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Mr Douglas Stuart

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Mr Douglas Stuart (038335J)

Held on 22 & 23 February 2017 and 13 March 2017

At

Mercure Glasgow Centre

201 Ingram Street

Glasgow

G1 1DQ

And

Novotel Glasgow Centre Hotel

181 Pitt Street

Glasgow

G2 4DT

———-

Present

Ms Emma Boothroyd (Chair)

Mr Roger Wilson (PCC Architect Member)

Mr Martin Pike (PCC Lay Member)

Mr Stephen Battersby (Clerk)

Miss Catriona Watt of Anderson Strathern appeared on behalf of ARB.

Mr Douglas Stuart attended in person and was represented by Mr Brown.

The PCC found Mr Douglas Stuart guilty of unacceptable professional conduct in that he:

1. In relation to the Infiltration System Test Results Certificate dated 27 June 2013:

a) recorded on the said certificate that he had undertaken the sub-soil percolation tests on 24,25 and 26 June 2013 when he had not done so;

b) subsequently stated he had undertaken the sub-soil percolation tests on 24,25 and 26 May 2013 when he had not done so;

c) was dishonest in respect of (a) and (b) above, in that he intended to create the impression he had undertaken the sub-soil percolation tests on the said dates when he had not done so.

2. Produced a Final Inspection Certificate submitted on 22 April 2014 which was rejected by Highland Council on grounds which were avoidable. The sanction imposed was erasure.

Background:

1. In this case, the Board is represented by Miss Catriona Watt. Mr Stuart has attended this hearing and is legally represented by Mr Brown. Mr Stuart faces a charge of unacceptable professional conduct (UPC) based on three allegations as follows in that he:

1.1 In relation to the Infiltration System Test Results Certificate dated 27 June 2013:

a. recorded on the said certificate that he had undertaken the sub-soil percolation tests on 24,25 and 26 June 2013 when he had not done so;

b. subsequently stated he had undertaken the sub-soil percolation tests on 24,25 and 26 May 2013 when he had not done so;

c. was dishonest in respect of (a) and (b) above, in that he intended to create the impression he had undertaken the sub-soil percolation tests on the said dates when he had not done so

1.2 Incorrectly certified that the floor was constructed in accordance with the approved drawings on 17 September 2013; and

1.3 Produced a Final Inspection Certificate submitted on 22 April 2014 which was rejected by Highland Council on grounds which were avoidable.

2. The Respondent admits the facts of allegations; 1 (a) and (b) but denies (c). The Respondent admits allegations 2 and 3, both in part. The Respondent denies that his conduct amounted to UPC in relation to allegation 2.

3. This case arises out of a complaint made by CL, (“the Complainant”) in March 2016 in respect of the professional services carried out by the Respondent.

4. The allegations that form the background to this case are that Mr Stuart was engaged by the Complainant’s building contractor as part of a design and build contract for a new build house at Daviot, Inverness. As part of the application for a Building Warrant the Respondent completed an Infiltration Systems: Test Results Certificate certifying that percolation testing of sub soil conditions had been undertaken. The certificate is dated 27 June 2013 and certifies that tests were undertaken on 24, 25 and 26 June 2013.

5. The Respondent subsequently in January 2015 and following enquiries made in the litigation between the building contractor and the Complainant said that these dates were incorrect and the tests were actually undertaken on the 24, 25 and 26 May 2013.The Respondent has admitted that these dates are also incorrect and he considers it is likely that the tests were undertaken at some point in the week commencing 19 May 2013.

6. The Complainant has complained that the tests were not carried out at all and it was clear from the condition of the site that the drainage was inadequate. She has complained that the drainage system that was designed and built on site was not in accordance with the approved drawings and was not suitable.

