A wasted opportunity - BACP fails to correct the most unfair aspects of its Professional Conduct Process
At the end of last year, the BACP finally published its long awaited revised Professional Conduct Procedure (PCP). Having consulted on amendments to the PCP as far back as 2015, the sheer length of time it has taken to unveil the revised procedure has not gone unnoticed by the Professional Standards Authority (PSA) who only renewed the BACP's accreditation on the condition that the new PCP be published before the end of 2018. The new PCP only applies to complaints received on or after 1 December 2018.
The crucial question is whether this revised process remedies the shortcomings of the erstwhile PCP? We highlighted some of the deficiencies with the old regime in our blog A wasted opportunity - BACP fails to correct the most unfair aspects of its Professional Conduct Process. In short, there are some improvements, but in other respects we are still left wanting.
The new PCP creates two main different types of processes to deal with complaints.
1. If a complaint raises any allegation of professional misconduct then it will be allocated to the Disciplinary Proceeding Track and will be resolved at a hearing. Professional misconduct is defined as a failure to meet professional standards that is of sufficient seriousness that a period of suspension of membership or withdrawal of membership may be warranted. Although not specified in the PCP this would include serious allegations such as serious breaches of patient boundaries. A hearing is heard by a Panel of three including a Chair, a lay person and one member of the Association. If the complaint is proved the Panel may impose sanctions ranging from written apologies to withdrawal of membership.
2. Where a complaint raises concerns that fall short of professional misconduct but suggest that there has been failure to meet professional standards the case will be allocated to a Practice Review Procedure. The PCP does not elaborate as to what type of issues could fall short of professional misconduct but it may include shortcomings like minor record keeping concerns. Such cases will be resolved either at a hearing or on the papers if the parties consent. Unlike the Disciplinary Proceedings Track, complaints on this track can be heard by a single Panel member, and Panels on this track cannot suspend or withdraw membership if a complaint is upheld.
Perhaps the most interesting change is that complainants will no longer prosecute complaints of processional misconduct against BACP members; those complaints dealt with on the Disciplinary Proceedings Track. This is an unexpected amendment given that the BACP defended this provision of the old PCP during a case which it lost in the High Court in 2016, which we covered in a previous blog ‘Dogged and obstinate’ BACP prevented from proceeding to adjudicate on a complaint already disposed of by the UKCP. However from now on it will be the BACP that will bear the burden of proving any allegation of professional misconduct, meaning that a complainant is only a witness. However, the BACP will need to prove it can discharge its new role and responsibility fairly.
However, in respect of cases on the Practice Review Procedure track, the PCP is unclear as to who bears the burden of proving the complaint. Interestingly, the PSA’s most recent accreditation report on the BACP states that it reviewed an earlier draft of the PCP which stated the complainant bore the burden of prosecuting the complaint and the PSA asked BACP to review this. Although the PCP no longer states the complaint has to prove the complaint, that the BACP have left the position unclear and open to confusion is most unwelcome for registrants and complainants.
One significant downfall of the new policy is the ability of a case manager and Independent Assessment Committee (IAC) to progress complaints without drafting allegations and notifying them to the Registrant. It is only once the IAC decides that the case should be referred to a Panel that formal allegations are drafted and notified to the Registrant. Yet the PCP enables the case manager and the IAC to request written representations from a Registrant. The IAC even has the power to request an interview with the complainant or the Registrant. We would always advise members responding to these kinds of requests to do so very cautiously, if at all, given that they do not know what the allegations are. Patients may complain about all manner of issues, some of which might never amount to a formal allegation; it is for the regulator to collate sufficient information and translate that into allegations. Only then can the Registrant be certain about what they are responding to.
There are obligations of disclosure in cases before the Disciplinary Proceedings Track. Interestingly there is a provision for proceedings to be stayed indefinitely where the BACP has failed to comply with an order for disclosure. This is likely to lead to an increase in requests from representatives for disclosure from the BACP.
