CHAPTER 29
Regulation of adult social and health care
29.2Regulation of services 29.7Regulation of professionals 29.17Disclosure and barring Cases
Care homes
29.29Bettercare Group Ltd v The Director-General of Fair Trading [2002] CAT7 The North and West Belfast Health and Social Services Trust was an undertaking for the purposes of the Competition Act 1998
29.30Alternative Futures Ltd v National Care Standards Commission (2002) 101–111 NC, (2004) 7 CCLR 171, Care Standards Tribunals A registered care home was unable unilaterally to change its status
29.31Bettercare Group Ltd v North and West Belfast Health and Social Services Trust Decision No CA98/09/2003 (2004) 7 CCLR 194, OFT A commissioner was not in breach of Chapter II of the Competition Act 1998 because it did not set the prices paid
29.32Moore v Care Standards Tribunal [2005] EWCA Civ 627, (2005) 8 CCLR 354 A home could in substance be a care home notwithstanding that occupiers had been granted assured tenancies, where in truth the establishment provided accommodation together with nursing or personal care
29.33Brooklyn House Ltd v CSCI [2006] EWHC 1165 (Admin), (2006) 9 CCLR 394 Offences relating to the administration and availability of medication were offences of strict liability and it was a question of fact and degree whether an offence had been committed, in the light of the standards imposed by the Care Homes for Older People Minimum Standards
29.34Welsh Ministers v Care Standards Tribunal and H [2008] EWHC 49 (Admin), (2008) 11 CCLR 234 An appeal against a refusal to register a person as a manager could be allowed to proceed even after it had become academic
29.35Bicknell v HM Coroner for Birmingham and Solihull [2007] EWHC 2547 (Admin), (2008) 11 CCLR 431 An inquest should be held where the evidence suggested a possible connection between inadequate care and death in a care home
29.36Jain v Trent Strategic Health Authority [2009] UKHL 4, (2009) 12 CCLR 194 A health authority did not owe care home owners a duty of care when investigating suspected inadequate care provided to residents and securing an ex parte cancelling the care home’s registration
29.37R (Broadway Care Centre Ltd) v Caerphilly CBC [2012] EWHC 37 (Admin), (2012) 15 CCLR 82 Termination of a framework contract with a care home was a private law, not a public law, decision and the care home did not have standing to complain about potential breaches of the residents’ ECHR rights
29.37AOld Co-operative Day Nursery Ltd v H M Chief Inspector of Education, Children’s Services & Skills [2016] EWHC 1126 Admin The Chief Inspector of Education, Children’s Services & Skills had no jurisdiction to investigate a complaint made by a member of the public and his investigation had in any event been irrational
29.37BGhosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915 The jurisdiction of the Privy Council to hear the appeal of a registered medical practitioner against a decision of the professional conduct committee of the GMC was appellate rather than supervisory and the Privy Council would accord an appropriate degree of respect to the judgment of the Professional Conduct Committee (PCC) but will not defer to it more than is warranted by the circumstances
Professional cases
29.38R (Raines) v Orange Grove [2006] EWHC 1887 (Admin), (2006) 9 CCLR 541 A decision to deregister a foster carer had been taken in a procedurally unfair manner and was Wednesbury unreasonable
29.38.1Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460 It was necessary for an appellate court to accord special respect to the judgment of the GMC’s Fitness to Practice Panel (FPP)
29.39Joyce v Secretary of State for Health [2008] EWHC 1891 (Admin), (2008) 11 CCLR 761 The tribunal may consider allegations not included in the initial reference to the Secretary of State
29.40Wright and others v Secretary of State for Health [2009] UKHL 3, (2009) 12 CCLR 181 The absence of any opportunity to make representations before being included in the POVA list breached the ECHR
29.41Southall v General Medical Council [2010] EWCA Civ 407, [2010] 2 FCR 77 In simple cases the GMC need only set out what facts it had found proven but in more complex cases, it had to give sufficient reasons why it accepted some evidence but rejected other evidence
29.42Bonhoeffer v General Medical Council [2011] EWHC 1585 (Admin), [2011] ACD 104 In disciplinary proceedings raising serious charges amounting to criminal offences likely if proven to have grave consequences for the accused, there would need to be compelling reasons to prevent him from cross-examining a witness whose evidence was critical to establishing the charges, if there were no problems associated with securing the attendance of that witness
