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

What is professional regulation?

• It is wider than you might think…

• Protection of the public

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?

Questions?.....

Julie Matheson

Partner

Kingsley Napley

14 St John’s Lane

London

EC1M 4AJ

020 7369 3884

jmatheson@kingsleynapley.co.uk

Mary O’Rourke QC &

Nadia Motraghi

Old Square Chambers

10 – 11 Bedford Row

London

WC1R 4BU

020 7269 0300

Mary O’Rourke QC: orourke@oldsquare.co.uk

Nadia Motraghi: motraghi@oldsquare.co.uk

Clerks: clerks@oldsquare.co.uk