Mistakes at work
We all make mistakes which is a mandatory requirement of being human. Sometimes however tough questions need to be answered.
A particularly harrowing experience can be the disciplining of a professional. Not only does the hapless professional face the ignominy of being judged by his or her peers, but faces the real prospect of losing their livelihood. Even more worrying is whether the police are to be involved in the matter.
Those grinding years of student poverty, late nights cramming for exams and then the stress of being indentured, and the sometimes difficult client’s amount to Jack Squat.
At Aylward Game we have on our team a member of an accountant’s disciplinary tribunal, and a former staffer (though not a decision maker) for the Medical Discipline section of the District Court of NSW who has seen first-hand how decisions are made behind the scenes.
motivation for staff vs professional discipline
We will give you a brief précis of the disciplinary process:
- The Investigation
- The Hearing
- Medical Professionals
- Conclusion: Call us now for a Free Case Evaluation on 1800 217 217
A complaint from a client triggers a process that is not pleasant. Your professional body will ask questions centered around cold hard facts. The way you handle this is critical because your degree of co-operation at this stage can either incriminate you or exonerate you.
You need an objective adviser involved as soon as possible
This decision is a critical one, and the calm counsel of an experienced adviser is vital.
A plea of guilty may, like in criminal law, attract a significantly discounted penalty. On the other hand the case against you may not be strong and you could be discharged scot- free (where a plea of guilty could be disastrous).
If your professional body decides you have a case to answer then you will be put before a professional tribunalwhether that be government funded such as QCAT, or an internal tribunal such as those adjudicating for CPA Australia or the Institute of CAANZ.
QCAT disciplines a wide range of professions and occupations such as:
- building certifiers and contractors
- health practitioners
- legal practitioners
- motor dealers
- nurses and midwives
- plumbers and drainers
- police officers and other prescribed persons
- professional engineers
- property agents
- security providers
- veterinary surgeons
Poor Conduct and Performance Reviews
Broadly speaking, any tribunal looks for two grades of poor conduct:
- The more innocuous unsatisfactory professional conduct which may attract lighter penalties;
- The very serious and often career-ending professional misconduct.
In context, the distinction between the two grades is readily apparent for lawyers being disciplined under the Legal Profession Act 2007 (Qld):
- S.418 Meaning of unsatisfactory professional conduct
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
- S.419 Meaning of professional misconduct
1) Professional misconduct includes—
a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.
Medical Professional Discipline
Doctors and medical professionals are often disciplined by QCAT.
Health practitioners include chiropractors, dental practitioners, dental technicians, dental prosthetics, medical practitioners, medical radiation technologists, occupational therapists, optometrists, osteopaths, pharmacists, physiotherapists, podiatrists, psychologists and speech pathologists.
The health practitioner industry is regulated by 12 health practitioner registration boards (board) and professional conduct review panels (panel).
- How the action takes place against you
The ways in which a complaint may be brought against you by your disciplinary body are:
- Principally, a complaint by a disgruntled client. The complaint may evolve from a fee dispute or the quality of your service (or perceived lack thereof);
- A complaint by a colleague / competitor;
- The Police (and other government agencies such as the Australian Tax Office).
Many professionals would not expect to fall foul of the Police. However, here are a number of examples from the legal profession (and readily transportable to other occupations). Each of the following whose careers were in serious jeopardy, survived to continue their practice as a lawyer due to good legal representation:
- In Prothonatory of Supreme Court of NSW v Ziems (1957) 97 CLR 279:
The case of Ziems provides an example of the need to examine “the whole position”. There, a barrister had been convicted of manslaughter, and sentenced to imprisonment for two years. The Supreme Court concluded that the conviction and sentence constituted grounds in themselves for disbarring the appellant… This Court declined to adopt that view, and considered the facts and circumstances of the case. It was a case where the particularity with which the facts were approached was important to a conclusion as to the barrister’s fitness. He had been found guilty of unlawful homicide (in the form of manslaughter) and sentenced to imprisonment. Even when his offence was described with a little more detail, his position was not improved. He had been responsible for the death of a person while driving under the influence of alcohol. Yet, when the circumstances of the case were exposed, the picture changed materially. The appellant, while drinking at a hotel, had been attacked and beaten. He was seriously injured. A sergeant of police advised him to go quickly to hospital. The appellant asked the sergeant to drive him, but the sergeant went away leaving the appellant without assistance. The appellant then set out to drive himself to hospital, and, in the course of the journey, was involved in a fatal collision. The appellant was still in prison when his case was before this Court.. The order of the Supreme Court disbarring the appellant was set aside, and an order was made that he be suspended from practice during the remainder of his term of imprisonment.
