Over the last few years, the Architects Registration Board (ARB) has seen a significant increase in the number of disciplinary hearings, some of which have resulted in suspensions and erasures from the Register of Architects.
In light of this increase, and the devastating effect that disciplinary proceedings can have on an individual architect’s career and business, Tom Handley considers the burden and strain on architects facing an ARB investigation. He also looks at some of the potential arguments which architects can use to defeat a charge or mitigate the sanction.
Summary of the ARB process and powers
Under section 14 of the Architects Act 1997, the ARB has a legal obligation to investigate all complaints of unacceptable professional conduct (UPC) and serious professional incompetence (SPI) against individual architects on the Register.
The ARB has a tough system in place for dealing with complaints. Where the investigations panel finds that there is a case to answer, and following a report by the ARB’s solicitor, the case will proceed to a public hearing before the Professional Conduct Committee (PCC). The PCC then has the power to impose a disciplinary sanction, which can include: no order, a reprimand (warning), a fine (up to £2500 per charge, with a maximum of 2 charges), suspension from the Register for up to two years, or removal from the Register.
Recent ARB decisions
It is not disputed that the ARB provides an important regulatory function. Issues dealt with by the PCC over the last year or so have included serious matters such as dishonesty, criminal convictions for fraud, breaches of health and safety legislation, inappropriate use of client money, and failure to have adequate insurance.
However, the PCC has also had to deal with less serious complaints, for example, a failure to issue written terms of engagement and a failure to respond promptly and/or appropriately to a complaint letter.
The burden and strain on architects
The disciplinary regime can have considerable drawbacks for the individual architect;
- The financial costs and administrative burdens on the architect (and his/her respective practice) can often be significant and disproportionate to the risks which the regulation seeks to address, particularly in relation to the less serious complaints/charges mentioned above.
- The process can be long and drawn out. The average reported time for a case to conclude is one and a half years. During this period, the architect has the pressure of maintaining both a business and having to deal with their defence to the allegations.
- It can be an incredibly stressful process, particularly to those architects who are unfamiliar with the adversarial nature of ARB proceedings.
- The hearing is held in public and members of the press or public can attend. Any sanction imposed by the PCC is published on the ARB website for between one and five years (depending on the penalty imposed). There is, therefore, the risk of damage to the architect’s reputation, and consequential damage to the architect’s career, practice, and livelihood.
- As the process and ultimate sanction can impact on the defence to ongoing or potential future civil claims, those claims often need be considered and managed (with insurers and appointed solicitors) in tandem with the disciplinary process. This is a further strain on the architect’s resources.
All too often, architects find themselves at a public hearing before the PCC, under-prepared and unrepresented, and facing the daunting prospect of cross-examination, under oath, from an experienced prosecutor (the solicitor on behalf of the ARB Board) as well as questioning from members of the PCC panel (comprising a solicitor, architect and lay member). While the clerk to the PCC will be present to ensure that the correct procedures are adhered to and that relevant legal principles are considered, for many architects the process can seem unfair.
How to defeat a charge or mitigate the sanction?
It is not possible to provide a hard and fast formula valid for all cases and of general application without regards to the facts and circumstances of each case. However, this note serves as a checklist of key points which an architect should consider if faced with disciplinary proceedings.
- Notify insurers/brokers and check your professional indemnity policy
You should notify your PI insurers as soon as you become aware of a complaint. In some cases (usually where additional cover has been taken out), legal expenses for defending disciplinary proceedings will be covered (although sometimes these expenses are capped at a certain level). Even where disciplinary proceedings are not covered under your policy, insurers may still agree to fund your reasonable legal expenses, particularly if the complaint and any submissions are likely to impact upon defences to ongoing or potential future civil claims.
It should be noted, however, that for public policy reasons, fines cannot generally be covered by PI Insurance.
- Obtain legal advice
Ideally, you should obtain legal advice at an early stage, preferably as soon as a complaint has been received and before the ARB Investigations Panel decides whether or not you have a ‘case to answer’. If your response to a complaint is carefully and comprehensively constructed from the outset, it may be possible to achieve an early dismissal without any formal charge being brought. In the long run, this could save you considerable time, effort and expense.
