The end of the age of the deference: the right to complain

Figures from The Royal Institute of British Architects (RIBA) suggest a growing trend towards disciplinary complaints. We previously considered why this trend exists. Here, we take a look at what steps to take when responding to a complaint.

The regulatory environment

Architectural professionals are regulated and disciplined by three professional bodies; Royal Institute of British Architects (RIBA), The Architect’s Registration Board (ARB), and The Chartered Institute of Architectural Technologists. Each entity has its own powers, procedures, and disciplinary code. Whilst these disciplinary bodies may not be able to award damages to a complainant, they remain able to inflict considerable reputational damage on an individual professional, or on a practice as a whole, by making findings that relate to the professional’s competence.
The statistics

RIBA has released figures in relation to all complaints received in 2017 and 2018: 

Complaints have increased from 2017 to 2018 and we are currently awaiting 2019 figures from RIBA. We have discussed the reasons behind this increase in our previous article.

In addition to making a complaint, savvy claimants may use a complaint as a “stalking horse” to a civil claim for damages. Accordingly, the regulatory environment facing architects is increasingly challenging.

Responding to a complaint

Many design professionals find corresponding with their disciplinary bodies an intimidating and chastening experience. However, a confident professional is encouraged by RIBA to represent itself at a hearing. In our experience, all professional may benefit from legal advice at the earlier stages of the investigation, to help shape the presentation of any response, avoid damaging concessions, and maximise the chances of avoiding a formal hearing.

The following are important points to consider when dealing with a disciplinary complaint:

1. Notify insurers and collect evidence: On receiving notice of a disciplinary investigation, you should immediately notify your broker and / or insurers.

2. High hurdle: To establish a finding against an architect, the disciplinary body must consider whether, as a matter of fact, the professional behaved in the way alleged? If so, did this constitute unacceptable professional conduct or serious professional incompetence with reference to the provisions of the particular body’s Code of Conduct?

In the leading case of Vraniki v Architects Registration Board [2007], Mr Justice Collins said: “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.”

In Spencer v General Osteopathic Council [2012] , a “serious lapse” requires “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” In Calhaem v General Medical Council [2008], “a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.

Establishing a valid complaint is therefore challenging for professional bodies and, on the judicial authorities, harder than proving negligence. Setting out these stringent demands in initial correspondence may help to swing the arguments in favour of the professional.

3. Evidential test: To determine whether the professional acted in the way alleged, each body applies its own evidential test. The ARB, in particular, applies the civil standard of proof, which is the “balance of probabilities”. RIBA adopts the more demanding criminal standard of proof, which requires a complaint to be proven “beyond all reasonable doubt”. If a complainant is unable to furnish good evidence in support of their case, the professional may successfully argue for a dismissal of the complaint.

4. Time bars: It may be helpful to check whether or not the complaint is time barred, which may be used as a defence to any allegations.

5. Mitigation: Finally, without prejudice to the professional’s defences, they may wish to raise points to argue why any sanction should be less serious. The types of things to note are:

• A good disciplinary history
• Evidence of corrective steps or changes in practice management / culture
• Remorse
• Respect for the professional body and engagement with the disciplinary process.

Comment

The age of deference for professionals is gone and, with access to justice ever more costly, we expect that disciplinary investigations against architects may become more prevalent. Helpfully, the statistics provided by RIBA and the sanctions published by the ARB suggest that cases of expulsion or erasure (i.e. striking-off) are the exceptions to the rule. Other sanctions may include suspension, penalty order of £2,500 per charge or reprimand.

As per our previous article on this topic, information from RIBA suggests that the most common grounds for a disciplinary sanction arise from simple matters of housekeeping or communication that may be covered by good practice management.

In addition to our suggestions, RIBA publishes excellent legal documents, which can be used to help prevent a disciplinary investigation and defend a civil claim. Architectural professionals may wish to discuss with their brokers whether their existing insurance covers the costs of professional disciplinary proceedings.

It would also be prudent to review the most recent iterations of the Codes of Conduct, consider existing appointment documents, and to seek advice from the body’s ethics/ practice guidance helplines in relation to any practice management issues.

Read other items in Professions and Financial Lines Brief - November 2019

Read others items in Commercial Brief - April 2020