Brown v General Dental Council
In this case, a dentist was found guilty of serious professional misconduct for practising without professional indemnity cover in breach of regulatory requirements. He admitted the facts of the charge but explained that, for a certain period of time, he had been unaware that he was not indemnified, and that when he became aware of the position, he had made strenuous efforts to obtain professional indemnity insurance, which he arranged some months thereafter. The Panel erased him from the register, and he appealed this decision on a number of grounds, including what he argued was a disproportionately severe sanction.
It was argued on his behalf that, in the absence of previous decisions or guidance to the effect that practising without indemnity regardless of the circumstances would be likely to result in erasure, the surrounding circumstances should be highly relevant. The position of the Appellant was contrasted with that of a practitioner deliberately practising without indemnity cover. In finding in favour of the Appellant, the High Court agreed, on the basis of the Appellant's account, that erasure was a disproportionate sanction, and substituted an admonition.
Krivinskas v The Law Society
In this case, a solicitor appealed against a decision of the Solicitors' Disciplinary Tribunal that he was guilty of conduct unbefitting a solicitor and should be struck off the roll of solicitors. The Tribunal had found that the Respondent had knowingly acted dishonestly in introducing a client to a man who was facing a criminal charge of fraud arising from loan transactions.
The Tribunal did not believe the Appellant's evidence regarding his limited involvement in the loan deal nor did it find it credible that the Appellant had destroyed, lost or mislaid 16 documents that would throw a light on his involvement. Additionally, the Tribunal did not believe that the Appellant had forgotten at the time that one party was facing criminal charges for transacting loan deals of the very sort about which the other party was inquiring. The Tribunal concluded that the Respondent had acted dishonestly and also, on the information before it, that he knew that what he was doing was dishonest.
The Respondent argued that there was no evidence to support a finding of dishonesty, and that in the absence of dishonesty, striking off was excessive. The High Court considered that the Appellant's awareness of whether he was acting dishonestly was undoubtedly a key issue which the Tribunal was obligated to consider. However, the High Court stated that it was manifest from the Tribunal's findings and reasoning why they found not only that the appellant had behaved inappropriately, but also that he must have known that he was doing so. The Appeal was therefore rejected.
MacLeod v Royal College of Veterinary Surgeons
If the above cases fall at opposite ends of the spectrum, the case of MacLeod v Royal College of Veterinary Surgeons might be regarded as lying somewhere in the middle. In this case the Appellant appealed a decision to suspend her registration and again relied upon her genuine belief that her actions were in accordance with professional practice guidelines.
The factual background concerned the Respondent's conduct in allowing veterinary nurses, employed at her clinic, to administer vaccinations. The Disciplinary Committee found that the Respondent's conduct had contravened the Veterinary Surgeons Act and found her guilty of disgraceful conduct. The Privy Council upheld the Committee's findings on appeal but, in considering sanction, placed significant emphasis on the omission of any findings as to whether the appellant had made a genuine mistake, had closed her eyes to difficulties of regulatory interpretation, or otherwise had purposely sailed close to the wind. Their Lordships noted that the committee had found that the Respondent had laboured under a misapprehension which had to be regarded as genuine. In the absence of more detailed findings as to the Respondent's state of mind and given the brevity of the committee's decision, the Privy Council concluded that suspension was disproportionate, and they substituted a reprimand and a warning as to her future conduct.
Comment
These cases demonstrate the importance of a careful analysis by disciplinary panels as to the level of the Respondent's relevant knowledge or awareness. The care taken by the appeal courts in considering these issues confirms that the question of whether a Respondent is guilty of deliberate or inadvertent wrongdoing is a relevant factor in determining sanction.
The cases outlined above confirm that proven misconduct can be mitigated by genuine error or misunderstanding. In this context it is worth reiterating that Panels must ensure that they give adequate reasons for their findings. If a Panel rejects a Respondent's explanation that he was under a genuine but mistaken belief that he was acting in accordance with the applicable rules, it is important that it records adequately its reasons in arriving at its decision.