Professional Misconduct… Guilty or Not Guilty?
By Blaise Alexander, Solicitor, Lovegrove Smith & Cotton
In every profession mistakes will be made, and not all errors should be considered incompetence or professional misconduct. However, where an allegation involves a prima facie breach of the Act and/or regulations, a guilty plea can go towards mitigating the sanctions imposed by the regulatory body.
In the construction industry reputation is everything, as is registration, and many practitioners do not want to plead guilty to those allegations which suggest a high level of misconduct and ergo carry a hefty penalty.
However, where the allegations are irrefutable or undeniable, early admission, remorse and atonement can go a long way to reducing the inevitable penalty. Where an allegation is clearly or arguably without basis or evidence, it may be contested, and a strong legal defence can successfully overcome a weak or unsubstantiated charge.
The Building Regulations 2006, regulation 1502(a) states that a registered building practitioner ‘must perform his or her work as a building practitioner in a competent manner and to a professional standard’.
A building practitioner who contravenes the requirements of regulation 1502 may be the subject of an inquiry under section 179 of the Act.
With reference to breaches under section 179(1) of the Act, section 179(2) of the Act gives the BPB the power to make any of the following decisions:
- To reprimand the person;
- To require the person to pay the costs of or incidental to the Inquiry;
- To require the person to give a personal undertaking to do or not do a specific thing;
- To require the person to complete a specified course of training;
- To impose a fine of not more than 100 penalty units (currently $14,436.00);
- To impose conditions or limitations on, or suspend, cancel or disqualify a registration.
Case law suggests that regulatory bodies need to be mindful of the overall circumstances of the matter and avoid making a decision and issuing penalties and punishment solely on the basis of a prima facie breach of regulation, or on legislative technicalities. The trier of fact needs to be “reasonably satisfied” that guilt is proven.
At criminal law (Cameron v The Queen  HCA 6), a willingness to admit a charge should be taken into account when deciding a penalty, as a consideration in favour of a lighter penalty.
In our practice we have found that where a practitioner is contrite from the outset and puts forward a good plea in mitigation, this will reduce penalties, fines and cost. A decision not to contest a charge should translate into a discount on penalty, as will a previously “clean” record.
It was determined in Law Society of NSW v McElvenny that where a practitioner is contrite at an early stage and makes changes to the business practice and/or other failing that led to the inquiry, they will be more likely to be allowed to continue practicing.
Where the error involved no harm to the public (such as where a permit or plans are issued and found to be inconsistent), the rationale is that the objective of the penalty imposition is to protect the public. The case of Craig v Medical Board of South Australia states that “If a practitioner is found to have breached professional standards, any order is to be made having regard to what is appropriate to the achievement of adequate protection of the public.”
The decision in Building Professionals Board v Cogo is authority for the proposition that not every professional error should be determined as professional misconduct leading to a disciplinary sanction:
“Each case needs to be judged having regard to all the circumstances. It is a familiar aspect of the law relating to professional discipline that a distinction is drawn between incompetent conduct that, though careless and negligent, is not so objectionable as to justify an adverse disciplinary finding, and, on the other hand, incompetent conduct which is more serious and warrants an adverse finding.”
In regard to whether suspension or cancellation of registration is appropriate, the case of Law Society of New South Wales v McElvenny states that “mere negligence, even of a serious character, will not suffice.”
In Re Cree the Medical Board of Western Australia considered whether a medical practitioner was guilty of “incompetency or gross carelessness” pursuant to s 13(1)(c) of the Medical Act (WA). The case involved a 51 year old GP working full time in the emergency department of a public hospital. Five allegations were made with respect to the care and management of a patient that died of an infection while under her care. The Medical Board found the practitioner guilty of “gross carelessness”, however, it declined to cancel or even suspend the practitioner, even though the death of a patient had occurred.
The Board said:
“The central inquiry is this: given the dire consequences which flow from suspension of registration, would the imposition of a fine and/or a reprimand satisfy the purposes for which disciplinary penalties are imposed?”
So we can see that not all errors by practitioners will be found to be professional misconduct, and neither should they be. Mitigating factors and the circumstances particular to the allegation will impact on the final decision of whether the mistake is determined to be of sufficient gravity to amount to misconduct, and if so, what the penalty should be
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© Lovegrove Smith & Cotton 2014