Decision in the case of ARB v J— L—
Mr Peter Verdin, chairing the Professional Conduct Committee
I shall give you our decisions slowly in case you want to take a note. The allegation of unacceptable professional conduct is decided in three parts. I will refer to them as (a), (b) and (c).
Part (a) is that “[J— L—] did not maintain an appropriate level of insurance”. We do not accept that there is sufficient evidence before us to support this part of the charge. And accordingly that allegation is dismissed.
The board of ARB made a requirement that architects should maintain minimum insurance cover in accordance with the board’s guidelines. This is in Standard 8 (I don’t intend to quote it). We are satisfied that the board has the power to make this requirement and we have referred to the basis of that power in decisions on earlier applications in this and [R— L—]’s case.
The board decided in Standard 8 that an architect should provide, and here I quote:
“such evidence in such form as the board may require, demonstrating compliance with this standard”.
To this end the board has since 2002 required the registered architect to complete a Certificate of Compliance in each year. It is common ground, which is admitted by [J— L—] that he has not submitted the Certificate of Compliance.
Now Mr Cadman invites us to presume from this failure that [J— L—] does not have an appropriate professional indemnity cover. This is not a presumption which we are prepared to make.
There are various reasons for this. Correspondence exists, for example the letter of the 29th October 2002, where [J— L—] says:
“I am satisfied that at present we do have such adequate cover.”
[J— L—] has also made it clear that his refusal to sign the Certificate of Compliance was on a point of principle, and did not relate to whether he had or had not that cover.
Out of the matters make it impossible for us to draw inference that [J— L—] does not have appropriate cover, bearing in mind the burden of proof to establish the absence of cover. It may be easier to do this in cases where a third party has been involved. But in cases such as this, the Board is presented with a difficulty. Well, that’s the board’s problem.
This brings me to an issue which it will be convenient to deal with now. And that is the status of the Standards. We have already stated that the Standards have legitimacy. But there is a matter that should be clarified.
A breach of the Standards does not – or breaches of the Standards – do not of themselves constitute an offence. The Standards are yardsticks: guidance which assists in framing a judgement as to serious professional incompetence or unacceptable professional conduct in any particular case; and these Standards are used as such by the committee.
It is however fair to say that some Standards are more absolute than others in the way in which they are framed, and this may well be with Standard 8. But nevertheless it should be made clear that the reference to the Architects Act 1997 at section 13(4), and I quote:
“Failure to comply with the provisions of the Code
“(a) shall not be taken of itself to constitute unacceptable professional conduct”.
That reference emphasises the guidance aspect of the Code. What these words do not mean is that proceedings alleging unprofessional conduct and only (and here I stress the word “only”) be brought if there is a complaint by a third party.
If the board considers the conduct of an architect constitutes unacceptable professional conduct it can of its own volition bring a case for this committee to decide. Now [J— L—] argues that the phrase I quote being taken of itself means that it must be, and I quote from [J— L—]’s submission:
“means that there must be some other event or circumstances that occurs as a direct consequence of a lack of compliance with the Code by the architect.”
And he says:
“The most relevant consequence that should trigger disciplinary proceedings is loss or damage on someone or something by virtue of an architects act or omission”.
One could perhaps understand this view and it may be a commonly held view within the profession. But it is a misconstruction of the Act. The correct construction of those words is that the Standards are a factor to be taken into account along with any other circumstances in the particular case. There does not have to be loss or expense for there to be unacceptable professional conduct. But it should be obvious that one of the consequences of the failure to complete the Compliance Certificate in this case has resulted in considerable expense to ARB dealing with the omission, and therefore all the architects who fund ARB; and this brings me to points (b) and (c).
We find that [J— L—] has failed to reply promptly to correspondence from the board. His first reply to letters dated 12th April 2002, 12th September 2002 the 18th October 2002 was on the 29th October 2002, and this can be interpreted either as a failure to reply to the first two letters or a failure to reply promptly to them. He admits that he has not produced to the board the relevant documentation or information, namely the Certificate of Compliance – and we note here that on 6th August 2004 the bard did make an effort to offer [J— L—] a way out by inviting him even then to send a copy of his Certificate. But he declined to accept that invitation.
We have taken the view that this failure by [J— L—] does constitute unacceptable professional conduct. Now [J— L—] argues that there is nothing in the Code which requires him to reply to the board. The Code actually does refer at paragraph 12 to a reply to the board. But the introduction to the Code makes it quite clear that architects are expected to be guided in their actions by the spirit of the Code and this point is also an example of the fact that the Code itself is not exhaustive and the judgment has to be made by this committee as to whether in any particular circumstances any particular conduct is unacceptable or not.
Professional behaviour does not just extend to behaviour towards clients. Professional persons are expected to behave in an open and responsible manner to those with whom they have dealings, and in particular to those who have to regulate them and to monitor their conduct.
[J— L—] questions that obligation, and he has said that he acts on a point of principle. He says that he regards ARB’s action as a huge insult to the whole profession.
His stance is in our view misguided, but having taken that stance he has to accept the consequences. His objection to ARB should be ventilated in the political arena. Our remit is a narrow one. It is not for us to comment on the merits of legislation or rules and standards made under it. We only have to be satisfied that the legislation and the rules an Standards are properly made and we have made it clear in earlier decisions and preliminary issues in this case that they have been properly made.
So we find that both matters (b) and (c) individually and together constitute unacceptable professional conduct. That is our decision.
Sentence in the case of ARB v J— L—
Mr Peter Verdin, chairing the Professional Conduct Committee
Mr L—; If we had found that you did not carry PII at all of at an inappropriate level we would have had to consider erasure. Failure to have PII is a most serious matter, and we have always taken that view.
It is not just a matter of concern to us, but it is a matter of concern to many in the profession if an architect does not carry PII at an appropriate level.
Apart from the lack of protection to the public it is perceived as giving that architect an unfair cost advantage over one who does have the appropriate insurance at least in terms of (unintelligible)
We are not dealing with that here. We’re conscious that there is no criticism of you as an architect and we are conscious that although your actions have been misguided, you have been sincere in your belief that you are motivated by a matter of principle. But we do regard this instance of unacceptable professional conduct as a very serious offence.
We would hope that at least some good has come from this, and that the case has resulted – or will result – in the profession becoming aware of the PCC’s view of a failure to cooperate with the board in the carrying out of its statutory obligations.
Now if this was not the first instance of unprofessional conduct by yourself we would certainly impose a more severe penalty than we intend to do. And we want to make it clear that future findings of unprofessional conduct based on a failure to comply with the Board’s PII monitoring are likely to be dealt with by the PCC in a more severe fashion.
In this case our decision is a reprimand. Thank you.
NB. This is an unofficial transcript. the official transcript of the proceedings is available from Harry Counsell