by Lyn McCarthy December-11-2018 in Healthcare Law, Regulatory & Administrative Law
In an increasingly regulated world, the balance to be struck between allowing regulated professionals, such as doctors, dentists and lawyers to name a few, to maintain their own private lives whilst at the same time ensuring effective regulation is a source of some debate and one which is frequently re-calibrated.
Personal v Professional Conduct
At its core there exists a fundamental tension between the right to one’s private life and, on the other hand, the regulators’ objective of maintaining confidence in particular professions. This particular tension has been exacerbated by the advent of social media; significant changes in the means by which professionals communicate with clients, patients and colleagues; and also, in the movement away from more traditional fixed ‘office hours’.
Indeed, the watchful gaze of regulators appears no longer to be confined to the office, practice or surgery where a profession is carried out. In several recent disciplinary inquiries which are examined below, the conduct has instead emanated from the unlikely settings of a nightclub, the side-line of a rugby pitch and a WhatsApp conversation.
Whilst in this jurisdiction, there have been few reported judgments/decisions of Committees of Inquiry relating to ‘personal’ conduct, not related to a criminal offence, developments before regulators and courts in the UK suggest that conduct of a regulated professional occurring outside their professional life may result in regulatory action.
R (on the application of Pitt and Another) V General Pharmaceutical Council
This recent decision of the High Court in England and Wales prompted much discussion. In R (on the application of Pitt and Another) V General Pharmaceutical Council1 two registered pharmacists sought to challenge new Professional Standards adopted by the General Pharmaceutical Council on the basis that the code sought to veer too far into the personal lives of pharmacists. The applicants focused on the fact that the code had to be adhered to “at all times”. They argued that the General Pharmaceutical Council, in endeavouring to regulate pharmacists in this manner, was acting beyond the scope of its powers. In addition, the applicants contended that the Code of Conduct was unlawful for uncertainty and that it was contrary to Articles 8 & 10 of the European Convention on Human Rights (“ECHR”) relating to private life and freedom of expression.
The High Court refused the application and found in favour of the General Pharmaceutical Council, concluding that the Council, as regulator of pharmacists, had a broad discretionary power to set standards which are appropriate relating to the conduct, ethics and performance expected of registrants.
Interestingly however the High Court found that the applicants could not rely on the provisions of the ECHR concluding they were not “victims” for the purposes of the Human Rights Act 1998 because no disciplinary charges had actually been pursued against them under the new Professional Standards. The High Court may therefore have left the door open for such arguments to be advanced where disciplinary charges were being pursued by a regulator arising from conduct in a pharmacist’s private life.
This decision provides useful insight in respect of the latitude that can be afforded to regulators in formulating codes of conduct/standards, particularly in the context of conduct outside the workplace.
Royal College of Veterinary Surgeons (Respondent) v Samuel
The move towards a more expansive decision in the Pitt case appears in contrast to an earlier UK decision2 which had been welcomed by some as injecting a more commonsense approach to misconduct allegations occurring in a personal context.
In that case, Dr Samuel, a veterinary surgeon, had received three criminal convictions (theft, common assault and using threatening/abusive words). At the Fitness to Practise Inquiry it was found that although the convictions were entirely unrelated to his practice as a veterinary surgeon, the convictions could/would cause damage to the reputation of the profession and as such, his name should be removed from the register. On appeal, however, it was found that the decision of the Fitness to Practise Committee could not fairly stand and the determination was quashed.
In providing the rationale for the decision, the court had distinguished the conduct on the basis that it was unrelated to Dr Samuel’s practice. In particular, it was highlighted that the offences had arisen in circumstances where a dispute between neighbours had arisen and Dr Samuels had been racially insulted. In the course of the judgment, it was indicated that had the public been aware of all the circumstances of the case, it would not damage the reputation of the profession. Thus, the collective reputation of the profession, it would seem, will be a paramount consideration in determining whether ‘personal’ conduct may constitute misconduct.
Recent decisions of Committees of Inquiry
In terms of decisions of Committees of Inquiry considering complaints relating to personal conduct, it seems that there has been a tendency towards the more expansive approach to regulation as seen in the Pitt decision, particularly in recent months.
- The Medical Practitioners Tribunal Service (MPTS) recently made a finding of misconduct in relation to an emergency department doctor who sent a number of offensive tweets to then Secretary for Health, Jeremy Hunt, complaining about the difficulties in the NHS. Although the medical practitioner in question was “clinically excellent” and had an otherwise unblemished record, a finding of misconduct was made arising from the tweets which were deemed to be abusive.
