When a professional is facing a disciplinary hearing, part of the defence preparation will relate to the kind of mitigation which can be put forward if the professional is found guilty of misconduct. This almost always includes obtaining references and testimonials which will be placed before the regulatory panel. What is the significance of such testimonials and what weight should disciplinary tribunals place on them? And very importantly, at what stage in the proceedings should testimonials be considered?
The Respondent's perspective
From a respondent's perspective, good testimonials can be crucial to a good outcome. They are intended to show the tribunal that, despite the alleged misconduct at issue, he or she is someone of good standing both professionally and personally. Depending on the nature of the alleged failings, references and testimonials can focus on a professional's competence, honesty or general good character. Testimonials are usually in the form of written evidence but referees can be called to give oral evidence. Whether written or oral, such evidence can help a tribunal put any alleged misdemeanour in the broader context of the respondent's overall character, reputation and professional standing rather than being considered in isolation. This can be particularly important where the alleged misconduct relates to a single error or misjudgement rather than persistent or repeated misconduct or underperformance.
The Disciplinary Panel's perspective
While testimonials and other evidence in mitigation have a proper role to play in a disciplinary setting, tribunals must exercise some caution in considering such evidence. One point of particular importance is whether mitigation evidence can influence the tribunal's decision on whether there has been misconduct or is only relevant to penalty after misconduct has been found to be established. In a case a few years ago, in which a doctor appealed against a decision by the GMC, it was held that it was important to distinguish mitigation evidence about the circumstances in which an event occurred from purely personal mitigation, such as testimonials which point to good character. It was accepted that while the former could influence the decision on culpability, the latter is only relevant to determining the penalty or sanction to be imposed. Some disciplinary schemes have quite strict procedural rules which ensure that mitigation evidence can only be led after a decision has been taken on culpability but for others, this is an important point to bear in mind.
When determining sanction, tribunals can and should however take account of the number, strength and quality of testimonials. The weight which can be placed on references will be greater if it is clear that those giving the testimonials were aware of the allegations faced by the respondent and nevertheless hold the respondent in high regard. Testimonials from properly informed colleagues, clients, patients and so on can assist tribunals in assessing whether the alleged wrongdoing was out of character, which will usually be relevant to penalty. The courts have also held that testimonials which establish not only that a professional is competent but also that his or her loss to the profession as a whole would be significant, can be given substantial weight. In one such case it was held that it was not in the public interest to exclude a professional of this standing from his profession provided there was a lesser means of protecting the public and the reputation of the profession concerned.
In summary, testimonials will normally form an important part of any defence to a professional disciplinary complaint. Tribunals can and should consider such evidence carefully and at the appropriate stage in proceedings. Personal mitigation such as character testimonials is usually only relevant to the question of penalty but some mitigation evidence may be relevant also to culpability.