Cayton: Does good governance need good character? 
Harry Cayton
When convicted murderers are permitted to practice in their profession, is good character important? Harry Cayton asks if the boards of licensing bodies should apply the same standards to themselves as they apply to applicants for a license.

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Competence in your chosen occupation is not enough. In order to be a ‘professional’, to be licensed and regulated, you have also to follow standards of conduct and to be ethical in your behavior. Moreover, this requirement extends into your personal life. Assaulting your spouse or your child, getting into a fight in a restaurant, and shoplifting have all been found by disciplinary tribunals, regardless of professional competence, to justify a sanction. Being off duty is no defense. 

Of course, just how these personal failings will be regarded in different jurisdictions depends to a great extent on local values. Is a speeding offence when driving a trivial or serious matter? It may put others’ lives at risk but ‘Hey, we all break the traffic laws sometimes.’ What about murdering your wife? At the International Association of Medical Regulatory Authorities conference in Melbourne in 2016, we heard of a doctor who had done just that. After he had served his prison sentence, he applied for reinstatement. The relevant regulator restored his license. After all, they argued, he was a good doctor and he had paid his debt to society. Not everyone believed you could be a good doctor if you were also a murderer. First do no harm. 

Much regulatory legislation requires those applying for a license to be ‘of good character’, although not always with those particular words. Quite what good character means may vary. For some it is merely being able to show that you have no previous criminal convictions (although, as the investment companies like to tell us, past performance is no guide to the future). Other regulators go further, looking at student misdemeanors or employment history before issuing a license.  

In a study of how health regulators in the UK approached the issue of good character, the Professional Standards Authority proposed four key elements as the basis of assessing people. These were whether an applicant for registration had acted, or there was reason to believe they might in the future act: 

  1. To put at risk the health, safety or well-being of a patient or other member of the public. 
  2. In such a way that their registration would undermine public confidence in the profession. 
  3. In such a way that indicated an unwillingness to act in accordance with the standards of the profession. 
  4. In a dishonest manner. 

These tests of good character may have different weights for different occupations. Dishonesty, for instance, is of particular prominence in legal and financial professions, safety of the public in engineering and architecture, and health and well-being of individuals in the caring professions. 

Nor is good character a static concept. We can learn from past mistakes and we can ‘amend our ways’. Many of us have done things in our past we are not proud of and would not do again. People can and do change for the better. The concept of good character is dynamic in another way too. Good character is a social construct, dependent on wider social norms. As social norms change, so do the boundaries of good character. Nowhere is this more striking than in changing attitudes to sexual behavior. It is therefore the second of the tests cited above – public confidence in a profession – that is most susceptible to variation between professions, jurisdictions, and cultures. We can observe this in the challenges sometime presented in accommodating the different styles of professionals moving from one culture to another. 

It is clear that we make considerable demands on the good character and ethics of those who wish to obtain and keep a license, so my question is, should we not make the same demands of those who are elected or appointed to govern a profession, to sit on a board or a council or management committee? What of their good character? In my observation of governing bodies over many years I have seen rudeness and aggression, blatant conflicts of interest, bullying of staff, forming of cartels, manipulation of elections, fiddling of expenses, ignorance, laziness, and self-interest. I have also, of course, seen much individual and corporate virtue; probity, integrity, honesty, diligence, fairness, selflessness and a clear focus on the public good. 

I think it is time that we made good character as explicit a requirement for those who wish to serve on governing bodies as it is for the professionals they govern. For boards this is sometimes known as the ‘fit and proper person’ test. But I do not think fit and proper person tests go far enough. Usually they relate only to criminal records, to having been made bankrupt or banned from serving as a company director. They do not touch on those personal, social and ethical behaviors which create effective corporate boards or, when absent, may damage and destroy them. 

Many governing bodies have Codes of Conduct and the majority of members observe them, but when people don’t they are hard to enforce. Challenging a colleague’s behavior is always difficult. Many of us avoid confronting others, we hope the chair or someone else will deal with it. In practice everyone on a board must enforce its Code of Conduct. Bad behavior unchallenged becomes normal. 

Being a good professional is not only a technical commitment, it is a moral one; serving on a regulatory board should be a moral commitment too.

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Harry Cayton
Written byHarry Cayton
Harry Cayton is a sought-after global authority on regulatory practices who created the PSA and pioneered right-touch regulation.

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