SRA investigations: Health issues and medical evidence
SRA investigations: Health issues and medical evidence
Published: 7 August 2020
This guidance is to help you understand how we approach health issues and the medical evidence we might ask for. We may have regard to it when exercising our regulatory functions.
Who is this guidance for?
Anyone we are investigating who wishes to raise a health issue with us.
Purpose of this guidance
This guidance is to help you understand the approach we take to health issues which are raised by those we are investigating and the medical evidence which we might ask for.
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We recognise that the regulatory process can be a stressful and anxious time for those who we are investigating. This may be exacerbated for those who are particularly vulnerable because of poor physical or mental health. Sometimes the regulatory process itself can exacerbate or trigger health issues.
In such situations, as a responsible regulator, we need to balance carefully the public interest against the interests of the individual. This involves us taking a consistent, fair and proportionate approach when health issues are raised.
Raising a health issue with us
We encourage those who we are investigating to raise, as soon as possible, any concerns they have about their health.
This could be at different points of the regulatory process. For example, early on at the investigation stage, or later on when in more serious cases matters might need to be resolved by proceedings before the Solicitors Disciplinary Tribunal (SDT).
We consider health issues in a variety of contexts such as: requests made for an extension of time, postponement of the case, a reasonable adjustment to be made, mitigating features to be considered or, in certain exceptional cases, a stay of proceedings altogether. Where a question of health has been raised, we will always apply a careful evaluation in assessing the potential impact on the case overall and next steps.
In many cases, we can quickly resolve health issues when they arise. For example, where someone we are investigating requests an extension of a week to respond to us because they are suffering from the 'flu', we will usually agree this without the need for further evidence. Similarly, a hospital appointment letter will be sufficient evidence of an operation where extra time has been requested and a diagnosis of a health condition could usually be confirmed to us by a GP letter.
However, in less straightforward cases, there are occasions when we might require a more detailed medical report before we make a relevant decision. In each case we will give careful consideration to whether: the medical evidence available is sufficient, further clarification or detailed information is required or expert medical opinion is necessary. In each case we will consider whether the evidence available is sufficient for the relevant decision to be made by us and, if not, what further information is required to correct this. Other parties, such as the SDT, may also expect detailed medical reports to support certain applications made to them.
What we look for in medical reports
Medical reports help us to clearly understand any underlying health issues you may have, the likely impact these may have on our investigation (or in some cases, on any subsequent proceedings at the SDT) and how we can help you.
Each medical report is fact specific but depending on the circumstances of the case, a good medical report allows us to consider:
Whether the health issue raised is likely to have a reasonably significant impact on case progression.
For example, because you are not well enough to instruct solicitors or make representations in your defence on your own behalf either while we are investigating you or in proceedings before the SDT.
Any reasonable adjustments we can make in order to mitigate the effects of the health issue.
For example, in a long-standing illness where we have clarification of prognosis and a time frame for recovery we might be able to agree a timetable for progression of the case.
Whether the health issue is so severe that it might impact on the disposal of the case.
For example, this might arise in the case of a terminal cancer diagnosis or severe mental illness exacerbated by proceedings before the SDT where a request is made for a stay or discontinuance of the proceedings. If a stay is granted, we will normally keep the situation – and the medical evidence that underpinned that decision - under regular review to identify whether and when the matter can proceed.
Proceedings must be fair but they should also not become open ended. The public interest requires efficient and timely progression of cases and case disposal. It follows that our position on any such application is that issues of health should not be a reason to stay or discontinue proceedings save for in exceptional cases where very cogent medical evidence will be required in support.
In some cases, as a result of health reasons, we might consider dealing with the case by way of a regulatory settlement agreement (RSA) or an agreed outcome at the SDT (AO). This allows us to protect consumers and the public interest by reaching an appropriate outcome swiftly and without the need for a contested hearing or adjudication process. This will generally only be appropriate where full admissions have been made to the underlying conduct allegations. Our RSA guidance makes it clear that for reasons of public confidence we will generally refer serious allegations of dishonesty to the SDT for the individual to be struck from the roll. However, in exceptional cases where we have cogent medical evidence, we might also consent to an RSA/AO where the public interest which could otherwise be satisfied by SDT findings is satisfied by what is proposed in the RSA/AO.
- Whether the health issue might have an impact on findings of fact by us or at the SDT or provide mitigation which is sufficiently compelling to indicate a different course to be taken or outcome to be reached in the case.
This might be as the health issue has meant that the respondent was so unwell that they could not have known, for example, that they were acting dishonestly at the time and therefore do not meet the requisite test.
Instructing medical experts
The onus to obtain medical evidence is usually on the individual who is the subject of investigation or proceedings before the SDT, and we will explain this to respondents if the question arises. However, we will also consider whether we would wish to obtain our own expert evidence and – particularly in cases before the SDT – there may be circumstances (generally, relating to current medical condition and prognosis) where it is appropriate and helpful to consider instruction of a joint expert. If so, we will discuss this with you.
Where you have produced evidence already, we might ask for further evidence. For example, where you have a report from an existing expert about a mental health condition and that report is extremely comprehensive but does not address prognosis then we might ask for clarification on this. Time frames for recovery are always relevant where a condition is relapsing and remitting.
Where a medical report has already been prepared, we will make an assessment of the quality of the report. For example, a report by a regulated and registered health care professional is likely to carry more weight with us than a report by an individual who is not subject to the rigours of revalidation and the standards required by health regulators.
