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Professional Conduct Standards. 4: Breach of professional standards, mandatory external requirements and the disciplinairy schemes

Professional Conduct Standards, version 3.0

4.1 A member found guilty of misconduct will be liable to disciplinary action. The definition of misconduct is set out in the disciplinary schemes.
4.2 A material breach of any mandatory requirement of a professional standard is of itself a ground for referral under the disciplinary schemes and would amount to strong prima facie evidence of misconduct. Such evidence could normally be displaced only if the member could show that any departure from strict compliance with any aspect of the mandatory requirement of a professional standard had been adequately disclosed to the client and there is reasonable justification for the course of action in question.
4.3 A failure to comply with a non mandatory requirement of a professional standard is not, of itself, a ground for referral under the disciplinary schemes. However the determination of a complaint under the disciplinary schemes is likely to take into account any such failure to comply, and whether or not it had been adequately disclosed to the client by the member concerned.
4.4 Action to be taken on discovering an apparent breach of guidance by another member
4.4.1 A member who becomes aware of any matter which appears to be a material breach by another member of any mandatory requirement of professional standards or mandatory external requirements must, subject to the caveats in paragraph 4.4.2 (confidentiality) and 4.4.3 (materiality), refer the matter under the disciplinary schemes at the earliest opportunity. However before doing so the member may, but is not required to, discuss the apparent breach with the other member in the matter described, and for the reasons given, in paragraph 4.4.4.
4.4.2 Before taking any action, the member will need to consider whether the matter is protected by confidentiality (see paragraph 2.5).
  • In some circumstances, the member may be able to talk to the other member without breaching confidentiality, but will be prevented from taking the matter any further.
  • A matter which is protected by confidentiality at the point in time it becomes known to a member may cease to be confidential because confidentiality is waived by the person to whom that confidentiality is owed, either immediately or at a later date, or because it becomes public knowledge. The member must take reasonable steps to secure such a waiver, but if one cannot be obtained, the member should keep sufficient information on the matter to enable appropriate action to be taken if the confidential status subsequently changes.
4.4.3 In deciding whether a breach of mandatory requrements in professional standards or mandatory external requirements is material, the member may need to exercise judgment. The fact that an apparent breach did not lead to a materially adverse outcome is not sufficient to establish that the breach was immaterial. If the member is unsure whether or not a matter is material, the member must refer it under the disciplinary schemes.
4.4.4 Appropriate reasons for discussing an apparent breach with the other member include the following:
  • To seek more information about the matter, so as to form a view whether the matter in question does amount to an apparent breach. It is not for the member making the referral to decide whether the other member has actually breached mandatory requirements in professional standards or mandatory external requirements. That is for determination under the disciplinary schemes.
  • to explore whether the matter is one where the other member can either rectify the apparent breach or mitigate any potential harm by appropriate action. Such rectification or mitigation is generally desirable, but it cannot relieve a member from the duty to refer the matter under the disciplinary schemes.
4.4.5 If the member does not consider a discussion to be appropriate, or if the matter is not resolved as a result of such discussions, then (subject to paragraph 4.4.2 and 4.4.3.) the member must refer the matter under the disciplinary schemes and include a report of the nature of any discussions held.


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Page updated: 21 June 2008
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