Regulated Professions Hearings

Bias

The basic rules of natural justice apply to enquiries in respect of professional misconduct.

The principle that a person may not be a judge in his own case is a basic rule of justice.  The decision maker must not be biased or be in a position that he might appear to be biased or compromised.

In the context of professional misconduct investigations and enquires, a person may have been involved in the pre-enquiry process.  Not every case of prior knowledge or involvement will give rise to bias in this sense.

The test for bias is objective. Broadly, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicant would not obtain a fair hearing from an impartial judge in the issue.

Objective bias is where a reasonable, well-informed observer would reasonably apprehend the applicant may not receive a fair and impartial hearing because of a risk on the part of the decision maker.

Limits of Bias

A relationship between the judge and the party or a witness or another member of the public involved in the case, be it personal, social or professional, is not sufficient to prove objective bias.  It must be shown that the circumstances of that relationship and its connection with the proceedings are such that it has the capacity to influence the decision maker.

The impugned relationship must display a community of interest between them which is directly related to the subject matter of the proceedings for objective bias to arise.  It must be cogent and rational.  Where the impugned relationship involves a witness or another person who is not a party who does not have a stake in the outcome, the threshold will be higher.

Generally, it is not bias where a person who is part of the enquiry committee is to be part of the investigatory committee.  However, this is less likely to be permissible where the person us to be involved in the enquiry and sanction stage.

Prior Relationship

The members of the enquiry committee should not have a personal relationship or acquaintance with the person who is the subject of the investigation. The prior conduct or a business relationship of a committee member may be grounds for the reasonable apprehension of bias.  Previous statements may provide a basis.

The fact that a member of the enquiry committee has expertise in relation to the matters, the subject of the dispute, would not generally be grounds for a perception of bias.  However, where the matter is particularly specialised, it may be preferable that no member of the panel from the particular speciality take part.

The advice given by a specialist assessor or legal assessor should generally be made available to the person the subject to of the enquiry.  Otherwise, the advice may be given and provided without the person who is the subject of the enquiry having the opportunity see it and to challenge and it.

The rule against bias yields to necessity.  If no other decision maker is available, then a decision may be made notwithstanding that there might otherwise be the appearance of bias.  This will only occur in exceptional situations of necessity.

Delay

A protracted delay may be inconsistent with fair procedures.  The passage of time may erode memories, cause records to be lost and witnesses to cease to be available.

Delay may occur on the part of the complainant on prosecutorial side. There may be a delay in initiating a complaint.  What constitutes an unacceptably long delay will depend on the circumstances.  The more serious the allegation, the less likely that delay would impede fair procedures.

The reason for the delay will be relevant.  Where the relevant act or misconduct is not discovered, then there are fewer grounds of criticism for delay than in cases where the subject of the complaint was known to it.

The delay may arise after the complaint and prior to initiation of proceedings.  Delays of several years may be such as to be a denial of fair procedures.  Factors justifying delay may include a substantial number of witnesses, complexity of the case and a lack of co-operation.

In order for a delay to be such as to invalidate the proceedings, there must be a delay in the making or pursuance of the complaint and it must be such as to prejudice the person who is the subject of the enquiry.

A specific unjustifiable delay may be shown by reference to the facts of the case.  If for example, witnesses are available and the person who is the subject of the complaint is prejudiced in preparing his defence, it is more likely that the delay will be a denial of fair procedure.

Double Jeopardy and Criminal Prodeedings

There is a general principle of criminal law that a person should not face double jeopardy. In the criminal sense, he should not be tried twice for the same crime.

Similarly, a person who has been convicted should not in principle, be subject to sanctions over and above that is imposed on conviction. The question arises in some cases as to whether a person who has faced criminal charges in relation to his conduct should also be subject to professional misconduct charges arising out of the same facts.

The courts, however, draw a distinction between criminal proceedings and misconduct enquiries and decisions on the part of a statutory regulator.  The latter is not for the purpose of punishment but is to protect the interest and maintain high standards and good reputation.

The courts have generally held that there is no bar to holding an enquiry with respect to professional misconduct where a person has been convicted on the same facts of an offense.  The courts take the view that the parties are different i.e. the State instead of the regulator. There are different issues are involved and that the purpose differs.

The courts accept that double jeopardy may arise on a disciplinary enquiry.  Where however  one set of proceedings are of a different character to another, they will not constitute the presentation of the same charge.  There must be an identity of issues between both matters.

Previous criminal proceedings may have a bearing on the misconduct proceedings/  fresh disciplinary proceeding.  In some cases, it may be inappropriate to proceed with a misconduct enquiry where a person has been specifically acquitted.

