Monday, 31 July 2017

A Proposal for the Use of Restorative Justice in Professional Disciplinary Tribunals

A Proposal for the Use of Restorative Justice in Professional Disciplinary Tribunals
Chris LaHatte LLB MMgt (DipRes) FAMINZ (Arb/Med)

Ma te rongo ka mohio
Ma te mohio ka marama
Ma te marama ka matau
Ma te matau ka ora
Through information comes awareness, through awareness comes understanding, through understanding comes knowledge, through knowledge comes wellbeing.
It is inevitable that when members of a profession provide professional services, particularly to individuals, that there will be mistakes and errors. It appears to be very well accepted that there should be a means to address mistakes and errors, so that any wrongs which may arise may be explained and if possible corrected. While there is often a possibility of the cnminal justice system intervening in matters of professional discipline (such as theft by a lawyer or sexual assault by a medical professional), many issues which cause harm are not criminal in nature.[1]Those disciplinary procedures are similar to the process of criminal justice with the common features of a victim, retribution and punishment. Most professions in New Zealand have now moved to a disciplinary structure which involves a formal complaint process, an investigation, and when needed, a hearing before a disciplinary tribunal. Complaints against a professional will in most cases come from members of the public who feel that they have been let down by the professional services provider, but can result as an additional consequence of breaches of crlminal law.[2]
Dispute resolution writers have described an expansion of restorative practices into other areas, such as schools, employment disputes, disciplinary action in the military and this paper anticipates a further expansion into complaints against corporate bodies for non-compliance with regulatory schemes.[3]
A [4]number of the professions such as the New Zealand Law Society do offer what is called early intervention , as do places such as the office of the Ombudsman, which use similar techniques to fry to resolve complaints at an early stage[5] . The purpose of this paper is however, to present as an additional tool to disciplinary bodies, the concept of using Restorative Justice as a way of resolving disputes that may be unsuitable for early intervention, of dealing with the issues on a holistic basis, using concepts such as the circle and facilitators.
What is Restorative Justice?
For the purpose of this paper I will outline restorative justice from its origins to the present practice in New Zealand. While it has become a generally accepted concept, not everyone is familiar with the practice and the techniques. Restorative practices are presently found in the sentencing process of the criminal courts of New Zealand, originating from the Family Group Conference which was developed under the Children and Young Persons and Their Families Act 1989, and more recently as part of the District Court sentencing practice. In more recent years it has also become a tool used in primary and secondary schools, particularly with disciplinary and behavioural problems with the children.  
Restorative justice is considered to have originated in Canada in about 1974[6], when probation officers realised that there could be different and better ways of dealing with offending particularly with young people. This developed into what became known as “victim offender reconciliation program” or VORP, a program to bring victims and offenders together with a facilitator or mediator, to talk about the offending and how the hurt could be repaired or reconciled. An American called Howard Zehr became involved from an academic perspective and wrote extensively, including his pioneering text in 1990, book “Changing Lenses: a new focus for crime and justice”. While the Family Group Conference concept was indigenous to New Zealand, it became apparent that it was a form of restorative justice, and one of the judges involved in the youth justice system, Judge McElrea, arranged the first conference to discuss adult restorative justice based on the FGC concept. This led to pilot schemes and more recently to incorporation into standard sentencing practice.
Chris Marshall describes restorative practice as having three core assumptions[7]. The first is a concept of crime as injury more than infraction, looking at the harm to real people rather than an abstract transgression against a code. He considers that there is a key idea, that it has a notion of justice is right-relation and crime is wrong-relation. So there is a need for establishing a right relationship between the parties, of mutuality equality and respect in community. He discusses the concept of restorative justice as repair or healing of relationships, contrasting this with the punitive justice system, pointing out that punishment does little or nothing to heal either the offender or the victim. He emphasises that the relationships violated by the crime are what need repair, and restored to rightness. Neither the offender nor the victim are heard in a punitive justice system, and so restorative justice seeks to repair the harm of crime, by listening to the voice of both the victim and the offender. It is important, Marshall emphasises, to recognise that the principal harm of crime is the loss of trust, which strikes at the network of relationships which form our society. To resolve this he looks at the core business of restorative justice practice, encounter, truth telling, accountability, confession, contrition and restitution.
It is important to recall some of the things which restorative justice is not. It is not primarily about forgiveness or reconciliation although that can be a result. It is also not mediation, because the emphasis is on conferencing and dialogue. In the context of professional mistakes, there needs to be some understanding of how the errors or mistakes were made, and the offender needs to understand the needs of the complainant/victim in the process. If crime is seen as injury, then negligence or bad behaviour in the context of professional practice, is also likely to cause some injury. The civil law of negligence of course derives from the concept of a civil wrong leading to damages. [8] In the early days of law the difference between criminal and civil wrongs was not so great, and systems of restorative justice were used to restore the relationship between the parties so that the death of a victim would be compensated by payment to the victim's family. Of course, not all disciplinary issues are matters of negligence, but they have in common with criminal justice, a code and breaches of the code alleged by the victim and prosecuted by the professional disciplinary body. In addition, there is often a very close relationship between the professional and their client/patient. It is common to find the term "fiduciary duties" applied to describe aspects of the relationship, and such fiduciary duties clearly carry a close relationship between the parties. So it is likely that the relationship has some history and shared intimacy. Injury to this relationship may therefore have greater significance particularly to the victim, who would regard the breach of fiduciary duty in very personal fashion.
Restorative justice has been described as a compass, and not a map. So, as the result of a conference, the parties could agree to make a proposal to the tribunal to make the formal decision. But it would have to be the tribunal which ultimately made the decision, and therefore the tribunal would need to be prepared to adopt any recommendation reached at a restorative justice conference. Restorative justice is concerned about roles and needs, and so there would need to be involvement but only with the offender, complainant/victim but likely peers who could discuss the standards of performance and where they have failed.
So restorative justice is the alternative to a retributive model of justice. The fundamental premise is that crime (or an offence against a professional disciplinary code) is an injury to people and relationships. There must therefore be a response by addressing the harm caused through dialogical processes that attempt to meet the needs of all involved parties and promote repair of the relationships. There are questions such as who has been hurt, and what are their needs. Who is responsible and what obligations exist? What can be done to demonstrate accountability and promote healing? How can we prevent this happening again? There is a need to promote respect reassurance and repair, and to develop harmony and healing.
Application to Professional Discipline
For the purpose of this paper, I have examined a number of professional disciplinary bodies, although it is not intended to be an exhaustive analysis of all such structures. There are for example a number of smaller professions where it is relatively unusual to impose professional discipline.[9] I have included a table of the bodies where I have made specific enquiries about the use of early resolution/intervention and whether restorative justice is used. I discuss this further in this paper.
