Ideology without compassion

One of the developing regulatory trends in recent years has been the coalescence of ideology across different spheres of regulation.

While most professional regulation derives from specific sources, there is an underlying principle of public protection running through all aspects of regulation which informs the interpretation and development of approaches. Uniformity of regulatory approach is increasingly seen as a desirable end in itself.

Take, for example, the general shift to the civil standard of proof in regulatory tribunals. Commencing in the medical professions, the idea gathered support and momentum; resulting in the Solicitors Disciplinary Tribunal (SDT) adopting the civil standard last year in line with the approach adopted by most other regulators.

Similar themes in policy development have been seen in the widespread acceptance, across multiple sectors, of the seminal words of the Master of the Rolls in Bolton v Law Society [1994] 1 WLR as a benchmark for assessing regulatory approach: “The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.”

This view steadily gained traction across numerous professions and is routinely quoted in regulatory proceedings. In 2018, the Court of Appeal affirmed in its ruling in Chandra v GMC [2018] EWCA Civ 1898, in unmistakable terms, that there should be no difference in approach between solicitors and doctors when it came to the Bolton principles.

This approach is also routinely applied to dentists, osteopaths, social workers and police officers. I would suggest that there are few regulatory tribunals and decision makers who are not fully cognisant of the Bolton principles as a touchstone in their own arenas.  

The prevalence of Bolton as a general source of regulatory ideology is also responsible for the idea that proven dishonesty is extremely serious and should be met with the most severe sanctions, unless there are exceptional circumstances. That approach should be well known to all solicitors – not least because it is the source of recent controversial decisions where junior members of the profession have been struck off for proven dishonesty.

The net result of the general acceptance of the Bolton principles as a key plank of public protection across regulatory jurisdictions is that dishonesty or lack of probity in private life – or at least outside the strict delineation of your professional life – is highly likely to be of interest to your regulator and to result in serious sanctions if proven.

This leads to interesting questions regarding regulatory reach and interactions between regulators with overlapping jurisdiction. The recent decision in Ogunsanya & Anor v GMC [2020] EWHC 1500 (QB) highlights how those subject to the jurisdiction of more than one regulator may be at risk of duplicate proceedings; and may be particularly at risk of regulatory complaints being made in the course of litigation.

Dr Ogunsanya was acting as a solicitor on behalf of general practitioner clients. As he was also a practising doctor, the General Medical Council (GMC) took steps to investigate various allegations relating to his conduct in the course of acting as a solicitor. Dr Ogunsanya sought declaratory relief and associated injunctions to the effect that the GMC had no jurisdiction to investigate his conduct when acting as a solicitor. Mrs Justice Eady recognised that the principle anchor for the GMC’s jurisdiction was section 35C of the Medical Act 1983. 

She said: “The fact that there may be an overlap with another statutory regulatory regime (here the SRA) does not, in my judgement, oust the jurisdiction of the defendant in this regard. Membership of each profession brings separate regulatory oversight; each regulator has the untrammelled jurisdiction to investigate its own registrants and the defendant cannot delegate its functions under s.35C(2) to the SRA. It will no doubt be unusual, but that may mean that an individual with dual registration could face separate investigation by two different regulators over substantially the same matter.”

She went on to find that the real issue was whether the conduct in question could properly (if proved) give rise to a finding of misconduct within the meaning of section 35C. That question was not defined by the context of the conduct but by its impact on public confidence in the medical profession (ie Bolton, again).

The court declined to grant the relief sought in relation to an allegation which could impact Dr Ogunsanya’s probity (if proven) even though it was common ground that he was acting as a solicitor for the relevant purposes. It is important to remember that this case is about jurisdiction to investigate rather than a challenge to sanctions; but it is nevertheless potentially of particular interest to solicitors and authorised individuals or entities who could be subject to regulatory interest from a number of regulators.

Due to the nature of the work conducted within our profession, a number of SRA-regulated firms may be subject to regulation by the Financial Conduct Authority (FCA) in tandem with SRA regulation; and we will all fall within the jurisdiction of the Information Commissioner’s Office (ICO) as regards data protection issues.

While the FCA and the ICO are not regulators which rely on ‘membership’ as such, the principle may still apply given the underlying policy behind it. Indeed, there is precedent where the SRA and the FCA have separately prosecuted individuals for substantially the same matter.

For those working in alternative business structures, other regulators may have more substantial interests in individual employees; and for those qualified in multiple professions or multiple jurisdictions, this case is directly relevant – and potentially worrying. Of particular concern is the specific reference made to the reputational damage automatically associated with acting dishonestly or in a discriminatory way.

This could mean a firm accused of, say, discrimination could face civil proceedings for the direct act and also face regulatory proceedings by any regulator with a sufficient connection to the firm or individuals concerned. The proceedings in Ogunsanya were partially successful on specific facts; and the court recognised the specific difficulties arising for solicitors where they would be obliged to protect the legal professional privilege belonging to their clients.

The claimants were also given permission to continue with a claim for unlawful interference by the GMC in their business. Should that claim reach a final hearing, it will no doubt provide valuable insight into the court’s approach when considering direct private law claims as against regulators. Hopefully, in those rare cases which cross regulatory jurisdictions, the regulators will take a collaborative approach where possible to reduce the risks of successive sets of proceedings against individuals.

It should go without saying that facing regulatory interest is extremely stressful for those concerned; and that mental health can quickly become an issue as a result of proceedings even if it was not a contributing factor to the underlying allegations of misconduct. Uncertainty, delay and a significant power imbalance all contribute to the impact of investigations.

Any subsequent proceedings against individuals, not to mention the long-term psychological impacts and the financial consequences of having to meet the costs of proceedings, can be substantial. In a world where we are finally starting to recognise the importance of mental health and wellbeing, the accepted approach to regulation continues to require the wellbeing of individuals to be subordinated to ensuring the reputation of the profession is maintained at all costs. Perhaps we should hope that compassion is the next trend to catch the collective regulatory imagination.

Susanna Heley is a partner at RadcliffesLeBrasseur rlb-law.com

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