the European Commission earlier this month to take part in a survey on the question of codes of conduct.  Responses to the survey are due by 30 July 2007.

Why the Commission's interest in this area?  Well, the examination of individual national codes of conduct (with a view to developing Europe-wide codes) forms part of a much larger EU exercise in facilitating the freedom to provide professional (and other) services under the Directive on Services in the Internal Market (2006/123/EC) (the Services Directive) which was adopted in December last year and which has to be implemented by 2009.

Which professions are covered by the Directive?

The Services Directive essentially applies to all services provided for remuneration, with certain limited exceptions, such as for the transport, healthcare and financial services sectors. 

Professional services, such as those provided by the following:-

• lawyers
• accountants
• actuaries
• engineers
• management consultants
• architects
• professional sportsmen and women

are all therefore caught, to a greater or lesser degree, by the Directive.

What are the aims of the Directive?
 
The Services Directive is designed to tackle continuing obstacles to the effective exercise of two basic freedoms guaranteed by the EU Treaties.  First, there is the freedom of establishment, i.e., the right to set up in business on a permanent basis in any Member State in order to provide services to customers in that same Member State.  Second, there is the freedom for a person established in one Member State to provide services on a cross-border basis to customers in a second Member State.

How does the Directive go about tackling these obstacles?

The Services Directive contains a wide range of provisions which seek to tackle obstacles to each of these two freedoms.

In relation to the freedom of establishment, for instance, the Directive sets down strict rules which apply to any national legal or regulatory mechanism for controlling access to or the exercise of a service (described as an 'authorisation scheme' by the Directive).  The Directive requires all such schemes to conform to certain basic requirements as to non-discrimination, transparency and proportionality. 

The Directive also prohibits certain requirements (such as requiring professional indemnity insurance to be taken out where adequate insurance is already held in another Member State), whilst requiring others (such as obligations on service providers to take a particular legal form) to be phased out.

There are also general provisions which seek to underpin the ability of service providers to provide services on a cross-border basis.

Does the Directive address the professions directly?

There are various provisions in the Services Directive which are addressed specifically to the professional services sector: article 24, for instance, requires the dismantling of limitations on the ability of professional services firms freely to advertise their services.

On the other hands, there are provisions which apply to services generally, but are likely to have particular impact on the professions.  Article 25 of the Directive is a case in point.  This seeks to prevent restrictions on the establishment of multi-disciplinary practices, a topic of considerable interest in the professional services context (hence the inclusion of limited carve-outs relating to preservation of professional independence and impartiality).
 
Where can I get further information on the Directive?

The European Commission has an information site on the Services Directive, which can be found at: http://ec.europa.eu/internal_market/services/services-dir/index_en.htm.  Shepherd and Wedderburn will also be producing regular updates on the implementation of the Directive, in particular as regards the professional services sector.

If you would like to discuss any particular aspect of the Directive or its application to your own profession, please do not hesitate to speak to your usual contact at Shepherd and Wedderburn.

28 June 2007

Discussion - the composition of disciplinary panels

In recent times in the discipline and regulation arena there has been much discussion as to the ideal composition of Panels entrusted to adjudicate upon the actions of professionals.  Traditionally, the majority, if not all, of Panel members, including the Chairperson of the Panel, would have belonged to the same profession as the Respondent against whom allegations are being made.  Lay members of Panels would have been in the minority.  However, times have changed and there has been a substantial move away from such 'self-regulation', as professions are now under pressure to avoid any suggestion of partiality or accusations of professionals protecting their own.  The role of the lay person is becoming increasingly important, with some regulators considering appointing a lay chair, or composing a Panel where the majority of, or indeed all, members are lay. 

Consideration and consultation on such developments should certainly be encouraged, in the context of the wider and ongoing debate in the field of professional discipline and regulation.  Professional regulation must give proper consideration to the public interest, and any suggestion of a profession protecting its own would be in direct conflict with the principles of transparency and public accountability which must underpin modern regulatory schemes.  Arguably, a Panel significantly or entirely composed of lay members is important in seeking to ensure the appropriate perception of objectivity and transparency, recognising the public interest. 

However, where does this leave the professional – is there a risk that his interests may be overshadowed by those of the public in general?  There is a real question as to whether the lay member may for example be in a position to grasp adequately, and place in the appropriate perspective, complex technical evidence.  It is sometimes suggested in this context that lay members may have unreasonable or unrealistic expectations and may as a consequence reach unfairly harsh decisions on conduct and sanction.  That said, there is a degree of anecdotal evidence that professionals, mindful of the watchful public eye, may in fact tend to expect higher standards of their fellow professionals that would lay members of the public.

There is arguably a balance to be reached by regulators when considering the composition of their disciplinary panels.  Inherent in modern professional regulation is the need to reconcile the interests of the individual members with those of the wider public, and lay membership of panels is undoubtedly one ingredient in this balance.  As further changes are considered by regulators in this area, it will be interesting to observe how far the pendulum swings towards recognition of the public interest in the form of lay representation.

Ultimately, the ratio of lay to professional membership of a panel may however be less important in maintaining public confidence in the professions than the establishment and maintenance of appropriate professional standards, in which respect every professional has an important role to play.  "Self-regulation" - in the sense of individual professionals taking individual responsibility for meeting those standards - is critical in instilling public confidence.

