We need to talk about fitness to practise

A couple of years ago, I wrote about the role of a fitness to practise regime for solicitors. The Solicitors Disciplinary Tribunal (SDT) had recently produced a summary of responses to a consultation on its procedural rules, in which it encouraged the solicitors Regulation Authority (SRA) “to consider carefully whether it should exercise its power to make procedures in relation to fitness to practise”

Contrasting the solicitor with the barrister branch of the profession, the SDT pointed to the fitness to practise procedure provided for by the Bar Standards Board, which isn’t disciplinary in nature and is run entirely separately from disciplinary proceedings.

The SDT pointed out that where health issues arise in disciplinary proceedings, it is not uncommon for it to find itself without medical evidence to assist it in its decision-making, adding:

“If medical evidence corroborates the fact that mental or physical ill-health was a significant factor in any professional misconduct and continues to affect the person concerned, the Tribunal would consider a separate fitness to practise regime as more suited to such circumstances than proceedings before the Tribunal.”

In May 2020, the Law Society’s Junior Lawyers Division (JLD), following outcry about the strike-off of a junior solicitor, Claire Matthews, who was unrepresented before the SDT and who raised mental health issues as relevant to the allegations against her, wrote to the SRA raising concerns about the SRA’s ability to prosecute junior solicitors fairly.

In response, the SRA sent the JLD draft guidance that it subsequently published, in August 2020, on its website: “SRA investigations: Health issues and medical evidence”. As its title suggests, the guidance largely relates to the relevance of and responsibility for medical evidence in investigations of practitioners by the SRA. However, it also states:

“Sometimes health issues are raised which may interfere with an individual’s ability to carry out their work safely and competently.

“In such circumstances, we may consider using our powers to put conditions on an individual’s practice as a solicitor. Depending on the health issue, in some cases interim conditions might be appropriate to allow the individual to practise safely and carry on working pending the final outcome of an investigation.

“In other cases, conditions can be imposed as a final outcome to an investigation. These might allow us to monitor an individual’s health by the production of regular medical reports over a certain period of time before they are deemed fit to practise without restriction. Any conditions imposed will need to address the specific risk the individual poses as well as being reasonable, proportionate, realistic and measurable.”

 So as well as indicating who is responsible for obtaining medical evidence in SRA investigations, the guidance also explains powers the SRA has and when it would exercise these in relation to an individual’s health. It can, to some degree, be considered a form of “fitness to practise” regime introduced via the back door.

The job of establishing an individual’s actual state of mind at the time of past events, is more difficult than it might sound, increasing the chances of an unjust decision being made.

Unless the profession plans to canvass the public to paint a fuller picture of how the public actually views dishonesty in different contexts including where ill-health is a relevant consideration, carving out a separate forum where such matters can be considered could very well be the answer. Such a setting would benefit from expert medical advice, in particular, which has been missing from the picture in the past, or certainly with any degree of consistency.

Earlier this year, the Legal Services Board, oversight regulator for the solicitor profession, suggested a fitness to practise regime could provide a way for regulators to address competence concerns and that this would be a “third way” between doing nothing and disciplinary proceedings.

To shape whether the future involves a separate fitness to practise forum or new rules to codify a fair and consistent approach by all players in the regulation of the solicitor profession, one thing is clear: we need to talk about fitness to practise.