Professional conduct procedure

1. Introduction

2. The Complaint

2.1 The complaint must satisfy the following conditions:

a) it is brought EITHER by a client using a service provided by a member OR by a current member of the association;

b) the individual or organisational Member Complained Against is named and is a current member of the association and was a member of AAOS at the time the alleged breach occurred;

c) it is in writing, signed and received by the Secretary of the Executive. A complaint not satisfying the above conditions will be rejected.

2.2 Notification

The Member Complained Against will be notified that a complaint has been received, given a copy of that complaint and details of the procedure to be followed. The Member Complained Against is not required to respond at this stage, but will be given an opportunity at a later stage if the complaint is accepted under the formal Professional Conduct Procedure (section 3).

2.3 Receipt of a complaint

a) the complaint will be submitted to a Professional Conduct Panel, which will convene at the request of the President of AAOS. On the panel there will be at least 3 people, two of whom must be Board members. The role of chairing the Professional Conduct Panel will be held by one of the Board members.

b) the Panel will hold a preliminary meeting to decide whether to accept the complaint, refer it back for further information/clarification, or reject it. The panel has the discretion to interview the Complainant and/or Member Complained Against if deemed appropriate;

c) if further information/clarification is requested, upon receipt of same, the complaint will be re-submitted to a second preliminary hearing which will decide whether to accept it to be dealt with at a Professional Conduct Hearing, or reject it;

d) once the complaint is accepted to be dealt with at a Professional Conduct Hearing, the Chair of the Panel will start the formal Professional Conduct Procedure (see section 3);

e) if the complaint is rejected at the preliminary meeting, the Complainant and Member Complained Against will be formally notified in writing. The decision of the Panel will be final.

3. The formal Professional Conduct Procedure

4.1 Professional Conduct Panel

The Professional Conduct Panel will comprise at least 3 people, two of whom will be current AAOS Board members.

4.2 Purpose

The purpose of the Professional Conduct Panel is to examine the complaint and decide whether the complaint is proved or not. If proved, the panel will decide whether or not any sanction should be imposed.

4.3 Declaration of interest

Members of the Professional Conduct Panel have a duty to declare any interest which may be considered to affect their impartiality, or likely to be thought so to do.

4.4 Venue

Professional Conduct Panel meetings will be held at or within the vicinity of AAOS’s headquarters, other than in exceptional circumstances.

4.5 Presence of a representative/support person

When appearing at the Professional Conduct Panel, the Complainant and Member Complained Against may each be accompanied by a representative who may support and/or speak on behalf of the party concerned.

4.6 Written evidence

Written evidence and/or submissions and witness statements must be submitted in advance by the Complainant and the Member Complained Against. Such papers must be received by the Chair of the Professional Conduct Panel not less than 28 days prior to the date fixed for the hearing. Such papers will be circulated to the Professional Conduct Panel, the Complainant and the Member Complained Against, within a reasonable period prior to the hearing. The Chair of the Professional Conduct Panel may take advice on these papers and/or procedural matters from the association’s lawyer or such other relevant person as may be deemed appropriate.

4.7 New evidence

The Chair of the Professional Conduct Panel will determine whether or not new evidence will be accepted on the day of the hearing.

4.8 Attendance by witnesses

The Professional Conduct Panel, Complainant and Member Complained Against may call witnesses to attend the hearing. Parties wishing to call witnesses must notify the Chair of the Professional Conduct Panel of the names and details of such witnesses not less than 28 days prior to the date fixed for the hearing. Attendance will only be permitted by the Chair if the witness has supplied a written statement which needs clarification. The panel has the discretion to refuse attendance by a witness if it reasonably believes that such attendance is not relevant or will not add any weight to the issue(s) under consideration. Witnesses may be questioned by the panel and either party connected with the case.

4.9 Failure to attend the Professional Conduct Panel

4.9.1 Where a Complainant or Member Complained Against fails or refuses, without good reason or notice, to attend a Professional Conduct hearing, the Chair of the Professional Conduct Panel has the power to decide either:

a) to proceed with the hearing in the absence of one of the parties;

b) to adjourn the hearing to a date not less than 28 days in advance; or

c) to terminate the proceedings

4.9.2 What constitutes good reason shall be solely at the discretion of the Chair of the Professional Conduct Panel.

4.10 Notification of findings

4.10.1 The decision of the Professional Conduct Panel will be notified in writing to the parties within 28 days of the hearing.

4.10.2 The decision of the Professional Conduct Panel, together with details of any sanction, will be published in AAOS’s newsletter and on its website in such detail as deemed appropriate to the findings and at its discretion. (In accordance with paragraph 7.1 such decisions will be based on considerations of public interest and the severity of the findings).

5. Sanctions

6.1 The Member Complained Against may appeal on the grounds detailed in paragraph 6.5. An appeal against the finding of the Professional Conduct Panel must be submitted in writing by the deadline given (see paragraph 6.6), be accompanied by any supporting documentation and served upon the Chair of the Professional Conduct Panel.

6.2 The grounds for appeal will be considered by an independent person appointed by the President of AAOS. An appeal can be against the findings of the Professional Conduct Panel and/or sanction imposed.

