22 May 2017

Annexe O - Fitness to Practise Rules

From 6 January 2014 the Bar should refer to a  new Handbook for rules and guidance on their conduct as barristers.

Re-issued on 1st January 2011

 

1. Introduction

2. Definitions

3. Composition of Panels

4. Referral to a Medical Panel

5. Procedure and Powers of Medical Panels

6. Appeals

7. Costs

8. Confidentiality of medical reports

9. Report and Publication of Decisions

10. Service of documents

11. Commencement and Transitional Provisions

 

 

 

 


Introduction


1. These Rules are supplemental to:
(a) the Complaints Rules;
(b) the Disciplinary Tribunals Regulations; and
(c) the Interim Suspension Rules;
as approved from time to time and annexed to the Code of Conduct of the Bar of England and Wales.


2. These Rules prescribe the manner in which any question concerning whether a barrister is unfit to practise, as defined in these Rules, shall be processed.


3. Anything required by these Rules to be done or any discretion required to be exercised by, and any notice required to be given to, the President or the Complaints Committee, may be done or exercised by, or given to, any person or body authorised by the President or by the Complaints Committee as the case may be (either prospectively or retrospectively and either generally or for a particular purpose).


Definitions


4. In these Rules:


(a) "the Complaints Committee" means the Complaints Committee of the Bar Standards Board


(b) "Medical Panel" means a Medical Panel as provided for in rule 4 of these Rules;


(c) "Review Panel" means a Review Panel as provided for in rule 5 of these Rules;


(d) "the Barrister" means the barrister whose case is referred to a Medical Panel pursuant to the procedure prescribed by these Rules;


(e) "Medical Expert" means a medical expert appointed by the President for the purpose of serving on Medical and Review Panels.


(f) "Appointed Medical Advisor" means a medical expert appointed by the President for the purpose of performing medical (including psychiatric) examinations on barristers and advising Medical and Review panels;


(g) "Unfit to practise" when used to describe a barrister means that he is incapacitated by reason of ill health and:
(1) the barrister is suffering from serious incapacity due to his physical or mental condition (including any addiction); and
(2) as a result the barrister's fitness to practise is seriously impaired; and
(3) his suspension or the imposition of conditions is necessary for the protection of the public.


(h) Any term defined in the Code of Conduct shall carry the same meaning as it does in Part X of the Code of Conduct.


(i) Any reference to a person includes any natural person, legal person and/or firm. Any reference to the masculine gender includes the feminine and the neuter, and any reference to the singular includes the plural, and in each case vice versa.


Composition of Panels


5. A Medical Panel shall consist of five members nominated by the President being:


(a) a Chairman and two other barristers of at least seven years Call of whom the Chairman and at least one other shall be Queen's Counsel;


(b) Medical Expert;


(c) Lay Representative.


Provided that:


(1) No person shall be nominated to serve on a Medical Panel which is to consider any case which may have been considered at any meeting of the Complaints Committee which he attended; and

(2) the proceedings of a Medical Panel shall be valid notwithstanding that one or more of the members other than the Chairman or Medical Expert or Lay Representative becomes unable to continue to act or disqualified from continuing to act, so long as the number of members present throughout the substantive hearing is not reduced below three and continues to include the Chairman and the Medical Expert and Lay Representative.
(3) no person shall be appointed to serve on a panel if they are a member of the Bar Council or of any of its committees; or are a member of the BSB or of any of its committees; or were a member of the Complaints Committee at any time when the matter being dealt with by the panel was being considered by the Complaints Committee;.


6. A Review Panel shall consist of four members nominated by the President being:


(a) Two Queen's Counsel who are entitled to sit as a Recorder or Deputy High Court Judge or who have been Queen's Counsel for at least seven years. Unless the panel otherwise decides, the senior barrister member will be the Chairman of the panel.


(b) a Medical Expert;


(c) a Lay Representative


Provided that:

(1) no person shall be appointed to serve on a Review Panel if they are a member of the Bar Council or of any of its committees; or are a member of the BSB or of any of its committees; or were a member of the Complaints Committee at any time when the matter being dealt with by the panel was being considered by the Complaints Committee;
(2) no individual shall sit on both the Medical Panel and the Review Panel considering the same case.