7. The Complainant also complained that the floor slab was not constructed in accordance with approved drawings. She had expressed a preference for a screed floor and this was in the approved plan. Following a conversation between the Respondent and the contractor, a structural slab was constructed. The Complainant complains that this structural slab was not constructed properly in that suitable quality hardcore was not used as a sub floor. The Complainant complains that the Respondent didn’t properly check whether the floor had been constructed properly and incorrectly certified it was constructed in accordance with the drawings.

8. The Complainant complains that the Respondent incorrectly produced a final inspection certificate which showed no outstanding items but this was rejected by Highland Council on 23 grounds which were avoidable and should have been evident to the Respondent when doing an inspection.

9. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant and the Respondent, together with the documentary evidence presented to it in the Report of the Board’s Solicitor, the defence bundle which includes the Respondent’s statement and documents and letters from another architect dated 14 February 2016 who was offering his opinion. The committee found the evidence of the Complainant to be credible and consistent and not prone to exaggeration or embellishment. In contrast, the Committee found the Respondent’s evidence, at times, to lack credibility and to be inconsistent as identified later in this decision.

10. The Committee has accepted the legal advice given by the Clerk. It has had regard to the fact that the burden of proof is on the Board and that the civil standard applies, namely, proof on the balance of probabilities. Whether the alleged conduct amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies.

Finding of facts:

11. The Committee makes the following finding of facts:

12. Allegation 1a:

In light of the Respondent’s admission, the Committee finds the facts proved. The cCommittee has had sight of the Infiltration Systems Test Results certificate dated 27 June 2013. Mr Murray’s reasons for rejection document confirms that this document was submitted to the Highland Council on the 27 June 2013. The certificate sets out that the tests were conducted on the 24,25 and 26 June 2013. The Respondent confirms that the tests could not have been done on these dates because the tests were carried out before the drawings were completed on the 27 May 2013. The Committee finds that the tests were not conducted on those dates and the Respondent incorrectly recorded in the certificate that they had been.

13. Allegation 1b:

In light of the Respondent’s admission, the Committee finds the facts proved. The Committee had sight of an email from the Respondent dated 5 January 2016 when he stated that the June dates were incorrect and he can “only guess that the dates should have been” 24,25 and 26 May 2013. The Respondent said in his response to the complaint dated 2 May 2016 that as these dates fell over a weekend he could not have been on site on these dates. The Respondent has said in his oral evidence that he now thinks the tests were carried out during the week commencing 19 May 2013.

14. Allegation 1c:

It is alleged that the Respondent has been dishonest in relation to 1 a and b above in that he intended to create the impression that he had carried out the soil percolation tests on those dates when he had not done so. Miss Watt for the Board said that it was not part of the Board’s case that the Respondent had not carried out the tests at all but that he intended to create a misleading impression that they had been done on the dates set out.

15. In his evidence, the Respondent was unable to explain when he had carried out the tests and he could only guess. He accepted that he had no documentation that would support when he carried out the tests but he had no intention to mislead anyone and was merely careless about the dates. It was submitted on his behalf that if he had intended to mislead anyone he would have ensured that the dates he selected were not over the weekend or after the drawings were completed. It was submitted that the Respondent had done the tests and in the absence of his notes or any other documents he was unable to be sure exactly when.

16. The Committee found the Respondent’s explanation of conducting the tests implausible. In his evidence he explained that the test holes he dug were not where the drainage was going to be situated but where there were existing holes and where he considered he would obtain favourable results. He also accepted that the recording of the level of the water table in the certificate as being greater than 2 meters was an exaggeration. The Committee considers it inherently unlikely that the Respondent would make several trips to a site over three days to obtain test results which were not in the correct place. The Committee did not have sight of the plan that accompanied the test results showing where the Respondent had located the test pits. However, the Committee considered that it was inherently unlikely that a Building Warrant would have been granted on the basis of the test holes that the Respondent indicated to the Committee, given the drawings and plans for the drainage that were submitted.

