For many years a feature of the Disciplinary Conference has been Tony Child's update of the year's legal events in the disciplinary world. We would like to take this opportunity to thank him for the wise words and advice he has imparted to us all.
All things must eventually change and next year Tony will be passing the baton on to his colleague Ros Foster - also of Browne Jacobson.
Ros is an experienced public and regulatory law practitioner who trained in local government, working in house dealing with a wide range of contentious and non-contentious public law matters. She has substantial experience in the regulatory/disciplinary sphere as well as being involved in a number of judicial review challenges, on behalf of both claimant and defendant. She has a good track record of resisting challenges at the pre-action protocol and permission stages.
We look forward to welcoming Ros next February and hopefully for many years to come!
In July 2015 the second edition of the Professional Conduct Case Book (Second Edition) was published by Oxford University Press.
One of our regular Disciplinary Conference speakers, Philip Yelland of the Law Society of Scotland, has reviewed the book which will be of great interest to all those involved in regulatory and disciplinary work. Participants of the 2016 Conference can receive a special 20% discount - see below.
Professional Conduct Case Book (Second Edition) by Kenneth Hamer
The world of regulation and professional discipline is constantly evolving these days. For those involved in the administration of regulation the need to keep up to date with developments across various professions is vitally important.
The Second Edition of the Professional Conduct Case Book by Kenneth Hamer is designed to help in that regard and in my view certainly does the job.
The first edition
The First Edition of the Case Book was published in 2013 and as is mentioned in the preface, since that time there have been changes, in particular to the regulation of health care professionals and social care professionals in England. Of course, at the same time, the courts and tribunals have been making other key regulatory decisions.
The reality of course is that decisions which are made across the regulatory landscape can have applications in all different professions, and that is well captured in the structure of the book.
Kenneth Hamer has kept the same format at the first edition of the book, which means that it is easy for someone looking for up to date case information to find that information in the form of case reports, in addition to references to relevant rules and statutes. It is worth highlighting that one of the advantages of the book is the way it highlights the need to ensure the right process is followed in reaching a decision.
There are no fewer than 71 chapters in the book, but these split down sensibly and highlight some of the key issues, such as adjournments, bias, delay, natural justice and whistle-blowing – the latter of course is a more recent development in the regulatory landscape which is important across a number of professions.
The case summaries which are provided in the book are concise and helpful. Because of the way which they are laid out and the short rubric with each, it is easy for the reader to find what they might be looking for and, in some instances, to compare and contrast the approach that may be taken by different profession and the evolution of the approach to the issue over time.
There is also a useful section at the end of each chapter which cross references other chapters which link together. One of the most interesting chapters and one where there is continual change at the present time is that relating to disclosure, confidentiality, data protection and freedom of information. This area is one which has developed significantly in recent years and is one where, I am sure, in future editions of the book much more is likely to be written as the courts consider more cases.
Some of the phrases which are used in the book do specifically refer to the position in England and Wales, although for those in other jurisdictions it will be easy to work out the equivalent meaning.
If I have one specific criticism of the book (and it is a very minor one), I believe that the index of regulatory bodies contained in the Appendix ought to be updated. There is no reference to the bodies in Scotland which carry out various regulatory functions, some of which are referred to the in cases. For the sake of completeness I believe that that would be a helpful addition to any future version of the book.
Sometimes, these days, books do not necessary do what they say on the cover. This book most certainly does and I would say it is an essential for those working in the sphere of regulation and discipline.
A welcome breath of fresh air on the law concerning the regulated community
Have you noticed how some legal textbooks, even on the subject of most interest, tend to make you glaze over within minutes? You would never take such a book away with you on holiday. Well, I wouldn’t normally but the timing of this review meant that I did.
As it happens the eyes and attention span coped well and I lasted all the way to chapter 17. I think the main reason is that this book is a well crafted breath of fresh air on a relatively dynamic subject of growing complexity and interest yet one that has been somewhat neglected from a practitioners perspective in recent years.
Brian Harris QC, with editorial assistance from Andrew Carnes in the last five years, has provided an excellent source textbook, which has helped keep those dealing with regulation and discipline in touch with general principles and developments. As the only comprehensive legal reference book on regulatory and disciplinary proceedings, seven editions over 20 years have been an invaluable aid to many and have covered a huge amount of ground. The immensely practical focus of this eighth edition, which is in fact a major rewrite, is most welcome. This makes for a text that is highly readable. It would also be of interest and relevance to a much broader section of the regulation and discipline community. The new focus though in this new edition is definitely on the needs of practitioners. It has after all been written by practitioners experienced in regulatory and disciplinary proceedings.
The co-editors, Gregory Treverton-Jones QC, Alison Foster QC and Saima Hanif are acknowledged experts in the field. They have been supported by a team of specialist contributor barristers at 39 Essex Chambers who have covered certain parts of the book based on their experience in their own area of expertise.
I particularly like how the book’s 17 chapters, divided into four parts, present a full overview of the numerous areas with a concise and easy flow. Its development is logical and clear, starting with a general explanation of the jurisdiction of the regulators: powers, principles and approach, the nature of professional misconduct, tribunals and civil liability of regulatory bodies then turning to the disciplinary process.
The section on disciplinary process takes you through each stage from investigation to appeals and reviews, including judicial review, giving a detailed summary of the core legal principles and the main obligations and issues faced by both regulator and the regulated .The next part is a summary of the regulatory and disciplinary schemes of the main statutory bodies-financial services, healthcare, legal; together with a short summary of some of the other professions. The final part is a very useful explanation of the various obligations in the sometimes vexed (particularly for the regulator) areas of Data Protection and Freedom of Information. This overview, with reference to the main authorities is a timely and a valuable update. All sections include reference to the main authorities and many of the more recent cases are used.
One particularly welcome development in the eighth edition is the wealth of new material. Approximately 740 cases are referred to as well as numerous statutes and statutory instruments. Where there are details missing, there is a useful pointer to where you can find further guidance and cases. This makes the book a good starting point for further research. It also delves into some of the more problematic issues, such as the nature of professional misconduct. Worthy of special mention is the reference to ‘judicial reluctance to be drawn into an arid search for a single definition of what constitutes professional misconduct’ and there is a particularly good focus on the subject of investigation.
I picked up on this point: the question of when to begin an investigation is an issue which has been overlooked so far. And I quote ’’to set an investigation in train is a weighty matter: the investigation of even a trivial complaint can be costly and time consuming for the regulator and distressing for the person under investigation. A half-hearted investigation can be disastrous for all concerned.’’ The question of when to begin an investigation is covered comprehensively in chapter 5.
So overall, the eighth edition is to be recommended to a wide audience and particularly practitioners. I believe it achieves the co-editors’ stated intention for the book to be both useful and user-friendly. Is there anything missing? Not really except the bound book marker which would have been beneficial on the beach.
Jordan Publishing are pleased to offer a 20% discount on orders for Disciplinary and Regulatory Proceedings if ordered by 13 November. Visit www.jordanpublishing.co.uk/g811 and enter the discount code G811 at the checkout to receive your 20% discount.