Referral to a Medical Panel


7. Where information in writing or a complaint in writing is received by the Bar Council about any barrister who holds a practising certificate which raises a question whether the barrister is unfit to practise, the Complaints Committee shall consider whether to refer the case to a Medical Panel.


8. The Complaints Committee shall refer a case to a Medical Panel if:


(a) having been referred to it under rule 7 above the Complaints Committee considers a barrister may be unfit to practise; or


(b) a complaint of professional misconduct has been referred to the Complaints Committee during the investigation of which it appears that a barrister may be unfit to practise; or


(c) in any other circumstances it appears to the Complaints Committee or any other Disciplinary Panel or Tribunal that a barrister may be unfit to practise; or


(d) a barrister requests the Complaints Committee in writing to refer his case to a Medical Panel.


9. As soon as practicable after the decision has been made to refer a case to a Medical Panel, the Secretary of the Complaints Committee shall write to the President requesting him to establish a Medical Panel.


10. As soon as practicable after receipt of the letter from the Secretary of the Complaints Committee, the President shall write to the Barrister notifying him of the decision, together with a copy of these Rules. The letter of notification shall:


(a) contain a summary of the reasons why the case has been referred to a Medical Panel;


(b) lay down a fixed time and date (normally not less than fourteen and not more than twenty-one days from the date of the letter) for a preliminary hearing of the Panel to take place. One alternative shall be given;


(c) invite the Barrister to accept one or other of the dates proposed or to provide a written representation to the President, copying to the Chairman of the Complaints Committee, objecting to both dates with reasons and providing two further alternative dates not more than twenty-one days from the date of the letter of notification. Any such representation must be received by the President not more than fourteen days from the date of the letter of notification. The President shall consider any such representation together with any representation from the Chairman of the Complaints Committee and either confirm one of the original dates or re-fix the hearing. If no such representation is received within fourteen days of the date of the letter of notification the hearing shall take place at the time and date first fixed pursuant to rule 8(b) above. The President's decision, which shall be notified in writing to the Barrister, shall be final. Once fixed, a hearing date shall be vacated only in exceptional circumstances and with the agreement of the President;


(d) inform the Barrister that he is entitled to make representations in writing or orally, by himself or by another member of the Bar on his behalf, and that he may produce medical evidence, provided (but subject to the discretion of the Chairman of the Panel to consider any form of evidence placed before it) that a proof of such evidence shall have been submitted prior to the hearing;


(e) inform the Barrister that he may be invited to attend within a period of time upon an Appointed Medical Advisor nominated by the Panel to carry out an examination of the Barrister, and requested to authorise disclosure of his medical records;


(f) inform the Barrister of his right to appeal as provided in rule 20 below.


Procedure and Powers of Medical Panels


11. At any hearing of a Medical Panel the proceedings shall be governed by the rules of natural justice, subject to which:


(a) the procedure shall be informal, the details being at the discretion of the Chairman of the Panel;


(b) the Barrister shall be entitled to make representations in writing or orally, by himself or by another member of the Bar or a solicitor on his behalf, and may produce medical evidence, provided (but subject to the discretion of the Chairman of the Panel to consider any form of evidence placed before it) that a proof of such evidence shall have been submitted prior to the hearing;


(c) the attendance of the Barrister shall be required. Should he nevertheless fail to attend, the hearing may proceed in his absence, subject to the Panel being satisfied that this course is appropriate, that all relevant procedures requiring the Barrister's attendance have been complied with and that no acceptable explanation for the Barrister's absence has been provided. Should the Panel not be so satisfied, it shall have the power to adjourn the hearing;


(d) the hearing shall not be in public unless so requested by the Barrister and a record shall be taken electronically. The tape of the hearing shall be retained under the arrangements of the President for two years or until any charges of professional misconduct against the Barrister arising out of the case have been finally disposed of through the Bar Council's procedure for complaints and any appeal procedure has been exhausted whichever period is the longer;


(e) if it decides an adjournment is necessary for any reason, the Panel may adjourn the hearing for such period and to such time and place, and upon such terms, as it may think fit.


12. If the members of a Medical Panel are not unanimous as to any decision the decision made shall be that of the majority of them. If the members of the Panel are equally divided the decision shall be that which is the most favourable to the Barrister.


