Tuesday, 6 April 2010

Regulatory Bodies and Equality of Arms

Dear Diana Wallis, Timothy Kirkhope, Andrew Brons, Godfrey Bloom, Linda
McAvan and Edward McMillan-Scott,

Re Regulatory bodies and equality of arms

I wish to raise one very important issue with you.

In the UK there are several regulatory bodies for certain professions e.g. the Nursing and Midwifery council for nurses (www.nmc-uk.org), the General Dental Council for dentists (www.gdc-uk.org) etc.

As you may be aware in 2005 the ECHR ruled in the case of Steel and Morris Application no. 68416/01 15 February 2005 that there must be equality of arms in any legal proceeding and criticised the UK government for lack of legal aid.

This ruling has a profound impact on the regulatory bodies.

These regulatory bodies are funded by their professions. If a practitioner is subject to any form of investigation the prosecution has access to a huge pool of money drawn from the practitioners' annual retention fee. However these monies are not made available to the defence. If the practitioner’s trade union decides not to assist the practitioner then he may be without a defence.

The prosecution in effect has access to an unlimited pool of money. If you are subject to proceedings there is no legal aid to defend yourself. In some cases I have known accused practitioners to have to re-mortgage their homes. In one case I know of one doctor -who had a very strong defence - could not afford a legal team. As such he had to voluntary remove his name from the medical register.

Worse still if you are found innocent there is no means to recover the monies spent. The accused will be left with a huge financial burden for several years.

If you are sanctioned by a regulatory body then you do have the right to an appeal at the High court. Very few cases get legal aid. However the regulatory body will still have access to the huge pool of money drawn from the doctor’s annual retention fee. The sanctioned practitioner may have no means of supporting himself during the period of time between the sanction being imposed and the appeal hearing. Many
end up on income support or benefit. The reason being that if the sanctioned practitioner applies for a non medical job the first thing the employer will ask is why a doctor is applying for such a post. When the accused reveals a GMC finding then all hopes of employment ceases. However at this stage the doctor may well have to repay a mortgage.

At an appeal hearing the regulatory body will still have access to the doctors’ annual retention fund. However the appellant will not.

If the appellant loses then he will have to pay the regulatory body's costs which can worsen the situation.

I am therefore asking you to write to the appropriate commissioner to take action on this. I believe that if the Steel and Morris principle is to stand then the regulatory bodies should have to fund the defence and give a refund to all those practicioners who have had to fund their own defences since the Steel and Morris judgment was handed down.

I look forward to your reply.

Yours sincerely
Sushant Varma


Graculus said...

You say:

'If the practitioner’s trade union decides not to assist the practitioner then he may be without a defence...'

In what circumstances would this ever happen, I wonder? I would assume that the practitioners association and their public liability insurance was there specifically to assist in providing defence costs.

This is an interesting subject. Thanks for posting.

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