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Mr Michael Dolan

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Michael Dolan (044894J)

held on

9 June 2016

at

Chartered Institute of Arbitrators

12 Bloomsbury Square

London

WC1A 2LP

—————–

Present:

Mr Paul Housego (Chair)

Mrs Linda Read (PCC Lay Member)

Mrs Judy Carr (PCC Architect Member)

Ms Nicola Hill (Clerk to the PCC)

—————–

 

 

Ms Rosemary Rollason of Bevan Brittan appeared on behalf of the Board

Mr Dolan attended the hearing in person

 

Allegations

 

1.      Mr Dolan appeared before the Professional Conduct Committee of the Architects Registration Board to respond to an allegation of unacceptable professional conduct (“upc”).

 

2.      It was alleged that:

 

Allegation 1.1 During a period from 2012 up to and including 24 April 2015, he failed to have in place adequate and appropriate professional indemnity insurance cover in respect of his practice, contrary to standard 8 of the Architects’ Code

 

Allegation 1.2 On 10 April 2015, when requested by Mr D, a solicitor, to notify his professional indemnity insurers of a potential claim against him, and provide details of his professional indemnity insurers, gave a misleading account to Mr D:

 

(i)         indicating that he had current professional indemnity insurance in place

(ii)       stating that he had discussed the potential claim of the insurers,

 

when he knew that both (i) and (ii) were untrue, and in so doing his conduct was dishonest, contrary to standard 1 of the Architects’ Code.

 

 

3.      The relevant provisions of the Code are:-

 

Standard 1

Honesty and Integrity

          1          You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.

          2          You should not make any statement which is contrary to your professional opinion or which you know to be misleading, unfair to others or discreditable to the profession.

          3          …

          4          …

 

Standard 8

Insurance arrangements

          1          You are expected to have adequate and appropriate insurance cover for you, your practice and your employees. You should ensure that your insurance is adequate to meet a claim, whenever it is made. You are expected to maintain a minimum level of cover, including run-off cover, in accordance with the Boards guidance.

          2          The need for cover extends to professional work undertaken outside your main practice or employment.

          3          If you are an employed architect you should, as far as possible, ensure that insurance cover and/ or other appropriate indemnity arrangements are provided by your employer.

          4          You are expected to provide evidence that you have met the standards expected of this Standard in such form as the Board may require.

 

 

Summary

4.      A client was dissatisfied with some aspects of a project where Mr Dolan was the architect. The details are not relevant as they give rise to no allegation before the Committee.  The client instructed a solicitor, who wrote to Mr Dolan on 07 April 2015 asking him to notify his insurers.  On 10 April 2015 Mr Dolan emailed the solicitor in reply at 09:15 (document 72). This email stated that Mr Dolan had informed his insurers, who had asked him for details regarding the project, and that he had supplied emails to them, and that on receipt the insurer had informed him that he should have notified them of the claim earlier and so they would not cover him in respect of the claim. In fact Mr Dolan did not have an insurance policy in place and had not written to any insurer in connection with the claim. The solicitor immediately replied, and asked for copies of this correspondence. At 16:42 on the same day, 10 April 2015, Mr Dolan stated that his insurance had lapsed prior to the commencement of the project.

 

Burden and standard of proof

5.      The ARB is required to prove the allegations to the civil standard; that it is more likely than not that any event occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence required to prove it. There is no requirement for Mr Dolan to prove anything. The Committee has in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply.  In particular Mr Dolan has the right to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts found proved amount to upc is a matter for the Committee’s judgment, and there is no burden of proof. A finding of unacceptable professional conduct requires the Committee to judge that conduct to be serious.

 

Preliminary matters

6.      Mr Dolan admitted the allegations, as to facts, admitted that he was dishonest and that both parts of the allegation were, separately and together, upc. It was agreed that the witness would be released, that the Committee would hear the outline of the case by the Board’s solicitor, then hear the legal advice of the Clerk, then retire to decide on the factual allegations and whether any facts found proved were upc. Then the Committee would, if it found the allegation of upc proved, then hear from Mr Dolan in mitigation.

 

Plea

7.      Mr Dolan admitted the allegations that he had no insurance in place and that he had received and written the emails described in the summary above. He accepted that the email was dishonest. He did not dispute anything about the way the case was put by the Board’s solicitor.

 

Evidence

8.      The Committee perused the report of the Board’s solicitor with accompanying documents running to 101 pages.

 

 

 

ARB submissions

9.      The facts spoke for themselves. There was no honest explanation for the email. Insurance was an obvious necessity, and Mr Dolan had practised uninsured for some years. The submissions were in detail and took the Committee through the history of the matter. There were no disputes of fact. These allegations were factually correct. Mr Dolan knew the email was untrue and it was plainly dishonest (he knew the statements were not true). This was serious as was required for a finding of upc.