29.43Perry v Nursing and Midwifery Council [2013] EWCA Civ 145, [2013] 1 WLR 3423 The NMC was entitled to make an interim order against a nurse without hearing evidence from the nurse as to whether the allegations against them were well-founded; its role at that stage was not to decide the credibility or merit of allegations but to decide whether they justified making an interim order
29.44Obukofe v General Medical Council [2014] EWHC 408 (Admin) In appeals relating to fitness to practise and any sanction imposed, the court will accord considerable weight to the conclusions of the professional regulatory body and will bear in mind that its primary function is the protection of the public
29.44AR (SPP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin) Fairness required the CQC to provide an independent review where a provider claimed that factual findings in a draft report were demonstrably wrong or misleading but the inspection team refused to vary the draft report
29.44BHabib Khan v General Pharmaceutical Company [2016] UKSC 64 The GPC’s professional conduct review committee had no power to increase the sanction originally imposed on the basis that it had been inadequate
29.44CFahad Ali v General Medical Council [2017] EWHC XXX (Admin) The GMC’s Medical Practitioners Tribunal had lawfully imposed a condition on a doctor’s registration that he had to comply with a performance assessment
Confidential information cases
29.45R v Somerset CC ex p Prospects Care Services (1999) 2 CCLR 161, QBD It was lawful for a local authority to provide information about a fostering agency casting doubt on its competence where it adopted a fair and rational procedure and where the information was fair and rational
29.46R v Chief Constable of Wales ex p AB (2000) 3 CCLR 25, DC Providing they act fairly, by giving those affected the opportunity of comment, the police are entitled to disclose information about individuals to third parties where that is justified in the public interest
29.47R v Secretary of State for Health ex p C (2000) 3 CCLR 412, CA It had been lawful to maintain the Consultancy Service index
29.48R (S) v Plymouth CC [2002] EWCA Civ 388, (2002) 5 CCLR 251 Fairness and the ECHR required disclosure of the son’s mental health records to his mother, in nearest relative displacement proceedings
29.49MG v United Kingdom (2002) 5 CCLR 525, ECtHR Adults who were in local authority care as children are entitled to at least some level of access to their social services records
29.50R (A) v National Probation Service [2003] EWHC 2910 (Admin), (2004) 7 CCLR 336 The disclosure of confidential information was unlawful when there had not been consideration of the need for a pressing justification or a balancing exercise
29.51A Local Authority v A Health Authority and Mrs A [2004] EWHC 2746 Fam, (2004) 7 CCLR 426 Publication of a report into poor foster care would be too harmful to the children and vulnerable adults concerned
29.52Brent LBC v N and P [2005] EWHC 1676 (Fam), (2006) 9 CCLR 14 Disclosure of a foster-carer’s HIV status to the children’s father was unjustified where the risks to the children were negligible and the disclosure opposed
29.53Roberts v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1934 (Admin), (2009) 12 CCLR 110 Disclosure of health records and reports could be refused where it might well cause damage to health
29.54R (L) v Metropolitan Police Commissioner [2009] UKSC 3, (2009) 12 CCLR 573 The police may disclose personal information to an employer about a person who proposes to work with children or vulnerable adults when it is proportionate to do so
29.55Chief Constable of Humberside Police v Information Commissioner [2009] EWCA Civ 1079, [2010] 1 WLR 1136 It was lawful for chief constables indefinitely to retain information about convictions and cautions (spent or not)
29.56R (F (A child)) v Secretary of State for Justice [2010] UKSC 17, [2011] 1 AC 331 It was incompatible with Article 8 ECHR to impose indefinite requirements on sexual offenders that did not include any possibility of review
29.57H and L v A City Council [2011] EWCA Civ 403, (2011) 14 CCLR 381 It had been disproportionate to disclosure child sexual offences to organisations where the persons worked which were not involved with children and to personal assistants who were not allowed to bring children with them and the process had been unfair
