For a person in a regulated profession or role, a momentary lapse of judgment can have serious consequences, not just in terms of an internal disciplinary, but affecting other current or future roles.

High standards of conduct are expected, and mandated, for regulated persons in public and private professions. These standards can include personal conduct and behaviour, a topic which has been under increasing scrutiny in recent years.

Regulated persons are often bound by more than one code of conduct or scheme, and an issue under one framework can engage processes under other competing obligations. A recent decision from the Sheriff Principal at Stirling Sheriff Court in the application by Councillor McGarvey against the Standards Commission for Scotland dealt with the knock-on consequences of a professional disciplinary sanction, imposed by Stirling Council. A local councillor had been involved in an altercation with another councillor during the course of a heated debate on nursery provision in the local area. Although the councillor apologised immediately, and subsequently in writing, the matter was investigated by the council.

Councillors are obliged to comply with the council’s Code of Conduct, which the council referred the incident to the Standards Commission, who investigated under The Ethical Standards in Public Life etc (Scotland) Act 2000. The Standards Commission determined that there had been a breach of the applicable Code of Conduct and imposed a month-long suspension.

In this particular case, as is common for councillors, the councillor in question held other renumerated roles. These roles included two separate board appointments at local NHS trusts, which were governed by The Public Bodies (Joint Working) (Integration Joint Boards) (Scotland) Order 2014, and the Health Boards (Membership and Procedure) (Scotland) Regulations 2001. Under the terms of both legislative frameworks governing these boards, sanction under the Ethical Standards in Public Life Act results in automatic disqualification from being a member of these boards (although importantly not from all boards). This meant that the councillor, by virtue of a month-long suspension, was now disqualified for life from holding these renumerated roles.

The councillor challenged the decision of the Standards Commission, and one of the grounds advanced was that a lower sanction ought to have been imposed, by reference to the effect a suspension would have. There was also a challenge to the process by which the decision was made. The court upheld the suspension and considered that the disqualification was not within the discretion of the Standards Commission, and ultimately it is for the panel to decide what is proportionate for the circumstances of a breach. The disqualification is a legal consequence of other statutory schemes. The ability to apply to the Scottish Ministers to maintain a role despite disqualification was also a relevant factor in the Sheriff Court’s decision.

On boards of this nature, there are various conditions on membership and conditions to be met whilst in role. Other grounds for disqualification include termination of a role as chairperson, member or director of a health service body for any reason other than expiration of the term, sequestration or insolvency, and any non-voluntary removal from a register maintained by a regulatory body.

If the investigation had resulted in censure, and not a suspension, the lifelong ban would not have been engaged. If there is a risk of suspension, it is critical that decision makers adhere strictly to the processes in place, and clearly identify what the relevant factors to decision-making are, and not to be swayed by irrelevant considerations (or fail to consider relevant factors).

Public interest is a key consideration in the discipline of regulated persons and includes both protection of the public and public confidence (in public life or a relevant profession).  As part of her judgment, the Sheriff Principal emphasised the importance of maintaining public confidence, stating that “It is essential that the public can have confidence in the integrity, accountability, honesty and suitability of those who hold positions in public life.”. Here, an individual instance of behaviour which was immediately followed by an apology was considered by the Standards Commission to have been serious enough that a lesser sanction would not be appropriate in meeting the public interest factors.

Holders of roles within public bodies, bodies supported by public funds, or regulated professions can expect a higher degree of scrutiny of their conduct. This case is an important reminder of the importance of being fully aware of any conditions on holding regulated positions and the applicable standards of behaviour. It's also key to understanding the full legal and regulatory frameworks which might be engaged.

With a range of expertise and specialisms to draw on including professional negligence, public, insurance, regulatory, and employment law, our lawyers work together as a team to support our clients on all aspects of professional disciplinary matters and disputes. We help guide our clients through complex and significant processes and issues, using a range of perspectives to find solutions that work for them.

Our specialist charity team have recently written about the challenges within the charity sector for trustees, another heavily regulated area. Disciplinary investigations can have significant implications for the organisation and its obligations to report to the Office of the Scottish Charity Regulator and the Charity Commission, as well as for the individual trustees.

If you have any questions on holding a regulated role or position within a regulated profession, please feel free to get in touch.

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