This is the third in our series of Good Decision-Making Guides for Public Bodies. These Guides highlight what is best practice in decision-making and offer simple and practical tips to reduce the risk of challenge to your decisions.
Decisions must be made in a way that is procedurally fair. The right to fair procedures derives from the Constitution and the European Convention on Human Rights and has been elaborated on by the courts through case-law.
Decision-makers must apply fair procedures from the very outset of the decision-making process.
Public bodies, and those working in them, have a positive obligation to apply fair procedures.
A failure to apply fair procedures when making a decision may result in the decision being set aside by the courts.
WHAT IS INVOLVED IN APPLYING ‘FAIR PROCEDURES’?
Fair procedures is a flexible concept and what it requires may vary from case to case. For example, fair procedures must be very strictly applied where the decision threatens the good name of an individual or an individual’s right to earn a livelihood.
In general, decision-makers must:
- not be biased and must not take part in more than one stage of the decision-making process.
- notify the person affected by the decision of any allegations against them and give them the opportunity to be heard.
- allow him/her to call witnesses, make representations and crossexamine the other side (in cases where there is an oral hearing).
- consider allowing him/her to have legal representation.
- give reasons for their decision and keep a written record of these reasons.
We will look at the first of these obligations in this Guide and 2-5 in Guide 4.
WHEN MUST FAIR PROCEDURES BE APPLIED?
Fair procedures must be applied at every stage of the decision-making process, for example, when:
- conducting disciplinary hearings;
- carrying out investigations;
- writing reports;
- making determinations or decisions; and
- reaching conclusions.
DECISION-MAKERS MUST BE FREE FROM BIAS
The decision-making process must be free from bias or the appearance of bias and the decision-maker must be seen to act in a fair and impartial manner.
Even a perception of bias (objective bias) may be sufficient to amount to a breach of fair procedures. A perception of bias arises where a reasonable person reasonably believes, on the basis of the facts as presented, that the decisionmaker may have been biased.
Consider whether any perception of bias might arise
If you are asked to sit on a decisionmaking panel, you should consider if there are any facts that might raise a doubt as to your impartiality. This might include, for example:
- any association, connection or prior involvement with a particular matter or individual;
- membership of an organisation;
- personal or political beliefs; or
- a financial interest in the outcome of the decision.
If necessary, consider removing yourself from the decision-making panel in order to ensure that the process will be free from concerns about bias.
A perception of bias should not be presumed just because of a connection or an association with a person - consider if a reasonable person would have a reasonable apprehension that there is bias.
A nurse, who was the subject of an allegation of professional misconduct, alleged objective bias on the part of the chairperson of the Fitness to Practise Committee. She said that the bias arose because the chairperson worked at the same hospital as the expert witness who gave evidence at the An Bord Altranais (the Nursing Board) Fitness to Practice Inquiry, and in fact was the expert’s superior.
Supreme Court: There was no basis for any suspicion that a reasonable person would reasonably believe that the expert would not be able to give independent and impartial evidence (O’Ceallaigh v An Bord Altranais).
Disclose any facts which may give rise to a perception of bias
If you are a decision maker, you should disclose, in writing, to any relevant parties any facts which a reasonable person would believe would give rise to bias.
Four adjudications took place between parties to a construction contract. The adjudicator who was appointed to the first and second dispute was also appointed to the fourth dispute. He did not disclose that the claimants had had two telephone conversations with his office manager following the second dispute.
High Court of England and Wales: The telephone calls should not have been allowed to take place because the adjudicator had acted in the first two disputes and an adjudicator should not have a conversation with one side to the dispute. The telephone calls should have been disclosed when he was appointed to the fourth dispute. A fair minded observer would conclude that the adjudicator had been biased. (Paice & Springall v MJ Harding).
Do not get involved in more than one stage of a decision-making process
Sometimes, for practical reasons, a person who was previously involved in a particular case and is familiar with the background may be asked to make a decision on a particular issue arising. However, this may give rise to a perception of bias.
Decision-makers should not have previously been involved in the matter on which they are deciding. For example, a member of staff who has made a complaint about an employee should not subsequently sit on any disciplinary panel or be involved in disciplinary proceedings in relation to the employee. Similarly, an appeal of a decision should not be heard by any of the people who made the initial decision.
A person made a complaint of professional misconduct against a veterinary surgeon. This same person then sat on the Veterinary Council which made an order suspending the veterinary surgeon from practising.
High Court: This was a breach of fair procedures. The Court set aside the Council’s decision (O’ Donoghue v Veterinary Council).
- Before starting the decision-making process, consider the various steps in the decision-making progress and plan how you will act in a way that is procedurally fair at every stage.
- Consider whether any circumstances might give rise to bias or a perception of bias. Disclose these in writing to the appropriate body.
- Do not make a decision on a matter in which you were previously involved.
- Do not allow a situation to arise where a reasonable person would have a reasonable fear that he would not have a fair and independent hearing of the issues which arose.
- Maintain a written record of all communications with the parties involved, the facts considered and the reasons for your decision. This record may prove invaluable if your decision, and the process by which you reached that decision, is later challenged.