6.3 If the appeal is accepted under paragraph 6.2, a notice to that effect shall be given to the Chair of the Professional Conduct Panel and thereupon the appeal procedure set out in paragraph 6.8 shall take effect.

6.4 If there is insufficient evidence to satisfy any of the grounds for appeal (paragraph 6.5), the appellant will be notified in writing by the President of AAOS. This decision will be final.

6.5 An appeal will be considered on any of the following grounds:

a) That the facts were found against the weight of evidence.

b) That the sanction is disproportionate to the finding of the Professional Conduct Panel and is unjust in all the circumstances.

c) There is evidence to suggest that a procedural impropriety may have had a material effect on the finding and decision of the Professional Conduct Panel.

d) There is new evidence which was not available at the time of the Professional Conduct Hearing.

6.6 Timescale for appeal

Any appeal must be in writing, specify which grounds it is submitted under and be accompanied by any supporting documentation and served upon the Chair of the Professional Conduct Panel within 28 days of notification of the decision and/or sanction.

6.7 Professional Conduct Appeal Panel

The President of AAOS will appoint not less than three people, who were not previously involved in the case, to decide the appeal (The Professional Conduct Appeal Panel). One member of the panel will be a Board member.

6.8 Format of Appeal Hearing

a) Where there is an appeal as set out in paragraph 6.5 (a), (c) & (d) the appeal will be by way of a re-hearing.

b) Where there is an appeal as set out in paragraph 6.5 (b) only, the Professional Conduct Appeal Panel will meet with the Member Complained Against. The panel will review all the submissions considered by the Professional Conduct Panel, and consider any other mitigating factors submitted by the Member Complained Against.

c) The same rules on representation will apply to the Appeal Hearing as per the original hearing (paragraph 4.5)

6.9 Notification of decision

a) The Chair of the Professional Conduct Appeal Panel will report the panel’s decision to the President of AAOS who will implement its decision. This decision will be final.

b) The decision of the Professional Conduct Appeal Panel will be notified to the respective parties in writing within 14 days of the appeal hearing.

c) Following the hearing of an appeal, where the appeal is rejected, the decision of the Professional Conduct Panel, incorporating any amendment by the Professional Conduct Appeal Panel, may be published in the association’s newsletter and/or on its website in such detail as deemed appropriate (such decisions will be based on considerations of public interest and severity of the findings).

7. Publication

7.1 AAOS reserves the right to publish such details of complaints as it considers appropriate.

7.2 The termination of membership under the Professional Conduct Procedure will be published in the association’s newsletter and on its website.

8. Effective Date

This Professional Conduct Procedure 2012 will apply to all complaints received by the association after 1 February 2012.

Types of complaint The Professional Conduct Panel is responsible for determining whether the grounds of the complaint are upheld and which type(s) of complaint have been contravened. It is envisaged that a single act may fall clearly under type or contravene two or more. The decision about the type must ultimately rest upon consideration of all the circumstances in the case. The information that follows is intended to inform the choice between the three types of complaint available to the panel. These are:

1. Professional misconduct 

2. Professional malpractice

3. Bringing the profession of supervision, coaching or consultancy into disrepute

Findings under the first two types are usually, but not exclusively, concerned with behaviour directly related to someone’s professional pursuit. The third type may encompass a wider range of behaviour that extends beyond someone’s professional pursuit.

Professional misconduct

A finding of professional misconduct signifies that the practitioner has contravened the ethical and behavioural standards that should reasonably be expected of a member of their profession. ‘Misconduct’ is defined as acting in contravention of the written and unwritten guidance of the profession.

A finding of ‘serious professional misconduct’ is appropriate if the misconduct is of sufficient seriousness to merit a period of suspension or permanent exclusion from membership of AAOS.

Professional malpractice

A finding of professional malpractice signifies that the service(s) for which the practitioner is responsible have fallen below the standards that would reasonably be expected of a practitioner exercising reasonable care and skill. Examples of ‘malpractice’ include:

a) Incompetence

b) Negligence 

c) Recklessness 

d) Inadequate professional services

It may be that the seriousness of the malpractice is such that it is considered to amount to misconduct.

A finding of ‘serious professional malpractice’ is appropriate if the malpractice is of sufficient seriousness to merit a period of suspension or permanent exclusion from membership of the association.

Bringing the profession into disrepute

A finding of ‘bringing the profession into disrepute’ signifies that the practitioner has acted in such an infamous or disgraceful way that the public’s trust in the profession might reasonably be undermined if they were accurately informed about all the circumstances of the case.

A finding under this head must amount to ‘disgraceful conduct in a professional respect’. The conduct must have had some connection with a professional role in order to be considered as falling ‘in a professional respect’. It ought not to be concerned with matters that can reasonably be viewed as solely personal and private.

Criminal convictions, findings in civil proceedings and hearings by other professional bodies AAOS may exercise its discretion to take disciplinary proceedings against a member who is convicted of a criminal offence or who has civil or professional findings against them that ought to have been declared on entry into membership or arising during membership.

The AAOS committee has adapted aspects of the British Association for Counselling and Psychotherapy’s ethical framework in creating this document.