The question arises as to whether a person may be the subject of a professional misconduct, charge, when an earlier charge in respect of the same matter has not concluded or has been determined in his favour, for example, on the grounds of a technicality.  Similarly, a person may be subject to minor sanctions and the regulator may propose to proceed with an enquiry seeking a heavier sanction.

Findings

Constitutional justice may require that the Committee’s report contains details of the findings of fact on the evidence leading to the decision together with details of submissions and the manner in which the committee has resolved them, Including issues    of the application of law to the facts and in relation to the manner in which the committee has reached this decision.

After the enquiry, the parties may be entitled under the relevant legislation to make submissions relating to the findings of fact and the inferences to be made from them.

The report may be required to set out the findings of the facts and ideally the reasons why one version of events was accepted as opposed to the other.  The Committee should give reasons for its decision.  In particular, it should give reasons for adverse findings against the person who is the subject of the enquiry.

Considering Submissions

Before making the final decision, there may be an opportunity for the person, the subject of the enquiry to make representations about the decision to be made.  The relevant authority’s representatives should also be present.  They may also be entitled to make submissions.

Generally, submissions will be made by the prosecutorial side/regulatory authority and the person, the subject of the misconduct proceedings.  It is not always the case that the case that  regulator is entitled to make further representations.

Reasons

Giving reasons is  usually required on the basis of constitutional justice.  Persons should know the reasons why a decision has been made.  They allow the appeal body to consider whether the issues have been properly addressed and determined.  The statute may require specifically that reasons be given.

The sufficiency of reasons will depend on the circumstances.  Resort may be had to the transcript of the decision of the hearing where it discloses evidence, accepted or rejected by the committee.  A general explanation of the reasons for the decision will often suffice.

Although they need not be lengthy, they should be such as is sufficient to inform the parties as to why the decision was made.  A detailed discussion or judgment is not required.  The greater the degree of dispute on a particular matter, the greater the onus to give reasons for the facts found in relation to it.

Some  older legislation gives powers to reconsider findings in the enquiry committee. Some  recent legislation may give the regulatory authority the power to dismiss if no allegation is substantiated.

Administraiton of Justince Isses

The Constitution reserves the administration of justice to the courts.  A tribunal must not exercise judicial functions.  Some tribunals may exercise quasi-judicial functions under the Constitution.

The imposition of sanctions which has a bearing on a person’s reputation or ability to practice his profession involves the exercise of a judicial power under the Constitution.  In a very early case, it was held that the striking off of a solicitor from the roles was the administration of justice.  This was because of the severity of the penalty which must of necessity call for the exercise of judicial power of the State.

Accordingly, under most modern schemes, a High Court order is required to confirm the most serious sanctions including those which limit the ability of the person concerned to practise his profession or business or strike him off the relevant register.

More minor sanctions may be imposed in most cases without the confirmation of the High Court.  However, in some cases, a High Court order is required to confirm sanctions short of strike off and those which restrict the ability to practice.

Confirmation by Court

The regulatory authority in considering the report of the enquiry committee must give consideration to the entirety of a matter before the committee.  It must decide on what sanction should be imposed, and whether or not a sanction should be imposed and for an adverse finding. Whether the imposition of a sanction is a matter of discretion depends on a particular statutory regime.

Where the sanction is one that affects registration for the relevant profession or imposes a fine, High Court consent will be usually required.

Under most schemes, the regulatory authorities have to apply to the High Court for confirmation of sanctions. Having heard the evidence, the relevant committee or tribunal will make a decision on the issue of whether there has been misconduct and on the sanction which is to be imposed in consequence of it. Reflecting the above principles relating to the judicial power, the sanction may be imposed or confirmed by the High Court.

The statutory scheme may provide for an enquiry report by a committee which makes a recommendation as to sanctions to be imposed by the authority.

Sanctions

In imposing sanctions for misconduct, the primary purpose is not to punish but to protect the public against those who are unfit to practice.  Another function of sanctions is the protection of the profession and its reputation.

The sanction should be proportionate to the conduct to which it relates. Suspension is commonly a preferred sanction.  Its length can be tailored to the specific misconduct.

Another common sanction is the imposition of conditions on practice.  The person may be permitted to practice but only subject to supervision or subject to the training or restriction on the areas of practice.  Striking off and cessation of the right to practice is usually the ultimate and most serious sanction.

There may be a maximum penalty which can be imposed.  There may be discretionary power to avoid costs at all.  Awards of cost should not be used as a penalty.

The issue of legal costs will be of practical significance in most cases. Committees may be entitled to direct that the costs are borne by the person against whom the complaint of misconduct has been upheld.  This cost may include the legal costs of the authority, witness, expenses, the cost of investigation and enquiry costs.