- In a separate decision, the MPTS issued a newly qualified doctor with a warning, following an incident where he punched a nightclub bouncer whilst celebrating his graduation in medicine and received a police caution for assault by beating. Having heard testimonial evidence from senior colleagues to the effect that the registrant was professional, hard-working and had very good clinical skills, the Tribunal issued a warning to the doctor, indicating that his behaviour constituted a departure from the standards expected from members of the profession and should not be repeated.
- In a recent high-profile decision of the UK Solicitors Disciplinary Tribunal, an experienced solicitor, who was convicted on indictment following an incident at an underage rugby match, was struck off the Roll of Solicitors. The incident occurred whilst the solicitor was officiating as a linesman at the rugby match and head-butted a coach, causing permanent damage to the victim’s vision. Although considered in conjunction with dishonesty allegations, the tribunal considered the ‘deliberate’ and ‘premeditated’ nature of the violence and the possibility that the conduct could be repeated.
- In a separate matter considered in 2017, the Solicitors Disciplinary Tribunal handed down sanctions for matters pertaining to personal conduct in the case of a solicitor who tweeted a number of racially insensitive comments about Islam, Judaism and Catholicism. The solicitor was suspended for fourteen months by the Tribunal in circumstances where it concluded the solicitor caused reputational damage to the profession by identifying herself as a solicitor and behaving in a way which lacked integrity. Similar sanctions have been imposed on a solicitor who posted offensive anti-Semitic posts on Facebook.
- The same Tribunal found a solicitor guilty of professional misconduct and imposed a fine for using crude language when communicating with a vulnerable client using WhatsApp. The Tribunal was satisfied that the solicitor did not have predatory intentions, nor were his actions calculated or deliberate. However, he failed to be alert to the fact that a vulnerable client may not be able to object or complain if that client felt uncomfortable.
The approach of Irish Regulators
Although there is no comparable body of decisions in this jurisdiction, general trends can be discerned, particularly in the context of guidance documents and Codes of Conduct issued by various regulators.
In terms of the manner in which personal conduct is addressed in Codes of Conduct for various professions in Ireland, regulators here have adopted different approaches. On one end of the spectrum, the Code of Conduct for the Pharmaceutical Society of Ireland (currently under review) appears to impose quite a general obligation on registrants by directing that “[a] pharmacist must conduct himself/herself in a manner which enhances the service which their profession as a whole provides to society and should not act in a way which might damage the good name of their profession”.
By contrast, the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners (8th Edition) 2016, does not include a general provision of this nature. It does however contain a specific section devoted to social media use which reminds doctors to adhere, in the context of social media, to “the professional standards used in other forms of communication”.
This emphasis on social media use is also reflected in specific guidance issued by certain regulators. The Nursing and Midwifery Board of Ireland has published specific guidance on social media use, whereas the Dental Council has incorporated a specific provision into its Code of Practice relating to Professional Behaviour and Ethical Conduct (2012) which warns registrants that: “[y]our use of social media (such as Facebook, Twitter and so on) should be responsible and discreet. Indiscretion in the use of social media is not acceptable and could leave you liable to fitness to practise proceedings.”
Although, in the context of solicitors, there are no specific provisions of the Guide to Good Conduct for Solicitors (3rd Edition), the guide makes references to the solicitor’s role in society, outside practice and, separately, to the requirement to “…at all times observe and promote these core values of the profession and avoid any conduct or activities inconsistent with those values.”
Comment
Although it remains to be seen to what extent recent developments in England and Wales will be reflected in decisions taken by regulators in this jurisdiction, it would seem that regulatory trends there - particularly in terms of social media use and communications generally - are being reflected in steps taken by regulators here in terms of specific guidance and Codes of Conduct.
The degree to which this will be reflected in complaints/findings, however, remains to be seen. Indeed, the divergence in the definitions of ‘misconduct’ for the various regulators, together with the varied status of the Code of Conduct and its interplay with misconduct allegations may well play a part. In considering allegations of this nature, the core values of the various professions are also likely to have a large impact. As seen in the context of misconduct allegations more generally, conduct which may fall foul of regulatory guidelines for one profession may not constitute misconduct for another.
Finally, time will tell as to whether the ECHR arguments advanced in the Pitt case discussed above may gain traction in a context where disciplinary charges are advanced. Developments in this regard will be watched closely in that jurisdiction and here.
For further information please contact Lyn McCarthy lmccarthy@hayes-solicitors.ie at Hayes solicitors.
1 [2017] EWHC 809 (Admin)
2 Lord Toulson in the Privy Council in the case of Royal College of Veterinary Surgeons v Samuel (2014) UKPC 13
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About the Author
Lyn McCarthy
Lyn is a partner in the Healthcare team at Hayes solicitors. Lyn advises clinical practitioners and indemnity bodies in respect of the defence of medical negligence claims and also in respect of the defence of professional disciplinary matters before Committees of inquiry.