17. The Respondent could give little corroborative detail about his visits to the site and was unclear about how long he spent there and what his movements were. The Complainant was clear in her evidence that she had never seen the Respondent conducting any tests on the site. In addition, she said that she had seen a plan from the Council showing where the tests were said to have been conducted and that her recollection was that one of them was close to the north western boundary. The Complainant explained that she did not consider there could have been a test hole there because the area had been used as a quad bike track and it was full of water.

18. She explained in her statement that these tests could not be re-created because they could not get to the required depth with suitable conditions for drainage.

19. The issue for this committee to consider is whether the Respondent’s Infiltration System Test Result Certificate was misleading or dishonest. A statement is misleading if it is deceptive or intended to mislead.

20. In considering the question of dishonesty, the Committee has borne in mind the test in Twinsectra v Yardley, considered in the light of the case of Beata Kirschner v General Dental Council [2015] EWHC 1377 (Admin) in that the Respondent’s honesty should be judged by the standards of ordinary and honest members of the Architects profession. The Committee has asked itself the following two questions:

– Was the Respondent dishonest by the ordinary standards of reasonable and honest members of the Architects profession? In this regard, the Committee must form its own judgment on what those standards are.

– Did the Respondent know, or should he have known, that what he was doing would be regarded as dishonest by those standards?

21. In deciding the second question, the Committee must consider the Respondent’s state of mind at the time. If after taking into account all of the evidence, the Committee is satisfied that the answer to both of those questions is yes, then the element of dishonesty is proved. If the Committee is not so satisfied, the element of dishonesty is not proved.

22. The Committee considered whether the giving of incorrect dates on the certificate and subsequently was an oversight or was intended to mislead. Taking all of the evidence into account the Committee has concluded on the balance of probabilities that the Respondent did not undertake the tests at all and it was for this reason that the Respondent gave false dates for the testing both in the certificate and subsequently. The Committee considered that the only rational explanation for the Respondent giving a range of incorrect dates was to cover up the fact that he had not conducted the tests.

23. The Committee is satisfied that the Respondent’s conduct in certifying false dates for soil percolation tests that were not carried out would be regarded as dishonest by the standards of reasonable and honest architects. The Committee is also satisfied that the Respondent was aware that what he was doing would be regarded as dishonest by those standards.

24. The Committee therefore finds that by acting as alleged, his actions were misleading and dishonest.

25. By reason of those failures, the Committee finds that the Respondent acted in breach of standard 1 of the Code.

26. Allegation 2:

The Committee finds this allegation proved.

27. The Committee had regard to all of the evidence about this matter and considered the specific wording of the charge. It is alleged that on the 17 September 2013 the Respondent incorrectly certified that the floor was constructed in accordance with the approved drawings. The approved drawings provided for a screeded or “sandwich” floor and this was the design specifically requested by the Complainant. The contractor had asked the Respondent to change this design to a structural floor and it was agreed by the Respondent this would make no difference to the overall design and was a reasonable alternative. However, by 17 September 2013 only the sub-floor had been constructed and this sub-floor was the same construction for both the screeded and the structural floor. At the time that the Respondent inspected the floor it could not be said that there was a departure from the agreed drawing. Whilst it is regrettable that this was not picked up later in the project or communicated to the Complainant at the time of certification, the Committee was not satisfied that the change had been made, although it was contemplated.
28. There was a further issue in so far as the sub-floor did not comply with any of the drawings as it did not have the correct quality hardcore material under the blinding. The Committee considers that in this limited respect factually the floor slab was not constructed in accordance with the approved drawings.

29. Allegation 3:

The Committee finds this proved.

30. The Respondent has admitted this allegation but only in respect of item (6) of the council’s list of defects relating to the smoke detector produced on 19 May 2014. The Committee noted the final inspection certificate dated 22 April 2014 signed by the respondent. This certificate contains the following wording, “We hereby certify to you that, on the basis of these inspections, and subject to any items listed below, the workmanship conforms to adequate building practice and the property is in general conformity with the plans and/or specifications lodged for all necessary consents and/or any variations instructed or approved by you.” Under the heading “Schedule of Outstanding Items” the Respondent has confirmed “none”.