 

Findings of fact

10.  The ARB alleged that Mr Dolan was dishonest. The Panel accepted the advice of the legal assessor that this question involved the two stage test set out in Twinsectra Ltd – v – Yardley & Others [2002] UKHL 12. The two stage test is that he must himself appreciate that what he was doing was dishonest by the standards of honest and reasonable people. Mr Dolan had no insurance from at least 2012, until October 2015. When presented with the possibility of a claim he wrote an email which falsely stated that he had notified his insurers, that he had sent them the email correspondence between the solicitor and himself, that the insurer had responded, and that they had advised him that that they had refused to cover him. None of this was true, and he knew it. The basic fact that he had no insurance was inescapable, but Mr Dolan lied about the reason. This was dishonest.

 

Conclusion

11.  The need for insurance is obvious, and its cost for architects is an essential cost of practice. All Mr Dolan’s work for a period of years was uninsured. He now has insurance, but that is not retrospective. He knowingly made a statement that was false. It was true to say that he had no insurance, but the reasons given were elaborate and untrue. When challenged he admitted immediately that his first email was untrue. Had he not been challenged there would have been no reason for him to so admit. Mr Dolan accepted that this was dishonest: and plainly the allegation meets the Twinsectra test set out above.

 

12.  Accordingly the Committee finds the allegation of unacceptable professional conduct proved.

 

The Board’s submission on sanction

13.  The Board take the view that this is a matter for the Committee to decide, bearing in mind the Indicative Sanctions Guidance.

 

Mitigation

14.  Mr Dolan spoke in mitigation. He set out that his career had been lengthy and that no other client had ever complained. The fact of non insurance had been an oversight, as its cost to him was small, and he had always had PII cover in the past, and he had run his own firm since 1985. He said that his health had been impaired – he had had 6 operations on his eyes, and his sight was impaired, and this had distracted him. He was very sorry at what he had done. It had been an aberration. When contacted by the solicitor he had panicked: hence the email. He said that he bitterly regretted his conduct. He had wound down his practice so that he now had no staff. Mr Dolan understood that his right to practice was in question but he hoped to wind up all his work over the next year and then fully to retire. He implored the Committee not to erase him from the register. He produced no testimonials. There has been no previous disciplinary finding against Mr Dolan, who has been in practice for over 30 years.

 

Sanctions

15.  The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence. Sanctions also help ensure that the profession better understands the importance of professional standards.

 

16.  The Committee has considered the Indicative Sanctions Guidance. Appearance before this Committee is in itself salutary. The Act does not require the Committee to impose a sanction in every case where a guilty finding is reached, so the Committee may choose to make no disciplinary order.  If it decides to impose a sanction, the Committee commences at the lowest sanction, and only if it decides that sanction is not appropriate does it move to the next level of sanction. Having arrived at a sanction that it is minded to impose the Committee then reviews the next sanction above so as to satisfy itself that this would be too severe a sanction before arriving at a final conclusion. If the Committee decides on a fine, it is limited by the Architects Act 1997 to £2500 the charges of upc.

 

17.  In all the particular circumstances of this case the Committee considers that a sanction is appropriate because of the need to declare and uphold professional standards.

 

18.  The Committee identified the following mitigating and aggravating factors:

 

·         The aggravating factors are first that dishonesty is very serious.

·         Lack of insurance for a period of years is also very serious.

 

19.  The mitigating factors are that there were health reasons affecting Mr Dolan at the time,  that were a distraction for him, and that the dishonesty was as to the reason given for non insurance, not as to the fact of non insurance. It was short term (though only because the solicitor probed). Mr Dolan has always co-operated with the ARB and admitted the facts alleged and the dishonesty of his one email, and expressed remorse. He now has insurance. Throughout the matter he co-operated with the client in the practical issues arising in the project. He has over 30 years in practice, and no previous blemish on his professional reputation. The Committee then considered the Indicative Sanctions Guidance before reverting to the circumstances of this case:

 

20.  The indicative sanctions guidance states:

 

Reprimands

 

Where the PCC decides that it is appropriate to impose a sanction in relation to a guilty finding, a reprimand is the lowest sanction that can be applied. It may be used in relation to those offences at the lower end of the scale of seriousness, where and where it would be appropriate to mark the conduct or competence as being unacceptable.

