Background Part 3 - Complaints Section 59 – Disclosure of information by practitioners etc. to the Commission and relevant professional organisations
160.This section amends sections 17, 37 and 48 of the 2007 Act which confer various powers on either the Commission or relevant professional organisations to obtain documents and information in connection with complaints. It also inserts new section 48A into the 2007 Act which confers powers on relevant professional organisations to obtain documents and information before initiating complaints.
161.New section 48A of the 2007 Act applies where a relevant professional organisation is considering making a complaint to the Commission against a practitioner or is otherwise considering treating a matter as if it were a conduct or regulatory complaint remitted to it by the Commission. In these circumstances, the relevant professional organisation may require the practitioner (or the practitioner’s firm or employing practitioner) to provide it with any document or specified information which relates to the matter under consideration (in relation to the potential complaint). But the power cannot be used to require Crown Counsel or a procurator fiscal to provide any document or information.
162.The amendments to sections 17, 37 and 48, and similar provision in new section 48A, of the 2007 Act ensure that the powers conferred by these sections do not require the provision of any document or information that is subject to legal privilege (and which would, in legal proceedings, be protected from disclosure). But they also make it clear that this does not prevent the powers being used to obtain any document or information that is subject to any other right of confidentiality (where legal privilege does not apply). Nor does it prevent the disclosure of any document or information if the client of a practitioner (or the practitioner’s firm or employing practitioner) has consented to the disclosure.
163.The amendments to sections 17 and 48 of the 2007 Act also provide that, in the event that a practitioner, a practitioner’s firm or an employing practitioner fails without reasonable excuse to provide a document or information sought in relation to a complaint by the Commission or by a relevant professional organisation, the Commission or relevant professional organisation may determine the complaint based on the information before it. But it must first notify the practitioner, the practitioner's firm or the employing practitioner of its intention to do so, and it must allow a further 14 days for the document or information to be provided (or a reasonable excuse to be given for any failure to do so). In determining the complaint, the Commission or relevant professional organisation may draw such inference from a failure to provide the document or information as it considers appropriate.