31. It is clear from the list of reasons for rejection that there are a number of items from that list that were, or should have been apparent to the Respondent at the time he certified the Final Inspection on the 22 April 2014, but which he failed to note on the certificate. Mr Murray set out in his report 23 reasons for rejection of the final certificate. The Respondent conceded that in relation to the smoke detector he should have noticed this. He also accepted that the variations from the warrant in relation to the structural floor and the drainage should have been included.

32. The Committee considered that the majority of the matters raised by Mr Murray were discernible on inspection by the Respondent. The Committee concluded that the final inspection certificate was rejected on grounds that were avoidable.

33. Standard 6 of the 2010 Code requires an architect to carry out their work faithfully and conscientiously:

You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.

34. In the circumstances, by failing to properly inspect the property the committee finds that the respondent acted in breach of Standard 6 of the 2010 Code.

Unacceptable Professional Conduct

35. Having found the allegations proved and having determined that Mr Stuart has breached Standards 1 and 6 of the 2010 Code, the Committee went on to consider whether the Respondent’s conduct amounts to unacceptable professional conduct. This is defined as conduct which falls short of the standard required of a registered person. In reaching its finding, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Clerk. The Committee recognises that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily give rise to disciplinary proceedings. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect.

36. The Committee notes that to the extent that the Respondent has admitted the facts alleged against him, he admits that his conduct amounts to UPC. The Committee has nevertheless reminded itself that it is a matter for the Committee’s own judgment to reach such a conclusion.

37. The Committee has considered the authority of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.

38. The Committee has made a finding that the Respondent’s actions as set out in allegations 1(a) and (b) were misleading and dishonest. Honesty is a core value of any professional and any failing in this regard amounts to conduct that falls seriously short of the standard expected of a registered architect.

39. In relation to allegation 2 the poor quality of the hard core eventually caused the subsidence of the floor. The Respondent admitted that he did not lift the damp proof membrane to inspect the sub floor. However, the Committee considered that even if he had done so the quality of the hardcore would not have been visible to him. The Committee accepted the Respondent’s explanation that he had no reason to think that the contractor had not used the correct materials and this was basic building practice. Overall the Committee did not consider that the Respondent’s actions fell short of those of a reasonable architect and did not consider that this allegation amounted to UPC.

40. In relation to allegation 3 the Committee considered that the failure to properly inspect the property and set out on the final certificate the items that the Respondent knew to be outstanding did fall short of the conduct expected. The Committee took into account the Respondent’s explanation that he wanted to ensure that the Complainant’s occupation of the property was regularised. Nevertheless, the Committee considers that the failure to ensure the outstanding items were addressed before the inspection meant that the final certificate was bound to be rejected on grounds which he knew or should have known were avoidable.

41. The allegations found proved (with the exception of allegation 2) and corresponding breaches of the Code, both individually and collectively, are serious and adversely impact both on the reputation of the architect and the profession generally. As such, the Committee finds that the Respondent’s conduct does amount to UPC.

42. Ms Atkinson addressed the Committee in mitigation.

43. In reaching its decision, and in considering whether to impose a sanction, the Committee had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board and to declare and uphold proper standards of conduct and performance. The Committee carefully considered the representations made in these proceedings and heard and accepted the advice of the Clerk. The Committee bore in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. The Committee took into account the Respondent’s interests, the Indicative Sanctions Guidance and the need to act proportionately, taking into account all the aggravating and mitigating factors in this case, and in doing so, it exercised its own independent judgement.

44. The Committee had regard for the fact that the Respondent has had an unblemished career spanning 46 years and that this is an isolated matter relating to one project. The testimonial handed to the Committee attests to the Respondent’s good character and professionalism. Ms Atkinson submitted on the Respondent’s behalf that he deeply regrets the difficult situation faced by the Complainant and the part he played.

