Ethical Conduct – An Essay

/ / Information, Law

Recognising that a core reputational component of any profession is the ethical conduct of its members, we have recently introduced into the AICNSW education program several sessions on the topic of Ethics. While researching suitable content for these sessions, we were delighted to encounter an essay written by AICNSW member Michelle Sillato as part of her course requirements at Southern Cross University. We are confident that all who read the essay will be impressed by its quality and appreciate why it earned Michelle the near-perfect mark of 39 out of 40.

We greatly appreciate Michelle’s granting the AICNSW permission to reproduce her essay in full below, including—for those keen to read more on the topic—Michelle’s original footnotes and references.

The case of Allinson v General Council of Medical Education and Registration (the Allinson case) demonstrated how Dr. Allinson, in his position of authority, through a number of advertisements, induced the suffering public to ignore his own peers, (whose own conduct was in compliance with peer reviewed practices, which included the administration of vaccinations) and to turn to himself for advice from which he gained fees.

The issue at hand in this case:

If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of “infamous conduct in a professional respect.

Two issues can be observed from this case.

Firstly, the impact of Dr. Allinson’s conduct upon unsuspecting patients who would be relying on his advice.

Secondly, the impact of Dr Allinson’s conduct on his own peers, disparaging peer reviewed practices, and bringing the medical profession into disrepute.

Peer reviewed practice

The Allinson case demonstrates the need for the requirement to have a mechanism in place to govern the conduct of professionals but this is no easy task to achieve. As so aptly put by Sir Gerard Brennan:

If ethics were reduced merely to rules a spiritless compliance would soon be replaced by skilled evasion. There is really no effective forum for their enforcement save individual acceptance and peer expectation.

In the medical profession, peer expectation is governed by peer review. As outlined by DLA Phillips Fox:

Peer review can be defined as the evaluation of the creative work or performance of an individual by other people in the same field… The aim of peer review is to assist in the formulation of informed judgments about the professional practice of health care professionals, with the ultimate goal of identifying ways to improve and maintain quality of care…

This creates scope for new ideas but within a framework that upholds the integrity of healthcare services. The importance of this cannot be understated.

The disciplinary framework for licensed conveyancers – the missing link

On the face of it, what would appear to be directly missing from the disciplinary framework for Licensed Conveyancers under the Conveyancers Licensing Act (the Act) and its Regulation, is the ability of a Licensee to disparage his/her peers in the profession.

It is however, indirectly addressed. The two issues identified in the Allinson case are on observation inextricably linked. Dr. Allinson could not in any way disparage his peers without breaching the fundamental ethical elements of undue influence and the fiduciary relationship owed to his patients.

In that respect, it then warrants investigation as to whether these two ethical elements are addressed in the disciplinary framework for Licensees and would they effectively prevent a Licensee from disparaging their peers.

S.22 of the Act prescribes Rules under the Regulation which together, form the machinery of the disciplinary framework for Licensees.

The fiduciary relationship and undue influence

The ethical elements of the fiduciary relationship and undue influence negated by Dr. Allinson, are well covered in the disciplinary framework for Licensees.

The most relevant of these are:

Rule 4 – Fiduciary Obligations

The Licensee is placed in a position of power and trust over which their client is totally reliant.

This equitable concept was outlined in Chittick v Maxwell citing the “classic definition of a fiduciary is a person who undertakes to look after the interests of another”.

It was further refined in Plowright v Lambert in that the relationship itself imposed the fiduciary duty, rather than the particular circumstances.

Undue influence is also presumed to exist in certain relationships and also considered in transactions where parties to a transaction are not equal, the weaker party will be unduly influenced. These relationships include amongst others, doctor/patient and solicitor/client.

Rule 7 – To act in the client’s best interests

This rule obliges the Licensee to act in the client’s best interest at all times unless it would be contrary to the Act or the Regulation.

This further clarifies the fiduciary obligation owed by the Licensee to their client.

In the Allinson case, Dr Allinson’s methods substantially departed from that of peer reviewed practice. If Dr Allinson’s methods were not proven and accepted by his peers, he could hardly be considered to be acting in the best interests of his patients but rather using them as guinea pigs for his untried and tested practices.

The equivalent conduct may be found in a Licensee who under the guise of offering cheaper services to the public is in fact cutting corners in the conveyancing process by not carrying out, or at the very least, recommending to the client all the applicable required searches and enquiries. Such conduct would be clearly in breach of this Rule.

