Pump Court Chambers

Recent developments in disciplinary law

Blog 2nd October 2015

There have been two recent important cases, Squier and Enemuwe, on the vexed question of the use that professional disciplinary panels are entitled to make of Court of Appeal judgments in related criminal cases. Squier must now be regarded as the leading authority on the issue.

The Queen (on the application of Squier) v General Medical Council [2015] EWHC 299 (Admin)

This is an unusual case in which the Administrative Court was prepared to intervene in the pre-hearing stage of a Fitness to Practise Panel of the GMC. There were two issues: the admissibility and relevance of judgments in other proceedings, and the particularisation of the charges.

Dr Squier is a paediatric neuropathologist who has expressed grave misgivings about the scientific basis of “shaken baby syndrome” and has given evidence for the defence in criminal trials, and on behalf of parents in care proceedings. As a result of a complaint by the National Police Improvement Agency she has been accused of giving misleading, unprofessional and in some cases dishonest expert evidence.

Whether Dr Squier is a courageous and independent doctor standing up for scientific rigour, or an unscrupulous maverick will be decided by the GMC. There is certainly a danger that the disciplinary charges against her – whatever their outcome – could frighten some experts into keeping well away from litigation for fear that it could result in similar accusations being levelled against them.

However that issue was not germane to the appeal, which related to a pre-hearing issue. The substantive hearing is due to last many weeks this autumn.

Ouseley J. had to decide whether it was fair to admit judgments of the High Court and the Court of Appeal as evidence against Dr Squier. The judgments included highly critical comments. Although, for this reason, the panel had agreed to the “redaction” of some specifically critical judicial observations, even the redacted judgments that remained were still implicitly very adverse to her.

On her behalf it was argued that they were more prejudicial than probative because she had not been a party to the cases to which they related, nor had she had an opportunity to defend herself in them. The issues that arose in the judgments were not the same as the issues in the fitness to practise case. Moreover, faced with judgments that were implicitly highly critical of Dr Squier, the burden of proof would, in practice if not in theory, be reversed.

The GMC argued that without the judgments the case would be very difficult to try. In one of the cases alone, expert evidence had lasted for 4 weeks. The GMC file contained 14,000 pages. Moreover, deciding whether Dr Squier was guilty of misconduct could only be done after consideration of the judgments that led to the allegations of misconduct. They provided the essential context for deciding whether her conduct amounted to misconduct. In addition, they provided a means of proving uncontroversial though vitally important background without which the case against her could not be understood.

Ousely J backed the GMC and decided that the the judgments were relevant:

“… the FTPP did not act unreasonably in concluding that the judgments would be relevant in providing an insight into the background to the cases and the forensic context in which Dr Squier prepared and gave her evidence, and in providing prima facie evidence of facts about the circumstances of the deaths, the post‑mortems, what the parents said, and the medical issues faced at trials to which Dr Squier’s evidence was relevant…’

But there was a fine line:

“[The judgments] … are not relevant to prove that Dr Squier’s evidence was not accepted or was found to be lacking in certain qualities. The issue before the FTPP is not whether Dr Squier was right or wrong which was the issue before the judges, but concerns the basis upon which she gave her evidence, its scope and her use of the underlying research papers. That is the crucial issue for the FTPP. The actual outcome of the trials, and any finding in or inferred from the redacted judgments that Dr Squier’s evidence was rejected, is not relevant to these allegations of misconduct…’

One can certainly see sense and logic in the judgment, but it is perhaps open to doubt that even the professionals of the FTPP will be able to keep the “legitimate” and “illegitimate” uses of the judgments separate.

On the issue of particularisation of the charges Dr Squier was more successful. The judge described one of the allegations, that “you failed to present your report and the research material you relied upon in a way which was as complete and accurate as possible,” as “hopelessly inadequately particularised,” and had somewhat milder criticisms of some of the other charges.

As well as being a factually fascinating case in itself, Ouseley J’s decision on the admissibility of the judgments will be of considerable assistance in many other cases where there have been related but not decisive judgments against doctors, or other professionals facing disciplinary charges.

An example of a situation in which the a disciplinary panel made the wrong decision about the admissibility of previous judgments, and the Administrative Court (referring to Squier) quashed its findings as a result, was:

Enemuwe v NMC [2015] EWHC 2081 (Admin)

The Appellant was working as an agency midwife. There were a number of specific charges relating to the way she conducted herself while a patient was giving birth, but in essence she was accused of being rude and unprofessional. One of the allegations against her was that she had taken a personal phone call, as it was put, while she was “between the legs” of the mother.

Complaints were made by the patient and her husband and those complaints led to a supervisory investigation by a supervisor of midwives (SOM). The SOM found against her. The SOM then referred the case to the Conduct and Competence Committee (CCC) of the Nusring and Midwifery Council who heard evidence from eye witnesses. They also heard evidence from the SOM herself, who seems to have appeared as a sort of “quasi” expert witness, even though she had already conducted an investigation into, and made adverse findings against, the appellant. Although she did not give direct evidence of those findings it seems that the Committee did somehow learn of them, although quite how is not clear. Many of the charges against the midwife were dismissed by the CCC, but they found some proved.

