It is not often that the worlds of local politics and professional regulation collide, but a recent decision from Sheriff Principal Wade KC does just that. One local councillor was sanctioned for behaving aggressively towards another. While the facts relate to local politics and the administration of devolved public bodies in Scotland, the decision on sanction is relevant for those involved in professional regulation. In short, the indirect impact of a sanction on an individual’s personal circumstances should not impact the panel’s decision on sanction.
The facts
The case relates to an appeal against a decision of the Standards Commission for Scotland. The Commission is tasked with encouraging high standards of behaviour by councillors and those appointed to boards of devolved public bodies.
At a meeting of Stirling Council on 2 March 2023, councillors were debating a proposal to cut nursery provision. Following a recess, Cllr. McGarvey became involved in an altercation with another councillor. That altercation resulted in a complaint to the Ethical Standards Commissioner and a referral to a Hearing Panel of the Standards Commission for Scotland.
At a hearing in August 2024 the Panel found that Cllr. McGarvey:
- was clearly angry, frustrated and agitated;
- stood over the complainer and raised his voice; and
- repeatedly pointed his finger or otherwise gesticulated towards her in an aggressive manner.
The Panel concluded that Cllr. McGarvey’s conduct had contravened the Councillors' Code of Conduct. They imposed a sanction of suspension as a councillor for one month. A legislative by-product of this suspension was that it disqualified Cllr. McGarvey, for life, from being a member of the Clackmannanshire and Stirling Health and Social Care Partnership Integration Joint Board, and the Board of NHS Forth Valley. He lost income as a result. Had Cllr. McGarvey been censured, rather than suspended, no such disqualification would have arisen.
The appeal
Cllr. McGarvey applied to the sheriff court to quash the sanction of suspension and replace that with a censure. Among other points, it was said that the panel’s discounting of the consequences of the imposition of a suspension amounted to a serious flaw. Cllr. McGarvey did not challenge the finding that he had breached the Code.
Cllr. McGarvey’s position was that the consequences of a sanction must be looked at in determining whether the sanction itself is proportionate or excessive (with reference to Mack v Standards Commission for Scotland 2022 SLT 479). The panel had failed to take due account of the consequences. Sheriff Principal Wade KC found that the panel had considered the impact of sanction but still determined it was appropriate to suspend Cllr. McGarvey.
However, the court also commented that it is not the case that the consequences of a sanction should be given weight when coming to a decision on sanction. Rather, each case would turn on its own facts. That also included the conclusion in this case that the argument of financial hardship incurred by the imposition of a sanction “has little force”.
Comment
The decision must be correct. If a panel were to consider the indirect impact of a sanction on a registrant when coming to their decision on what sanction to impose, that would undermine the purpose of professional regulation and the need to protect the public and maintain confidence in the profession. Once a panel has determined a sanction is necessary, the indirect impact that sanction would have on the registrant should not be considered. They cannot take account of any knock-on effects.
That does not usurp the need for sanctions to be proportionate, weighing the public interest against the registrant’s interest. However, that balancing act is a separate task. The GMC sanctions guidance gives the example of a short period of suspension imposed on a doctor in training. Given the disruption that would cause to their training, due to the nature of training contracts, it may be that in those cases a suspension is not proportionate. It is possible to envisage a dentist on a remote Scottish island whose suspension would deprive the local community of their only access to dental treatment. Again, the public interest in such a case may lead a panel to conclude that a suspension is not proportionate.
The position can be contrasted with the imposition of interim orders, before any findings in fact, where the impact on the registrant is a relevant factor (see the comments of Mr Justice King in Houshian v General Medical Council [2012] EWHC 3458 (QB) at [13]).