Where you are instructing your own medical expert to prepare a medical report for consideration by us or by the SDT, you and they might like to consider the following issues:
- the experience / qualifications of the expert and whether they have prepared similar reports
- that depending on your health issue, they are a specialist in the correct and relevant field
- that their professional qualifications can be verified
- that they receive clear instructions on the issues which need to be considered by them and us or the SDT if proceedings have reached that stage
- that the author of any report understands that their duty is to the Court/ SDT and not to those instructing them
- that they may be cross examined on the contents of their report
- confirmation in any report that it is based on records and/ or a face to face consultation
- confirmation that all relevant material has been considered such as GP records or occupational health reports
- clarification of whether any report is based on observation and treatment at the time of events or retrospectively
- that in psychiatrist reports the international classification of diseases (ICD) rating, which will denote the seriousness of the depression, is clearly set out
- that any source material is identified and where appropriate attached
- that a prognosis and estimated timeframe for recovery is provided in any report
- any reasonable adjustments that could be recommended to assist with the progression of our investigation or any proceedings before the SDT
- in exceptional cases, an opinion on whether meaningful participation is or is likely to be possible in the future in any investigation or proceedings before the SDT.
Situations where we might obtain our own medical report
As stated above, medical evidence is usually obtained by the individual who is the subject of investigation or proceedings before the SDT. We would not usually produce evidence in advancement of a defence application or submission.
That said there are some instances where we might obtain our own report, especially where it would be in the public interest or in the interests of justice to do so.
In some instances, the particular facts of the case might require another expert to provide an opinion which requires us to obtain one as well.
Or this might include the situation where the individual is unable to obtain evidence for themselves. For example, this might arise where a GP has stated that an individual is particularly vulnerable because of their mental health and too unwell to arrange to obtain their own report. Further examples would be where a time-critical and sensitive case listing is put in jeopardy because the medical evidence or report produced by a respondent is inadequate or, where despite repeated requests, information has not been forthcoming and the case cannot proceed justly without it.
Where a medical assessment has been directed or agreed, we expect the individual to attend. If either on a repeated basis or without good cause, they do not attend, then we may seek to rely on any existing records alone, and/or we may ask the SDT to draw appropriate inferences from the failure to attend. We will seek to avoid any unnecessary delays, including through our approach to applications for adjournments to arrange attendance.
The weight to be afforded to medical evidence is related to its provenance and the credibility of the practitioner who drafted it rather than by the individual or organisation producing it. It follows that a medical report that we obtain is not intrinsically more reliable than a medical report produced by someone who we are investigating or who is the subject of proceedings before the SDT.
We also consider that where medical opinions vary, decision makers in a case (including the SDT) are well placed to assess competing considerations in forming a reasoned judgment.
Health issues and your ability to practise
Sometimes health issues are raised which may interfere with an individual’s ability to carry out their work safely and competently.
In such circumstances, we may consider using our powers to put conditions on an individual’s practice as a solicitor. Depending on the health issue, in some cases interim conditions might be appropriate to allow the individual to practise safely and carry on working pending the final outcome of an investigation.
In other cases, conditions can be imposed as a final outcome to an investigation. These might allow us to monitor an individual’s health by the production of regular medical reports over a certain period of time before they are deemed fit to practise without restriction. Any conditions imposed will need to address the specific risk the individual poses as well as being reasonable, proportionate, realistic and measurable.
Confidentiality, Publication and Disclosure
Any information we receive about the health of an individual will generally be, by its nature, confidential – as well as being afforded greater protection under data protection legislation.
Details relating to an individual's health will usually be removed from any decisions that we publish following the conclusion of an investigation. If necessary, we can produce a public and private version of any decision. Similarly, if a health issue is canvassed in disciplinary proceedings before the SDT, then the SDT would usually go into private session for the duration of any deliberations concerning it.
However, there will be cases where a decision to disclose personal health information is necessary in order for us to fulfil our statutory function of protecting the public interest. In such cases any disclosure will be strictly limited to disclosing only the minimum amount of information necessary to fulfil the purpose of the disclosure.
Examples of where we may consider that limited disclosure relating to a health issue is warranted include:
- where we need to explain a decision or reasons for it in very broad terms, with generic reference to the individual's "health" or "medical condition"
- where in proceedings before the SDT there are co-respondents in a case and the information meets the test for disclosure or it is otherwise in the interests of justice to make disclosure
- where there are safeguarding concerns, for example where an individual is at risk of self-harm
- where there is a statutory obligation on us to disclose the information, for example where a request has been made from another regulator.
We will always inform the individual who is the subject of the disclosure beforehand (and where possible agree the nature and scope of the disclosure) unless there are compelling reasons not to do so. For example, where another individual may be put at risk or where prejudice may be caused to an ongoing investigation by us or another organisation.
Transparency in the way we regulate
Although discrete matters of health will generally be considered confidential, we are committed to being transparent and open about our processes.
We adopt the "open justice principle" which means that, in general, justice should be administered in public and:
- hearings should be held in public
- evidence should be communicated publicly
- fair, accurate and contemporaneous media reporting of proceedings should not be prevented unless strictly necessary.
The fundamental principle of open justice applies as much to disciplinary proceedings before the SDT as it does to court proceedings. (SRA v Spector  4 WLR 16 at ).
The burden of establishing the need for any departure from this principle is on the individual seeking it and must be established by clear and cogent evidence. Where issues of health are raised in relation, for example of a decision to publish a decision by the SRA or SDT, more often than not the public interest will outweigh the interests of the individual.
If you require further assistance, please contact the Professional Ethics helpline.