There are also strict deadlines and rules which need to be followed, and any submissions need very careful thought. Architects frequently miss procedural deadlines (which can prohibit them from making formal submissions prior to the hearing) and fall into the trap of making ‘informal’ submissions which they later live to regret.
In our experience, it is not uncommon for architects to seek legal input on the cusp of a hearing. However, by this point, damaging and incriminating submissions have often been made by the architect, the potential for a plea bargain has been lost, it is too late in the day to implement corrective steps in mitigation or to repair any aggravating factors, and there is very limited time for the lawyers to properly investigate and defend the charge - including adducing appropriate witness evidence and testimonials and calling witnesses to give evidence at the hearing.
While obtaining legal advice is a commercial decision for you and/or your practice (weighing the potential cost of legal advice with the potential benefits to be gained), in order for you make an informed commercial decision, some initial legal input is almost always required, for example in relation to any connected civil claims, the potential defences and mitigation available, the possible sanction, and the likely level of involvement in the process by you and/or your legal team.
- How to defeat a charge?
The PCC have to answer two questions:
- As a matter of fact (on the civil standard, being the balance of probabilities), did the architect behave in the way alleged?
- If the PCC finds that the architect did behave in the way alleged, does this behaviour amount to UPC or SPI?
The first question is a matter of fact. It may or may not be capable of being disputed. Thorough factual investigations will be required at an early stage to identify whether or not a defence on the facts does exist. However, it is important to note that the burden of proving the alleged facts rests with the ARB’s solicitor.
As to the second question:
- If there were failures, are there any extenuating circumstances (e.g. ill health)?
- Are there any other reasons which adequately justify the failures?
- Are the circumstances such as to amount to a ‘serious’ lapse? To paraphrase Mr Justice Collins in Vranicki -v- ARB , ‘unless what has been done or not done in an individual case can be regarded as a serious lapse it would not be appropriate to impose a disciplinary sanction’. While ‘serious’ is a matter of judgment of the PCC, the following points can be put forward in almost every case:
- The Architects Code 2010: ‘Standards of Conduct and Practice – Introduction’ states that: ‘Any failure to comply with the provisions of this Code is not of itself to be taken as constituting unacceptable professional conduct or serious professional incompetence, but it shall be taken into account in any disciplinary proceedings before the [PCC].’
In accordance with Spencer -v- General Osteopathic Council  and Calhaem -v- Medical Council , for a finding of UPC or SPI to be made, ‘a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen’ is required. ‘Mere negligence does not constitute misconduct’ and ‘a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions…a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance’.
- How to mitigate the sanction?
The PCC must work from the bottom up, that is to consider the least penalty and to ask itself whether that is sufficient, and, if not, then to go to the next one, and so on (Raschid -v- General Medical Council ). The PCC does not need to impose a sanction in every case where a guilty finding is reached, so the PCC may choose to make no disciplinary order.
In terms of mitigating any sanction, the PCC will have due regard to the following factors:
- That your conduct has not seriously affected the client/complainant (e.g. the losses suffered are negligible).
- Your previous good regulatory record.
- References/testimonials that you have provided as to your character (e.g. from happy former clients). These will be weighed appropriately against the nature of the offence.
- Evidence that previous failings have now been addressed (e.g. corrective steps, in the form of precedent letters or a change in internal procedures, have been put in place to prevent the offence recurring).
- You have demonstrated insight into your failings and a genuine expression of remorse.
- You have fully and constructively engaged in the disciplinary process.
In terms of aggravating factors, the PCC will take into account factors such as a pattern of poor conduct/competence, substantial loss to clients, refusal or inability to acknowledge failings and a failure to engage with the disciplinary process.
The message to architects is clear – notify your brokers/insurers as soon as a complaint is received and obtain early legal advice. While there are always commercial considerations to take into account, taking on the ARB, without input from insurers/brokers and solicitors, is extremely risky especially given the potentially devastating consequences.
In terms of risk avoidance, architects should familiarise themselves with, and adhere to, the Architect’s Code of Conduct. They should ensure that appropriate PI insurance is in place, that written terms of engagement are issued to the client at the outset, that written records are kept of client meetings and conversations, and that a written procedure for prompt and courteous handling of complaints is in place and followed. Where a complaint is made, the architect should try and encourage early alternative methods of dispute, such a mediation, which may serve to prevent the complaint reaching the ARB to begin with.