The South Australian take on the purpose of disciplinary proceedings

Here is what the then Chief Justice of South Australia, Doyle CJ, had to say in Craig v Medical Board of South Australia (2001) 79 SASR 545 at [41] to [48] about the purpose of disciplinary proceedings, referred to with approval by the Full Court of the Supreme Court of South Australia in Papps v Medical Board of South Australia [2006] SASC 234 (the subject of the last two posts):

“The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of
proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

In NSW Bar Association v Evatt (1968) 117 CLR 177, in a much cited passage, the High Court found that the conduct in question demonstrated that the practitioner was unfit to practise as a barrister, and then went on to say (183-184):

The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a pun-ishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment in-volved. This has already been pointed out by this Court in Clyne v NSW Bar Association (1960) 104 CLR 186 at 201 and 202. The respondent’s failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser. Accordingly, the Supreme Court was, clearly, in error in deciding to suspend the respon-dent from practice rather than to disbar him, and it is the duty of this Court to correct that error.

Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrong-doing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case.

This statement by the Court has often been cited as stating the basis upon which orders are made by professional disciplinary tribunals. A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.

While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the regis-tration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.

In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner’s departure from professional standards, and intended to deter the practitioner from any further de-parture. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.

I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by pre-venting a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for.”

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