Mary O’Rourke QC and Nadia Motraghi, Old Square Chambers
Julie Matheson, Partner at Kingsley Napley
What every employment lawyer needs to know about professional discipline/ regulatory law
The process of a regulatory matter
• Complaint
• Initial filter
• Investigation
• Investigating Committee/ Adjudication Panel
• Burden and standard of proof
• Tribunal proceedings
• Available outcomes
• Appeal/ judicial review
What issues may affect your clients?
Complaint stage
• Self-referral
• What should lead to self-referral
• Investigations
• Cautions
• Convictions
• Duty to report misconduct of others
• Employers tactical use of referral if ET pending
What issues may affect your clients?
Investigation stage
• Requests for information and disclosure
• Data protection/ confidentiality
• ET Disclosure can be more wide ranging as scope of
regulatory proceedings more focussed
What issues may affect your clients?
Investigating committee/ Adjudication Panel Stage
• Considering when to make admissions/ denials: tactical considerations comparing cards on table versus making regulator prove their case.
Submission of supporting documentation • Does the employer wish to provide support to the individual? Does employee need
to be careful with ET coming first?
Powers of disposal vary between regulators at this stage
• NFA/ Warning / Referral for full hearing/ undertakings – if still employed may have implications.
What to do with concurrent proceedings
First and foremost, know what is happening with the other set of proceedings!
No general proposition that individual can obtain adjournment one set of proceedings pending another which overlaps. Today likely ET happens first given time scales/ service standards.
Relevant factors to consider:
• Extent of overlap
• Interests of justice in proceeding – tactical in terms of info provision – different representations normal
• Prejudice to parties
• Work involved in preparing for both sets of proceedings
• Disclosure of transcripts from regulatory proceedings.
Concurrent proceedings
(1) ET/ Regulatory: Dr Parums v West Dorset General
Hospital NHS Trust (2004) EAT upheld decision not to
stay ET proceedings pending GMC hearing.
(2) Civil / Regulatory: R v Institute of Chartered
Accountants ex p Brindle [1994] CA concluded
disciplinary proceedings should be adjourned as real risk
of prejudice.
(3) Criminal/Regulatory: R (Montgomery) v Police Appeals
Tribunal [2012] (Admin), Collins J dismissed M’s
application to adjourn pending appeal against conviction.
Regulatory Tribunal interim orders
Most regulators can make interim orders (i.e. during investigation/ pre hearing) to suspend/ restrict practice (cfSRA and BTAS) – implications for ongoing employment and also ability to “remediate”
In healthcare, the grounds are:
• (1) necessary to protect the public; or otherwise in public interest
• (2) necessary in the interests of registrant
Interim Orders
What will be considered?
• Gravity of allegations, nature of evidence, seriousness of risk to harm, prejudice to registrant, reason for any delay.
• Held in private (registrant can attend/ be represented).
How long is order made for?:
• Usually orders not to exceed 18 months (GMC, GDC, GPhC, NMC).
• Some regulators provide for review within 6 months (GMC, GOptC).
Regulatory Tribunal format for full hearings
• In healthcare (GMC, NMC, HCPC) a three part format:
(1) Facts
(2) Impairment
(3) Sanction.
• Important to remember that impairment is judged at the
date of the hearing not at the date of alleged misconduct
and if still working can make a difference to sanction.
Common issues at Regulatory Tribunal stage
• Use of ET transcripts in disciplinary proceedings and vice
versa and any other documents (emails, letters, statements
from internal disciplinary).
• Using decision/ disclosure from regulatory tribunal in
employment proceedings – not a question of res judicata or
issue estoppel but can have powerful impact (eg Michalak).
• Some regulators have wide statutory powers re disclosure
but can be reluctant to spend resources to obtain.
• Standard of proof usually civil standard (but criminal
standard for solicitors and barristers).
Decision and Sanctions
Most regulators produce indicative sanctions guidance
(“sentencing” policy )
• Start by considering lowest penalty and move upwards.
• NFA, warnings, conditions, fines, compensatory orders,
(temporary) suspension, strike off/erasure.
Conditions: Some regulators have a ‘conditions bank’ to assist
panels. Conditions must be workable and clearly drafted.
• Whether advising employee/employer you can help make Panel
understand whether workable – may be crucial to job retention
and also to another job and so mitigation issues in ET.
• Review hearings before end of conditions period.
Where to find a decision
Know where to find out the decision and sanction
• Usually regulators have these online for live sanctions against
individual’s entry on the register.
• Check regulator’s online record of decisions (though not full
record).
• If employer made referral/ was complainant will be informed and
may well have provided witnesses for hearing.
Often a requirement on individual to communicate outcome of
interim and final decisions to employers/ prospective employers.
Appeals
• Many bodies have an appeal as of right (healthcare
bodies, solicitors).
• Some appeal provisions (eg s40(5) Medical Act) are only
on questions of law (but generous interpretation).
• If not otherwise stated, CPR 52.11(3) applies and requires
appeal court to allow where lower court ‘wrong’ or
‘unjust because of serious procedural or other
irregularity’.
• Can affirm, set aside, vary, refer back, order new trial,
make costs orders.
Judicial Review & Equality Act claims
JR = Remedy of last resort. Decisions which cannot be appealed may be challenged by JR.
e.g. finding of misconduct (but no sanction) successfully overturned in Maggs & Johnson v NMC [2013] EWHC 2140 (Admin).
If not applying for JR remedy, then ET retains ability to hear discrimination claim against ‘qualifications bodies’ (including regulators).
See General Medical Council v Michalak [2016] EWCA Civ 172 (March 2016).
Final round up - tips
• When advising individuals or their employers, very important to know what is going on with any regulatory investigation/ proceedings – especially if different representatives.
• Ensure there is no conflict between the points made in ET proceedings and regulatory proceedings – but check with registrant as to priority in outcome.
• Consider obtaining specialist advice at an early stage –need whole picture.
• Separately, post Michalak is this the start of a brave new world of claims against regulators?
Julie Matheson
Partner
Kingsley Napley
14 St John’s Lane
London
EC1M 4AJ
020 7369 3884
Mary O’Rourke QC &
Nadia Motraghi
Old Square Chambers
10 – 11 Bedford Row
London
WC1R 4BU
020 7269 0300
Mary O’Rourke QC: [email protected]
Nadia Motraghi: [email protected]
Clerks: [email protected]