Balancing Privacy and Professionalism: When does a professional's private life become regulated?

01 December 2020

Author: Stephanie Johnston
Practice Area: Healthcare
Sector: Healthcare

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In October 2019, the Solicitors Disciplinary Tribunal (‘SDT’) upheld professional misconduct allegations against Mr Beckwith. Mr Beckwith was accused of sexual misconduct on two occasions involving a junior solicitor (otherwise known as Person A), following social events organised by the Firm, where they both worked. Mr Beckwith was Person A’s supervising partner. The SDT’s determination can be located here.

In short, the SDT determined that Mr Beckwith “had failed to maintain the trust the public placed in him by conducting himself in the way that he did” and that his “conduct had fallen below what was expected of him by members of the public and of the profession”.

Mr Beckwith appealed the SDT’s determination to the High Court in England. The High Court’s Judgment can be located here.

The High Court agreed with the SDT’s conclusion that no abuse of authority had occurred, however, considered the SDT erroneously determined those events to be a breach of integrity. The requirement to act with integrity obliged Mr Beckwith not to act so as to take unfair advantage of a situation by reason of his professional status. In the absence of this, the High Court overturned the SDT’s determination that Mr Beckwith had acted without integrity.

The High Court also noted that Mr Beckwith’s actions ‘…affected his own reputation; but there is a qualitative distinction between conduct of that order and conduct that affects either his own reputation as a provider of legal services or the reputation of his profession.”

In his appeal, Mr Beckwith argued that the SDT’s determination had breached his right to respect for private life guaranteed by article 8 of the European Convention on Human Rights (‘ECHR’). It was argued that if the requirements to act with integrity and to act so as to maintain the public’s trust in the provision of legal services, were wide enough to apply to conduct outside work and outside the practise of a profession, then they may interfere with the article 8 right to a private life. Therefore, rules / requirements which may encroach on a professional persons right to a private life must strike a balance between an individual’s right to a private life and the legitimate public interests, and must meet the ‘in accordance with the law’ requirement as set out in article 8(2) of the ECHR.

However, the High Court accepted that the requirements to act with integrity and to act so as to maintain the public’s trust in the provision of legal services, are requirements that will, on occasion, require the Solicitors Regulation Authority (‘SRA’) to adjudicate on a registrant’s private life.

Mr Beckwith also challenged the SDT’s decision to order him to pay the SRA’s cost of the proceedings. The SDT ordered Mr Beckwith to pay £200,000 (out of a total claimed of £343,957) in respect of the SRA’s costs. In making the decision to reverse the costs order, the High Court stated, “Since the SRA will not in the ordinary course, be required to pay costs when regulatory proceedings are successfully defended…, it must conduct its cases with proper regard to the need to permit persons who face regulatory complaints to defend themselves without excessive costs. This is part of any regulators responsibilities in the public interest.”

Conclusion

The extent to which professional regulatory bodies should be entitled to take into account an individual’s actions in their personal life has long been a vexed question. There is a general recognition that there will be circumstances when a professional’s actions in their private life can properly be taken into account by their regulator. This decision serves as an important reminder, however, that there is a need to strike a fair balance between the right to respect a professional’s private life and the public interest in the regulation of professionals. As stated in the judgment “Regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit”. This cautionary note is, perhaps, particularly important in an era when popular opinion may be driven not only by mainstream press, but also more informal social media. Finally, the judgment reinforces the importance of all those engaged in regulatory proceedings giving careful consideration as to whether alleged misconduct does, in fact, touch on a practitioner’s professional practice and / or the standing of that profession with the public.

If you have any queries the Healthcare team at Carson McDowell would be happy to help.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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