In Ziems, the conduct of the practitioner which resulted in his conviction and prison sentence had nothing to do with his practice as a barrister. Fullagar J said:
“Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister … But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man’s fitness to practise than the former.”
- In Prothonatory of Supreme Court of NSW v P  NSWCA 320:
4 [A Solicitor admitted in 1987]… practised her profession up until 3 February 2000… acquitted herself both competently and honourably in her professional life… as a senior associate solicitor for a relatively large and reputable law firm. She had been accredited as a specialist in personal injury law at solicitor level.
5 Unbeknown to anyone but her close friends and unbeknown to anyone associated with her legal career, the opponent had been using cocaine from 1994. She first used heroin in 1995 and by September 1996 she realised that she was addicted to heroin. She endeavoured to detoxify from heroin and was put on a methadone program. However, she was unsuccessful in becoming drug free.
6 …. In January 2000 she went … for a holiday in Argentina and Uruguay… and obtained some cocaine in Argentina. [The Solicitor] …intended to bring back about 200 grams of cocaine into Australia.
7 … [The Solicitor] took what was later described as 52.7 grams of pure cocaine in a bulk of 78.2 grams. She put this in a money belt and secreted it in her underwear….
8 … She was then charged under s 233B(1)(b) of the Customs Act 1901 (Comm) with importing in Australia not less than the trafficable quantity of cocaine. The trafficable quantity for cocaine is two grams and the commercial quantity is two kilograms.
9 In December 2000 the opponent pleaded guilty to the charge before the District Court…[The Solicitor] to six months imprisonment but he ordered she be released after three months upon entering upon a recognisance to be of good behaviour for three months from the date of her release…
- A Solicitor v Council of the NSW Law Society  HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310 (4 February 2004)
The complaints against the appellant
In early 1997, the appellant had been involved for some years in a relationship with a woman, B, to whom he is now married. She had four children, including two daughters aged 12 and 10 respectively. As has been noted, the appellant was admitted as a solicitor in 1987. He also had a promising career with the Australian Army Reserve. In 1990, he was promoted to the rank of Captain. In 1992, he left his employment as a solicitor, and served with the Royal Marines Reserve in the United Kingdom. He returned to Australia in 1993, and took employment as a solicitor, while continuing his active involvement in the Reserve. In August 1993, he met B. He had regular contact with B’s children and often stayed overnight at her home. In 1996, he was graded in the Reserve for promotion to Major. In February 1997, he suffered two major personal setbacks. He and a number of other employees were made redundant by the solicitors for whom they worked. His father was diagnosed with mesothelioma. The appellant suffered depression, and also physical exhaustion resulting from extended hours of work which he took on as an instructor in Army special forces training. This was when he committed the four offences of indecent assault on two of B’s daughters. The circumstance of aggravation of the offences was the age of the children. The offences occurred in late April and early May 1997. They involved removing the children’s clothing, rubbing on the back, buttocks and stomach, and on one occasion touching a victim on the outside of the vagina.
Complaint about two of the matters was made by the children. The appellant admitted the offences, and also told the police of two other offences involving the same children. He sought professional help from a psychiatrist. In February 1998, the four charges came before a Local Court. The appellant pleaded guilty and was sentenced to three months imprisonment. He appealed to the District Court against the severity of the sentence. In May 1998, Judge Luland allowed the appeal, quashed the sentence, and in lieu deferred passing sentence in each case on condition that the appellant entered into a recognizance to be of good behaviour for three years.
- What to expect as far as proceedings (discussion on the case law, relevant act etc)
The vast majority of Professional Disciplinary proceedings take place in the Queensland Civil and Administrative Tribunal (QCAT).
An appeal pathway lies to the Supreme Court from QCAT.
Where the Professional Disciplinary proceedings are conducted ‘in-house’ at the Professional Body, there is often an appeal pathway to the Administrative Appeals Tribunal (AAT).
Like a criminal trial, the first question that is posed is whether the Professional is Guilty or Not Guilty.
If the Professional is Not Guilty, then that is the end of the matter.
If the Professional is Guilty, then like a criminal trial some sort of ‘sentence’ needs to be imposed. This sentence may be a simple reprimand at one end, to a loss of career at the other end.
To borrow from the legal profession (and readily transportable to other occupations), the principles that inform the consideration of the ‘sentence’ are usefully summarized in Prothonatory of Supreme Court of NSW v P  NSWCA 320:
17 A series of propositions as to the law clearly have appeared from the cases and I will briefly summarise them.
(1) The onus is on the Professional Association to show that the Member of the Profession is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236. However Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336, 362 shows the particular standard that must be applied when working out the civil onus of proof.
