THE DISCIPLINARY POWERS OF PROFESSIONAL BODIES
| Published date | 01 July 1950 |
| Date | 01 July 1950 |
| Author | Dennis Lloyd |
| DOI | http://doi.org/10.1111/j.1468-2230.1950.tb00168.x |
THE
MODERN
LAW
REVIEW
Volume
13
July
1950
No.
3
"€13
DISCIPLINARY
POWERS
OF
I'ROFESSIONAT~ BODIES
114
the days of the mcdizval guild system the ordinary citizen was
accustomed to submit himself in the matter of his profession
or
trade to a body of his colleagues with wide powers of enforcing
discipline over all its members.' The disappearance of the guilds
led to a move in the direction from status to contract whereby
trade, industry, and employment became largely a matter of indivi-
dual contractual arrangement between master and man, with the
power of discipline, including the all-important right of dismissal,
vested in the master by contract. Some professional activities
it
is
true retained a semblance
of
the medkval organisation whereby
the particular professions in question could only be pursued by
persons admitted as members,
for
example, in the case of surgeons
and barristers.' Moreover, where such bodies existed they retained
powers of enforcing discipline upon their members.3
None
the less
it
was only in a very limited class of occupations that this con-
trolling organisation prevailed, and outside the sphere of these
close corporations a man could pursue his chosen avocation without
enrolling himself as
a
member
of
any professional body with self-
appointed powers
'
over his professional life. This is not to say
that such a person was necessarily better,off than is his modern
successor, for just as trade unions, while to some extent limiting
the contractual freedom of the worker, have vastly improved
his
1
See Brentano,
Gilds
and Trade
Unions,
pp.
60
el
seq.
;
Cunningham,
Growth
of
English
Industiy
and
Commerce.
I.
342.
2
For barristers
seo
Booreman's Case
(1641)
March
N.R.
177,
pl.
235;
Holds-
worth,
H.E.L.,
II,
497;
111,
431.
Tho diflerent branches of the medical pro-
fession wero not regularly distinguished in England before the sixteenth century.
Tho Company of Barber-Burgeons
was
incorporated in
1461
but without discip-
linary powers; in
1540
it was re-incorporated and given these powers:
SM)
Encyl.
Brit.,
14th ed.,
XI,
124.
J
For
tho
obscure position
of
attornies before tho modem orgacisation
of
tho
solicltora' branch of the profession see Holdswortli,
H.E.L.,
VI,
pp.
432
ct
seq.
From an early period they were regarded
as
officers
of
the courts, and were
admitted by and attached to porticular courts, which exercised control over
them, but they possessed no independent professional organisation
(ibid.,
pp.
433,
4433). Cf.
Byrchley's Case
(1585),
where it was adjudged that to
nay
of an attorney
'
Thou dealest on both sides
'
was
a
slander
of
him in his pro-
fession, and
if
the words were true he should be indicted,
fined,
and imprisoned,
and
'
put out of tho
roll
of attornies and cast over the bar (Jenkins,
263).
Whether the
last
portion
of
the sentence
\\as
to bo executed literally does
not
appear.
4
Such
powers
may be subject to statutory regulntions;
see
infro.
981
\-01..
13
19
282
THE
MODERN
LAW
REVIEW
YOL.
13
status and bargaining position,
so,
too, the professional bodies
have been created with the object, successfully attained' in most
cases,
of
raising the standing
of
the particular type of activity and
protecting its exporrents from disreputable and unscrupulous com-
petitors. In return for these manifest benefits, it is not perhaps
unreasonable-and indeed it is vital for the existence of a real
professional
esprit
de
corps-that some measure
of
personal freedom
should be surrendered to the governing body. The wheel has thus
turned full circle and at the present day an ever-increasing number
of
professional and semi-professional occupations are becoming
subjected
to
bodies charged under their rules with far-reaching
disciplinary powers over the members. Some
of
such bodies are
given statutory constitutions,s others rejoice in the possession of
royal charters,6 and there remains a large and increasing number
whose rules and constitutions are purely the creation
of
the mem-
bers past and present.' In addition there are other self-appointed
bodies with considerable powers over all who pursue or wish to pur-
sue a particular class of activity, and who exercise those powers not
by admitting persons to membership but by granting them licences
enabling them to pursue their avocation, subject to the powers
5
E.g.,
the General Medical Council, Wilich
is
n
corporate body first established
by the Medical Act,
1858.
It
has
a
statutory power, after due inquiry, to direct
that
a
medical practitioner found guilty of infameus conduct in
a
professional
respect be removed from the register
(e.
m).
There is
no
appeal except where
there has been
a
failure
of
'
natural justice
'
as
explained below, in which case
the decision may either be quashed by order of certiorari (see
General
Medical
Council
v.
Spackmun
[1943]
A.C.
627)
or
an
injunction obtained reatrainin
Council from acting
on
the invalid decision (sce
Leeson
v.
G.M.C.,
43
C%%
366).
The Medical Bill which
is
now hcfore Parliament proposes to transfer
disciplinary poaerri to
a
Medical Disciplinary Committee (cl.
13),
and for
appeals
to
lie to thc Privy Council (cl.
19).
Such appeals will apparently
involve
a
full
right of
a
peal on the fncts
and
the
law
(see next note).
E.g.,
the Pharmaceutiear Society, incorporated by royal charter in
1843
and
confirmed by the Pharmacy Act,
1852.
The power of removal by the Statutory
Committee is expressly .conferred by statute, .with-a right of appcal
to
the High
Court (see Pharmacy Act,
1933,
8s.
7
and
14).
So.
too, the Royal College
of Veterinary Surgeons was incorporated by royal chartcr in
1844
and con-
firmed by the V.S. Act,
1881.
Y.
8
of
that Act provided for appeals against
removals to the Privy Council, but by the
V.S.
Act,
1948,
8.
18,
such appenls
now
lie to the High
Court.
In both these instances
an
appeal will be by way
of
notice of motion
to
the Divisional Court nnd the court
has
power to hear
evidence by tffidavit
or
orully
(R.S.C.,
0.
59,
r.
88).
It is
a
full right
of
appeal and the court must inquire into all tho circumstances. and
,is
absolutely unfettered in
an
investigation which it
ma
think right to make
:
per
Lord Reading C.J. in
Jbck
v.
Central
Midwioea
doanl
[1916] 3
K.B.
766,
768.
Cf. the right of appeal
of
an archifect agninst the removal of hie name
from the Register by the Architects Registration Council (Architects
(Registration) Act,
1931,
88.
3,
7
and
9).
7
E.g.,
the Stock Exchange, which is an unincorporated body under
a
deed
of
settlement executed in
1857.
of
course the efficscy of expulsion from
a
profes-
sional
body
which has not received
a
statutory monopoly will depend
upon
its
stat118 in the eyes of tho public. Anyone
may
still describe himself
as
an
'
engineer
',
but one who has been expelled from some acknowledged institute of
engineering will not be able to continue
to
call himself
a
member of that body,
and this may substantially or entirely destroy his future professional prospects.
Some bodies, such
BB
the Stock Exchange and the Jockey Club, enjoy
a
virtual
monopoly by custom
hardly
less effective than statutc.
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