On appeal it was successfully argued that the CCC had placed reliance on the SOM’s conclusions and Holman J found that this amounted to a ‘serious irregularity.’ Holman J agreed to the submission that the investigating officer should not be a witness in CCC proceedings if her role was merely to be an expert witness giving their opinion on the culpability of the registrant. On the admissibility of previous adverse findings Holman J had this to say:

“I perfectly appreciate that the background to many, if not all, investigations, and ultimately hearings, by Conduct and Competence Committees of the NMC is likely to include some complaint or allegation and some disciplinary or other investigation at the local level. Often a registrant may have been suspended or dismissed, and the Committee will need to be informed, and will be informed, of that fact.

But there is a world of difference between their knowing that there has been some investigation, and their actually paying regard to the factual outcome of the investigation in reaching their own findings and conclusions on disputed issues of fact.

… the position was correctly summarised by Mr Rich [counsel for the midiwife at the CCC] in a passage I have already quoted, namely that normally the findings of fact made at some earlier investigation by another panel or another person are not admissible in proceedings before this Committee.

where there has been a prior investigation and prior findings by a local disciplinary or investigatory person or body, the findings of that person or body are not, and should not be, normally admissible in proceedings before the NMC, nor put before the Committee…there is a world of difference between their knowing that there has been some investigation, and their actually paying regard to the factual outcome of the investigation in reaching their own findings and conclusions on disputed issues of fact.”

Holman J went on to discuss Ouseley J’s judgment in Squier:

“It seems to me that the circumstances and forensic context with which Ouseley J was concerned, and in which prospectively the FTPP of the General Medical Council will look, or may look, at redacted versions of the judgments, is analytically different from what is in point and issue in the present case. In that case, the essential task of the judges had been to decide what the facts were in relation to the deaths of the children. That was completely different from the essential task prospectively of the FTPP, which is to consider allegations with regard to the professionalism of Dr Squier as a person giving expert evidence. In the present case, however, the supervisory investigation report of Ms 2 and the role and task of the Committee at the fact‑finding stage of their hearing was in fact identical, namely to decide whether or not the Appellant had said or done the various things alleged against her.”

Clearly, in any case in which the judgments of other courts may be an issue practitioners need to be alert to both of these cases.

Kirschner v GDC is an important decision on the test that professional disciplinary tribunals must apply when deciding whether a professional has acted dishonestly. Not without some misgivings the Administrative Court decided that a test similar to that suggested in the well known criminal case of R v Ghosh is the one that should be applied.

Kirschner v The General Dental Council [2015] EWHC 1377 (Admin)

Ms Kirshner appeared before the Professional Conduct Committee of the General Dental Council who made findings of clinical deficiencies or mismanagement in her practice as well as some allegations of dishonesty.

The appeal related solely to the findings of dishonesty. These arose out of claims for payment which she said that she thought that she was allowed to make as she had been told that was what could be done.

In the well known case of Twinsectra Limited v Yardley and Others [2002] UKHL 12, [2002] 2 AC 164 Lord Hoffman said that the requirement to prove dishonesty in a professional context requires “consciousness that one is transgressing ordinary standards of honest behaviour.” The test was discussed and clarified in Bryant v Law Society [2009] 1 WLR 163.

It was because Ms Kirschner had been told that she was permitted to make the claims that she argued, relying on Twinsectra, that she had not been dishonest in doing so. The Administrative Court, by and large, agreed with her, although Mostyn J, who gave judgement, did so only by upholding the Twinsectra/Bryant test somewhat reluctantly.

“The tribunal should first determine whether on the balance of probabilities, a defendant acted dishonestly by the standards of ordinary and honest members of that profession; and, if it finds that he or she did so, must go on to determine whether it is more likely than not that the defendant realised that what he or she was doing was by those standards, dishonest.”

Mostyn J indicated that he doubted the correctness of the test proposed in Bryant, which appears to give especially favourable treatment to professionals, preferring the reasoning of the Privy Council in Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37, [2006] 1 WLR 1476 in which:

‘”the only relevant mental state of a defendant accused of dishonesty in civil proceedings is his or her knowledge. Once the knowledge of the defendant has been established it is then for the tribunal to act as the “spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice”‘

However, despite his misgivings, he accepted that he was bound, as the PCC had been, by the partially subjective Bryant / Twinsectra test.

“In my judgment in circumstances where the appellant had clearly stated in evidence that she had received information from colleagues that she was entitled to split the treatment in the way she did and to make two claims the PCC could only have convicted her of dishonesty if it either (a) found that that evidence was false or (b) found that the appellant had received later information which had corrected her false belief. Either way it was incumbent on the PCC to spell out with the utmost clarity that it found the appellant to be lying when she stated that at the relevant time she held the operative belief that she was entitled to split the treatment.” (Emphasis added)

Mostyn J then determined that if the test had been properly applied then the Appellant should not have been found to have been dishonest:

‘If the knowledge or belief was so outlandish and the mistake therefore so ridiculous then I think that a tribunal or court would be entitled to find dishonesty proved. In my opinion the PCC would have struggled to have found that the knowledge or belief of the appellant was so obviously mistaken as to have justified a finding of dishonesty.’

In fairness to Ms Kirshcner, it is only right to report that Mostyn J. indicated that he would still have struggled to find dishonesty even if he had been applying the more stringent Barlow Clowes test. But it was, he said, an unhappy state of affairs that two different tests for dishonesty existed in different parts of the civil law. It may well be that this issue will need to be addressed by the Supreme Court before very much longer.

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