13. At the conclusion of a preliminary hearing of a Medical Panel, the Panel:


(a) may give directions for a full hearing of the Panel, including:
(1) a direction within a specified period of time an Appointed Medical Advisor nominated by the Panel shall carry out an examination of the Barrister; and
(2) a request to the Barrister to authorise disclosure of his medical records to such Appointed Medical Advisor;


(b) shall warn the Barrister that if he refuses any request made under rule 11(a) above any Panel hearing his case shall be entitled to draw such adverse inferences as it may think fit from such refusal;


(c) may direct that the barrister be suspended from practice or prohibited from accepting or carrying out any public access instructions (either unconditionally or subject to conditions) for a specified period which should not save in exceptional circumstances exceed 3 months pending the full hearing of the Panel, provided that no such period of interim suspension or prohibition should be imposed unless the Panel is satisfied that it is necessary to protect the public.


(d) in lieu of imposing a period of suspension or prohibition under (c) above may accept from the Barrister an undertaking in writing in terms satisfactory to the Panel (and subject to such conditions and for such a period as the Panel may agree) either:

(1) immediately to be suspended from practice, or
(2) not to accept or carry out any public access instructions,
pending the conclusion of the full hearing;


(e) may accept from the Barrister an undertaking or undertakings in writing in terms satisfactory to the Panel (and subject to such conditions and for such a period as the Panel may agree) as to the conduct of the Barrister's practice pending the conclusion of the full hearing;


(f) shall set down in writing signed by the Chairman of the Panel the decision of the Panel including the terms of any directions given under rule 11(a) above and the period and terms of any interim suspension or prohibition imposed under rule 12(c) above or undertaking accepted under rule 12(d) or (e) above.


(g) shall, if a period of interim suspension or prohibition is imposed under rule 12(c) above or a written undertaking is accepted under rule 12 (d) above:
(1) fix a time and date within the period of suspension or prohibition imposed or to which the undertaking relates, alternatively inform the Barrister that such a time and date will be fixed by the President and notified to the Barrister not less than fourteen days prior to such date, when, unless a Medical Panel has concluded proceedings, a Panel shall be convened for the purpose of reviewing the matter;
(2) inform the Barrister of his right to request a Panel to review the matter prior to the date fixed in (1) above as provided in rule 16 below;
(3) inform the Barrister of his right of appeal as provided in rule 18 below;
(4) inform the Barrister that he is entitled to request an expedited full hearing of the Medical Panel and, if so requested, the Chairman of the Panel may so direct.

14. If a Medical Panel shall decide to give directions under rule 12(a) above, as soon as practicable after the report of any examination requested has been carried out (or refused) and a summary of the case against the Barrister has been prepared on behalf of the Panel, the Secretary of the Complaints Committee shall notify the Barrister. The letter of notification shall:


(a) contain:
(1) the summary of the case against the Barrister;
(2) a copy of any report produced by the Appointed Medical Advisor nominated to carry out an examination of the Barrister;


(b) lay down a fixed time and date (normally not less than fourteen and not more than twenty-one days from the date of the letter) for a full hearing of the Panel to take place. One alternative shall be given;


(c) invite the Barrister to accept one or other of the dates proposed or to provide a written representation to the President with a copy to the Chairman of the Complaints Committee, objecting to both dates with reasons and providing two further alternative dates not more than twenty-one days from the date of the letter of notification. Any such representation must be received by the President not more than fourteen days from the date of the letter of notification. The President shall consider this representation together with any representation from the Chairman of the Complaints Committee, and either confirm one of the original dates or re-fix the hearing. If no such representation is received within fourteen days of the date of the letter of notification the hearing shall take place at the time and date first fixed pursuant to rule 12(b) above. The Chairman's decision, which shall be notified in writing to the Barrister, shall be final. Once fixed, a hearing date shall be vacated only in exceptional circumstances and with the agreement of the President;


(d) inform the Barrister of his right to appeal as provided in rule 19 below.


15. At any full hearing of a Medical Panel the provisions of rule 9 above shall apply but in addition the Barrister himself or by another member of the Bar shall be entitled to cross-examine any Appointed Medical Advisor whose report is in evidence before the Panel.


