Area of Law – Practice and Procedure

An Article about Professional misconduct

Professional Boards have wide powers to suspend a professional person’s registration at any time for professional misconduct.

For example, the Victorian Health Professions Registration Act 2005 provides that a responsible Board may, at any time, suspend the registration of a health practitioner if it is of the opinion that it is necessary to do so because there is a serious risk that the health and safety of the public will be endangered because it believes, on reasonable grounds, that, amongst other things, the health practitioner has, or may have, engaged in unprofessional conduct or professional misconduct.

If a professional person is charged with a criminal offence, the professional body to whom he is affiliated will invariably invite him or her to make an oral submission to the Board, supported by a written submission in advance, as to why his or her general registration should not be suspended pending the outcome of the criminal proceedings and investigation undertaken by the professional body.

A suspension imposed in such circumstances can often last for years and have a devastating effect.

In making submissions, professional people need to be alert to the potential for those submissions to impact upon subsequent criminal proceedings.

The temptation is to incorporate into a written and/or oral submission an articulation of one’s position in denial of the allegations. To do so, however, is to lock one into that position, and to deprive one of flexibility later on.

What this reflects is that it is not the practitioner’s job to prove a case against themselves. It is the most fundamental privilege that we have that those who assert something have to prove it. So it is not for the practitioner to prove anything for an organisation that is trying to harm their reputation and their career.

It is analogous to Police interviews, the aim is not to let you tell your version of events and then assess them. The aim is to get admissible evidence that can be used to assist the prosecution. Do not take steps without getting proper advice on all the consequences.

It is important not to commit to a particular version of events as the submissions will almost always be made well before the evidence against the professional person has been disclosed.

Furthermore, Board Members invariably ask the professional person questions at such a hearing. He or she needs to be advised properly how to answer any questions asked. In answering questions, the professional person needs to avoid committing himself or herself to a version of events so that he or she is not constrained in defending himself or herself later on.

In this regard, it is important to receive sound advice approaching such a hearing and to be represented capably at it.


Date: 01/09/2009