Regulatory Law
Regulatory law solicitors in Dublin 2, acting for professionals and regulated individuals who face a complaint, an investigation or an inquiry by their regulator, including the Central Bank of Ireland, the Pensions Authority, the Law Society and the Legal Services Regulatory Authority, the Medical Council, the Nursing and Midwifery Board and the other statutory professional bodies.
Who we act for
A letter from a regulator is one of the few things that can end a career without a court ever being involved, and the people who receive them are rarely used to being on the receiving end of a process. The firm acts for doctors, dentists, nurses and midwives, pharmacists, veterinary surgeons, teachers, health and social care professionals, solicitors and barristers, accountants and auditors, auctioneers and property service providers, company directors, pension scheme trustees, and the directors, senior managers and controlled function holders of banks, insurers, funds, brokers and other firms regulated by the Central Bank of Ireland. The regulatory practice is led by Robert Bourke and Adam McCarthy, both of whom practised at the Bar before qualifying as solicitors and both of whom run contested hearings and High Court applications as a matter of course.
Fitness to practise and professional discipline
The health and education professions are regulated by statute, under the Medical Practitioners Act 2007, the Nurses and Midwives Act 2011, the Dentists Act 1985, the Pharmacy Act 2007, the Health and Social Care Professionals Act 2005, the Veterinary Practice Act 2005 and the Teaching Council Act 2001, and the Acts follow a common pattern. A complaint is screened by a preliminary proceedings committee, which decides whether there is a case to answer. If there is, the matter is referred to a fitness to practise inquiry, which hears evidence in public, with witnesses examined and cross examined, and decides whether an allegation of professional misconduct, poor professional performance or a relevant medical disability has been proved. The sanctions run from advice and admonishment through conditions on registration to suspension and cancellation of registration, and the more serious of them take effect only when confirmed by the High Court, to which the practitioner may also appeal within a short statutory period. A regulator may also apply to the High Court for an interim suspension where it considers the practitioner a risk, and those applications are brought at speed.
Two points are not widely understood. The first is that most complaints are decided at the screening stage, so the written response to the preliminary proceedings committee is the single most important document in the process and should be prepared with the care of a pleading. The second is that the Supreme Court has held that an allegation of professional misconduct before the medical regulators must be proved beyond reasonable doubt, and that poor professional performance means a serious falling short rather than an isolated lapse, so a practitioner who engages properly with the process has real protection in it. We prepare the response, gather the records and the expert evidence, represent the practitioner at the inquiry with counsel where the case warrants it, and bring or defend the High Court confirmation, appeal and judicial review applications that follow.
Solicitors, barristers and the Law Society
Complaints against solicitors and barristers are made to the Legal Services Regulatory Authority under Part 6 of the Legal Services Regulation Act 2015, which investigates them, may refer them to its Complaints Committee and, in cases of alleged misconduct, to the Legal Practitioners Disciplinary Tribunal, with the High Court dealing with strike off and the more serious sanctions. The Law Society retains its own regulatory powers over solicitors, including the investigation of practices by its investigating accountants, the imposition of conditions on practising certificates, the Compensation Fund and applications under the Solicitors Acts to the High Court, where these matters are heard in the Professional Disciplinary List. We act for solicitors and barristers at each of those stages, from the first letter from the Authority to the High Court, and we understand from the inside how the Society and the Tribunal approach their work.
The Central Bank and the Pensions Authority
For individuals in financial services the exposure has grown considerably. The fitness and probity regime under the Central Bank Reform Act 2010 allows the Central Bank to investigate a person in a controlled function, to suspend them and to prohibit them from the industry, and the Central Bank (Individual Accountability Framework) Act 2023 added the Senior Executive Accountability Regime, enforceable conduct standards for all staff, and the power to pursue an individual under the Administrative Sanctions Procedure without first establishing a contravention by the firm. The Procedure leads either to a settlement or to an inquiry, and sanctions on an individual can include disqualification and substantial monetary penalties, subject to confirmation by the High Court. We represent individuals and firms from the first information request onwards, in interviews, in settlement discussions and before the Inquiry. On the pensions side, the Pensions Authority supervises trustees and schemes under the Pensions Act 1990 and the IORP II regulations, with powers of investigation, direction, prosecution and application to the High Court, and the firm's experience in that field, including its judicial review of the State over the transposition of IORP II, is described under Pension & Financial Services Regulatory.
Other regulators
The same principles govern the disciplinary processes of Chartered Accountants Ireland and the other accountancy bodies, the Property Services Regulatory Authority, the Charities Regulator, the Corporate Enforcement Authority in its dealings with directors, and the public bodies that license and inspect regulated businesses. Whatever the regulator, the questions are the same. What is alleged, what must be proved and to what standard, what procedure the regulator must follow, and what the practitioner can do now to shape the outcome.
How we approach a regulatory matter
The early decisions matter most. We advise on whether and how to respond to the first letter, on preserving records, on notifying a professional indemnity insurer or defence organisation, which will often fund the defence, and on what may and may not be said to the complainant, the employer and the press. Every regulator is bound by the constitutional guarantee of fair procedures, which includes the right to know the case, to be represented, to cross examine and to a reasoned decision, and where a process departs from those requirements the High Court will intervene on judicial review. We say so when a complaint should be met with a candid acknowledgment and a proposal, because that is sometimes the course that best protects a registration, and we fight the cases that should be fought.
Costs
Before any work begins we provide a written notice of costs under section 150 of the Legal Services Regulation Act 2015 setting out the basis of the firm's fees and the likely outlays, including counsel's fees. Many professional indemnity policies and medical defence memberships cover the cost of representation before a regulator, and we check that cover at the outset. Regulatory proceedings are contentious business, and a solicitor may not charge fees calculated as a percentage or proportion of any sum recovered.
Common questions
I have received a letter from my regulator about a complaint. Do I need a solicitor?
The written response at the screening stage decides most complaints, and it is the document on which everything that follows is built. Advice at that point, before anything is sent, is where a solicitor makes the greatest difference.
Are fitness to practise hearings held in public?
Inquiries before the Medical Council and the other health regulators are held in public unless the committee directs otherwise, for example to protect a patient or where the practitioner's health is in issue, and findings and sanctions are published. Complaints that end at the screening stage are not public.
What sanctions can a regulator impose?
Depending on the regulator, the range runs from advice, admonishment and censure, through conditions attached to registration and periods of suspension, to cancellation of registration or disqualification from the industry, and in the financial sector to monetary penalties. The more serious sanctions generally require confirmation by the High Court.
Can I appeal a decision of my regulator?
Yes. The professional regulatory Acts provide for an appeal to the High Court within a short period, usually twenty one days, and the High Court must in any event confirm the more serious sanctions before they take effect. A decision reached by an unfair process may also be challenged by judicial review.
Can the Central Bank take action against me personally?
Yes. Under the fitness and probity regime the Central Bank can investigate, suspend and prohibit an individual, and since the Individual Accountability Framework Act 2023 it can pursue an individual under the Administrative Sanctions Procedure for a breach of the conduct standards or of their senior executive responsibilities without first proving a breach by the firm.