45. The Committee noted that the Respondent has had time to reflect on the matters found proved and maintains that there was never any intention to mislead anyone. Nevertheless he accepted the findings of the Committee and acknowledged that they are very serious.

46. Ms Atkinson explained the difficult situation that the Respondent was facing at the time of these incidents involving the financial and other problems at the practice together with difficult personal circumstances. Ms Atkinson submitted that these situations are now largely resolved and the Respondent has taken steps to limit his practice to ensure that there is no likelihood of repetition. This includes removing his name from the list of approved soil percolation testers. The Respondent has also updated his office systems and procedures to ensure that record keeping is improved and that there will be no repetition of the issues.

47. Ms Atkinson outlined the Respondent’s current financial position and said that he is reliant on the inspection work to repay significant borrowings taken out when his business was in difficulty. She submitted that any restriction on the Respondent’s ability to practice as an architect would have major financial consequences for him. In addition, it would have an impact on his clients who would have to find an alternative architect in an area where this might prove difficult.

48. Ms Atkinson submitted that the Respondent would be able to pay a financial penalty and that the public is not in need of any further protection given the steps taken to improve his practice and to limit the areas in which he now works. She submitted that this was an isolated incident in a long career as an architect and the impact on the Respondent and his clients of any restriction would be significant.

49. The Committee had in the forefront of its mind the earlier findings it made. With regard to the soil percolation tests, making inaccurate, misleading and untrue representations is conduct unworthy of a professional. That these tests subsequently informed the drainage method for the site which is now failing, aggravates the seriousness of your actions. The impact of the Respondent’s failings on the Complainant was significant and persists to this day.

50. Dishonesty and/or a lack of integrity on the part of a professional architect is obviously a serious matter. Honesty and integrity are the cornerstones of a professional, and failure to demonstrate these qualities severely undermine the confidence that can be placed in that individual and in the profession generally. The public should quite rightly be able to expect that certified test results given by a professional architect are made honestly and can be relied upon.

51. With regard to the issue of the Final Inspection Certificate the Committee considered that it was improper to have issued that certificate when he knew that there were items outstanding. Although the Respondent explained it was to assist the client, the Committee considered that this demonstrated a lack of appreciation of his duty as an architect and it was not satisfied that he had addressed your failings in this regard. The Committee could not be satisfied that if the Respondent were faced with a similar situation he would act differently as it has seen no evidence to this effect. The Committee was also concerned that this was to an extent part of the work the Respondent is now undertaking.

52. The matters found proved reflect serious failings on the part of the Respondent, such that the Committee considers that the imposition of a sanction is necessary. The Committee has balanced the Respondent’s own interest with those of the profession and has borne in mind the need to act proportionately. It concluded that neither a reprimand nor a penalty order would be appropriate to reflect the gravity of the Respondent’s conduct and would not be sufficient to declare and uphold proper standards of conduct.

53. The Committee next considered whether a suspension order was appropriate. Having carefully considered the Indicative Sanctions Guidelines, the Committee considered that such a sanction would be insufficient to protect the public or the reputation of the profession. Fabricating the results of soil percolation tests is, in the Committee’s view, behaviour that is fundamentally incompatible with the Respondent’s professional obligations.

54. The matters found proved are so serious that only erasure from the Register will protect the public and the reputation of the profession. The Committee therefore directed that the Respondent’s name be erased from the Register. Such erasure is permanent though an application may be made to ARB for re-entry after no less than two years. The Committee sees no reason for making any contrary recommendation, hence it recommends that the Respondent shall be entitled to apply for re-entry in no less than two years’ time.

55. The Committee had regard to the significant impact that such an order would have on the Respondent. Nevertheless, it considered that the matters found proved were so serious that erasure was the only appropriate and proportionate sanction to protect the public and maintain confidence in the profession.

 

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