Professional Regulatory Complaints
It is a common feature of the regulation of professions that there is provision for complaint by members of the public/clients. The complaints may relate to relatively minor failures of service to serious misconduct sufficient to justify striking off or removal of the licence to practise from the practitioner concerned.
Complaints may range from breaches of codes of conduct in relatively minor ways to criminal offences and serious misconduct. Misconduct covers a wide range of matters.
The seriousness of the complaint will determine the procedure that will be involved. In relatively minor complaints, a more straightforward procedure with minor sanctions at most may be involved. Where complaints relate to more serious matters, then a much more formal procedure takes place. The courts have decided that critical decisions regarding livelihood may be required to be taken or confirmed by the court.
There has been a recent trend towards mediation and informal processes. Legislation may prescribe, or practice may require that there be mediation before the matter proceeds or consideration be given to it. What occurs in the mediation may not use its evidence in the hearing.
Misconduct may also encompass seriously substandard professional performance in certain contexts. Unlike the other headings of professional misconduct in this context, it must relate to the practice of the profession concerned. It appears that there may be serious falling short of the expected standards notwithstanding that the person has acted bona fide and honestly.
What constitutes serious misconduct in this question, the context may be defined by the relevant professional code of conduct. It may be defined under the legislation.
In the most serious sense, misconduct or professional misconduct implies moral turpitude, fraud or dishonesty. It is not sufficient that the person has been negligent or committed a wrongful act honestly.
Legislation in the area of medical and veterinary practitioners ranks infamous and disgraceful conduct as being of the most serious magnitude. An act may be disgraceful and infamous in the context of a particular profession which would not be so in everyday parlance.
There may be misconduct in the context of the professional\’s work. The conduct may constitute misconduct in professional respect where they reflect on the profession and are aggravated because of the person\’s position.
Misconduct may also constitute criminal conduct. In some cases, a conviction for an indictable offence will cause automatic attract disciplinary proceedings. If the matter is less serious, normal investigatory procedures may be employed.
If criminal proceedings are pending, the hearing may be delayed pending the conclusion of those proceedings.
The fact that a person has faced criminal proceeding does not of itself justify subsequent professional disciplinary proceedings. A person may be subject to proceedings for professional misconduct notwithstanding that he has been acquitted or the prosecution has been dropped.
A complaint may be made simply be a drawing of attention of the regulator to a particular matter. However, if the matter concerned constitutes serious or in some cases other misconduct, it may initiate an inquiry.
Complaints may be made by a member of the public customer, client or another body. The regulator which oversees the particular profession may itself be the source of the complaint and may thereby initiate an enquiry.
The source of the complaint may be anonymous. This raises a difficulty in terms of making a substantial and specific complaint. If however the matter is sufficiently serious, and there is independent evidence, a complaint may proceed to an inquiry on the basis of an anonymous complaint.
Whistleblowing has been provided for legislation within the last decade. Protected disclosures legislation protects persons who make a relevant complaint from victimisation or adverse treatment in consequences. For example, the Health Act 2007 provides for a protected disclosure. More general legislation has been since introduced.
Under some legislation, an investigation may proceed notwithstanding that the original complaint is withdrawn or evidence is not furnished. If it is in the public interest to proceed with the enquiry having regard to the alleged conduct, the regulatory body may proceed to do so.
Most complaint procedures will have a screening out phase. Where a complaint is vexatious or frivolous or not made in good faith, the matter will not proceed beyond the initial stage. Similarly, where the complaint is outside the jurisdiction of the relevant regulator, there is no authority for the regulatory body to hear it.
Investigation and Due Process
The regulatory authority will investigate the complaint to consider whether there is a prima face or apparent case against the person concerned, so that an enquiry may be thereby held. The body may be a committee or other branch or division of the regulator. It may require further information in order to proceed with its investigation.
The principal professional bodies have a committee or branch which deals with the initial investigation of a complaint to ascertain whether there is sufficient evidence to proceed to an enquiry.
Many regulators carry out investigation through authorised officers. They have investigatory powers. These powers may include powers to enter premises, take documents, put questions to relevant parties and require answers on pain of criminal liability. Challenges have been made to the admissibility of evidence found using such powers in investigations. They have been found admissible, but may not be used in a prosecution as such.
Investigatory powers or bodies have wide powers to require the production of documents. They may require the production of confidential and sensitive records and documents. The regulatory body may require persons to be examined on oath on condition that failure to respond or respond truthfully is a criminal offence.
The party presenting evidence must generally disclose all relevant and material evidence for the person affected. As with a criminal case, this must be disclosed irrespective of whether this might prejudice the applicant\’s case.
Once a complaint is made, the person, the subject of the complaint is entitled to be notified. The nature of the notification and its timing will depend on the circumstances. The fact and particulars of the complaint, sufficient to allow the person the subject of the complaint a chance to adequately respond should be given.
The courts have not treated such evidence in the same manner as unlawfully obtained evidence in criminal proceedings. However, they seek a balance between the rights of the individual and the responsibilities of the professional body. In the absence of deliberate and knowing abuse, courts will not interfere with the use of evidence notwithstanding that it might have been obtained in excess of powers of investigation.
Evidence obtained through entrapment may be excluded as unfair if the person concerned has been induced and enticed to behave in a way that constitutes misconduct.
In criminal investigations and proceedings, a person may generally refuse to answer questions on the grounds that it might incriminate him. However, a significant amount of modern legislation provides such answers to questions formally put by regulators must be given, under pain of prosecution for non-response or a false reply, is admissible is not admissible in separate criminal proceedings.
A Sufficient Case to Proceed
Where the investigatory body decides that there is a prima face or sufficient case, the matter may then be referred to an enquiry committee. A prima face case is one where if the facts if proved or uncontradicted would justify a finding of misconduct, where whether there is a real prospect of the allegations being established before the committee and if established they would constitute and be grounds for an adverse finding in relation to the misconduct. Regards must be had to the standard of proof before the enquiry and the weight of evidence.
Under certain regulatory schemes, a summary application may be made to the court by the regulator based on affidavit evidence, seeking suspension. It is made on notice to the person the subject matter of the complaint. The court will seek to balance the interests of the public against the individual’s rights to continue to practice. The court must be satisfied that there is a threat to the public interest, sufficient to justify suspension, given that there has been no adverse finding at this stage
There may be a procedure to vary or challenge an interim suspension. It may be the subject of judicial review in some cases
The court must be satisfied that it is in the public interest to make the order suspending the subject matter of the complaint. However, the court does not consider the merits of the matters in detail. These are matters for the ultimate hearing.
The regulatory body will prepare and set out the charges or complaints, the subject of the enquired. The person concerned has the right to know the case against them. If it has been insufficiently particularised, he is entitled to further detail. If there is an allegation of serious misconduct such as dishonesty or a specific incident is alleged, he is entitled to have the alleged details in advance so that he can prepare and meet its case.