Registrants also have a duty to supply records to the BACP for the purposes of assisting the proceedings. This is quite controversial actually and more far reaching an obligation than is usually imposed on other professionals with statutory regulators. Where a BACP registrant does not provide documents on request, the PCP permits adverse inferences to be drawn against them. This is more akin to the obligations found in the finance sector and the rationale for including it in this regime is not immediately apparent.
Interestingly, the parties are under a duty to use their best endeavours to ensure that all relevant evidence is put before a panel and must not mislead the panel. This is an appropriate expectation for the BACP in cases on the Disciplinary Proceedings Track but what about those cases under the Practice Review Procedure where there is no clarity as to bears the burden of proving the case? Unlike legal representatives who have independent duties to the court, complainants have no such obligations and may lack the necessary experience to discharge this appropriately.
Of note in the revised procedure is that in cases involving sexual allegations there will be no cross examination of complainants by a Registrant instead a representative may cross examine on their behalf. This is consistent with criminal law procedures and regulatory regimes that operate for health professionals like doctors and dentists. However, the PCP seems to suggest that if the member does not have a representative then the Panel may ask questions in cross examination. We suspect that in a majority of cases, a third party will need to be appointed as the panel should remain independent of the parties at all times.
Unfortunately the PCP does not set out any order of proceedings for hearings in the Disciplinary Proceedings Track. There is no mention of opening submissions or closing submissions for example which leaves room for concern. This could lead to some lengthy negotiations between representatives and the BACP before a hearing when this really ought to have been set out in the PCP. The possibility of closing submissions appears to have been contemplated in the Practice Review Procedure and it is disappointing this has not been included for Disciplinary Proceedings Track cases especially given that the allegations on that track are more serious.
For cases on the Disciplinary Proceedings Track, the ability to cross examine witnesses, including the complainant, no longer requires permission of the Panel Chair as it did before. Overall this is a welcome development to achieve a fairer process for those cases involving professional misconduct.
As for the more informal Practice Review Procedure, there is no right to cross examine the complainant and leave of the Panel must be sought before calling witnesses. Informality is sometimes seen as beneficial because on paper it can be less intimidating for complainants and members but in my experience the less formal a process the more caution to adopt because important safeguards, like the ability to test evidence in cross examination, are often absent.
The new procedure contains a section on interim suspensions from membership. Whilst this is described as necessary in cases involving protection of the public or being in the public interest, this is somewhat difficult to reconcile with the limited powers the BACP has as an accredited register of voluntary members. The BACP can only impose suspension from BACP membership; they cannot bar an individual continuing to practice without BACP membership.
We were pleased to see that the protocol explains that an interim suspension will only be imposed in exceptional circumstances. However, it is concerning that this can be done without giving a Registrant notice or the opportunity to make representations at a hearing. This could have serious implications for some Registrants whose job description may require membership of an accredited register.
A not insignificant number of members find themselves subject to BACP disciplinary process each year and the previous regime was felt by some to be one sided. Indeed, the High Court previously compared parts of the previous procedure to the Star Chamber.
Whilst the amended PCP has made some improvements to its previous procedure, there are still some aspects that require further consideration to ensure fairness. It will be interesting for example to see if there will be member challenge to some of the Kafkaesque provisions including those that permit requests for interviews or representations without notifying a Registrant of the allegation. In addition, the uncertainties outlined above in respect of proceedings before the Disciplinary Proceedings Track and Practice Review Procedure is unfortunate and alarming to disciplinary lawyers like myself creating room for inconsistency, and lacking sufficient procedural safeguards to ensure a fair process and outcome.
All eyes will be on the first cases to be heard under the new PCP to see how the amended regime works in practice. No doubt some areas will be better than before but frustrations will emerge and members would be forgiven for doubting the BACP will make further revisions in a timely fashion given their slow record for embracing change to date.
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