Two bites of the apple- limitation in professional negligence cases
The Institute of Chartered Accountants in England and Wales (ICAEW) has recently released a revised version of its Disciplinary Bye-laws. One of the most significant amendments to the Disciplinary Bye-laws includes the introduction of a process to assess a member’s fitness to participate in disciplinary proceedings and also a means of determining whether a member’s competence is seriously impaired through his or her mental or physical health.
Unlike many healthcare regulators, the ICAEW disciplinary process has traditionally focused on misconduct. While there was previously a facility for the ICAEW to put in place an intervention order if a member’s professional competence or efficiency was impaired as a result of ill health or mental incapacity, the complaint against the member was still required to follow the same disciplinary process. These new amendments to the Disciplinary Bye-laws put in place a process for consideration of whether a member is fit to participate in the disciplinary proceedings or whether the member’s competence might seriously be impaired due to their physical or mental health. We have addressed some of the key questions arising from this development below.
Does this apply to all members?
The Fitness Committee process only applies to members and provisional members who are subject to a complaint under the ICAEW Disciplinary Bye-laws.
Who can refer a matter to the Fitness Committee?
A referral can be made by:
Following a referral, the member may be asked to provide their medical records and to attend a medical examination. The examination and expert report will be paid for by the ICAEW. Once a referral has been made, the disciplinary investigation or prosecution will be suspended.
Who decides whether a Fitness Panel is appropriate?
The Fitness Committee Chair will consider the referral and any medical or expert evidence in support of it. The member will also have an opportunity to provide comments on this to the Chair. If the Chair considers that there are reasonable grounds that the member’s fitness to participate in disciplinary proceedings, or that his or her professional competence may be seriously impaired by his or her physical or mental health, the matter will be referred for consideration by a Fitness Panel.
If the above test is not met, the matter will be referred back for investigation/ prosecution through the disciplinary process.
What happens at a Fitness Panel?
The Fitness Panel will be held in private and will be on an inquisitorial basis rather than an adversarial basis. This indicates that the Fitness Panel will have a role in questioning and investigating the matter rather than simply being presented with the arguments by both parties, as would normally happen in disciplinary proceedings. The member may attend the hearing and the Panel can hear oral evidence, including expert evidence, and can consider written statements and reports. The member does not have to attend, and the hearing can proceed in their absence if appropriate.
What can a Fitness Panel do?
If the Fitness Panel finds that the member’s fitness to participate in disciplinary proceedings and/or professional competence is seriously impaired through their physical or mental health, then they may put in place an order. The orders available to the Fitness Panel include:
As an alternative to making an order, it is open to the Fitness Panel to accept the resignation of the member.
If the Fitness Panel does not find serious impairment, they may refer the matter back for investigation under the ICAEW’s disciplinary process.
Can the order be reviewed?
A review hearing will be set within 24 months of the date of the order to consider whether the member is still seriously impaired. The Fitness Panel may reaffirm or vary the any orders in place. If the member is no longer considered to be seriously impaired, it will still be open to the Fitness Panel to impose a further order, for example, in relation to continuing professional development ,or they may also refer the matter back for investigation/ prosecution through the disciplinary process.
The member can apply for an earlier review, however they will need to provide medical evidence to show that their fitness to participate in disciplinary proceedings and professional competence is no longer impaired. When making the initial order, the Fitness Panel will provide a minimum period before which an interim application can be made by the member, therefore the member will need to wait until this period has expired.
ICAEW members subject to disciplinary proceedings can have a costs award made against them. However, if the member is referred to the Fitness Committee and serious impairment is found, a costs award cannot be made.
Members should be wary, however, as if they made a referral to the Fitness Committee and there is no finding of serious impairment, then they may be liable for ICAEW’s costs. These may be considerable, particularly if a medical assessment has been undertaken and an expert report prepared.
This new process offers a much needed alternative to disciplinary proceedings for those members whose health is significantly affecting their competence or their ability to participate in the disciplinary process. However, members should be aware that, if a finding of serious impairment is made, the only power available to the Fitness Panel is suspension of membership, certification, licences or registration. The ICAEW has chosen not to put in place the powers provided to panels of other regulators, which allow conditions or undertakings to be put in place to enable the member to continue to carry out their role with the appropriate safeguards in place.
Members should also be aware that a finding of serious impairment by a Fitness Panel is not the end of the matter. If a suspension is withdrawn at a review hearing, then it will still be open to the Fitness Panel to put in place any orders it considers appropriate and, in addition, the Fitness Panel can also refer the matter back for investigation through the normal disciplinary processes. As such, the member may still be liable to disciplinary proceedings a significant period of time after the original complaint was raised. While one would hope that the potential prejudice that could be caused by such delay would ensure that most matters are concluded at the review hearing stage, members should be aware that the Fitness Committee proceedings are not necessarily an alternative to the disciplinary process, but may ultimately be used in addition to the disciplinary proceedings.
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