The Latest from Cloisters

News, Publications, Policies, Events and Blogs

Can professional bodies intrude in private lives?

The purpose of the professional regulatory bodies is to uphold the reputation and ensure public confidence in the profession. A professional who has committed dishonesty or impropriety while carrying out his or her professional duties can expect severe sanctions from the relevant regulatory body. To what extend can the regulatory body sanction a professional for such lapses in their private life?

The case of R (ex p Chief Constable of Wiltshire Police) v Police Appeals Tribunals [2012] EWHC 3288 indicates that professional bodies will delve into the private lives of professionals. A police officer had, among other acts, sent emails and text messages to a friend which contained derogatory and sexist language, including a joke about rape. These communications took place between two adult males on private mobiles.

The Misconduct Panel considered that this was breach of the relevant code of conduct. For this, and in conjuncture with the other acts, the police officer was dismissed without notice. The Police Appeals Tribunal heard the appeal against that decision and overturned the dismissal. The PAT concluded this “off-duty type offence” was mitigated by the fact that the conversations did not reach the public domain. The Chief Constable sought to judicially review the PAT decision. In the High Court, Williams J held the Misconduct Panel had been correct. It was reasonable for it to focus on the fact that the words of the communications would have brought discredit on the police force if widely known. While the communications did not reach the public, it was sufficient that there remained a vulnerability that they could have been circulated more widely. The appalling content of the text messages meant the private nature of the communication was not compelling mitigation.

However, this does not mean that every private act inconsistent with professional standards will lead to sanction by a professional regulatory body. In Royal College of Veterinary Surgeons v Samuel [2014] UKPC 13, Dr Samuel had been removed from the register of veterinary surgeons as a result of his guilty plea and subsequent conviction for common assault of his neighbour, use of threatening behaviour and theft. The conviction arose out of a long running dispute between Dr Samuel and his neighbour who had been taking photos of Dr Samuel without his consent. Dr Samuel twisted her arm and took the camera and a memory card. Dr Samuel received a suspended custodial sentence.

The Disciplinary Committee was significantly influenced by the fact the conviction of theft involved dishonesty (although non-operational) and he had been sentenced. As a result, despite the behaviour not relating to his professional practice, it held that removal of Dr Samuel’s name from the register was required in order to uphold the reputation of the veterinary profession and public confidence in it. On appeal, this decision was overturned by the Privy Council. The Privy Council considered that if the public knew of the facts of the case, they “might well think this had little bearing on his fitness to practice as a veterinary surgeon”. The Privy Council concluded that removal from the register was disproportionate in these circumstances.

Conclusion

For a professional, a private life does not mean acts stay private. Samuel could be seen as evidence of a softening by regulatory bodies towards private errors. Alternatively, the reason for the difference may simply be the context for the behaviour; a joke about rape made by a police officer is clearly extremely serious. It is unwise to generalise across the range of regulatory bodies, each of whom have their separate Codes of Conduct. However it is possible that a less stringent stance regulatory bodies regarding “private acts” is consistent with the new Regulation of Health and Social Care Professions Etc. Bill which states that the primary objective of each regulatory body in carrying out its functions is to protect, promote and maintain the health, safety and well-being of the public. Promoting and maintaining public confidence in that profession is relegated to a secondary objective.

Finally, regulatory bodies do allude to the right to private life and seek to balance them, for example the Metropolitan Police’s Misconduct Investigations Guide provides with regard to off-duty conduct:

“[58] Police officers have some restrictions on their private life. These restrictions are laid down in various Police Regulations. These restrictions have to be balanced against the right to a private life. Therefore , in considering whether a police officer has acted in a way which falls below these standards while off-duty, due regard should be given to that balance and any action should be proportionate taking into account all of the circumstances”

However, it is interesting to note is that there was no specific challenge in R (Chief Constable of Wiltshire) involving the police officer’s right to a private life under Article 8 of ECHR. The court considering the judicial review will require substantial justification for any interference with human rights to be satisfied that the decision of the disciplinary panel was lawful.

For more information on judicial review and challenges to regulatory bodies, please contact one of our Regulatory Team.

By Siân McKinley

Daphne Romney QC instructed in Employment Tribunal...
Employment Tribunal finds freelancer is not employ...