Typically, a professional disciplinary body operates from a starting point of a code of ethics.[10] This has been suggested to be the distinguishing mark of a profession,[11] and sets the framework for the expected behaviour. Decisions about the discipline of members will often cite the code of ethics as the basis for the punishments or sanctions imposed where the breach has been proved. This can be usefully compared with a criminal statute, where the state through the criminal courts, can impose a sentence in many forms. And the other typical feature of professional discipline is that there is often a victim. For lawyers and accountants, this may be a client who has lost money due to actions of the professional, for medical professionals, it may be a patient who has suffered injury through inadequate treatment and so on. And just as with the criminal justice system, it is useful to see whether the voice of the victim is heard in the disciplinary tribunals.
Zehr[12] refers to power as an element in restorative justice processes. I propose that in the context of a profession, the holder of knowledge possesses power over the layperson.
Sociological writers have talked about the "aggregation of professional power in its members [13]
Lawyers are sometimes accused of keeping their esoteric and perhaps gnostic knowledge of law and using this to gain advantage. In Webb, Dalziel Cook on Ethics Professional Responsibility and the Lawyer [14] there is a useful discussion on status and power and referring to lawyers occupylng positions of considerable status. Similarly doctors are sometimes seen as holders of special knowledge which they can bestow on grateful patients. This power operates in two ways. The holder of that power and knowledge is considered to have a special responsibility in advice and use of that power, and the sanction can be that of the civil proceeding for professional negligence. But someone in possession of that power, may be considered vulnerable in that the loss of that power by professional discipline, may reduce their standing in the profession, and in the worst examples the disciplinary process will strike them from the rolls of the professional body, therefore ending their career. In this process naming and shaming has a significant factor in imposing professional discipline, and there is a common theme in those processes of seeking suppression of names. Balanced against suppression, it is also common for the victims to want the professional identified as part of the punishment. It is also not unknown for other members of the profession to advocate naming, so the blame does not fall on to their colleagues.
This may be seen as a reversal of the criminal justice restorative justice processes, where often the offender will come from the lowest socio-economic groups, and the victims may see themselves as upright citizens.
This can also be placed in the context of the six vs of victim recovery. Because of the disparity in power and knowledge, and the dependency on trust created by the fiduciary relationship, the victim will be particularly vulnerable. They will often continue to need to use the professional services, and therefore need to feel safe. The professional bodies often emphasise the need for maintenance of high levels of practice. But I wonder whether the reassurance from the professionals, the peers of the offender, would really meet the needs of the victim, and a restorative justice conference may be that opportunity to restore confidence, even if the professional is no longer going to practice, but confidence in the profession itself. The voice of the victim will also be important. The disciplinary process is very similar to a criminal justice prosecution in that the preparation of the case is undertaken by the professional body and the tribunal. As with criminal prosecutions, the needs of the professional body may overtake the needs of the victim.
For example, the prosecution may be seeking to make an example of egregious behaviour but in doing so, may overlook the injury done to the victim. Giving the victim a voice at a conference, and ensuring that they are heard as an equal party at the conference, will help restore the dignity.
Veracity may be even more important with a professional disciplinary tribunal which does not have the same publicity as a criminal court. It would be very easy, I suspect, for a victim to form the view that there was a secret conspiracy of professionals seeking to protect their own. So openness in the process would be critical, and reassurance about the truth of what is happening may best be done in the context of a conference.
The next v, of validation, which is considered to be the other side of voice is the opportunity for the victim to have their say, be listened to and recognised. This may help in opening empathy between the professional person and the victim.
Vindication is critical particularly in issues of professional competence. The victim will want to know who caused the injury and who was taking responsibility. It is important to have acceptance of moral blame by the professional, who must accept that their actions have caused the problem, and moved to a commitment to fix the issue as far as possible. Often the victim will  want to know that the professional will not make this sort of mistake again, so a promise to behave better or avoid repeating the problem will be important.
Working with victims will require that they find value in the process. The comment is often made, "I don't want this to happen to someone else". The professional disciplinary body will also have a strong interest in finding meaning for the process, and may have a strong common interest with the victim, to find value of the process. Although healing for the victim may be more important, reassurances about future competence will also be important for the professional organisation. In a sense, because of the effect of bad actors on a profession, they may be seen as having a victim's role, because it reflects on them when a member behaves badly. So they may need to find a value in the process and look to a healing process.
Perhaps the most important issue to be resolved at the conference will be an examination of the power imbalance, and of the breaches of the fiduciary duties owed by the professional to the victim. For a proud professional person, who will have an intimate knowledge of the particular discipline, to back down and acknowledge their failure will require a substantial adjustment of their worldview.
A further issue at a restorative justice conference is to consider who has a stake in this situation. In most cases there is likely to be a victim, but because of the express desire of the professional bodies to maintain standards, they have a dual role both as the prosecutor, but also as a party affected by the breaches of standards. In a state prosecution of a crlminal offence, in recent times, a victim advocate will represent the interests of the victim. The state prosecutor is there to ensure that the sentencing decision meets the needs of the state. This is sometimes expressed as deterrence. This is different from a disciplinary body seeking to ensure that the high standards of the profession are maintained. So it is my view that at the conference, there should be a person who represents the profession. As part of the repair of the relationships, it will be important for the professional to have a better relationship with their professional body, as well as with the victim. Of course, some of the disciplinary offences may not come with a victim, and in a sense, the professional body could be considered a victim. But the repair of the relationship remains an important issue. Another way of looking at this, would be to consider that the profession forms a community, and therefore using restorative justice in that profession forms a particular type of community justice. Zehr[15] discusses the use of community justice rather than state justice, and talks about the alternatives which are the retributive or judicial models, but does suggest that "community justice offers a wider range of outcomes than does our contemporary retributive paradigms which may be particularly applicable to use in a disciplinary tribunal context
From my examination and enquiries of the use of early intervention or mediation, the next step of restorative justice processes does not appear to have been adopted by any professional bodies. It is difficult to research what happens at the mediations because of the confidentiality. But I have not seen any examples of the use of restorative justice which has recommended a result to the body which has the power to impose professional discipline. I prepared a table based on a question which I posed to the disciplinary bodies, and have included the responses in the table which is attached to this paper. What is interesting is that there seems to be an acceptance of the use of early intervention and possibly mediation, but no use of restorative justice itself. This is not intended to be an exhaustive list of disciplinary tribunals, but does illustrate that if there is acceptance of a mediation approach, then I suggest it is likely that restorative justice may also be a useful tool. In Webb Dalziel Cook[16]  it is anticipated that in the words of the authors "where, previously, the focus of disciplinary procedures was to punish the practitioner in an attempt to protect the public, the Lawyers and Conveyancers Act 2006 is also concerned with reconciliation for the complainant him or herself”