Rule 17 – Soliciting through false or misleading advertisements or communication

Whilst s.34 of the Act allows a Licensee to advertise as he or she thinks fit, the advertising must not be of a kind that is false misleading or deceptive.

Rule 17 of the Regulation, further expands s.34 of the Act by prohibiting Licensee from soliciting clients or customers “through advertisements or other communications that the Licensee knows or should know are false or misleading”. This includes any statement, slogan or logo on stationery or business cards used in the conduct of conveyancing work.

A licensee making disparaging remarks in the form of advertising or other communications about existing well established practices could only, in the circumstances, be interpreted to be false or misleading on the basis of the constructs of peer expectation.

Peer expectation of licensees

Whilst the conduct of healthcare professionals is open to peer review in order to enable enhancements in medical care, Licensees are not. The conveyancing profession in considering the legal services it provides, is heavily entrenched in statute which is tested in the common law. For example, conveyancing services are governed by the Conveyancing Act, the Real Property Act, Australian Consumer Law and the common law principles of contract law. This leaves little scope for a Licensee to depart from these statutory requirements without risking serious consequences to their clients.

It would therefore be appropriate to say that a Licensee’s peers at the top end are in fact Judges of the Court.

A Licensee’s conduct is regulated by the Director-General of the Office of Fair Trading (OFT) with the assistance of The Australian Institute of Conveyancers NSW (the AICNSW), a peer body for conveyancers, whose purpose amongst other things is to:

promote, reform and improve the conveyancing profession…to represent the views of the profession and its members and to encourage honourable conduct and best practices throughout the profession.

However, the AICNSW is limited to making submissions only.

One very important peer expectation of Licensees is that they be a fit and proper person to be eligible to hold a licence under s.8 of the Act. There is no established definition of a fit and proper person, other than through case law. Ysaiah Ross identified the test to be a negative one and also identified three categories of cases addressing the fit and proper person test:

dishonesty – includes theft, fraud, forgery and so on, and lack of candour;
political activity – concerns activities with non-conformist political groups; and
personal moral standards – includes use of drugs or alcohol, sexual activity, and so on.

Peer expectation is this regard is therefore concerned with keeping the industry clean by keeping at the forefront, the public interest.

Conclusion – is it necessary?

Dr. Allinson’s conduct demonstrated the difficulty in disparaging one’s peers without impacting upon his patients. In considering the number of creative ways one could disparage their peers whilst maintaining the established ethical rules of the fiduciary relationship and undue influence required of them, it would be near impossible to achieve.

Upholding the integrity of any profession cannot be understated. The considerations identified above shows that whilst not specifically addressed, the impacts on clients, the entrenching limitations of the law and the requirement that the Licensee be a fit and proper person, effectively prevent a licensee from disparaging their peers, making such a requirement unnecessary.

Bibliogaphy

Articles/Books/Reports

DLA Phillips Fox, Peer Review of Health Care Professionals: A Systematic Review of the Literature (2009)
Ross Ysaiah Extract from Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (Butterworths 3rd Ed, 2001)
Stewart Richard and Lance Jones, Conveyancers Professional Practice (Southern Cross University 3rd Ed 2013)
Ibid 750
Ibid 750
Ibid 753
Richard Stewart and Lance Jones, Conveyancers Professional Practice (Southern Cross University 3rd Ed 2013) 36
DLA Phillips Fox, Peer Review of Health Care Professionals: A Systematic Review of the Literature (2009) 4
Conveyancers Licensing Act 2003 (NSW)
Conveyancers Licensing Regulation 2006 (NSW)
Above n 6, s.22
Above n 7, Schedule 3
Above n 4, 28
(1993) 118 ALR and Above n 4, 38
(1885) 52 L.T. 646 (Field J) and Above n 4, 38-39
Above n 4, 42
Ibid 43
Above n 7, Rule 7
Above n1, 753
My own experience
Above n 6, s.34(2)(a)
Above n 7, Rule 17(1)
Ibid Rule 17(2)
Conveyancing Act 1919 (NSW), Real Property Act 1900 (NSW), Australian Consumer Law 2010 (Cth), principles of contract law in common law
http://www.aicnsw.com.au
Above n 6, s.8(1)(b)
Ysaiah Ross, Extract from Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (Butterworths 3rd Ed, 2001) 133-134