16. At the conclusion of a full hearing of a Medical Panel, the Panel:


(a) may decide to take no action;


(b) if satisfied that the Barrister is or may become unfit to practise shall have power to impose one or more of the penalties or conditions set out in rules 15(c), (d) and (e) below;


(c) may impose a period of interim suspension or interim prohibition from accepting or carrying out any public access instructions (either unconditionally or subject to conditions) of up to six months, but shall inform the Barrister that such period of interim suspension or interim prohibition shall be continued without any further decision of a Panel unless determined at a review of his case as provided in rule 16 below;


(d) may impose an indefinite period of suspension or prohibition from accepting or carrying out any public access instructions;


(e) may make the Barrister's right to continue to practise, or to resume practice after any period of suspension or prohibition from accepting or carrying out any public access instructions, subject to such conditions as the Panel may think fit, including, without prejudice to the generality of the foregoing:
(1) a requirement that the Barrister should attend one or more Appointed Medical Advisors for regular examination whose report(s) should be made available to the Chairman of the Complaints Committee and any Medical Panel or Review Panel when considering the case;
(2) a requirement that the Barrister should attend one or more clinics or hospitals as the Panel may decide for the purposes of treatment in respect of any physical or mental condition which the Panel may think is or may become a cause of the Barrister's Unfitness to practise;


(f) in lieu of imposing any penalty or condition under rule 15(b) above the Panel may accept from the Barrister one or more undertakings in writing satisfactory to the Panel referring to such period of suspension or prohibition and any conditions which the Panel would have imposed or made under rules 15 (c), (d) and (e) above;


(g) shall inform the Barrister of his right to request a Panel to review his case as provided in rule 16 below;


(h) shall inform the Barrister of his right of appeal as provided in rule 19 below;

(i) shall inform the Barrister that to attempt to practise during a period of suspension or to attempt to accept or carry out any public access instructions during a period of prohibition or, if the Barrister's right to continue to practise is subject to one or more conditions, not to comply with any such condition, would be serious professional misconduct likely to result in a charge of professional misconduct and a hearing before a Disciplinary Tribunal;


(j) shall set down in writing signed by the Chairman of the Panel the decision of the Panel and the terms of any suspension or prohibition imposed, conditions made, or undertakings accepted.


17. At any time, after a period of suspension or prohibition imposed or undertaken under rules 15(d) or (f) above has expired, or in the event of a significant change in circumstances or other good reason, the Barrister may make a request in writing to the Chairman of the Complaints Committee for a Panel to be convened to review his case. Where a significant change in circumstances or good reason is relied upon the letter must set out the details of any such alleged change in circumstances or good reason. On receipt of such a letter the Chairman may in his discretion convene a Panel or refuse the request. In either case the Chairman shall inform the Barrister in writing of his decision but shall not be obliged to give reasons. The Chairman's decision shall be final.


18. At any time during which a Barrister is subject to a period of suspension or prohibition or is practising subject to conditions made pursuant to these Rules the Chairman of the Complaints Committee may in his discretion convene a Panel to review that Barrister's case.

19. When a case is referred for review to a Medical Panel under rules 17 or 18 above:

(a) there shall be a rehearing of the case by the Panel and the provisions of rules ,10, 12 and 15 above shall apply save that copies of the report of any expert or any proof of evidence referred to at any previous hearing of a Medical Panel in respect of the same case may be referred to;

(b) unless agreed in writing between the Chairman of the Panel and the Barrister that any of the provisions contained in rules 10, 11 and 12 shall not apply, there shall be a preliminary as well as a full hearing of the Panel and the provisions contained in rules 10, 13, and 16 above shall apply thereto.

20. A Barrister may by letter served on the President not more than fourteen days after the date of the relevant decision of a Medical Panel give notice of his wish to appeal against the decision.