28 June 2007

Proportionality and the reputation of the profession

In an appeal against a decision of the Solicitors Disciplinary Tribunal, it was held that the Tribunal had been entitled to strike a solicitor off the roll in respect of his "abdication of responsibility".

The complaint

The case concerned a solicitor ("W") who had practised as a sole practitioner for over 30 years and had also been a deputy district judge for 14 years.  A complaint against him was reported to the Law Society by a client, a bank which had instructed W to register a charge (or security) in its favour.  W had failed to carry out this instruction and subsequently failed to deal with 11 letters from the bank requesting a return of title deeds.  The Law Society referred the matter to the Solicitors Disciplinary Tribunal.

The Tribunal

The scope of the case the Tribunal eventually dealt with had however broadened somewhat by the time the hearing took place.  W had become bankrupt in the meantime and his practice certificate was accordingly suspended.  Despite assurances to the Law Society to the contrary, W had failed to advise a number of clients that he had been suspended from practice, with consequences varying in severity.  Furthermore, investigation into W's business accounts by the Law Society had revealed several inadequacies and breaches of the Solicitors' Accounts Rules.

The Tribunal found the complaint against W proved and applied the highest sanction of erasure, stating that, whilst there was no finding of dishonesty on W's part, he had fallen short of the standards of integrity, probity and trustworthiness expected of a solicitor.  The Tribunal also considered that W had failed to deal with the Law Society in a proper manner and to demonstrate sufficient compliance with the relevant rules.  W appealed.

The Appeal

The Appeal Court required to determine whether the penalty imposed by the Tribunal was excessive.  Interestingly, issues relating to "reputation" were relied on by both the Appellant and Respondents in support of their respective positions, when setting out their arguments on the principle of proportionality.  Whereas the Appellant pointed to years of unblemished practice as a solicitor in support of his argument that the penalty applied by the Tribunal was too severe, the Respondents maintained that W had damaged the good reputation of solicitors generally and argued that it was only by demanding the highest standards from its members that the profession could retain its good reputation.  The Appeal Court was persuaded by the Respondents' position, and whilst recognising that the penalty imposed by the Tribunal was severe, it concluded that the decision was neither harsh nor excessive.

Comment

This case is interesting for a number of reasons.  From the professional's perspective, the Tribunal's dim view of the way W had dealt with the Law Society is a reminder of the possible adverse impact that even minor failures in compliance with disciplinary procedures can have on the outcome of the process.  More importantly, however, the case demonstrates the limitations on the use of mitigating evidence in cases where the complaint is of a serious nature, and highlights that "good reputation" can work both ways when considering proportionality of sanction.

28 June 2007

Adequacy of reasons and intervention of the courts

A recent decision of the Court of Session in Edinburgh (Petition of Iain J Latimer, Chief Constable, Northern Constabulary for judicial review of a decision of a Police Appeals Tribunal) has underlined the importance of tribunals giving adequate reasons for their decisions. It has also confirmed the willingness of the courts to intervene, particularly where defects in process have occurred.

Background

The background was as follows. A police officer had been convicted of a drink driving offence and was as a result found to have been guilty of misconduct when the matter came before a professional disciplinary hearing, convened in terms of the Police (Conduct) (Scotland) Regulations 1996. The opinion of the panel was that the offence was of such gravity that the only appropriate penalty would be to require the officer's resignation from the force, as an alternative to dismissal. Considering the matter on appeal, this decision was upheld by the Chief Constable, before the matter came before the Police Appeals Tribunal, by way of further appeal. The Tribunal reached the view that, taking account of all of the particular circumstances of the case, the sanction imposed was unduly severe and determined by a majority to substitute a financial penalty.

Judicial Review

The Chief Constable sought judicial review of the Tribunal's decision, arguing that the Tribunal had erred in law and, in particular, had failed to state proper and adequate reasons for its decision to impose a lesser sanction.

At judicial review, it was accepted that the relevant requirement was to give; "proper and adequate reasons for [the] decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it". 

Accepting that the arguments were finely balanced, Lord Emslie, hearing the case, nonetheless reached the opinion that he was, "unable to affirm the adequacy of the Tribunal's stated reasons on key aspects of this case". Sustaining the Chief Constable's petition, he reached the view that the Tribunal's decision left the informed reader and the court, "in real and substantial doubt as to the basis on which key conclusions were reached". The Tribunal's decision was as a consequence overturned and the case referred back to a freshly constituted Tribunal, for reconsideration.

Comment

The case is of wide interest and relevance in the context of professional disciplinary proceedings, whether or not they have a statutory footing. The following points in particular are noteworthy;-

• The willingness of the Court to intervene, exercising its supervisory jurisdiction in the form of judicial review, particularly where questions of proper process or fairness arise.
• That judicial review may be instigated not only at the instance of the individual Respondent, but also, as here, where the court is invited to overturn a decision which is perceived to be unduly lenient in a Respondent's favour.
• The importance for any tribunal that it gives proper and adequate reasons for its decision, noting the test approved by the Court in this case.
  

28 June 2007