A staff night out ends with insults, tables upended, bottles thrown and allegations of sexual impropriety. A typical evening in Glasgow, or a reason for the professional regulator to become involved?

Christmas brings a surge in social gatherings, including the infamous "Christmas night out" and, here in Scotland, Hogmanay – a night so good we get two bank holidays to recover. 

Typically associated with celebration and enjoyment, these nights can lead to behaviours that cross the line between harmless fun and serious misconduct. For the regulated professional, their fitness to practise may be called into question. Public drunkenness, disorderly behaviour or harassment may risk bringing the profession into disrepute. The question therefore arises: to what extent can a regulator become involved, and where does the line lie between the public interest and private conduct?

Poor behaviour, whether committed in professional or private life, may amount to misconduct only if it has sufficient impact on a practitioner’s professional reputation or that of the profession as a whole. The case of Beckwith v Solicitors’ Regulation Authority 2020, EWHC3231 (Admin) made it clear that it is necessary to focus on the applicable statutory or regulatory provisions rather than on some universal principle. This can be particularly difficult where a regulator’s rules can be interpreted so broadly that most conduct would fit. 

For example, at the General Teaching Council for Scotland, the Code of Professionalism and Conduct refers to avoiding situations both within and outwith professional contexts which could be in breach of criminal law – “or may call into question your fitness to teach”. This sounds very much like a circular definition. It could be applied to any situation that the regulator finds inappropriate. Taking another regulator, the GMC’s Good Medical Practice provides that the practitioner “must make sure that your conduct justifies patients’ trust in you and the public’s trust in your profession.” Again, this allows the regulator a considerable degree of leeway. 

However, Beckwith did consider what conduct should be relevant. The case provides that while members of the profession should be held to a higher standard on some matters, the regulator should not require practitioners to be paragons of virtue in all matters. There is a distinction between conduct that does, or may, undermine public trust and conduct that would be generally regarded as wrong, inappropriate or even, disgraceful, but does not impact the profession itself. 

Subsequent cases have clarified that the behaviour must cross the line between conduct that the public would not approve of and conduct that was so disgraceful as to affect the public’s confidence in the profession. This requires each case to be assessed on its facts. 

With such a wide remit for regulators, investigations of practitioners’ personal conduct may continue to increase. While regulators have a role to play in upholding public confidence in the profession, their remit should not be to micromanage individual behaviour. In our recent bottle-throwing, table-tipping case the professional was found not to be impaired, thanks largely to testimonial evidence of their good character before and after.

While professionals are not precluded from enjoying the festivities, this serves as a reminder that their status as a regulated person does not take a holiday. With the regulator – as with Santa – we should take care to remain on the nice list, not the naughty.