Lasting Powers of Attorney: recent key developments
What happens when two professional bodies receive a virtually identical complaint about a member concerning a breach of their rules, code or principles?
While most professionals are required (or indeed, may choose) to register with a regulatory authority in the UK, some are members of more than one membership body regulating the same aspect of their professional work. What happens when both bodies receive a virtually identical complaint about a member concerning a breach of their rules, code or principles? Are they both entitled to pursue separate regulatory investigations, to adjudicate upon the allegations and to take separate action against a professional’s membership?
In The Queen on the application of Vesna Mandic-Bozic v British Association for Counselling and Psychotherapy  EWHC 3134 (Admin), the British Association for Counselling and Psychotherapy (BACP) was criticised by the High Court for its approach to dealing with a complaint against a member and prohibited from adjudicating upon it as it had already been authoritatively dealt with by the UK Council for Psychotherapy (UKCP).
The judgment is of particular relevance to the ‘talking’ professions (psychotherapists, counsellors, psychoanalysts) because they are often members of multiple organisations which perform regulatory functions. But it will also affect members of other professions, particularly those voluntarily registered, for example interpreters (who may be members of the National Register for Public Sector Interpreters and the National Registers of Communication Professionals working with Deaf and Deafblind People) and hypnotherapists (who may be members of the Complementary and Natural Healthcare Council, as well as the National Hypnotherapy Society).
Indeed, its reach may be even wider, potentially affecting the accounting and legal professions too. The members of these are, on occasion, registered with multiple organisations, each with its own disciplinary scheme. Those private client lawyers who advise clients on wealth preservation, for example, may choose to be a member of the Society of Trust and Estate Practitioners, in addition to maintaining their mandatory Solicitors Regulation Authority registration.
The claimant was a counselling psychotherapist and a voluntary member of the UKCP and the BACP. Both organisations regulate, inter alia, psychotherapists, the government having shelved plans to bring the profession under statutory regulation.
In July 2016, the UKCP heard a complaint of impaired fitness to practise, raised by Patient A under its complaints and conduct process, against Vesna Mandic-Bozic, a counselling psychotherapist (the claimant). The UKCP adjudication panel ultimately concluded that the claimant’s fitness to practise was not currently impaired and imposed no sanction against her. Weeks after making the complaint to the UKCP, Patient A made the same complaint – in virtually identical terms – to the BACP.
After the UKCP proceedings had concluded, the BACP sought to adjudicate upon the complaint under its own process, in accordance with its professional conduct procedure. It justified this decision by arguing that the allegations were crafted differently and were designed to uphold a qualitatively different set of ethical and professional standards.
The claimant sought to challenge the BACP’s decision to proceed by way of judicial review on the basis that it amounted to abusive duplicative action. The claimant relied on the doctrines of res judicata and cause of action estoppel, as well as the doctrine of collateral attack. The judgment of Mostyn J was handed down at the end of last year. The court ruled that to pursue an identical complaint that had already been adjudicated upon would be unfair, abusive and unlawful, and prohibited the BACP from taking the complaint any further.
The restraint of duplicative proceedings in criminal and civil law is well established. The doctrine in civil law is known as res judicata (the matter has been adjudged). While the doctrine has been held by the courts to apply in quasi-judicial disciplinary proceedings (such as these), there was no binding legal authority dealing with the situation where, as in this case, two professional bodies were seeking to exercise disciplinary functions over the same profession, seeking to adjudicate upon identical complaints and vindicating the same, single public interest.
The court’s decision
When looking at the facts of the case, the court concluded that the allegations made by the complainant to the UKCP and the BACP were the same. The court determined that although the UKCP and the BACP have differently worded ethical standards, they cover the same ground, even if the language used to express them is different.
A full quasi-judicial determination of the complaint had been undertaken by the UKCP and Patient A’s complaint had been adjudicated upon. The UKCP adjudication of the complaint involved an eight-day hearing, where both parties were represented and during which six witnesses gave oral evidence.
In granting the claimant’s application on this ground of review, Mostyn J held that the doctrine of cause of action estoppel applied and the BACP was barred from commencing proceedings to adjudicate upon the complaint. As an alternative position, Mostyn J concluded that even if he was wrong about the principle of action estoppel applying, then under the collateral attack doctrine, it would be manifestly unfair for the BACP to allow the complaint to proceed.
Mostyn J launched a scathing attack on the BACP for the ‘dogged and obstinate’ manner in which it had proceeded against the claimant and criticised it for being ‘impervious to [the claimant’s solicitor’s] pleas to act reasonably and fairly’.
Permission to appeal was refused and was not renewed by the defendant.
The decision is likely to attract the attention of BACP members who wish to challenge other aspects of the disciplinary procedure. Although the BACP’s professional conduct procedure was not under detailed consideration in these proceedings, Mostyn J was critical of certain aspects of the disciplinary scheme, comparing parts of it to the Star Chamber (for example, the lack of ability of a registrant to comment on an allegation when it is first made).
The court urged the BACP and UKCP to work together to avoid duplication of regulatory enforcement functions. The bodies have previously committed to working together and have since renewed that pledge. We can expect, as a minimum, a detailed memorandum of understanding as to how they will deal with identical, simultaneous complaints.
For other professionals, the application of this decision to investigations undertaken by multiple regulators will depend on there being sufficient parity between the complaint, the professional activities being regulated and the published standards and codes of conduct. Duplicative enforcement action that vindicates the same public interest will no longer be (were it ever) tolerated.
This article was first published in The Law Society Gazette on the 16th January 2017
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