The Public Interest in Fitness to Practise Proceedings

A professional person is part of a community with specialised knowledge and expertise and, whilst that comes with certain privileges, it also comes with responsibilities. So professionals should always consider how their actions may be perceived by others and whether they are seen to be acting in the public interest.

It is perhaps trite to say that the overriding concern of fitness to practise proceedings is to protect the public interest, but it cannot be too strongly emphasised.

What exactly does “the public interest” mean? It has been defined quite widely by the courts to encompass the protection of the public, maintenance of confidence in the profession and declaring and upholding proper standards of conduct and performance.

Using that general guidance, it is for the appropriate regulatory committee or decision maker to determine whether specific conduct falls within those words because individual circumstances will vary widely. A more prescriptive definition may lead to unintended and unfortunate consequences.

A committee will, therefore, have to judge whether a specific act or group of actions (which may differ in their scope and degree of severity) comes within that public interest definition. What would a disinterested member of the public, with knowledge of all the facts, think if no action was taken against this particular registrant by the regulator?

Although public interest is in itself an abstract concept, transparency and honesty will always lie at its forefront. What would “right thinking” members of the public want? (Who, indeed, should determine what is meant by “right thinking”?) It is, again, down to the committee to stand back from the situation and make a judgment.

Would the public be concerned if they discovered that their doctor, dentist or lawyer had assaulted a spouse or partner behind closed doors in their own home and the regulator had failed to take action? Indeed, would that be consistent with the high standards attributable to a professional person?

Likewise, would the public raise an eyebrow if they discovered that the professional had failed to disclose a criminal conviction when seeking initial registration for his or her profession and later tried to avoid the consequences by justifying the conduct? Or would they be disconcerted to learn that the professional faced allegations that he had indulged in the sexual harassment of fellow professionals or more junior colleagues and the regulator just stood idly by, or one of its committees failed to condemn the conduct by its failure to take appropriate action?

Whilst a registrant’s interests must always be balanced against public concerns, there is nonetheless an overwhelming duty on the part of the regulator and those appointed to its committees to adjudicate, to uphold the public interest, and that should always be at the forefront of the minds of those exercising such responsibilities.