Following erasure from a professional register professionals have the option to apply for restoration although it is unlikely that any professional indemnity insurer will provide cover which will fund an application. There are similarities between the regulators with regard to their approach to restoration, but there are also important differences. Gillian Nevin and Joe Orme review the position for two professions - solicitors and veterinary surgeons - and considers the obstacles they face when applying for restoration.
A series of hurdles
The first hurdle that each professional has to overcome is the minimum period before an application can be made. A veterinary surgeon can make an application for restoration after just ten months while a solicitor has a six year wait.
The applicant must demonstrate that they have maintained professional competence and kept themselves updated in terms of knowledge and developments in practice since removal. A solicitor is permitted to continue to work within a law firm with the consent of the SRA, but in reality, there will be few employers who will engage a former colleague who has been issued the ultimate sanction by their regulator. The applicant may have to consider alternative ways to show a continued commitment to their chosen profession. This could involve concentrating on best practice policies or studying under distinguished professional mentors, as one successful veterinary surgeon applicant was able to demonstrate.
To have a chance of being restored, a professional must acknowledge and fully accept the judgment following their original disciplinary hearing. Any denial or failure to accept the decision of the regulator is likely to prove fatal to the application.
A solicitor against whom dishonesty has been proven will not be restored to the Register. The introduction of the Suitability Test by the SRA Handbook 2011 is a considerable obstacle which many applicants may not overcome.
For the veterinary surgeon, a finding of dishonesty does not mean that there is no way back into the profession. If the professional can demonstrate that they have ‘changed their ways’ and made considerable efforts towards rehabilitation, the Regulator will give this weight.
Impact on the profession
A paramount concern for the Regulators is the impact that the professional’s misconduct has had on the reputation of the profession as a whole. The Court of Appeal in Bolton -v- The Law Society identified three characteristics which a professional should hold above all others: integrity; probity; and trustworthiness. The Regulator must be satisfied that the profession will not be harmed and that public confidence would not be diminished should the professional be restored.
Prospects of success
Out of 21 applications to restore since 2002, the Solicitors Disciplinary Tribunal has granted 10. The Royal College of Veterinary Surgeons has heard seven applications since 2012, granting four.
Recent examples of successful applications made to the RCVS include Denis Cronin, who was restored in 2014 almost nine years after being struck off having been found guilty of seven separate charges of misconduct. James Main was restored in 2012 after being struck off in 2011, following his administration of a prohibited substance to a racehorse and subsequent attempts to conceal his actions.
Comparing the professions
Veterinary surgeons appear to have fewer obstacles to overcome to obtain restoration than solicitors, most likely due to the level of trust which the public places in solicitors, not only to conduct their affairs, but to handle client money. The recipe for restoration appears to be simple - good evidence of rehabilitation, continued professional development and an unreserved acceptance of the original disciplinary findings. The absence of dishonesty is essential for a solicitor.
The statistics indicate that more veterinary surgeons are inclined to make an application for restoration than solicitors, presumably because they are more confident of being restored to the register. In any event, any application will have to be thorough and meticulously compiled for the best prospects of success.
This article originally featured in our summer 2015 professional and financial risks update newsletter.