In my research, I found what I consider a useful example of professional disciplinary action where restorative justice could have been used. In this case[17] a midwife was censured and fined and ordered to undergo counselling and mentoring following an affair with the husband of a patient. The relationships in this case went beyond the usual patient/ provider situation because all of the parties were formerly friends. The midwife was then asked to look after the pregnancy of the couple, but during the course of the care, commenced an affair with the husband. So the relationships were more complicated, but the report refers to breaches of trust and the effect on the parties. This was a particularly complicated case which included an appeal to the High Court, and referring back to the tribunal to reconsider some facts. The initial decision was 29 October 2015, and the final decision was issued 23 December 2016. Clearly the effect on the parties would have been considerable because they would have had this hanging over their heads from the time of the offence in June 2013 to January 2014. I venture to suggest that a reference to a restorative justice process would have the potential to deal with the issues far more efficiently and without the exhausting tribunal and court process.
There was no criminal element in the behaviour of the parties, but the midwife accepted that her actions amounted to professional misconduct and that she should be disciplined. Much of the decision is concerned with adherence to the Code of Ethics and The Midwives Handbook for Practice. This case illustrates the role of the profession beyond that of the prosecutor, in maintenance of appropriate ethical standards. But in a situation where the professional was contrite and accepted the consequences of her actions, restoration of the relationships should perhaps have been a priority. The tribunal did refer to a "journey to rehabilitation" but was also concerned about a penalty to send a message to the public and other midwives about conduct. I can only speculate as to what would have happened if there had been restorative justice used rather than a penalty hearing. In a situation where the misconduct was admitted, the path through the tribunal and High Court must have been excoriating.
My proposal is therefore to recommend to disciplinary bodies that as part of the toolkit in dealing with their members, that there should be use of the restorative justice process. This
would require consent, of all the parties affected, which if they are already using mediation, would not be a new step. It would also require a buy in from the committee or tribunal which imposes the discipline.

