Sanctions: the holy grail

What is the purpose of professional disciplinary sanctions? One might suppose that it is a combination in varying degrees of upholding the reputation of the profession and protecting the public, in addition to punishing the wrongdoer and serving as a warning to others.

Recent work undertaken by the Scottish Legal Complaints Commission, however, indicates that the legal profession takes a somewhat different approach to that of other professional regulators, in that the legislation also builds into the system the provision of redress to complainers.

A good thing, one might argue. Compensation in appropriate cases is also built into the sentencing part of the criminal justice system, and offers a straightforward means by which the victim can obtain some measure of reparation. Yet at a round table discussion hosted by the SLCC, held to help inform its project – exercising its oversight function – to draw up guidelines on achieving consistency in imposing sanctions, representatives of other professions and regulators considered this approach somewhat out of line.

Using disciplinary action as a route for complainers to obtain financial redress, the thinking goes, has the potential to shift the focus from public protection to issues of compensation and loss, which should be dealt with by alternative means (for solicitors and advocates, via a service complaint dealt with by the SLCC).

In social work, or teaching, for example, the primary focus is on whether the individual is fit to be allowed to continue to work within their profession (and a high proportion of teachers proceeded against are deemed unfit). For medical practitioners, as well as those in social services, there is an emphasis on retraining where needed – an area where the solicitors’ disciplinary system has relatively few powers. The Discipline Tribunal may restrict a solicitor’s practising certificate to working under supervision for a period, but what further tests of competence are used, it was asked? Who supervises the supervisors?

It was also suggested that an investigation should attempt to identify whether a case raises a training issue, or one concerning a firm’s systems – or maybe was just someone having a bad day. To adopt this approach would, it was recognised, further the cause of entity regulation.

And rather than punishment, the SLCC supports a focus on protecting the public and the reputation of the profession. “Although the application of sanctions might have a punitive effect, the objective should be to impose a sanction or a combination of sanctions necessary to achieve the key principles [see below],” the guidance states.

Principles and process

Not long after the round table was held, the SLCC published the final form of its guidelines (visit bit.ly/28mDe8D), previously released in draft for comment. To an extent they contain matter that one would expect in almost any statement of sentencing or sanctions principles: factors to take into account in assessing seriousness; potentially aggravating and mitigating features; the importance of proportionality, with reference, among other things, to the means of the paying party and the elimination of financial gain. But these fit within a certain framework designed to meet six key principles (see panel) – though the SLCC suggests, rather than stipulates, that this five stage process be applied.

The framework involves deciding the nature and seriousness of the conduct; identifying the basic penalty (or combination); then considering aggravating and mitigating factors; then adjusting for proportionality, deterrence, discounts for co-operation and the like; before, finally, setting the appropriate level, duration and publication requirements.

It is also suggested that reasons be given for rejecting lesser sanctions than the one imposed, and (if relevant) for not imposing the next more severe sanction; and considerations are listed for applying the particular sanctions available, such as suspension from practice.

But as was recognised at the round table, one can only go so far in achieving consistency. “Processes are about people,” was one comment made.

“One panel may put more weight on one feature than another would… You don’t want to fetter discretion or give the appearance of there not being a fair hearing.”

Six key principles in imposing sanctions

• Preserving the reputation of the profession v protecting the general public
• Achieving credible deterrence
• Maintaining, improving and promoting proper professional standards and conduct for members of the profession
• Maximising proportionality, clarity, consistency, impartiality and transparency
• Ensuring decision-makers retain discretion
• Applying appropriate penalties in each individual case