The Queen on the application of Hassan and General Optical Council [2013] EWHC 1887 (Admin).

The Legal Adviser pointed the Committee to the GOC’s guidance documents in respect of sanction, citing relevant case law on dishonesty but also referred to a case not included in the GOC’s guidance: SRA and Sharma (2010) EWHC 2022 (Admin) and in particular the following passage:

“Save in exceptional circumstances findings of dishonesty would lead to a striking off, but there was a small residual category where striking off would be a disproportionate sentence under the circumstances. In deciding whether a case fell into that residual category relevant factors include nature, scope and the extent of the dishonesty, whether it was momentary or over a long period of time, whether there was any benefit to the individual or had an adverse effect on others.”

It was submitted on behalf of the appellant that it was wrong for the Legal Adviser to point the Committee to the case of Sharma as the Committee had been misled thereby into thinking that there was a strong presumption that any finding of dishonesty would lead to striking off. Counsel for the appellant distinguished between the SRA code of conduct and regulatory and sanction scheme for solicitors and professions working within healthcare. It was successfully argued that by reason of solicitors’ fiduciary duties to clients, honesty is set at the heart of their professional standing in a way that would not apply to an optometrist.

On appeal, Mr Justice Leggatt found that reference to Sharma had indeed introduced “an improper qualification or restriction on the guidance issued by the [GOC]”, amounting to an incorrect impression that where dishonesty was found, erasure will ordinarily follow.

The appeal against sanction was allowed and the case was remitted to the GOC.

The importance of this case may be to observe that while it is common practice for Regulatory lawyers to apply guidance and authorities from regulatory bodies other than their own it is important to consider the professional context in which they were originally applied.

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