Misconduct

The word ‘misconduct’ is not usually defined in legislation. However, reference has been made to the meaning of ‘misconduct’ in the rules of some regulators.

Reasons

General Osteopathic Council (Professional Conduct Committee) (Procedure) Rules 2000, rules 31 (the chair shall announce the committee’s findings and its reasons for those findings, with regard both to the facts of the case and to whether the osteopath has been found guilty of unacceptable professional conduct or of serious incompetence) and 36–38 (the chair shall announce the committee’s decision with regard to sanctions and the committee shall notify the osteopath of its decision, its reasons for reaching that decision, and the osteopath’s rights of appeal)

Fines

Financial Services and Markets Act 2000, sections 66(3) (‘If the regulator is entitled to take action under this section against [an approved] person, it may … impose a penalty on him for such amount as it considers appropriate …’) and 123 ((1) If the FCA is satisfied that a person … has engaged in market abuse … it may impose on him a penalty of such amount as it considers appropriate. … (3) If the FCA is entitled to impose a penalty on a person under this section it may, instead of imposing a penalty on him, publish a statement to the effect that he has engaged in market abuse.’)

Estoppel

The Supreme Court held that the doctrine of cause of action estoppel applied to successive complaints before a professional disciplinary body, that disciplinary proceedings were civil in nature and that therefore the principles of res judicata applied, and that there was no reason why cause of action estoppel should not apply to successive sets of proceedings before the Disciplinary Committee of the Institute of Chartered Accountants in England and Wales (ICAEW). The Supreme Court so held in allowing an appeal by C-W, a chartered accountant, against the Court of Appeal, which had upheld the dismissal of his application for judicial review of the decision by the Committee to refuse to dismiss a second complaint based on the same facts of a first complaint that had been dismissed on the merits.

Undertakings and Warnings

In healthcare cases, undertakings may be agreed at an early stage with the registrant or warnings issued to the registrant by case examiners or the investigation committee.

Findings of Fact

Most regulatory bodies provide for fitness to practise and disciplinary hearings to be conducted in stages, and for findings of fact to be considered and announced by the tribunal or committee before consideration of misconduct, impairment and sanction.

Evidence

The solicitor to the GMC opened the case and placed before the Council a certified copy of the decree absolute. Each member of the Council was provided with extracts from the shorthand notes of the proceedings in the divorce court, including a copy of the judgment of the learned judge. S’s solicitor admitted that his client stood in a professional relationship with Mrs P, but submitted that he should be allowed to call evidence that was not before the divorce court, with a view to challenging the correctness of the judge’s conclusion on the issue of adultery. The GMC was not prepared to hear fresh evidence and, relying on the facts alleged in the charge, directed that S’s name should be erased from the medical register.

Adjournment

Solicitors Disciplinary Tribunal, Policy/Practice Note on Adjournments 2002 (the existence of other proceedings, lack of readiness, ill health, and inability to secure representation will not generally be regarded as providing justification for an adjournment; the tribunal will expect the respondent to support a late application for adjournment with a statement of truth as to the reasons for the sought adjournment).

Negligence

B, the plaintiff, claimed damages against the defendants in respect of injuries that he received while undergoing electroconvulsive therapy (ECT) on 23 August 1954 at Friern Hospital. Medical evidence was called by both sides. No one suggested that there was any negligence in the diagnosis or in the decision to use ECT. However, there were different variants as to the use of restraining sheets, relaxant drugs, and manual control of the patient’s body. The question was whether Dr A, following the practice that he had learned at Friern Hospital and following the technique that had been shown to him by Dr B, was negligent in failing to use relaxant drugs or, if he decided not to use relaxant drugs, that he was negligent in failing to exercise any manual control over the patient beyond merely arranging for his shoulders to be held, his chin supported, a gag used, and a pillow put under his back. McNair J, in summing up to the jury, said, at 586–7:

Sanction

Examples of the power to make a direction on sanction against a practitioner following a finding of impairment or that an allegation is proved.