In 1975, Keith Soothill was investigating the disciplinary proceedings of professional bodies. The Royal Pharmaceutical Society was one of those bodies. He has returned with a colleague to consider whether there have been any changes
It is fascinating returning to an area one has visited some time ago. Will one recognise the terrain, the buildings, the people? It is the same with policies and procedures. Will they be the same or will they have changed beyond recognition? In 1975, under the auspices of the Apex Trust - a charity concerned with the employment problems of ex-offenders - one of us (KS) was studying the problems of persons in the white-collar field who had a criminal conviction. Would professional bodies resist their entry, would disgraced professional persons lose their livelihood, and so on? Nearly a quarter of a century later, a return visit to the same area is an interesting experience.
The Royal Pharmaceutical Society of Great Britain was one of the professional bodies in the original survey. We appreciate the recent response to what were essentially the same questions we posed all that time ago. The purpose of this article is to indicate the similarities and the differences in the two surveys both in respect of the Society's procedures but also those of professional bodies in general.
It is hazardous to make too many generalisations, for one quickly learns that there are no procedures or policies which cover all professional bodies - in fact, they either evolve or are designer-made for their individual constituencies. Nevertheless, the first impression overall is that there has been little change generally over the past quarter of a century. Self-regulation, of course, continues. Internal pressures have not generated much momentum for change. Members seem to be largely comfortable with systems which rarely affect them. However, there have been external pressures which have produced some challenge or pause for reflection. Essentially, these have been legalistic (no longer can professional bodies regard themselves as "a law unto themselves") and economic (markets have always been international but occupational mobility is no longer parochial). Professionals now travel the world over and the question of whether qualifications recognised in one location are transferable to another location is now a major issue for some professions. This type of concern is likely to be even more widespread in the new millennium.
Professional bodies have largely recognised the importance of ensuring that their procedures and practice are not open to subsequent legal challenge. No longer can one guarantee that a disgraced member will take his or her punishment and disappear sadly but gracefully after the disciplinary hearing. The world is becoming much more litigious. This leads to the other major change generally among professional bodies. There has been a much greater flexibility of punishment which has been introduced over the past two decades. No longer is the choice of a severe wigging from the chairman or the extreme measure of expulsion seen as appropriate to cover the vast range of misbehaviour which the disciplinary proceedings may cover.
So how has the Royal Pharmaceutical Society fared against this general backcloth of change? How would one characterise its activity in the disciplinary area? Has much happened? Has there been any dramatic shift in the disciplining and punishment of members?
Founded by Jacob Bell in 1841, the Society has existed for well over a century and a half, and the disciplining of its members has, from its early days, been an important part of its procedures. This has been in keeping with its quest from its origins to be recognised as a profession on a par with other established professions, such as law and medicine, but also because its members are dealing with potentially life-threatening substances. In brief, charlatans and incompetent practitioners could not be tolerated. The 1868 Act which established the Pharmaceutical Society as the regulatory authority of chemists and druggists in Great Britain provided the context in which such power could be exercised. Hence, there are specific statutory responsibilities in terms of maintaining a register of pharmacists and the power to recognise and approve the content of a pharmacy degree. The role of the inspectorate is unusual in that it is an enforcement authority which is rare among professional bodies.
At the time of the last survey, many professional bodies were reeling in the aftermath of the 1970 report of the Monopolies Commission on professional services which had heralded a torrent of criticism leading many to reassess, modify and even reinvent their respective codes of conduct. In 1975 we identified the Pharmaceutical Society as one of the professional bodies which fully understood the issues at stake. The Society had a panoply of procedures in place which had been more thoughtfully worked out than most. Hence it is perhaps not surprising that the changes in the Society's disciplinary procedures since our last study have been fairly minimal.
The three stages of the Society's disciplinary procedure have essentially remained the same. In the first stage, unless the case relates to a conviction, a committee of the Society's Council considers the case and decides whether to refer the case to the Society's Statutory Committee, its disciplinary board. In the second stage, the chairman of the Statutory Committee, who is appointed by the Privy Council, considers the case and may order an inquiry before the committee or dispose of the case in some other way such as by written reprimand or no further action.
If the disciplinary matter reaches the third stage, an inquiry, it is then and only then that the alleged offender with solicitor or counsel and the public can attend. The end result is either being struck off the register and therefore losing the right to practise, being reprimanded or admonished, or being acquitted, although the committee's practice of adjourning certain cases on conditions, gives some flexibility to the handling of cases.
The Society's total membership has risen from around 30,000 in the mid-1970s to well over 40,000 now. During the period from January 1, 1997, to June 30, 1998, the Statutory Committee dealt with 21 cases of misconduct ranging from theft to more serious offences, such as manufacturing drugs. All but one of these cases concerned members who practised in England, while the remaining case involved a member practising in Scotland. The discrepancy in the numbers between England and Scotland is a puzzle. Do Scottish members more readily abide by the regulations of the Society, or is the difference due to the greater vigilance of the Society's inspectorate in England? The outcome of these hearings was that 14 members were struck off the register and therefore could no longer practise, while seven members were given a reprimand by the Statutory Committee.
While the Statutory Committee deals with more cases than most professional bodies, the numbers still remain remarkably low. However, a comparative paucity of criminal cases is not unusual for many professional bodies. The interpretation, however, is more complex. One view may be that professional persons, including pharmacists, are spectacularly upright. They have too much to lose to risk being caught for misconduct. Another view is that the professional bodies with a comparatively low number of cases are less vigilant and do not so readily discipline members who are in difficulty. Both views may be true, but the importance of the statutory obligation of some professions needs to be recognised. In short, a person can continue to operate as a surveyor (although not a chartered surveyor) without being a member of the Royal Institution of Chartered Surveyors, but a pharmacist cannot continue to operate if disbarred by the Royal Pharmaceutical Society. This difference provides a very different context for the disciplinary role.
