Section 40 of the Civil Liability and Courts Act 2004 clarifies the position with regard to the in camera rule in family law proceedings and the carrying out of hearings, inquiries, investigations and adjudications by bodies or persons who are doing so in accordance with their statutory functions or who are prescribed by orders under sections 40(6)(b) and 40(7)(b) of the Act.
Section 40(6) allows documents prepared for or given in evidence in family law proceedings to be produced to bodies or persons carrying out statutory functions, or who are prescribed by Ministerial order, when they are performing functions involving hearings, inquiries, investigations or adjudications. Section 40(7) allows information or evidence given in family law proceedings to be given to bodies or persons carrying out statutory functions, or who are prescribed by Ministerial order, when they are performing functions involving hearings, inquiries, investigations or adjudications.
The purpose of orders under sections 40(6)(b) and 40(7)(b) of the 2004 Act is to ensure that the in camera rule in family law proceedings does not impede hearings, investigations, inquiries and adjudications carried out by the bodies or persons prescribed in the orders, in relation to prescribed matters. Any such order, by itself, cannot establish a regulatory system for a profession or confer powers on a body or person to investigate complaints against members of a profession.
To date, two orders have been made under sections 40(6)(b) and 40(7)(b) of the 2004 Act in respect of regulated professions. The Civil Liability and Courts Act 2004 (Bodies Prescribed under Section 40) Order 2005 (S.I. No. 170 of 2005) prescribed the Barristers’ Professional Conduct Tribunal of the Bar Council, the Benchers of the Honorable Society of King's Inns, the Professional Conduct Appeals Board of the Bar Council, the Professional Practices Committee of the Bar Council and the Professional Practices Committee of the Council of King's Inns for the purposes of sections 40(6)(b) and 40(7)(b) of the 2004 Act. The Civil Liability and Courts Act 2004 (Matters Prescribed under section 40) Order 2005 (S.I. No. 339 of 2005) prescribed a complaint of misconduct against a barrister and an appeal against such a complaint as matters to which sections 40(6)(b) and 40(7)(b) of the 2004 Act apply. These arrangements as regards the barristers profession will, of course, change as the relevant provisions of the Legal Services Regulation Act 2015, involving the new Legal Services Regulatory Authority and the new Legal Practitioners Disciplinary Tribunal, are commenced later this year.
As indicated in response to Parliamentary Question number 98 of 24 January 2017, the making of statutory provision for the investigation of complaints into the professional conduct of psychologists and psychotherapists is a policy matter for the Department of Health. While I have no plans at present to make orders under sections 40(6)(b) and 40(7)(b) of the 2004 Act in relation to non-statutory accrediting bodies for psychologists or psychotherapists, I will give careful consideration to any request in that regard that may be made by the Minister for Health.
