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When will it be unfair for a professional regulator to refuse to adjourn a fitness to practice hearing? And if the hearing proceeds and the registrant fails to attend, what are the consequences? Those were the questions facing the Inner House – the Scottish appeal court – in Thomson v Architects Registration Board 2021 CSIH 54.
Mr Thomson has been an architect for 30 years. In 2014 he was instructed to produce interim and final Professional Consultant Certificates for a block of flats in Troon, Ayrshire. These stated that the flats were in line with fireproof regulations and with drawings approved by Building Control.
In November 2016 occupants of the flats submitted a complaint of inadequate soundproofing. An Investigations Panel dismissed the complaints but further complaints - this time of insufficient fireproofing - were submitted in November 2018. This time the complaints were referred to the ARB’s Professional Conduct Committee.
A hearing was scheduled for 30 March 2020. In his acknowledgment of notice of hearing, Mr Thomson admitted unacceptable professional conduct but denied serious professional incompetence. He also stated that he did not intend to call witnesses in his defence.
Mr Thomson attempted to postpone the meeting. He argued that he was involved in ongoing civil proceedings, which would interfere with this PCC case. The civil proceedings had been sisted for more than two years at the request of Mr Thomson and, as Lady Dorrian put, “there was no indication that they might become live any time soon.” The PCC refused Mr Thomson’s request.
Due to the pandemic the hearing was further delayed until 17 August 2020. Again Mr Thomson sought postponement. In addition to repeating his prior reasoning, he added that a video call format would be inappropriate for the subject matter of his case, would impact upon witness assessment, and that his solicitor was waiting for a date for a medical appointment, although no date was provided. Again the request was refused.
On 14 August Mr Thomson’s solicitor notified the PCC by email that neither he nor his client would attend the hearing. After consideration, the PCC decided to go ahead with the hearing without Mr Thomson or his representative. They found Mr Thomson guilty of unacceptable professional conduct and erased him from the register.
Mr Thomson appealed to the Inner House. He challenged the decision to conduct the hearing in his absence and challenged erasure as excessive. He argued that the PCC had failed to explain why one error of judgement warranted erasure in light of his lengthy career.
The ARB argued that public interest had warranted a hearing at the earliest possible date. There was nothing preventing Mr Thomson or his agent from participating effectively.
The court held that the grounds of appeal were entirely without merit. There was no unfairness in conducting the hearings virtually. There was no indication that Mr Thomson intended to challenge anything other than the allegation of serious professional incompetence. He admitted to unacceptable professional conduct, likely with his insurers’ approval. The PCC’s decision appeared to reflect what Mr Thomson had already accepted, meaning it was impossible that he had been denied a fair hearing. Awaiting the outcome of the civil case would cause a delay of indeterminate length. His actions required erasure because he had seriously endangered members of the public, and diminished not only his own reputation, but that of the whole profession.
In failing to be present at the hearings Mr Thomson was unable to present his case effectively. Missing a regulatory hearing - even on grounds that may, to the registrant, seem valid - is a risk not worth taking. A committee may grant a late adjournment where, for instance, the registrant has become unwell, but even then their representative must appear to make the application and, if unsuccessful, deal as best they can with the full hearing.
The public interest element here was key. The committee had identified a real risk if Mr Thomson continued in practice. His failure to appear simply built upon the foundation he had laid through his admitted unacceptable professional conduct.