With the advent of a new millennium, the need for reform is in the air. A new paper entitled "Proposals for the effective self-regulation of the pharmacy profession" has been circulating since April, 1998. This proposal is primarily concerned with modifications of the current disciplinary legislation.
The main legislation which is used today is over 40 years old, and in this period not only has society and its expectations changed, but so has the profession's role. For example, the role of the pharmacy has dramatically altered over the past four decades. The traditional local pharmacy, owned by a family and run like a local coffee shop where everybody knew each other, is no longer the typical outlet. The rise of the high street chain has challenged the role of the traditional local pharmacy. The meaning of punishment has also changed. A couple of decades ago a member going in front of the Statutory Committee and being reprimanded was thought to be significantly damaging to his reputation, not only to the member himself, but also to his business and his community. In contrast, today's members may not feel that a reprimand is all that consequential. The dichotomy between reprimand and exclusion is nowadays too blunt an instrument.
Secondly, public safety is identified as being paramount. Legal processes may take time and accentuate a danger. So, for example, currently, if a member commits an extremely serious offence which requires removal from the register and, therefore, loses his right to practise, there is a three-month period after the disciplinary procedure is over during which the member may appeal. Hence, however much the Statutory Committee may feel that a member is unfit to practise, the member can continue to practise until the appeal process is completed. Understandably, the Society seeks the power to be able to remove a member from the register immediately. Scandal and potential tragedy are the foes to be fought.
The new disciplinary code will provide greater flexibility. The body will comprise at least 12 members. These 12 members will consist of eight pharmacists and four lay members in order to give a range of opinions. The hearings will, it appears, be chaired by a member of the panel who has been nominated by the Society's Council and approved by the Privy Council.
Four improved powers have been proposed for the new disciplinary body:
In short, the new disciplinary procedure of the Society will basically have increased powers to fine, retrain and to delete a member immediately if an offence of an extremely serious nature has been committed or there is a risk to the community.
At present the consultation paper is not yet legislation and, if implemented, it is difficult to assess what impact this new disciplinary procedure would have on the profession. What is quite evident, however, is that it does indicate that the Society is vigilant and aware of a changing social climate.
So, how do our original concerns of the mid-1970s which focused on the convicted professional or the aspiring professional measure up? Have the rehabilitative needs of the offender which were a focus of the 1960s when the Apex Trust was set up now been replaced by an increased concern for the victim or the potential victim? Certainly, there has been an increased awareness of the issues and the good news is that most professional bodies recognise that in appropriate cases the demands of rehabilitation and the protection of the public may not necessarily be in conflict. It is not an either/or situation. However, it is disturbing that recently Maxwell and Mallon1 have stressed how the discourse of the 1990s in relation to offenders has altered radically, suggesting that "the rhetoric has shifted away from concerns about rehabilitation and social reintegration towards the language of conflict, contempt and hatred".
Certainly there is no longer the "head in the sand" attitude which used to characterise many professional bodies. So, for instance, some professional bodies we interviewed in 1975 had not heard of the Rehabilitation of Offenders Act, which had recently been enacted in 1974. This was certainly not the case with the Society which had made a number of representations to the Home Office about the Act. The problem centred around "spent" convictions and what information they should give EEC countries under a reciprocal arrangement. Nowadays, of course, issues of the EEC loom much larger. Certainly one needs to be vigilant about how legislation might pan out.
Professional bodies continue to need to be well-informed. Is there an awareness of possible changes? In December, 2000, the work of the Criminal Records Bureau begins. The primary aim of the bureau is to keep people with an inappropriate history from working with children or the elderly and in senior financial jobs. Employers in those fields will be able to ask people to produce a criminal record certificate.
One issue that the Home Secretary, Jack Straw, will keep under review is the previous government's decision to allow all employers to ask prospective employees to produce a "criminal conviction certificate". Currently, this proposal is on a back-burner. However, if this became routine, various cans of worms would be opened. In fact, the Government is said to believe that employers would be reasonable and only ask where it mattered. It is perhaps easier said than done to identify the occasions when it actually matters and to be able to interpret the information appropriately when it emerges. The Society has been wrestling with many of these problems for years. For instance, should someone convicted of a cannabis offence be barred from becoming a pharmacist? Should someone convicted of indecent exposure be excluded from membership and thus disbarred from practising? The possibilities seem endless.
Whether it is - or will be - easier or harder for those with convictions to start or continue with a professional career is a moot point which cannot be revealed in a study of this kind. We do not really know whether attitudes have hardened or softened towards those who have been in some difficulty. Our prediction is that the next quarter of a century will throw up more problems than the past 25 years or so. From the dearth of information in former times we will need to face the problem of how to process more and more items of information which are routinely presented. Maintaining a balance which provides protection for the public, appropriate support and guidance for the person in trouble while protecting the image and reputation of the professional body has always been an art. Increasingly, professional bodies will be called upon to demonstrate that art.
Keith Soothill is professor of research and Dawn Sharp is a graduate of the department of applied social science at Lancaster university
References1. Maxwell P, Mallon D. Discrimination against ex-offenders. The Howard Journal 1997;36:352-66. |