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Professional Conduct Procedure Review and Proposal
The Professional Conduct Procedure has remained significantly the same since 2002 with only necessary changes made as required. However, with the changes in the regulatory environment and the maturing of BACP's place in that environment, it has become necessary to address greater change in the procedure; this will enhance the processing of complaints and contribute further to our commitment to right touch regulation.
Over two years ago BACP employed the services of a barrister familiar with our conduct procedure to explore with BACP what changes might further enhance it. Since then BACP has also employed the services of a law firm to work with BACP to produce a revised procedure. The proposed changes in the procedure have also been informed by feedback received from people who have experienced the Professional Conduct Procedure as either a complainant or a member complained against. We are very grateful to those who took the time to contribute.
Proposed Main Changes
1. The introduction of greater investigative powers at the early stages of the procedure
The current procedure relies upon a complaint being submitted, which is then considered by a Pre-Hearing Assessment Panel (PHAP). The PHAP can investigate the complaint but cannot ask for, or consider any preliminary response from the member/registrant complained against. It decides whether a complaint is accepted for a professional conduct hearing or rejected.
Under the proposed procedure, case managers would be given the authority to request further information at an initial stage from both parties including requesting a preliminary response from the member/registrant complained against.
The PHAP would be replaced by an Investigation and Assessment Committee (IAC) which would have greater powers of investigation. The IAC would have access to the complaint material and any information supplied further to any request made by the case manager. The IAC would also have powers of investigation, including that of requesting a preliminary response to the complaint.
2. The introduction of a new test to decide whether a complaint should be accepted or rejected
Currently, the PHAP does not have the power to see a response to a complaint but has the power to decide if there is a prima faciecase to answer in relation to a complaint. The PHAP would need to satisfy itself that if the member/registrant did not challenge a complaint that there would be sufficient evidence available within the complaint for it to be upheld at conduct hearing if it were so referred.
The proposed change would mean that the IAC would have the power to see a preliminary response and decide if a complaint should be accepted or rejected on the basis of a reasonable prospect of success test. The IAC would need to be satisfy itself that there would be a reasonable prospect that the complaint/allegations would be upheld were it referred to a conduct hearing.
The IAC use of the reasonable prospect of success test in conjunction with the greater availability of investigatory power would bring BACP's procedure more in line with other regulatory bodies and concentrate resources more effectively at an earlier stage in the procedure.
3. The introduction of new means of case disposal other than a full conduct hearing
Under the current procedure if the PHAP decides that there is a case to answer, the complaint will go forward to a full conduct hearing.
The current proposal is that once the IAC decides that there is a case to answer, it is possible for the case to be disposed of by either consensual disposal or voluntary erasure.
Consensual disposal would involve the IAC accepting an application from a member/registrant to have the case disposed of by consensual agreement. This would entail the member/registrant accepting responsibility for what went wrong with the client and agreeing a sanction as appropriate governed by a binding agreement. There would be no need for a formal hearing and the outcome would be published. This would in effect mean that it would not be necessary for a case to go to a formal hearing thus sparing the parties any emotional stress and expenditure in attending a formal hearing.
Voluntary erasure would involve the IAC accepting an application from a member/registrant to have the case disposed of by voluntary erasure. This would entail the member/registrant accepting responsibility for what went wrong with the client and being removed from the Register/membership. There would be no need for a formal hearing and the outcome would be published. This would in effect mean that it would not be necessary for a case to go to a formal hearing and yet providing public protection.
4. The introduction of an interim suspension process
While the current procedure does allow for suspension of a member/registrant following a hearing, it does not allow for interim suspension pending the outcome of a hearing. It is proposed that interim suspension pending a hearing is introduced allowing the IAC to make a decision based on the principle of public protection.
5. The introduction of a Registrar review and rehearing process
The current process does not allow the Registrar to instigate a review and rehearing process. It is proposed to that the Registrar will have the power to instigate a review and rehearing of a case. This may be envisaged where a perverse decision has been reached and where there is no avenue of appeal available. It will allow the Registrar greater power to ensure the security of the interests of public protection within the procedure.
6. The introduction of the power for the Association itself to bring a complaint under the Professional Conduct Procedure in the interests of public protection
While BACP can process a complaint against a member/registrant under its Article 12.6 Procedure, it cannot do so under its Professional Conduct Procedure. The Article 12.6 Procedure has available to it only one sanction that it can impose which is removal from membership. It is proposed that BACP be allowed to take a complaint forward under the Professional Conduct Procedure in the interest of public protection. This will allow for a wider array of sanctions to be considered, ensuring a greater commitment to proportionality.
The main impact of such changes is that it will provide a greater number of tools with which to address breaches of professional conduct. It will also mean that greater powers of investigation and case disposal to be exercised by the IAC under the procedure could result in earlier and quicker disposal of cases, further enhancing our commitment to the principles of right touch regulation.