Never too late to get an advocate’s help

Our members feel strongly about doing something to help, expecially in stressful cases, says Angela Grahame QC

LAST month, the news was filled with stories about Unison’s case before the Supreme Court, challenging the legality of the fees regime for claims in employment tribunals. It was argued that the regime effectively prevented access to justice, having resulted in a reduction of around 70 per cent in the number of claims. The judgment took the opportunity to emphasise the importance of access to justice in society.

That case involved the right of employees to challenge decisions of their employer. But sometimes the employer has a right to bring an employee before a Panel of a Regulatory Body for what are called Fitness to Practice or Impairment Hearings. Although they do not like now to use the word “disciplinary”, often there is an element of that – with sanctions being imposed on the “registrant” employee.

There are many of these regulatory bodies, for all sorts of professions: nurses, midwives, care workers, social workers, doctors, dentists. Any such person could be called to appear at a Hearing and the consequences can be very serious. They may be suspended from work, sometimes without pay. They may be scared to get legal advice because of the costs. They may know nothing about the rules or procedures of the Panel. If they appear – and a good number simply don’t – they will likely face legally qualified Presenting Officers. All very alien and confusing for them. With all of this comes a high emotional cost. A recent study looked at social workers facing Fitness to Practise investigations. It found he whole process put them under considerable stress, and the “emotional toll” was a key theme. Alarmingly, five out of eight of the sample disclosed that they had either attempted suicide or considered it. It also found misunderstanding of the Panel, as well as overwhelming feelings of shame and stigma, with many choosing not to appear.

This concerns the regulatory bodies. How can there be proper access to justice if people cannot appear for financial or emotional reasons? It is difficult for those bodies when they cannot hear the registrant’s side of the story. Many bodies, though, are now taking steps to try to allay registrants’ concerns and fears, as well as using technology via live links to take evidence without the need to travel distances to hearings.

Our members feel strongly about doing something to help. Last year, a group of more than 80 advocates, including several QCS, signed up for specialist training in the workings of these bodies.

Our Dean of Faculty, Gordon Jackson, QC, met with many of the regulatory bodies, the Royal Colleges and trade unions. He expressed his concerns about ensuring access to justice. It became clear many of those concerns were shared.

This year, our members have demanded further specialist training. The demand has been so great that, working with the University of Aberdeen, we have collaborated on a new 6-week course in Regulatory Law & Practice for our members. This will help develop their skills and knowledge in this field.

The Faculty operates a Free Legal Services Unit which, in qualifying cases, can provide representation at no cost. Other avenues are open to people who do not qualify for this service. Many people have legal expenses cover on their home insurance policy. They might have a sympathetic employer whose insurance would cover their costs. If the person is a member of a Royal

College (such as th Royal Colleges of Nursing or Midwives), they can instruct an advocate directly, without going through a solicitor. Even at the 11th hour, there can be significant advantages in seeking the help of an advocate.

At the hearing, late documents can be lodged, new arguments presented, evidence challenged. And assistance can be given in appealing a Panel’s decision. In one case, a Panel had made a striking off order against a nurse in her absence, but after the involvement of a QC, she won her appeal and that decision was quashed.

It’s never too late to get an advocate on your side and for that to make a big difference. Angela Grahame, QC, is Vice-dean of the Faculty of Advocates 0 A recent study looked at social workers facing Fitness to Practise investigations.