Professional Regulatory Bulletin – June 2018

It has been another busy period and you will no doubt already be aware of the two prominent recent cases of NMC and X and Bawa-Garba, which involved Appeal Court criticism of the NMC and MPT respectively. There are few hiding places in the professional disciplinary world at the best of times but I think it is fair to say that both the NMC and MPT made widespread and avoidable errors in those two matters.

The other matters we report on this month (Pabon and Yussouf v SRA) are further evidence of the fact that when it goes wrong in our legal sector, it tends to go very badly wrong!

It was great to see so many of our contacts at our seminar (in collaboration with Serjeants Inn Chambers) this week on GDPR Risks and Safeguards and the management of internal investigations. If you were with us, we hope you enjoyed the evening. If you were unable to join us we hope to see you at our next event.

PSA v NMC and X [2018] EWHC 70 (Admin)

In this case, scathing criticism was made of the NMC in relation to their failure to conduct an adequate investigation of serious allegations that a nurse had caused deliberate and serious harm to her baby. Inaccurate information was provided to the case examiners and, at the substantive hearing stage, there was a failure to enable the Committee to make an informed decision as to whether there was a case to answer due to lack of a proper opening statement being provided.

The case is a clear reminder of how thorough a regulator should be in its attempts to obtain to relevant evidence and in making submissions to both case examiners and the substantive committee when suggesting that a case should not continue due to lack of evidence.

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GMC v Bawa Garba [2018] EWHC 76 (Admin)

Committees of regulatory bodies cannot go behind the verdict of a jury by considering mitigating factors that diminished the professional’s accountability, to find a lesser culpability than the jury had found. Erasure was the necessary sanction in this case of a conviction for gross negligence manslaughter and was necessary to maintain public confidence in the profession and its professional standards.

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Yussouf v SRA [2018] EWHC 211 (Admin)

This case confirms that when considering whether an applicant has acted dishonestly, fairness requires that the opportunity be granted to give evidence on such matters orally, except when oral evidence could truly make no difference.

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Pabon [2018] EWCA Crim 420 – the LIBOR appeal

The considerations in the LIBOR trials (to which this appeal relates) are a stark reminder to all experts (and lawyers who seek to obtain an opinion from experts) that experts ought to restrict their opinion to those areas with which they have sufficient knowledge and experience.

It is essential that instructing lawyers understand what their expert’s limitations are and ask themselves whether the expert can give an opinion on the specifics of the case.

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