Should some professionals have exemption from the practice principles and the code of ethical conduct of their profession and immunity from the disciplinary procedures?
In February of this year, Dr. Roy Meadow appealed to the High Court regarding a finding by the General Medical Council that evidence he gave in criminal proceedings was seriously flawed and that he was thereby guilty of serious professional misconduct, such that he had been struck off the Medical Register. The situation arose following the case of Sally Clark.
Incompetence ‘in good faith’ is all right?
The High Court found in favour of Dr. Meadow and ruled that the GMC had no right to discipline Dr. Meadow for evidence he had given as he was at the time protected by immunity given to witnesses giving evidence to Courts. The High Court ruled that providing such evidence was given `in good faith’, then the expert witness should be immune from disciplinary proceedings, and it would be for Courts to decide whether such evidence had been given `in good faith’.
However, this judgment in the case of Dr. Meadow creates a very serious schism between the legal system and the lawful and proper role of professional bodies and associations, and it creates even more serious questions than those it attempts to resolve, particularly for the disciplinary bodies for many professions where their members give expert evidence to Courts.
First, there is the principle that any individual who is wronged by another, whether it is intentional or not and whether it arises from negligence, incompetence, or malice, should have the right to redress in law. The vast majority of people who feel they have been wronged in child protection procedures and criminal cases by professionals would be very satisfied with a finding that they had been wronged and merely want an apology, but even this will be denied to them.
In this sense, the judgement places certain individuals above and beyond the law, a very dangerous precedent in British law and a privilege not even enjoyed by the Queen.
How will Courts judge whether professionals have acted – and are continuing to act – `in good faith’? There have been several instances in recent years where it has been shown that professionals have given evidence which was manifestly wrong and grossly misleading to Courts. In such cases a legal remedy would only have been available if it could be proven that the professionals concerned had acted with malice, and this is extremely difficult to prove. There are many cases where parents have accused social workers and doctors of having deliberately fabricated, embellished, and distorted evidence or of having withheld evidence from the Court which would have exonerated the accused parents.
Yet Courts have taken no action against them, even when perjury has been shown to have occurred. Courts cannot, therefore, be relied on to decide whether or not professionals have breached the codes of conduct for their respective professions or have violated the principles of professional practice, i.e. have acted `in good faith’.
When is professional practice not professional practice?
The judgment also leaves a massive conundrum. If the giving of evidence in Court by a person who is a member of a professional body (and accountable to that body for their professional practice) is not deemed to be a part of their professional practice for disciplinary purposes, then de facto it cannot be deemed as professional practice. Ipso facto, therefore, they should not be giving evidence on matters which are not a part of their professional practice, which entails adherence to a code of conduct in applying their professional practice, and involves the knowledge which they have gained from their experience and training in professional practice.
Professional bodies and associations will have to examine whether they can permit those to whom they award registrations or membership to be exempt from their codes of ethical conduct and professional practice principles for all or any part of their professional practice – again a very dangerous precedent – or whether they must suspend or terminate the individual’s membership or registration if that individual is not accountable to that body for any aspect of their practice.
It is unconscionable that a professional body responsible for setting and maintaining and applying the standards and codes of ethical conduct and practice of that profession should be inhibited or even fettered in any way from applying disciplinary proceedings to a member they considered to have breached those standards and codes.
Further Implications?
Further questions arise regarding the extent of application of this legal ruling. Does it, for instance, extend to the process of writing reports for Courts? A doctor or social worker may, for example, have failed to interview or even meet with a child and parents prior to submitting a report to a Court, which has happened on a number of occasions. Does it extend to the reporting of concerns to the police and child protection agencies? One doctor felt such concerns on the basis of a television documentary which he had seen, and he reported that he believed on that basis that a child had been smothered. He was similarly found to be guilty of serious professional misconduct and sanctions were placed on his work.
Professional bodies will undoubtedly have to examine this judgment very carefully and, if the GMC challenge the judgement, to follow with great care the outcomes of such a challenge and its implications for their future role regarding professional standards of practice.
Charles Pragnell – Expert Defence Witness – Child Protection and Child/Family Advocate