(2) An order striking off the Roll should only be made when the probability is that the Member of the Profession is permanently unfit to practice: Prothonotary v Richard (NSWCA 31.7.1987 per McHugh JA) and see NSW Bar Association v Maddocks (NSWCA 23.8.1988).
(3) The fact that the Member of the Profession has a conviction for a serious offence is not necessarily sufficient reason for an order striking that person off the Roll; see Ziems v Prothonotary  HCA 46; (1957) 97 CLR 279, 283.
(4) The fact of conviction and imprisonment is, however, far from irrelevant and may be regarded as carrying a degree of disgrace itself. See Ziems case at 288.
(5) The Court needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the Member of the Profession should not remain a member of an honourable profession: Re Weare  2 QB 439, 446; Barristers’ Board v Darveniza  QCA 253; (2000) 112 A Crim R 438 (QCA).
(6) The fact that the Member of the Profession pleaded guilty to the charge will usually be counted in their favour: NSW Bar Association v Maddocks. …
(7) Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civic obligations: NSW Bar Association v Cummins  NSWCA 284; (2001) 52 NSWLR 279, 289; NSW Bar Association v Somosi (2001) 48 ATR 562.
(8) The concept of good fame and character has a twofold aspect. Fame refers to a person’s reputation in the relevant community, character refers to the person’s actual nature: McBride v Walton (NSWCA 15.7.1994 per Kirby P); Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455, 459.
(9) The attitude of the professional association is … of considerable significance.
(10) The question is present fitness, not fitness as at the time of the crime: Prothonotary v Del Castillo  NSWCA 75 at para 71.
First, the Professional Body needs to investigate the complaint. This may take a matter of months.
If the Professional Body decides to ‘charge’ the Professional then both sides need to prepare the case for hearing.
Obviously if the Professional pleads ‘Guilty’ then the hearing process is much shorter.
If the Professional pleads ‘Not Guilty’ then the hearing process is much longer.
The net effect of this, and each case is unique, is that the whole process may take between 12 to 24 months.
- Cost window
Expert evidence by an expert witness will be necessary to rebut damaging evidence brought by the Professional Body.
For example, if an Emergency Room Doctor is charged with improper resuscitation techniques causing death, then that Doctor will need to engage an Intensive Care Specialist to say that the resuscitation techniques were proper.
Expert witnesses (and Lawyers) charge by the hour. At say $500 per hour this becomes an expensive exercise.
Therefore, a key question becomes who is footing the bill?
- The Professional themselves; or
- Their Insurer; or
- Their Union (or like association).
Practically speaking, to save on costs, many Professionals will plead ‘Guilty’ to ‘get it over and done with’. This is a valid strategy in many circumstances.
- Methods to handle and respond
First, realise that the investigators are ‘just doing their job’. Do not be belligerent. Co-operate. Tell the truth.
Second, ask for time to engage a lawyer. Lawyers will look at your case without any emotional investment and a degree of perspective. (It is probably not as bad as you think – are you a cocaine smuggler or have you killed someone? Probably not).
Importantly, your lawyer may be able to negotiate a ‘middle ground’ that will appease your Professional Body.
Sit back and take a long hard look at yourself. There may be some (or a lot of) truth in the matter. We all make mistakes. Can you tick some of the following in the checklist as listed in Prothonatory of Supreme Court of NSW v P  NSWCA 320:
24 …. [The following are looked upon as compelling mitigating factors]:
(1) absence of prior disciplinary record or criminal record;
(2) absence of motive for personal enrichment;
(3) honesty and cooperation with the authorities after detection;
(4) the offences being unrelated to the practice of the Member’s Profession in that the addiction has not compacted on the member’s professional duties and have not resulted in harm to her clients or other people;
(5) the ignominy of having suffered a criminal conviction and the deterrent element;
(6) the absence of premeditation with respect to the commission of the crime;
(7) evidence of good character;
(8) any voluntary self-imposed suspension or court imposed temporary suspension from practice;
(9) delay in commencing disciplinary proceedings; and
(10) most importantly, clear and convincing evidence of rehabilitation.
The more mitigating factors you can tick, the smaller your penalty.
Conclusion: Call Now For A Free Case Evaluation
As you can see the key issues are:
- The degree to which you cooperate with the investigators;
- Do you plead guilty?
- If you contest the charge can you persuade the tribunal to make a finding of unsatisfactory professional conduct rather than professional misconduct if the charge is proven;
- Can you make submissions to the tribunal that can reduce the potential penalty.
Only your objective adviser can guide you through this obstacle course.
Call to discuss your matter today on 1800 217 217 or email firstname.lastname@example.org
Aylward Game Solicitors, keeping you ahead of the game.