This is by Andrew and is rather more lawyerly than our usual updates, and (unusually) we have enabled comments.
Earlier this year I represented a professional person before a regulator. There was no factual dispute about what he had done, but much argument about his motives and whether his activities fell properly within the ambit of the regulator. We also advanced a medical defence in respect of his admitted conduct. The hearing was conducted in private, he was found not guilty, there is no appeal and the decision has not been published.
We had instructed a psychiatrist. Our instructions to the psychiatrist had been informed by the principle set out by Mrs Justice Lang that if behaviours are caused by factors beyond the professional’s control, they should not be deemed guilty of misconduct. See Howd v BSB 2017 EWHC 210 (Admin) at paragraph 55
The expert view was that our client’s behaviour was attributable to his severe obsessive compulsive disorder which, at the time of the behaviours, was uncontrolled. In evidence, the expert accepted (indeed had never asserted to the contrary) that the professional had had agency at all times. In other words, he knew the nature of his acts and was not M’Naghten insane.
The regulator did not instruct an expert. Insofar as the regulator articulated any position, they asserted that the psychiatric evidence was irrelevant, as the matter was not being considered as a health issue, but as a conduct issue. NB, this particular regulator does not have a health route.
Prior to closing, the legal assessor set out that he was minded to draw the panel’s attention to Sun v GMC 2023 EWHC 1515 (Admin) and the rolled up appeals considered in SRA v James 2018 EWHC 3058. NB, Howd was not cited to either court and all the professionals involved were admitting misconduct, but seeking to rely on medical evidence to reduce sanction.
SRA v James is a depressing case where the High Court were persuaded by the SRA that the SDT had erred in being persuaded to not strike off dishonest solicitors. None of the solicitors ran medical defences. They instead pleaded, successfully at first instance, that their medical conditions amounted to ‘exceptional circumstances’, such that they should not be struck off. The medical evidence was strong. In respect of one solicitor it was submitted (para 97): “[he] knew what he was supposed to do but was so affected by the adjustment disorder that he reverted to avoidance and denial and that what he had done was entirely out of character and aberrant……. His mind set was relevant because of the medical evidence that he would not have acted as he did but for his mental health problems. Those mental health problems were caused by workplace stress which he had sought to address with his superiors.” Notwithstanding the strength of that evidence, and its echoes of the principle set out in Howd, that solicitor had not run a defence, only sought to mitigate.
The underlying assumption within both James and Sun, by the court and the practitioners representing the professionals, appears to be that only a mental condition that renders the professional incapable of knowing the nature of their act (i.e. M’Naghten insanity) will give rise to a defence. NB: There is no suggestion in Howd that he did not know the nature of his acts. Only that he had, in drink, acted out of character, and that his drinking had been triggered by, and had exacerbated, an underlying medical condition.
In response to the legal advisors position, in closing I took the panel carefully through the familiar concepts concerning misconduct. I explained that a finding brings with it moral opprobrium and that conduct arising from mental illness should not attract such opprobrium. I explained that conduct that was otherwise forgivable should not pass the high threshold. I suggested that conduct arising from mental illness was an example of otherwise forgivable conduct. I took the panel through Howd and suggested that the approach of the court there was entirely consistent with those already well established principles. I submitted that, just like Howd, my client’s admitted behaviour arose from factors beyond his control. I spoke about James and Sun. I explained that Howd had not been drawn to the courts’ attention in those cases and that the point in issue had been the extent to which illness could mitigate otherwise serious behaviour (dishonesty in all the cases). I explained the dangers of relying on commentary in High Court decisions where the point now relied on was not the point in dispute before the High Court. I sought to put the decisions in the rolled up case of James in the context of the appellant court’s approaches to dishonesty in solicitors. I may even have mentioned Bolton.
Having heard submissions of all parties, the legal advisor then advised the panel in accordance with Howd and advised that he did not think it appropriate to take the panel through James or Sun.
The panel’s decision was nuanced and multifaceted. In relation to those facts that were admitted, they found that the professional was not guilty as his acts were due to a factor beyond his control – his OCD.
Howd seems to open the door for this kinder world, where professionals who act in the grip of OCD, or behave entirely out of character as a consequence of workplace stress, or during a period of extreme depressive illness, can be forgiven. The presumed public spectator is the “ordinary intelligent citizen”, not dissimilar to the “well informed, fair minded observer”. They have an appreciation of nuance and do not see the world in a binary manner. They may even have an inkling that mercy is the best quality of justice. James and Sun seem to bolt the door closed: the public is unforgiving, the reputation of the profession trumps all mercy, and the dishonest must be removed from the professions, even where they would have not have acted dishonestly but for their medical condition.
I am now confused as to the right approach. Do we advise clients that it is a harsh cruel world and their mental health is relevant only to mitigation? Where, although relevant, it is incapable of mitigating the worst type of behaviour (dishonesty in solicitors for example). On balance, I reject that approach. Until persuaded I am wrong, I will continue to review my clients’ medical evidence with an eye to the possibility that their actions arise from a medical condition. I will advise that they may have a defence, even if they knew the nature of their actions, if their behaviours were driven by factors beyond their control.