How far can poor management amount to misconduct in regulatory proceedings? Increasingly, regulators are faced with referrals from employers because it is alleged that the registrant is responsible for management failings amounting to misconduct.

How far removed from the coalface must a manager be in order to absolve himself from the shortcomings of his subordinates? Indeed, is any distance far enough if his supervision is wholly inadequate? Does that failing, of itself, make the manager unfit to follow his profession thereafter or require an interim suspension order while his conduct is investigated? On the one hand, it appears to be an unattractive proposition that a manager several grades removed from the mischief should be held to account; but it is, perhaps, even less attractive that those who are badly managed and unsupported are left to face the consequences whilst their superiors walk away unscathed.

There is, unfortunately, a dearth of authority and a decision of the Administrative Court would be welcomed. In the meantime, regulators could do worse than rely on dicta from the First Tier Tribunal in Sonia West v General Social Care Council [2009] 1614.SW-SUS.

Sonia West, a social worker, successfully appealed against a decision of the Preliminary Proceedings Committee of the General Social Care Council to impose an interim suspension order for a period of six months. The appeal was determined on procedural grounds, but the Tribunal went on to consider the substantive grounds for the interim suspension order. The registrant claimed the issues raised were purely managerial, that she had gone to her managers with matters she felt she could not resolve on her own, for example, with respect to staffing. She explained the restructuring and changes that had taken place in recent years: two social workers left and all the referrals were coming to her team; she had no extra staff despite the workload referrals increasing. She was coping, in effect, with an increased workload and reduced staff. The registrant acknowledged that the head of social care and her line manager had tried to help but that the stress of the situation was building up and that she became unwell because of stress. She said she was referred to occupational health the day she went sick but the referral took six months to take place. She was trying to oversee everything and while she tried to delegate she was under considerable stress and aware that other staff had a heavy load work on them. By the time she was ready to come back to work there was an investigation into her conduct as a manager and she was placed on garden leave until the disciplinary hearing which she attended without representation.

The registrant worked as a social worker for 14 years, had a blameless employment record and no previous disciplinary proceedings. A reference from a consultant psychiatrist said that she did not have any concerns regarding the registrant’s abilities as a social worker. The employer’s disciplinary hearing found four allegations proved: that her standard of work as a senior social worker was seriously below that required by her manager and the GSCC; she failed to record whether a number of cases for which she had managerial responsibility were concluded and closed; she failed to follow instructions from her line manager to complete initial and core assessments despite being given reasonable timescales; she failed to use the systems and processes in place to record casework and in doing so failed to safeguard vulnerable adults.

The employer’s findings concluded that this would normally warrant a penalty of dismissal but it would be acceptable to demote the registrant from her current role as team manager. The registrant was offered an alternative position as a social worker, declined and was dismissed. It is perhaps not surprising therefore that the Tribunal felt this indicated that the employers did not regard the registrant as a risk to the public and it was in order for her to continue in practice as a social worker. In fact, the letter from the employer confirmed that they had no concerns about her practice as a social worker.

Of course, the Tribunal made no findings of facts (and it has to be remembered that this was an appeal against an interim order only) but the case may well be regarded as a clear indicator of the way this Tribunal will treat pure management failings when professional competence is not established or called into question.

The Foreign Secretary appealed against a decision of the Divisional Court to include seven short redacted paragraphs of its judgment notwithstanding the fact that the Foreign Secretary had stated in more than one Public Interest Immunity Certificate that such publication would lead to a real risk of serious harm to the national security of the UK:  The Queen on the application of Binyam Mohamed v The Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65

An exceptionally strong Court of Appeal (Lord Judge CJ, Lord Neuberger MR and Sir Anthony May, President QBD) rejected the appeal and the Foreign Secretary’s contention that disclosure of the paragraphs would damage intelligence sharing with the United States.

If the redacted paragraphs contained genuinely secret material which would itself damage the national interest, the Court may have ruled differently.  But it considered the arguments in favour of disclosing the redacted paragraphs compelling.  There was no secret about the treatment to which Mr Mohamed was subjected while in the control of the US authorities.  Those facts were established by the judgment of a United States court.

As is usual, the Court of Appeal circulated its draft judgment to Counsel before it was officially published.  Whilst agreeing with each other’s overall conclusions, the judge’s each drafted separate judgments with their own comments.  It appears that Lord Neuberger of Abbotsbury MR said that MI5 operated a culture of suppression and disregard for human rights, that it deliberately misled a parliamentary committee and that its assurances could not be trusted.  Jonathan Sumption QC, leading Counsel for the Foreign Secretary, wrote to the court before publication asking for those comments to be amended and describing them as ’sweeping criticisms not based on evidence which constituted an exceptionally damaging criticism of the good faith of the security service.’  Lord Neuberger’s criticism was subsequently amended in the published version of the judgment.

This has, unsurprisingly perhaps, led to media criticism of the Foreign Secretary for attempting to ‘nobble’ the court and suppress its criticism.  But these comments are both uninformed and unfair.  The real difficulty lies in the fact that our judges still insist on giving multiple-judgment decisions rather than agreeing a joint draft which they (or the majority of them) can sign up to and which will become the judgment of the court.  If we followed the style of the European Court of Justice which delivers a single judgment representing the views of the majority, excesses of this nature could be avoided and the integrity of the court safeguarded.