Appeals

21. As soon as practicable after receipt of a letter in accordance with rule 20 above the President shall convene a Review Panel and write to the Barrister notifying him of a fixed time and date (normally not less than fourteen and not more than twenty-one days from the date of receipt of the letter) for the hearing to take place. The Barrister may make a written representation, addressed to the Chairman of the proposed Review Panel, objecting to the date with reasons and providing two further alternative dates. Any such representation must be received by the Chairman of the Review Panel not more than fourteen days from the date of the letter of notification. The Chairman shall consider any such representation and either confirm the original date or re-fix the hearing. If no such representation is received within fourteen days of the date of the letter of notification the
hearing shall take place at the time and place originally notified to the Barrister. The President's decision, which shall be notified in writing to the Barrister by the President, shall be final. Once fixed, a hearing date shall be vacated only in exceptional circumstances and with the agreement of the Chairman of the Review Panel.

22. The proceedings before a Review Panel shall be by way of a rehearing and the provisions of rules 10 and 14 above shall apply as if for references therein to the Medical Panel and the Chairman of the Medical Panel for the purposes of a full hearing of a Medical Panel there were substituted references respectively to the Review Panel and the Chairman of the Review Panel, save that copies of the report of any expert or any proof of evidence referred to at any hearing of a Medical Panel in respect of the same case may be referred to.

23. At the conclusion of the hearing, the Review Panel:


(a) may allow the appeal and decide to take no action;

(b) confirm the decision that is the subject of the appeal;

(c) may exercise any of the powers of a Medical Panel as set out in rules 15(c), (d), (e), and (f) above;

(d) shall inform the Barrister of his right to request a Medical Panel to review his case as provided in rule 16 above;

(e) shall inform the Barrister that to attempt to practise during a period of suspension or to attempt to accept or carry out any public access instructions during a period of prohibition or, if the Barrister's right to continue to practise is subject to one or more conditions, not to comply with any such condition, would be serious professional misconduct likely to result in a charge of professional misconduct and a hearing before a Disciplinary Tribunal;

(f) shall set down in writing signed by the Chairman of the Panel the decision of the Panel and the terms of any suspension or prohibition imposed, conditions made, or undertakings accepted. If the members of the Panel are not unanimous as to the decision the decision shall be that of the majority of them.

24. A pending appeal to a Review Panel shall not operate as a stay of any period of suspension or prohibition from accepting or carrying out any public access instructions or any conditions or the terms of any undertaking which is the subject of the appeal.

25. There shall be no right of appeal from the decision of a Review Panel.

Costs

26. A Medical Panel and a Review Panel shall have no power to award costs.
Confidentiality of medical reports

Confidentiality of medical report

27. A Barrister's medical records and any report prepared for or submitted to a Medical Panel or a Review Panel shall not be used for any other purpose than is provided for in these Rules and shall not be disclosed to any other person or body without the consent in writing of the Barrister.
Report and Publication of Decisions

 Report and Publication of Decisions

28. As soon as practicable after the conclusion of a Medical Panel hearing or a Review Panel hearing, the Secretary of the Complaints Committee shall confirm the decision to the Barrister in writing.

29. Unless the decision of a Medical Panel full hearing or a Review Panel hearing is to take no action and the Barrister is permitted to continue to practise without being subject to any conditions, the President shall communicate brief details thereof in writing to the following:
(a) the Lord Chancellor;
(b) the Lord Chief Justice;
(c) the Attorney General;
(d) the Director of Public Prosecutions;
(e) the Chairman of the Bar Council;
(f) the Director of the Bar Standards Board;
(g) the Leaders of the six circuits;
(h) the Chairman of the Complaints Committee;
(i) the Barrister;
(j) the Barrister's head of chambers;
(k) the Treasurers of the Barrister's Inn of Call and of any other Inns of which he is a member.

Service of documents

30. Regulation 32 of the Disciplinary Tribunals Regulations shall apply for the purposes of the service of any documents in connection with the procedures which are the subject of these Rules save that for the reference in Regulation 32(1)(d) to the "Directions Judge or the Chairman of the Disciplinary Tribunal" there shall be substituted the " President".

Commencement and Transitional Provisions

31.(a) These Rules will come into effect on 1 January 2011. They shall apply to all cases, including cases referred to a Medical Panel prior to that date, and to all Medical Panels, Appeals and Review Panels including all Panels and Appeals pending as at that date;


(b) Any step taken in relation to any Medical Panel, Appeal or Review Panel prior to 1 January 2011 pursuant to the provisions of the Rules then applying shall be regarded, unless otherwise decided, as having been taken pursuant to the equivalent provisions of these Rules.