Fairness of BSB’s complaints process comes under fire

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10 August 2016

Barristers: more content with complaints process than public

Barristers: more content with complaints process than public

Two barristers from the same chambers have between them accounted for more than one in ten of the four hundred plus new complaints made against their branch of the profession in 2015/16.

The revelation came amid a crisis of public confidence in the fairness and openness of the barrister’ complaints process. Invited to agree that the process was open and fair, nearly 70% of complainants said it was not. However, among barristers there was widespread satisfaction.

Professional conduct chiefs suggested risk-based and outcomes-focused regulation might be responsible for the surge in public dissatisfaction.

A total of 48 complaints were laid against the two unnamed practitioners, according to the Bar Standards Board’s (BSB) annual review of enforcement decisions processed by its professional conduct committee, covering the 12 months to the end of March. Altogether, 433 complaints were opened against chambers.

The two barristers accounted for 41 of the 45 ‘high risk’ cases opened following referrals from the Legal Ombudsman (LeO). Last year, 70% of the referrals related to barristers from the same chambers.

The BSB said: “Due to the effect of ongoing enforcement action one of the barrister’s ability to practise has been restricted. This should result in a diminishing number of referrals next year from the [LeO].”

Elsewhere in the report, it was mentioned that 28 of the 35 cases referred to discliplinary action due to “failing to cooperate with LeO” related to one barrister.

The review underlined a widening gap between the views of complainants and barristers on the complaints process. While 69% of complainants said they disagreed it was fair and open, and only 14% agreed, 40% of barristers agreed and fewer than 10% disagreed. Even when asked to discount the outcome of their complaint, nearly half of complainants said they were dissatisfied with the BSB’s handling of it.

The authors, director of professional conduct, Sara Jagger, and chair of the professional conduct committee, Aidan Christie QC, noted that “the gap between [complainants and barristers] has increased”, and observed: “It may be no coincidence that the embedding of [a] risk-based and outcomes-focused approach has come at the same time as an increase in the dissatisfaction of individual complainants.”

They continued: “We must endeavour to demonstrate clearly that our processes are open and fair. Not to do so would run the risk of dissuading members of the public from bringing issues of concern to the attention of the BSB in the future.

“But we have to recognise that the purpose of the enforcement system is not to provide a personalised resolution service that is characteristic of complaints-handling bodies.”

Further, they added: “We also saw a familiar pattern in the comments left by complainants, whereby upon receiving a decision that we do not intend to refer a complaint to disciplinary action, some complainants say that we did not take their concerns seriously or suspect that we are siding with the barristers.”

The review admitted to having been slow to resolve complaints, narrowly missing key performance indicators for some stages of the process. More than 50% of complainants said they were dissatisfied with the BSB’s timeliness, as did almost a quarter of barristers.

But it was in completing disciplinary actions that were sent to tribunal that the BSB missed its service standards by the greatest margin. In 2015/16, 92 complaints were referred to disciplinary tribunals and 14 to the determination by consent procedure – which sees a barrister accept an outcome in return for not being referred to a tribunal.

Not one case heard by a three-person tribunal, and just 30% of cases determined by consent and 40% of those heard by a five-person tribunal, met the standards.

The authors said the situation would improve as more cases were being dealt with by consent: “If this trend of smaller numbers of complaints going to tribunal continues, we can hope for higher percentages of targets being met in our statistics for this area.”

A BSB spokesman said: “One of our overriding aims is to ensure that complaints are dealt with fairly, consistently and with reasonable speed. We have robust processes in place to make sure that this is the case and our quality review sub-committee and an independent observer have provided assurance that our decisions are taken fairly and in line with these objectives.

“We recognise that the results of our user survey show that many complainants do not view the system as fair and we are working to manage expectations.  However, the results also indicate that there is a direct correlation between the outcomes of complaints and the satisfaction of the complainant.”

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