The kafuffle surrounding expenses claims by British Members of Parliament has raised the perplexing question of parliamentary privilege and whether it would afford a defence to a Member of Parliament charged with a criminal offence arising out of his own dishonesty.

Parliamentary privilege developed as a means of stopping a monarch from interfering with the working of Parliament and was sparked by the power struggle between King Charles I and Parliament.

Article 9 of the Bill of Rights 1689 provides the single most important parliamentary privilege:  that freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.  It affords legal immunity to members for what they say and do in parliamentary proceedings.

Legal argument will probably centre on what is meant by proceedings in Parliament.  That is likely to be argued ad nauseam in the coming months (and maybe years) and might well end up in the Supreme Court

Although each House has the right to administer its internal affairs within its precincts, it is clear that there is no law that prevents a Member of Parliament or a peer from being prosecuted.  That has long been recognised by the courts.  The court refused to intervene in Bradlaugh v Gosset (1883) 12 QBD 271 when the House of Commons refused to allow a member who was an avowed atheist to take the oath even though he was required to do so by statute.

But the phrase “internal affairs” is too loose and there is a real danger that attempts will be made to stretch it beyond its normal and natural meaning.  The right is intended to protect each House in respect of the conduct of its internal affairs.  It does not embrace and protect activities of individuals simply because the act complained of takes place within the precincts of Parliament.  It is respectfully submitted that unless the conduct is clearly protected by Article 9 as part of the proceedings of Parliament, speech and conduct of members generally enjoys no special privilege.  A criminal offence committed within the precincts of  Parliament is triable in the courts and neither is there anything to stop a Member from being arrested within the precincts.

It has been said that in order to carry out its public duties without fear or favour Parliament, its Members and officers need certain rights and immunities, Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts, and Members need to be able to speak freely uninhibited by possible defamation claims.  That is undoubtedly correct, but if those who seek to take advantage of these privileges use Parliament as a sanctuary to avoid the consequences of their own criminality, then parliamentary privilege will fall into disrepute and it will add credence to the argument that there is one set of laws for parliamentarians and another for the public at large.

Most regulatory bodies have provisions in their rules for the interim suspension of registrants during the course of investigation (a) for the protection of the public, (b) where it is otherwise in the interests of the public or (c) is in the registrant’s own interests.

Suspension from a registrant’s profession pending determination of an investigation or proceedings is a draconian step which in itself will have serious consequences for a professional person.

An Interim Orders Panel convened to determine the professional body’s application will not make findings of facts, but must nevertheless ask itself if there is any credible evidence to support the allegation or whether the allegation comes from a credible source.  Furthermore, if the allegation were to be proved at a subsequent Conduct Hearing, would that Committee be likely at least to impose a period of suspension upon the registrant.  If not, an interim suspension order would not be appropriate.  Next, are there immediate public protection issues which require the registrant to be suspended?  If all those matters are satisfied, the Committee will need to consider if the order would be proportionate and, if there has been a delay since the alleged conduct took place, how the registrant has behaved in the meantime. 

In Shiekh v General Dental Council [2007] EWHC 2972 (Admin) a dentist changed his plea to guilty during the course of a Crown Court trial in respect of fraudulent travel claims by his associates.  The trial judge said that there was sustained dishonesty and a conspiracy to defraud, but he commented that it was unlikely that the dentist would indulge in making dishonest claims in the future.  He imposed a sentence of 12 months imprisonment which was suspended for 18 months.

After that conviction the General Dental Council  commenced regulatory proceedings  and its Interim Orders Panel suspended the dentist for 18 months.  It is important to note in this case that it was at all times accepted that Mr Shiekh posed no direct risk to the safety of the public.  The panel concerned itself only with the reputation of, and public confidence in the profession.   The dentist had also made reparation in financial terms to the tune of many hundreds of thousands of pounds, had secured a multi-million pound contract from the relevant local Trust, and the conduct complained of was over 8 years old.

Quashing the order for suspension, Davis J said:  The difficulty I have in this particular case is trying to get a purchase on why it was that the Panel thought that interim suspension was needed.  This was not a case of ongoing or future risk or anything like that.  He added that it did not seem to him that any principled decision had been given by the panel.

The more recent case of Sosanya v The General Medical Council  [2009] EWHC 2814 (Admin) concerned a doctor.  Dr Sosanya’s husband was an accountant charged with an advanced fees fraud to which he pleaded guilty and was sentenced to a term of imprisonment.   Dr Sosanya was later charged with money laundering.  The details of the offences, which she denied, were very sparsely set out.  The charges had nothing to do with her abilities as a doctor.  There was no suggestion that if she were to continue in practice she would be given access to moneys or might then become tempted into activities of the kind with which she was charged.

The Panel made an interim order of suspension against the doctor but did not identify in their reasoning any risk posed.  Again, the judge did not think that an interims suspension order was necessary or proportionate.

These cases give clear guidelines to panels.  It has to be remembered that there will be different risks in different professions.  For example, a doctor or dentist faced with serious allegations of dishonesty may not present the same risk to the public as a social worker.  A social worker faced with the same allegation may be looking after a vulnerable service user and have access to that person’s private possessions and bank accounts.  They are matters which panels must weigh carefully, and if they do decide to suspend must identify clearly what risks they are aiming to protect the public from and act proportionately in all the circumstances.