by
Professor Kevin Bampton, CEO of the British Occupational Hygiene Society
| Jun 21, 2024
To explain where restorative justice fits into professional regulation is, in part, to explain where “justice” fits into regulation. Both have a different feel and provide a different sense of resolution for stakeholders and for the community.
Defining restorative justice and professional regulation
What do I mean by restorative justice (RJ)? The Crown Prosecution Service describes RJ as a process through which parties with a stake in an instance of wrongdoing “collectively resolve how to deal with the aftermath of the offence and its implications for the future.” Major proponents of restorative justice, Strang and Braithwaite (2002), use a similar definition: "Stakeholders affected by an injustice have an opportunity to communicate about the consequences of the injustice and what is to be done to right the wrong."
Imagine a playground dispute where Chris snatches away Robin’s ball. An RJ approach would be to see whether they might sit down together. Robin then explains to Chris how that incident made them feel. Chris might be asked to reflect on what motivated them to do it. Together they may resolve what would right the wrong and how to deal with the same situation in the future. The message sent out is one of reconciliation and resolution, but it probably does not set a precedent for future resolutions and there is no general regulatory conclusion to be drawn. Authority is not invoked in a visible way.
Now let’s look at professional regulation. In a recent consultation, the Government stated the purpose of the regulation of health and social care professions was “to protect the public from the risk of harm from the provision of health and social care services.” The aim is to do so using the “most effective and proportionate means.” For professions not regulated by statute, “Accreditation by the PSA provides assurance that a register meets standards in a number of areas, including protecting the public, complaints handling, governance, setting standards for registrants, education and training, and managing the register.”
In the same playground dispute, Robin becomes a complainant, then witness to Robin’s rule breaking. The rule against snatching is rehearsed and the circumstances examined to determine whether the rule has been broken. Consideration is given as to the likelihood of Chris doing it again, the general message that will be sent out by making any consequence public and the appropriate steps to prevent Chris or anyone else snatching balls from others in the future. Robin may or may not get their ball back. Ball games could be banned because they are the cause of frequent disputes. Chris might get suspended from playing ball or just be given a warning. The rules are reinforced and perhaps refined and authority is reinforced.
Contrasting the models
Restorative justice focuses on righting wrongs, resolution and a sense of collective healing and rebalancing. Professional regulation focuses on preventing harm, defining boundaries of acceptable conduct and maintaining public confidence and professional standards.
Restorative justice operates with someone (or a particular community) in mind, while professional regulation has everyone (or the general public) in mind. When looked at this way, for the complainant/victim, restorative justice processes feel, well, more just. That’s because the whole purpose of RJ is to make the complainant/victim feel that way. Invariably, that’s also the experience of people who are the subject of the complaint, because coming to acceptance is part of the process’ objective.
Regulation feels altogether a colder process. It’s not aimed at addressing the feelings of the participants, but at a principled approach which satisfies an unspecified public ethical attitude. When rules meet people, there is often an untidy fit and explaining to a complainant/victim that the regulator is there to perform a public duty, rather than address a private wrong, can feel unjust and unsatisfactory.
Restorative justice looks at how the past and people’s narratives can be used to understand how people think and feel now and how those thoughts and feelings and will influence future behaviours and attitudes. With regulatory decision-making, the past is taken, so far as it can be, to be a predictor of future conduct and risk. There is a subjective element in relation to the alleged wrongdoer and the likelihood that their attitude and behaviour will predict compliance in the future, but the complainant’s experience is only really relevant to the extent that it is a measure of harm and potential harm to be prevented.
When is RJ a solution for resolving professional complaints?
In my view, the situations where an RJ approach might be appropriate include four categories of situation – drawn from an analysis of using RJ approaches across the Commonwealth.
- Restorative justice is a useful mechanism where complaints processes are being widely used as a dispute resolution mechanism, rather than for the purposes of addressing issues of public harm. This might be the situation where the organisation deals with complaints between professionals or complaints about the standard of service outside the boundaries of public safety. Using RJ in these circumstances is a question of pragmatism and cost-benefit analysis. It might be seen as a supplementary benefit and could improve the public perception of the profession. Care should be taken to ensure RJ processes do not impinge on the processes in place to ensure fair, consistent and systematic investigation of issues relating to public safety.
- Restorative justice may be appropriate also in “hard cases.” With the best will in the world, authors of professional standards procedures can’t envisage every circumstance. When the question of whether an issue is covered within those standards, proportionality will tend to favour a conservative view of the rules. This invariably means that ambiguities or loopholes should be resolved in favour of the accused professional. However, it may be apparent that there is manifest unfairness to the complainant which may also be harmful to the profession.
In those circumstances, with the consent of both parties, the organisation may elect to use an RJ approach to support dispute resolution and professional reflection and development. Care should always be taken not to infer that this is an alternative to formal processes or that if not engaged with, it may lead to formal action.
A significant benefit of this approach is the potential for organisational learning to inform any required tweak of processes or practice guidance.
Restorative justice can be very useful when dealing with a closely related cluster of complaints or a community who are collectively, but differentially, affected. RJ can be effective when there is a systemic issue, such as where there is a breakdown in confidence in the profession or professional organisation.
It may be appropriate where both the organisation and the complainants lack the means or time to pursue independent complaints with hope of timely redress. In such circumstances, the process is one whereby the organisation assumes a collective responsibility for the profession, rather than forming the basis of action against specific members.
This is a mature approach to regulation of a profession and not without risk. It adopts a community resolution approach and often requires the enlistment of expertise and facilitation outside the organisation. As a methodology, it contrasts with the “independent inquiry” approach, which may be appropriate where there is an identification of formal failures.
Organisations with considerable experience with patterns of professional conduct that lead to complaints may decide that an RJ approach can provide an educational and rehabilitative approach to assist a professional to be less prone to be a threat to public safety.
It would be quite a fine-tuned judgment to state that using an RJ approach, rather than formal mechanisms, can meet both the dispute resolution outcomes desired by stakeholders and the public safety duty, without compromise to either.
This approach, which is often informed by the view that a standard sanction is less likely to be effective in protecting the public than an RJ approach, is seldom cheaper, less bureaucratic or quicker than following standard procedures.
That being said, this approach is much more in line with the general ethos of reinforcing professional integrity and a sense of confidence in a profession, rather than standards of service.
Conclusion
Restorative justice is not an appropriate approach for the resolution of complaints that go to the heart of protecting public safety. Situations where formal sanctions would reasonably be considered are not ones which should normally invite RJ processes. They lack objectivity, predictability and consistency. Since they focus on achieving outcomes that satisfy the complainant, they tend to involve the consideration of issues and outcomes that may not be relevant to a laser-focus on protecting the public.
However, RJ schemes to divert service complaints and other disputes can be useful to promote public confidence in bodies and professions. These disputes require resource, and, in my experience, few stand the test of time. Legal challenges modify organisational risk appetites and maintaining the expertise and resources to manage the processes can be difficult.
The same can be said of RJ diversions where it may provide an alternative means to achieve the public safety regulatory ends. The ethos of this approach is actually highly desirable in a professional regulatory context but is also a resource-intensive and risky approach.
As a means to address the confidence of a community, RJ can provide an effective and sometimes neglected supplement to organisational dispute resolution.
So, how do we deliver RJ in professional regulation? Well, that’s a whole other question.
Professor Kevin Bampton is CEO of the British Occupational Hygiene Society, which operates a PSA Accredited Register. A former Professor of Public Law and Professor of Comparative Justice, he was responsible for reviewing and analysing all restorative justice programmes for the Commonwealth Secretariat in 2019.