Lawyers must fix the problems with gagging orders before it is too late
The launch of ITV2’s reality TV show ‘Love Island’ amassed an audience of approximately 2.95 million, becoming the highest-rating programme at 9pm across all channels last Monday (notably at the expense of BBC One’s ‘Suffragettes with Lucy Worsely’). Another first for the series is the inclusion of contestants with professional qualifications such as an A&E doctor and a newly qualified solicitor. In her blog Think before you tweet - the perils of social media for the legal profession Sian Jones warned against the inherent dangers for lawyers using social media. To have an active twitter account is one thing, but to be a reality TV star where every move and conversation is continuously watched by (literally) millions of members of the public, is quite another thing altogether. What should our regulated Islanders be wary of while subject to such mass scrutiny in the villa?
Celebrity doctors or reality TV show court dramas are by no means a new phenomenon. Members of both professions have performed in public, from mock trials to documentaries, and have provided opinions in a professional capacity on live television. Such formats have been contained and often scripted, enabling the professional to check his or her behaviour and ensure that the profession in question is well presented. But where that public exposure takes the form of a ‘fly on the wall’ reality TV series in which it is the professional’s personal life, namely his or her love life, that is the primary source of intrigue, does that person risk possible disciplinary action by their regulator?
There is nothing within the General Medical Council’s (‘GMC’) Good Medical Practice (2014) or the Solicitor’s Regulation Authority’s (‘SRA’) Handbook 2011 preventing members from becoming reality TV stars. With the prevalence of online communications and opportunities for regulated professionals to provide their services via such mediums as YouTube or vlogs, such a prohibition could be stifling to the growth of any industry. Nonetheless, most regulators will expect members to act with ‘integrity’ and to uphold the ‘reputation of the profession’. This is because trust in the individual and in the profession in general is considered to be essential to the functioning of these professional services in a modern society. Indeed, it is under these headings that our new professional islanders are most at risk.
The GMC’s Good Medical Practice requires doctors to “(b)e honest and open and act with integrity” whereas the SRA Handbook, Principle 2, states “You must act with integrity”. This is because, according to paragraph 2.6 of the Handbook:
Personal integrity is central to your role as the client's trusted adviser and should characterise all your professional dealings with clients, the court, other lawyers and the public."
We know from the recent decision in Wingate & Evans that “integrity” in the context of professional regulation is “more than mere honesty” (see articles The quality of integrity and A useful shorthand: integrity in healthcare regulation by Laura Vignoles). We know, for instance, that the behaviour of a lawyer or a doctor, even outside of their professional practice, is held to a higher standard. While behaviour that demonstrates a lack of integrity in one’s personal life such as not returning clothes borrowed from a friend or calling someone unpleasant names are unlikely to attract the attention of a regulator in ordinary circumstances, perhaps where such actions are laid bare for the entire world to see, the GMC or the SRA (for instance) might take notice. Furthermore, in a show like Love Island where contestants are encouraged to engage in sexual activity on television, “pair up” and “graft” other people’s “partners”, those participants will inevitably act in a manner that is wildly out of step with what the public would expect to see of their doctor or lawyer. This is particularly so in light of regrets expressed by ex-Islanders from previous series who claim to have been pressurised into having sex while on the show.
In addition to the implications for that individual’s ability to practise, regulators will have a more general regard for the reputation of the profession. For example, under the GMC’s Good Medical Practice, doctors are directed to “(n)ever abuse your patients' trust in you or the public's trust in the profession” whereas under Principle 6 of the SRA Handbook, solicitors are told that they “…must behave in a way that maintains the trust the public places in you and in the provision of legal services”. This is because, as per paragraph 2.11:
Members of the public should be able to place their trust in you. Any behaviour either within or outside your professional practice which undermines this trust damages not only you, but also the ability of the legal profession as a whole to serve society."
The conflict between the public image of such professions and the superficial spectacle of a show like Love Island became apparent in an earlier episode, where one female Islander refused to kiss the male A&E doctor in a game orchestrated by the series, because he had a “professional job”. The game in question also revealed some personal “secrets” of the contestants which, more often than not, were of a sexual nature. A regulator could see this behaviour, human and excusable in a private context, as now damaging to the profession when intentionally broadcast to millions of members of the public. It begs the question: should regulated individuals with duties which extend beyond their professional practice sign up for such shows knowing that their behaviour will be dissected not just by the public but by their regulator?
As with most potential disciplinary cases, context will be key, and regulators may increasingly find themselves watching such shows as Love Island to determine whether the activities of any individual warrants an investigation. We have acted for a doctor who found his performance on a show under just such scrutiny. Because the doctor and lawyer in this series have agreed to subject themselves to the surveillance of millions of viewers every night over the next few weeks of Summer, they have either overlooked the potential risks or must have accepted the possibility that “muggy” or “snake-like” behaviour – to borrow from the language made popular by the series – could prompt a complaint to their regulators.
If you have been affected by the issues discussed in this blog, please contact a member of our Regulatory team. Alternatively, you can contact us on 020 7814 1200 or email us at email@example.com.
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