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Ask the Expert: Stephen McLoughlin of Addleshaw Goddard on evolving standards in professional regulation

Professional regulators are facing increasing obligations and challenges in a changing regulatory landscape

Stephen McLoughlin, partner and head of Regulatory Group at Addleshaw Goddard (Ireland) LLP

Wed Nov 9 2022 - 05:00

What tend to be the biggest regulatory challenges facing professionals and professional regulatory bodies in Ireland?

One of the major challenges faced by professional regulators is how to deal with complaints that aren’t quite serious enough to be considered misconduct but nonetheless cause significant harm to the public, patients or clients. Professional regulators have only been permitted to take disciplinary steps where “serious” or “very serious” conduct or performance issues by a regulated professional are disclosed. A complaint will generally be dismissed if the evidence doesn’t meet this “seriousness” threshold. Therefore, matters that have poor or very poor outcomes for patients or clients may not be capable of being addressed by the professional regulatory systems. Many patients, clients or members of the public may therefore feel their only option is to bring proceedings through the courts to vindicate their rights. An example of this is the negligence of a doctor in the performance of surgery causing harm to the patient. Negligence will not necessarily meet the threshold for the regulator to investigate a complaint, leaving the patient with the task of bringing proceedings in court.

There is a good argument from a policy perspective that regulators should be able to intervene in such cases to improve the standard and quality of the service provided. This is not to say that the negligent professional should be struck off or found guilty of anything. However, it may be appropriate that they undergo training in a specific area to prevent future harm.

Proper and effective professional regulation should not be solely focussed on making findings of misconduct against professionals; rather it should be equipped with the tools to intervene and correct issues, through identifying problems and providing solutions to prevent recurrence.

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Is the level of scrutiny by professional regulators of professionals increasing or decreasing and how do you see this progressing into the future?

Professionals generally are facing increased regulatory obligations, whether as a result of changes in practice requirements, increasing sector specific obligations, or general obligations such as data protection, anti-money laundering and regulatory compliance. Regulation must remain effective so that the public can continue to have confidence in the integrity of the regulated profession, and that the level of regulation is proportionate to achieve that aim.

Many regulators are constrained by older legislation which may hamper their ability to effectively regulate new developments

One of the key challenges faced by professional regulators is to ensure that regulation keeps pace with changes in the market. The work of a professional is constantly changing, whether through the provision of new practice groupings, new technology or new methods of service delivery, which in many cases, have been accelerated by the Covid-19 pandemic.

Many regulators are constrained by older legislation which may hamper their ability to effectively regulate new developments. Further, many regulators are not empowered to properly triage complaints so that they can target the serious cases and deal with minor cases in a quicker and more effective way. It may well be an opportune time for professional regulators to review existing structures and legislative provisions to ensure that they are able to properly regulate the current and future changes in their respective fields.

How do regulators navigate the balance between what constitutes personal and professional conduct?

This is an area of regulatory law that we will see significant development over the next 5-10 years in Ireland. The traditional approach of professional regulators in Ireland has been to focus on the conduct of the professional in the course of their practice, unless there has been a serious criminal offence committed by the professional. Regulators have generally been reluctant to enter into scrutiny of a professional’s private life unless it directly affects the core principles and tenets of the profession.

However, there is an emerging trend towards greater regulation in a professional’s private life. A recent high-profile example in the UK, saw the Solicitors Regulation Authority prosecute a complaint against a solicitor in relation to alleged inappropriate conduct towards a junior colleague following a social event organised to mark that junior colleague leaving the firm. Although the High Court of England and Wales ultimately overturned the findings made against the solicitor in question, it is noteworthy that the SRA was willing to prosecute a complaint against a solicitor in relation to conduct that didn’t concern his ability to practise as a professional.

It remains to be seen what approach regulatory bodies in Ireland might take in such a scenario. The balance is a difficult one to navigate and these issues are almost certain to arise as the scope of complaints becomes wider. It is likely that this will have to be assessed on a case-by-case basis but it may be that the public interest is best served by ensuring that complaints relating to a professional’s private life that affect their ability to practise are investigated, but that any further investigation beyond this point would be an unwarranted intrusion in the private life of the professional.

Are there structures in place to ensure collective responsibility when there has been professional misconduct from different regulated professionals in the one case?

This is one of the major challenges facing the wider professional regulatory system. At present, our regulatory system is designed to focus on the acts and/or omissions of the individual professional. For example, if there is a substantive complaint involving a doctor, nurse, physiotherapist and pharmacist in relation to conduct that seriously affected a patient, this can only be dealt with by complaints against the specific professional to their individual regulator. There is no collective regulatory system in place in the healthcare sphere to address a multi-disciplinary professional failure and the current professional regulatory system has not been properly equipped to address such a scenario.

There is no collective regulatory system in place in the health care sphere to address a multi-disciplinary professional failure

The risk here is that each professional may be found not guilty of any wrongdoing in the context of an individual complaint, as their regulator can only consider the matter on the basis of an individual complaint against that professional, even if it is clear that there is a serious collective failing in the delivery of service to the patient, which may have caused serious harm. Furthermore, regulators generally have no power to make recommendations in relation to wider regulatory issues in the context of complaints as they are usually confined to deciding whether a professional is guilty of misconduct or poor professional performance.

This is not the fault of individual regulators, who must comply with their relevant legislation and will typically endeavour to co-operate with each other as far as possible within the boundaries or their governing legislation. However, it seems to me that the failure to properly regulate a serious multi-disciplinary failure is a critical gap in the professional regulatory system in Ireland, particularly in the healthcare context. It may be necessary to explore the idea of a wider healthcare regulator with powers to investigate multidisciplinary failures against professionals in a single complaints structure.

Stephen McLoughlin is a partner and head of regulatory law at Addleshaw Goddard (Ireland) LLP.

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