Professional Regulation – A short guide to a stony road

If you're at the sharp end of an investigation by a professional regulator you need to keep informed and act quickly. John Barker, a Barrister Partner specialising in Professional regulation at Ronald Fletcher Baker LLP outlines the process and offers some advice on how best to navigate it.

Being the subject of professional regulation can be a highly daunting experience. Some regulators are more sensitive than others but many people feel caught up in a hostile mechanism where the regulator’s only concern is with achieving what may seem a pre-ordained outcome. Possibly this is an inevitable consequence of the regulator both prosecuting and bringing the case, funding and organising the investigation and hearings and appointing the committees that will determine the outcome of the complaint.

Many professional regulators are aware of these difficulties and do their best to soften the experience; the General Medical Council for instance uses the Medical Practitioners Tribunal Service (an independent panel) to ensure impartiality at least when it comes to trying a case.

First steps

Familiarise yourself with the procedures

Crucial for anyone subject to disciplinary proceedings is to approach it with as much information as they can gather, this will not only increase the prospect of a satisfactory outcome but also go some way to reducing the stress of an unfamiliar and potentially intimidating experience.

A useful starting point for any individual that has received a letter notifying them of a complaint is to review the regulators website seeking information as to the powers and procedures that are likely to be employed.

Best foot forward

Respond to notification of a complaint promptly

Bear in mind it is always essential to respond to a notification of a complaint promptly, to delay may bring about further allegations or charges of failing to cooperate with the regulator. It is never a good idea to bury your head in the sand and hope the complaint will go away – it generally won’t.

Beware hazards

Get help from your Union, professional body or a regulatory solicitor

While the regulator’s code of conduct is accessible [Link] and should be plain to understand (otherwise it is hardly serving its purpose) the procedures employed in the disciplinary procedure may not be so easily fathomed, particularly when it comes to the fitness to practise or disciplinary hearing itself. Regulatory law is not straightforward and professional help through a defence organisation or union (to which a registrant may well have subscribed) or a regulatory solicitor with experience and knowledge of the field of fitness to practice and regulatory law may well save time, anxiety and ultimately funds.

Improvements to the highway

Guaranteeing a fair hearing

Historically many trades and professions have regulated the conduct of their members through their own procedures and rules but recently in some cases government has stepped in to impose a statutory framework on regulators – mainly in the field of health care and finance. Those regulators that fall into this category will be subject to the Human Rights Act and the Rules of Natural Justice [guaranteeing a fair hearing] and their processes open to challenge in the higher courts. Even those regulators that self-govern are subject to principles of fairness which may be open to appeal in the courts.

Some examples of those regulators that act under statute are:

  • The General Medical Council (GMC)
  • The General Dental Council (GDC)
  • The General Pharmaceutical Council (GPhC)
  • The General Osteopathic Council (GOsC)
  • The Solicitors Regulation Authority (SRA)
  • The General Chiropractic Council (GCC)
  • The Nursing and Midwifery Council (NMC)
  • The General Optical Council (GOC)
  • Royal College of Veterinary Surgeons (RCVS)
  • Health and Care Professions Council (hcpc)

Examples of regulators who continue to self-govern are:

  • The Market Research Society (MRS)
  • The Association of Accounting Technicians (AAT)
  • Registered Veterinary Nurses (RVNs)

A route map

What triggers disciplinary proceedings

Disciplinary proceedings will be triggered by a complaint. The complaint may come from a report from another regulator or an investigating authority (the police for example) or it may arise from the monitoring arm of the regulator itself or come direct from a patient, client, competitor or employer. Once received by the regulator, the complaint will usually be “screened” to weed out matters which are simply not applicable to the regulatory process, for example, if the person complained about is not a member of the regulated body. When this happens the person complained about may not even know that a complaint has been made.

What happens next?

Investigation, hearing and appeal

If the complaint does go beyond screening, the manner in which proceedings are brought and implemented are almost as various as the number of regulators that exist. There are however usually some common features; most will have an investigating body that is separate to the tribunal that hears the case and most will have an appeal process. The work of this three-stage process is often undertaken by committees made up of professional members, lay members and lawyers (frequently supported by an administrative staff working under the Registrar or Chairman). The investigation is in some instances sub-contracted to a firm of solicitors who will prepare a file for the Investigating Committee to consider.

Review and referral

The role of the Investigating Committee

The role of the Investigating Committee will be to review all the information they have available to them and this will often include a response by the accused to the allegation which is made in the complaint. It will usually not be the purpose of the Investigating Committee to decide disputed facts as between the parties but rather to determine whether there is a case which should go further. The importance of providing a carefully set out response at this stage cannot be overstated. The way that the Investigating Committee decide whether a case should proceed further is to ask whether there is a “prima facie case” or a “real prospect” of finding unfitness to practise or another form of words which can be used so as to filter out cases which are either frivolous or simply have no chance of success.

At this stage consideration may also be given to interim orders e.g. suspension or conditions of practise pending the full hearing or adjudication by the adjudicatory body or Disciplinary Committee.

Half-way house

Consenting to compromise

Another important function of the Investigating Committee will often be to agree what amounts to a compromise between the member and the regulator thus avoiding a full hearing. This half-way house will frequently take the form of a warning or letter of advice or other order made by consent. It is well worth bearing in mind though that what at first may appear to be an attractive alternative to the a full disciplinary hearing may result in a permanent stain on the record of the accused and have a significant impact in the job market – be warned – so to speak.

Hearing and determination

The role of the Disciplinary Committee

The Disciplinary Committee should be separate and independent of the Investigating Committee and will make the determination of guilty or not. The evidence called by the Registrar at the hearing will be presented to the Disciplinary Committee most often by a prosecutor engaged by the Registrar. The prosecutor will normally be a lawyer well versed in this area of law. It is not unusual for the Disciplinary Committee to also have the assistance of a legal assessor or advisor to assist the committee in points of law and procedure. The accused member will invariably have the right to representation at this hearing and indeed beforehand should the issue of an interim order arise.

Ensuring fairness

The appeal process

The third stage in the process is the appeal stage. There is nothing in law which requires a regulator to provide for an appeal process but they usually do as it is a means by which unfairness or illegality may be put right without the expense of going to court. Many of those regulators who are governed by statute also provide for a statutory right to appeal to a court of law.

In certain circumstances where other avenues of appeal have been exhausted the possibility of an appeal by way of judicial review will also be worthy of consideration. It is important to note that an appeal by way of judicial review is not actually an appeal against the decision arrived at by the tribunal but an appeal against the decision making process which has given rise to unfairness.

The grounds upon which Judicial Review may provide a remedy are threefold: Firstly, the decision was unreasonable or irrational or secondly illegal (without jurisdiction) or thirdly procedurally improper (this will include breaches of natural justice).

Conclusion

This brief description is not intended as anything other than a very general pencil sketch of the process of professional regulation and fitness to practise proceedings with the most scant overview of regulatory law. It is hoped will provide some small assistance to those who may have either a theoretical or more pressing interest in the subject.

John Barker Barrister Partner at Ronald Fletcher Baker LLP

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