We need to talk about fitness to practise

A couple of years ago, I wrote about the role of a fitness to practise regime for solicitors.

The Solicitors Disciplinary Tribunal (SDT) had recently produced a summary of responses to a consultation on its procedural rules, in which it encouraged the Solicitors Regulation Authority (SRA) “to consider carefully whether it should exercise its power to make procedures in relation to fitness to practise”.

So, why does the SDT say this is needed?

Contrasting the solicitor with the barrister branch of the profession, the SDT pointed to the fitness to practise procedure provided for by the Bar Standards Board, which isn’t disciplinary in nature and is run entirely separately from disciplinary proceedings.

The SDT encouraged the SRA to exercise the powers available to it to create fitness to practise procedures. It added that the SRA is the appropriate body to establish such a regime “on the basis that had parliament intended the Tribunal to have jurisdiction then this would have been addressed when the SRA was given this power”.

The SDT pointed out that where health issues arise in disciplinary proceedings, it is not uncommon for it to find itself without medical evidence to assist it in its decision-making, adding: “If medical evidence corroborates the fact that mental or physical ill-health was a significant factor in any professional misconduct and continues to affect the person concerned, the Tribunal would consider a separate fitness to practise regime as more suited to such circumstances than proceedings before the Tribunal.”

The appeal court’s approach

The SDT’s comments about fitness to practise came in the wake of SRA v James; SRA v MacGregor; SRA v Naylor [2018] EWHC 3058 (Admin), in which the divisional court overturned three decisions by the SDT.

In those cases, although the SDT had made dishonesty findings, the working conditions and mental health considerations for each respondent were considered “exceptional circumstances” (within the meaning of Bolton v Law Society [1994] 1 W.L.R. 512) that justified a sanction less than strike-off.

The High Court disagreed, concluding the SDT’s sanctions had been “unduly lenient and clearly inappropriate”.

Lord Justice Flaux’s view was that while pressure of work or an aggressive, uncaring workplace could excuse carelessness, a lapse of concentration or a mistake – dishonesty of any kind is a different matter, in that it involves “conscious and deliberate wrongdoing”.

The judge’s point was that while “the pressure on the respondent was caused in large part by a culture in the firm which was toxic and uncaring”, this could only provide an explanation for the respondent’s dishonesty having occurred and could not excuse it. The pressure could not “amount to exceptional circumstances justifying a lesser sanction”.

Those appeals were followed by the case of Emily Scott where, despite having been “deceived, pressured, bullied and manipulated” by one of the partners in the firm; been “very junior” and “found herself in a difficult position”; blown the whistle on the misconduct; and shown “genuine insight”, the SDT decided there were no exceptional circumstances that warranted a sanction less than strike off for this unrepresented junior solicitor.

It was perhaps an unsurprising decision, in light of what were, at that time, recent judicial comments from the divisional court, but it was one that captured some imaginations.

Concerns raised

In May 2020, the Law Society’s Junior Lawyers Division (JLD) wrote to the SRA raising concerns about the SRA’s ability to prosecute junior solicitors fairly.

This followed an outcry about yet another case of the strike off of another junior solicitor, Claire Matthews (also unrepresented before the SDT) and who raised mental health issues as relevant to the allegations against her,

In response to the JLD, the SRA sent it draft guidance that it subsequently published in August 2020, on its website – ‘SRA investigations: Health issues and medical evidence’.

As its title suggests, the guidance largely relates to the relevance of, and responsibility for, medical evidence in investigations of practitioners by the SRA.

However, it also states: “Sometimes health issues are raised which may interfere with an individual’s ability to carry out their work safely and competently.

“In such circumstances, we may consider using our powers to put conditions on an individual’s practice as a solicitor. Depending on the health issue, in some cases interim conditions might be appropriate to allow the individual to practise safely and carry on working pending the final outcome of an investigation.

“In other cases, conditions can be imposed as a final outcome to an investigation. These might allow us to monitor an individual’s health by the production of regular medical reports over a certain period of time before they are deemed fit to practise without restriction.

Any conditions imposed will need to address the specific risk the individual poses as well as being reasonable, proportionate, realistic and measurable.”

So, as well as indicating who is responsible for obtaining medical evidence in SRA investigations, the guidance also explains the SRA’s powers and when it would exercise these in relation to an individual’s health.

It can, to some degree, be considered a form of a ‘fitness to practise’ regime introduced via the back door.

The prospect of health falling under the purview of the regulator may be news to many practitioners, making the guidance essential reading for all those regulated by the SRA – not just those currently subject to investigation.

The profession’s response

Opinion in the profession appears divided over whether a fitness to practise regime is necessary or even desirable.

Some commentators have pointed to the poor fit between health factors and disciplinary concepts such as dishonesty, with the corollary that a dedicated forum could provide for a more targeted treatment of health conditions.

Others have observed that it is not the sole goal of disciplinary proceedings to punish the person subject to them; and that both the SRA and the SDT already have powers to control the practice of an individual considered medically unfit to practice, making a specific fitness to practise regime unnecessary.

Some consider the maintenance of the solicitor brand demands absolute adherence to the traditional view (currently enshrined in case law) that dishonesty of any kind, otherwise than in the most exceptional circumstances, requires strike off.

We need to talk

There are a number of reasons why we need to talk about fitness to practise.

Perhaps most obviously and fundamentally, without a ‘conscious and deliberate’ discussion about what it means to be fit to practise, it is difficult for the profession – either individually or collectively – to reflect on what this actually means.

While the profession’s desire to offer its clients the best service possible means standards are often high, it is unrealistic to think mistakes do not happen, or that those high standards are met without exception. Sometimes this can be for reasons that are personal to an individual.

The job of establishing an individual’s actual state of mind at the time of past events is more difficult than it might sound, increasing the chances of an unjust decision being made.

The reality of accurately assessing whether previous wrongdoing was ‘conscious and deliberate’ is often elusive and can, instead, be a best guess made years after the event and without reference to relevant contemporaneous or objective evidence.

Unless the profession plans to canvass the ‘ordinary decent people’ to paint a fuller picture of how the public actually views dishonesty in different contexts, including where ill-health is a relevant consideration, carving out a separate forum where such matters can be considered could well be the answer.

Such a setting would benefit from expert medical advice, in particular, which has been missing from the picture in the past, or certainly with any degree of consistency.

The future

We need to create a profession-wide safe space where mistakes can be recognised, addressed and learnt from, without resulting in an unnecessary, premature end to a career and a permanent press headline or public record that can be difficult to move on from.

That environment must be clear to everyone involved: the regulated community, consumers, regulators and arbiters.

The existence of a fitness to practise regime could be effective in forestalling misconduct. It could create awareness in individuals in a way that means serious issues materialise less frequently.

That awareness could translate into the culture of firms and, ultimately, inform the brand of the profession as a whole as being a more caring and fairer place to work.

Earlier this year, the Legal Services Board suggested a fitness to practise regime could provide a way for regulators to address competence concerns; and that this would be a “third way” between doing nothing and disciplinary proceedings.

To shape whether the future involves a separate fitness to practise forum or new rules to codify a fair and consistent approach by all players in the regulation of the solicitor profession, one thing is clear: we need to talk about fitness to practise.

Emma Walker is an associate solicitor in the regulatory and disciplinary team at Leigh Day leighday.co.uk