 

This sanction may be considered where the following factors are present (this list is not exhaustive):

 

–           Evidence that the conduct or competence has not seriously affected clients/the public

–           Insight into failings

–           Genuine expression of regret

–           Corrective steps taken

–           Previous good disciplinary history

 

Like all disciplinary orders a reprimand will remain permanently on an architects record, but only published for two years after the date of sanction.

 

Penalty orders

 

Penalty orders are fines of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500. Only one penalty order can be issued per charge, and under the Act only two charges can be brought (unacceptable professional conduct and/or serious professional incompetence). It may be used in relation to those offences too serious to warrant a reprimand, or where a lack of remorse or understanding is displayed.

 

This sanction may be considered where the following factors are present (this list is not exhaustive):

 

Offence is too serious to warrant a reprimand

Limited or lack of remorse

Architect has benefitted financially from the offence

 

The PCC will specify the period within which the sum must be paid, and a failure to satisfy the order may lead to it being replaced by a suspension or erasure order. A penalty order is published for two years after the date of sanction.

 

Suspension orders

 

A suspension order may be imposed by the PCC for serious offences, but not so grave as to warrant erasure from the Register. Suspensions are for a maximum period of two years and the architect is automatically reinstated to the Register at the end of the suspension period. Any individual suspended from the Register cannot use the title ‘Architectin business or practice.

 

This sanction may be considered where the following factors are present (this list is not exhaustive):

 

An offence so serious that a reprimand or penalty order would be insufficient to protect the public or the reputation of the profession

Behaviour that is not fundamentally incompatible with continuing to be an architect

No evidence of entrenched integrity issues

The PCC is satisfied that the behaviour is unlikely to be repeated

Conduct capable of being rectified

Non-payment of a previously imposed penalty order

 

A suspension order is publicised for the period of suspension and a subsequent two years from the date of reinstatement.

 

Erasure orders

 

An erasure order may be imposed by the PCC for those offences that are so serious that only a permanent removal from the Register will protect the public and/or the reputation of the profession. Erasure from the Register is permanent, though an application may be made to the ARB for re-entry after no less than two years. The PCC may make a recommendation as to a minimum period of time before such an application should be considered.

 

This sanction may be considered where the following factors are present (this list is not exhaustive):

 

A serious criminal offence

Behaviour that is fundamentally incompatible with continuing to be an architect

The PCC lacking confidence that a repeat offence will not occur

Dishonesty or a severe lack of integrity

A persistent lack of insight into the seriousness of actions or consequences

Non-payment of a previously imposed penalty order

 

Any individual erased from the Register is not permitted to use the title ‘Architectin business or practice [nor any reference to membership or fellowship of RIBA.] An erasure order is publicised for a period of five years after the date of sanction.

 

The Committee’s decision

21.  A professional person who is found guilty of dishonesty has but a small chance of avoiding erasure. The Committee is concerned with the regulation of architects, and cases involving other professions are not necessarily precedents for this Committee. The dishonesty was directly relevant to professional work. It was an elaborate construct. It was an aberration, but it is hard to see this as a momentary lapse: the prospect of a negligence action had been clear for some months and the email was fully thought through.

 

22.  Mr Dolan’s submissions and correspondence with the ARB focussed on the lack of PII, and did not address the dishonesty allegation. Mr Dolan has limited insight into this second allegation. There has been an impact on the client who was deprived of the possibility of a negligence action where a judgment would be indemnified.

 

23.  There was in the submissions no apology to the clients. In his letters of some pages to the Board of 27 August 2015 and 16 November 2015 Mr Dolan made no reference to the untruthful email. He expressly offered as exculpation that his clients had not asked for proof of his PII cover. He stated that the only failure was in not having PII and did not deal with the dishonesty point at all. There is regret expressed at the situation he finds himself in, and he has expressed remorse although only lately.

 

24.  However the Committee noted that there was no financial advantage to Mr Dolan in the lie that he told in the email: he was communicating that he was uninsured and so would have to be sued personally. The lie was about the reason he was uninsured. It was to avoid embarrassment. There was no reason for him intentionally not to have insurance. The Committee would not treat a finding of upc on the insurance matter alone as a matter that would lead to erasure in this case. Mr Dolan has always engaged with the Board and has always admitted the allegations found proved. The Committee considered carefully the need for proportionality in the sanctions it imposes.

 

25.  The purpose of sanctions is not to be punitive, though this may be their effect. The Committee considers that there is no prospect of repetition. Ultimately, and weighing all the circumstances of this case, and of Mr Dolan, the Committee decided that the need to maintain declare and uphold professional standards is met by the maximum suspension that the Committee can impose, of 2 years, and the Committee so orders.

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