Navigating Convictions in Fitness to Practise: PSA v GDC &

PSA v GDC & Naveed Patel: A Landmark Ruling Reshaping Fitness-to-Practise Cases

The recent ruling in PSA v GDC & Naveed Patel marks a significant shift in how fitness-to-practise cases involving criminal convictions are assessed. This landmark decision brings much-needed flexibility and fairness to the regulatory landscape, offering a long-awaited update for regulatory committees and practitioners alike.

Background: The Fleischmann Principle

The Fleischmann principle, derived from Fleischmann v GDC nearly two decades ago, established that practitioners convicted of serious criminal offences should not resume practice until completing their sentence. This guideline, however, has often been treated as a rigid rule, creating unintended consequences in fitness-to-practise cases.

Origins of the Principle

Alexander Fleischmann, a dentist, was struck off following his criminal conviction on serious charges relating to child pornography. Despite receiving a Community Rehabilitation Order (CRO) rather than immediate prison time, the GDC’s Professional Conduct Committee imposed a 12-month suspension. Justice Newman then provided guidance that practitioners convicted of serious criminal offences should not resume practice until completing their sentence, unless there are “plainly justified” reasons to allow otherwise.

The Problem of Rigid Application

The strict application of the Fleischmann principle has led to:

– Inconsistencies in sanctioning practitioners with similar or lesser sentences

– Committees feeling obligated to recommend erasure in cases where mitigating factors might suggest a lighter approach

– Perceptions of unfairness and inconsistency in the regulatory process

Anomalies Created by Rigid Application

For instance, a practitioner receiving an immediate six-month custodial sentence could theoretically complete it within a 12-month suspension period. However, a practitioner with a three-month sentence suspended over 18 months might face erasure simply because the sentencing requirements technically remain incomplete at the end of a 12-month suspension.

Key Cases Shaping the Landscape

Fleischmann v GDC: Established the principle that practitioners convicted of serious criminal offences should not resume practice until completing their sentence.
Khan v GPhC [2016] UKSC 64: Reinforced that regulatory orders cannot be extended solely to meet the Fleischmann principle.
PSA v GDC & Naveed Patel: The recent landmark decision offering a significant shift in approach.

The Ruling in PSA v GDC & Naveed Patel

Naveed Patel, a dentist, was convicted of causing death by careless driving and received a 15-month suspended sentence. He also faced a charge of failing to notify the GDC of his criminal charges before conviction. The GDC’s Professional Conduct Committee issued him a reprimand, which the Professional Standards Authority (PSA) challenged.

Mr Justice Sweeting’s decision emphasises:

– The importance of considering the context of the conviction and demonstrated efforts of remediation

– That Fleischmann should not be treated as an absolute rule

– Sanctions should be fair, proportionate, and sufficient to uphold public confidence

Key Observations from Mr Justice Sweeting

“If, for example, in this case the sentence had been one of immediate custody, the position at the hearing date would likely have been that no more than half the sentence would have been served in prison followed by release on licence. The expiry of the licence period and thus “completion” of the sentence, would then only have been only some three months away. The anomaly might be greater still if a suspended sentence involved a relatively short custodial sentence suspended for a lengthy period (up to the two-year maximum). The general public might well conclude that a case in which the court felt able to suspend a custodial sentence was less serious than one in which only immediate custody was appropriate and that the professional sanction would likewise reflect such a distinction. It follows, in my view, that Fleischmann cannot be applied as if it were a rule; both it and the “general principle” derived from it in the GDC Guidance must bend to the overarching requirement to impose a sanction which is just, proportionate, and only that which is necessary to maintain public confidence”.

Implications for Practitioners

The ruling provides:

– Greater flexibility in evaluating fitness-to-practise cases

– Opportunity for practitioners to argue that their sentences have been “satisfactorily completed” even if technical elements remain outstanding

– A pathway to argue for fairer, case-specific outcomes

Conclusion: A Welcome Development for the Regulatory Process

The PSA v GDC & Naveed Patel ruling represents a significant step towards a more balanced regulatory process, promoting fairness without compromising public trust. It allows for a more nuanced approach to fitness-to-practise cases involving criminal convictions, potentially leading to more just and consistent application of sanctions.

This decision not only mitigates the arbitrary outcomes that the Fleischmann principle once created but also enhances the credibility of fitness-to-practise proceedings by emphasising proportionality and reasoned discretion. Practitioners can now expect a more balanced, just, and consistent application of fitness-to-practise sanctions, offering renewed credibility to the regulatory landscape.