Comment – Restore the power to suspend

Where the English ICA’s investigation committee has a case against member, it has certain choices. It can refer the case to its disciplinary committee or it may make a consent order.

This means that the institute makes an adverse finding and imposes a penalty on the member concerned. The objective is to avoid disciplinary proceedings in less serious cases.

The member cannot negotiate the wording of the finding or the severity of the proposed penalty. It is a ‘take it or leave it’ situation. The penalty will involve a fine and costs (an average of #1,200 in 1997, up from #800 in 1996). A member not accepting a consent order will invariably be sent to the disciplinary committee.

The member offered a consent order faces a dilemma, particularly if he does not consider he has acted unprofessionally or accepts that he has, but believes the penalty to be unduly harsh.

The disciplinary proceedings will not be heard for some months. Awaiting the call of the disciplinary committee can be stressful and can result in depression or illness. Even when acquitted, members are not compensated for the time spent preparing their case. There is also a risk that the committee may impose a greater penalty (it is not told about the consent order). And if the member decides to be legally represented, he has no entitlement to legal costs if the case is found not proved.

By accepting the consent order, the member is admitting misconduct, inefficiency or incompetence. He should always consult his insurers before accepting, as an admission could void his indemnity insurance policy. Furthermore, a consent order could result in his practice undergoing an inspection. This may have a direct bearing on his audit registration or insolvency licence.

The institute has appointed Michael Beloff, QC, to investigate its disciplinary processes. A recommendation Mr Beloff should make is that a member acquitted by the committee be awarded legal costs. This is what happens when ACCA’s disciplinary committee throws out a complaint. In civil proceedings, the successful litigant is entitled to his costs, as is a defendant acquitted in criminal proceedings.

If consent orders are considered appropriate for less serious cases, why publicise the member’s name? Publicity can be immensely damaging and should be avoided. Some years ago, the institute abolished the disciplinary committee’s power to suspend members for up to two years. As a consequence, where the disciplinary committee wishes to impose a penalty greater than a severe reprimand and unlimited fine, it has no choice other than to exclude. The power to suspend should now be re-instated.

Chris Cope is a solicitor specialising in disciplinary cases, practising in High Wycombe.

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