Consideration of antecedents by the Investigations Panel when considering what is a ‘case to answer’
This note should be read in conjunction with the Guidance Note ‘What is a ‘case to answer’”
The role of the Investigations Panel is to decide whether allegations of unacceptable professional conduct and serious professional incompetence should be referred to the Professional Conduct Committee. The Investigations Panel will consider whether there is a case to answer, taking into account whether the evidence provides a realistic prospect of a finding of unacceptable professional conduct and/or serious professional incompetence, whether it is in the public interest for the case to proceed to the PCC.
Consideration of previous conduct
In making its decision the Investigations Panel should consider all the relevant issues, but not give weight to issues which are irrelevant. Previous disciplinary findings or advice on matters of professional conduct are likely to be relevant in a number of circumstances. They may, for example, show a course of conduct or general approach to practice which makes a current individual allegation a more serious potential risk to the public. Care is, however, necessary in considering the facts of the current case so as not to assess them on the basis of any antecedents.
While the Investigations Panel is entitled by law to consider not only the evidence in a particular case but also evidence in relation to an architect’s previous conduct[1], it must establish a link of material relevance between the previous findings and the current facts in order for any antecedent to influence its decision.
This will be a factual question for the Panel in the circumstances. Previous behaviours are likely to be of limited relevance in establishing the facts of a current complaint; however it would be logical for the Panel to consider a repetition of misconduct to represent a greater risk to the public and therefore impact on the question of seriousness.
Procedure
So as to separate the consideration of the facts of a current case from a consideration of previous conduct, the Investigations Panel will not be provided with any information as to antecedents until it has reached a view on the evidential test and come to a decision. This way the Panel can be sure that it has formed an initial judgement on the basis of the facts alone.
Once a decision has been reached, the Panel will be informed of the person’s disciplinary history so it can consider whether it will make any difference to its decision. All disciplinary history will be provided and it will be to the discretion of the Panel as to what weight it is given. The age of any previous findings, or relevance to the issues now being considered, will be of paramount importance in deciding whether they should have any impact on the Panel’s decision. The architect will also be given the opportunity to make representations on the relevance of that disciplinary history; however unless the antecedent is a decision of the PCC already within the public domain, the complainant will not be provided with a copy or invited to comment.
While any disciplinary history will have no relevance to the evidential limb of the case to answer test, it may impact on whether it is in the public interest for the case to proceed to the PCC. In practice, it is likely that it will only impact on marginal decisions on whether the issues are serious enough to warrant a referral to the PCC, and can then be influenced by either an adverse disciplinary record or an exemplary one.
Disciplinary history is regarded as being:
- findings of unacceptable professional conduct or serious professional incompetence by the PCC;
- advice given by an Investigations Panel/Committee; or
- a finding of a case to answer by the Investigations Panel which has not yet been determined by the PCC.
[1] Daly v General Medical Council [1952] 2 All ER 666