There is a real question as to how this process would actually work. Obviously there would need to be a filter process so that only appropriate cases were referred to a restorative justice result. I anticipate that the common use of early intervention would quickly identify appropriate cases. Then once the parties reached an agreement to hold a conference, an appropriate facilitator would be brought in to arrange for the conference and undertake the usual preconference preparation. The result of the conference would then be sent to the disciplinary body, who would have a report as to the outcome, and be able to consider the recommendations.
Such a process would engage both the victims affected by the professionals, the professional body itself, and the person being disciplined, in a way which I hope would maintain faith in the profession in a way which was less damaging but more inclusive, and with listening to all of the voices affected by the issues.
Todd, S, Hughes, J, Smillie, Hawes, C, Beck, A, The Law of Torts in New Zealand 3rd Edition,
Wellington, Brookers 2001
Webb, Dalziel Cook on Ethics Professional Responsibility and the Lawyer 3rd Edition Lexis
Nexis Wellington 2016
Zehr, Howard: Changing Lenses Restorative Justice for Our Times (25th Anniversary Edition)
Herald Press Virginia, United States (2015)

[1] There is of course a crossover between the criminal justice system and professional discipline, where the professional is dealt with under both systems. It is common for a professional convicted of a crime to be then disciplined by their professional body, which is not double jeopardy, but based on breaches of standards of the profession, rather than a breach of the criminal law. See for example Daniels v Thompson [1998] 3 NZLR 22, which is the leading case on the conflict between processing offences under the criminal law but also prosecuting other forms of remedy such as professional discipline or civil proceedings for damages.
[2] There are specific provisions in most codes of conduct which require the professional to report criminal prosecutions upon conviction. See for example the New Zealand Law Society 1437811 and New Zealand Institute of Chartered Accountants
[3] See for example Chris Marshall, Restoring What? The practice, promise and perils of restorative justice in New Zealand Policy Quarterly Volume 10, Issue 2 May 2014, where he suggests this as a further expansion of restorative justice.
[4] r-complaint-is-processed where the Lawyers Standards Committee may try to resolve matters by negotiation, conciliation or mediation.
[5] See for example reports from the office of the Ombudsman where he refers to a stronger focus on early resolution and more flexible practices assets/attachments/479/inside the office of the ombudsman.pdf?1493954285
[6] Chris Marshall op cit

[7] Op cit
[8] Todd, S, Hughes, J, Smillie, Hawes, C, Beck, A, The Law of Torts in New Zealand 3rd Edition, Wellington, Brookers 2001 in Paral.1.2 pg 4 discusses the relationship between tort and crime
[9] for example, for AMINZ, referring to the annual reports which mention disciplinary functions, in the 2016 annual report there were 3, one of which went to the tribunal, and in 2015 there was 1.
[10] see for example the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, for chartered accountants, services/memberobligations/codes-and-standards and there are many other examples.
[11] It is beyond the scope of this paper to go deeply into the nature of a profession, and for the purposes of this study, it is proposed that the essential elements of regulation, autonomy, status and prestige, and power are common to most professions. See for example Jackson, J.A. Professions and Professionalization (2010): Volume 3, Sociological Studies,. Cambridge: Cambridge University Press, pp.23-24
[12] Zehr, Howard Changing Lenses Restorative Justice for Our Times (25th Anniversary Edition) Herald Press Virginia, United States (2015) at Page 58
[13] See Hall, R- Theoretical Trends in the Sociology of Occupations (1983) 24 Sociological Quarterly 5, 11
[14] Webb, Dalziel Cook on Ethics Professional Responsibility and the Lawyer 3 rd Edition Lexis Nexis Wellington 2016

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