29.58MM v United Kingdom Application no 24029/07, [2012] ECHR 1096 A disclosure regime that did not include sufficient safeguards to protect private life would be incompatible with Article 8 ECHR
29.59R (A) v Chief Constable of Kent [2013] EWCA Civ 1706, (2014) 135 BMLR 22 Court review of the proportionality of disclosure of sensitive personal information was intense but it was not a merits review and should ordinarily disregard new material
29.60R (L) v Chief Constable of Kent [2014] EWHC 463 (Admin) It was disproportionate to include in an ECRC allegations that had been rejected at a criminal trial as being manifestly unrealiable
29.61R (P) v Chief Constable of Thames Valley Police [2014] EWHC 1436 (Admin), (2014) 17 CCLR 250 In this case, it had been disproportionate to disclose inappropriate remarks made to persons who were not vulnerable adults or children
29.62R (T) v Chief Constable of Greater Manchester Police [2013] EWCA Civ 25, [2013] 1 WLR 2515 A disclosure scheme had to contain adequate safeguards against arbitrariness, designed to prevent disproportionate disclosures
29.63R (AB) v Chief Constable of Hampshire [2015] EWHC 1238 (Admin) A disclosure based on inadequate investigation and incorrect information was unlawful
29.64R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland and others [2015] UKSC 9, [2015] AC 1065 It was proportionate for the police to retain certain personal information for crime enforcement purposes
29.65R (W) v Secretary of State for Justice [2015] EWHC 1952 (Admin) It was primarily for the legislature to determine the length of time which different types of offences were disclosable
29.66R (SD) v Chief Constable of North Yorkshire and the Disclosure and Barring Service [2015] EWHC 2085 (Admin) Disclosure in an ECRC was proportionate
29.67Re C (A Child) [2015] EWFC 79 Psychiatrists were not entitled to disclosure of confidential medical records to help them rebut defamatory comments
29.68R (P) v Secretary of State for Justice [2016] EWHC 89 (Admin), [2016] 1 WLR 2009 Article 8 required there to be a mechanism for testing the proportionality of disclosure in individual cases
29.69R (MS) v Independent Monitor of the Home Office [2016] EWHC 655 (Admin), [2016] 4 WLR 88 The Independent Monitor was required to scrutinise with a high degree of forensic care the credibility of allegations before assessing its weight and conducting the necessary disclosure balancing exercise
29.70R (C) v Secretary of State for Work and Pensions [2016] EWCA Civ 47 It was lawful for the Secretary of State for Work and Pensions to retain records that showed that a person had changed their gender, where there was good reason for so doing and every effort had been made to minimise the distress caused
29.71R (LK) v Independent Monitor [2016] EWHC 1629 (Admin) It had been unreasonable to approve inclusion on the ECRC of information about an individual’s acquittal of sexual offences when the decision was unsupported by the evidence at the trial and the judge’s summing up
29.72R (G) v Chief Constable of Surrey Police [2016] EWHC 295 (Admin), [2016] 4 WLR 94 The Police Act 1997 still contained inadequate safeguards against disproportionate disclosure
29.73A v B Local Authority [2016] EWCA Civ 766 A head teacher had been fairly dismissed for gross misconduct for failing to disclose her relationship with a person convicted of making indecent images of children
29.73.1TLT v Secretary of State for the Home Department [2016] EWHC 2217 (QB) Damages were awarded for the publication on the internet of the names and approximate geographical location of applicants for asylum or leave to remain
Procedural and other cases
29.74Sarfraz v Disclosure and Barring Service [2015] EWCA Civ 544, [2015] 1WLR 4441 The Court of Appeal had no jurisdiction to give permission to appeal to itself, from a decision by the Upper Tribunal not to grant permission to appeal to itself
29.75MR v Disclosure and Barring Service (Safeguarding vulnerable groups: Adults’ barred list) [2015] UKUT 5 (AAC), 5 January 2015 The DBS reasons for including MR on the adult’s barred list were wrong but the case would be remitted to the DBS for further consideration
29.76R (C) v Secretary of State for Justice [2016] UKSC 2, (2016) 19 CCLR 5 There was no presumption of anonymity for mental patients challenging aspects of their treatment and care in the High Court but anonymity will be granted where that is necessary in the interests of the patient
29.1A key distinction is between the regulation of services and the regulation of professionals.