The regulation of private lives… How far is too far?

28 April 2014

The recent judgment of Lord Toulson in the Privy Council case of Royal College of Veterinary Surgeons v Samuel [2014] UKPC 13, can be welcomed for injecting both a fair and common sense approach to the regulation of professionals.

In summary, the case involved a veterinary surgeon (Dr. Samuel), whose name was removed from the Register of Veterinary Surgeons (‘the Register’) following a finding by a Disciplinary Committee (‘the Committee’) that his fitness to practice was impaired as a result of him receiving three convictions (for theft, common assault and using threatening, abusive or insulting words). It was accepted at the Committee stage that the circumstances around Dr. Samuel’s convictions were entirely unrelated to his professional practice as a Veterinary Surgeon. However, the finding that his name should be removed from the register focused in the main on the damage Dr. Samuel’s conviction would/could cause to the reputation of the profession.

In some respects, the Committee’s approach can be understood. Arguably, regulated professionals rightly bear the heavy weight of ensuring that public trust and confidence is maintained in the profession. However, when does this weight become excessive? Is it appropriate to ‘police’ the personal lives of a regulated professional, such that their every action is tested against the standards of fitness to practice required in their professional lives?

On appeal to the Privy Council, Lord Toulson concluded that the Committee’s finding of unfitness to practice could not fairly stand. In concluding this, he drew evidence from the circumstances behind the commission of the offence and stated that whilst it might be right to say that ordinary member of the public might instinctively believe that someone who had committed those offences ought not to be allowed to practise as a veterinary surgeon, ‘a little knowledge can be a dangerous thing’.  He went on to say that ‘criminologists who have conducted research into public attitudes to crime have often shown that the views expressed by the public in answer to very broad questions about different types of offending and the appropriate sentences may be very different from the views of the same people when given factual information about particular offences and offenders’.  In this case if the public had been told that the offences occurred in the context of an angry flare-up between neighbours in which Dr. Samuels had been racially insulted, they might think that this had little bearing on his ability to practise as a veterinary surgeon.

The approach adopted by Lord Toulson can be congratulated on two fronts. Firstly, the case acts as a continued reminder to ensure that regulated professionals act in accordance with the expectation placed upon them to behave in a way that maintains public confidence. Secondly, and perhaps most importantly, Lord Toulson’s approach draws a commonsense and balanced conclusion in relation to when the regulation of personal lives can go too far, as a result of sweeping generalisations about offences committed.

The judgment certainly appears to fit with the approach recommended in the pre-amble to the new 'Regulation of Health and Social Care Professions Etc. Bill'.

The Law Commission (the Commission) made it plain in introducing the Bill that they were concerned by the extent of “regulation-creep” into the private affairs of individuals. It was argued during consultation that maintaining confidence in the profession was being used to punish professionals who pose no threat to the public, simply where something has incurred the profession’s, or the public’s, disapproval.

The Commission state that they ‘remain convinced that the main objective should remain focused on public protection’. They go on to ‘strongly urge the regulators – and their fitness to practise panels – to consider carefully regulatory interventions which do not take some colour from the need to protect the public’.

They go on to say that;

‘We do not think that the public interest requires that fitness to practise proceedings should be taken in cases of minor dishonesty, or misconduct in private life, unless they can be seen to have at least some relationship with patient safety or at least with the public’s confidence in the profession as a whole. Indeed, given the costs that proceedings impose on registrants and, in many cases, the National Health Service, the pursuit of minor matters with excessive zeal would be contrary to the public interest.’

It is for this reason that Clause 3 and 202 are drafted as they are; that the main objective of each regulatory body is to protect, promote and maintain the health, safety and well-being of the public, with the general objectives of promoting and maintaining public confidence in the profession and promoting and maintaining proper professional standards of conduct notably given less emphasis.

Lord Toulson’s judgement complements this rebalancing of emphasis to ensure that ‘regulation creep’ does not go too far.

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