Brogan, Michael --- "Book Review" [2004] UWSLawRw 8; (2004) 8(1) University of Western Sydney Law Review 167

• Book Review

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Book Review

Russell G Smith (ed), Crime in the Professions[1]

This monograph developed out of the ‘Crime in the Professions’ conference convened by the Australian Institute of Criminology in 2000. The list of contributors range from academic research fellows and professors, to representatives of government departments, ombudsmen, a High Court judge, through to representatives of private industry and non-government organisations. The book is divided into four parts each with their own theme. The preface is by the then Minister for Justice and Customs of the Commonwealth of Australia, Senator Amanda Vanstone.[2]

Given that the book is an edited work I will take the reader through the parts and chapters seriatim.

Part I: ‘Background’ is divided into three chapters and provides an excellent overview of the concept of professionalism and the nature of crime within the professions. The concluding chapter to the part gives a synopsis of a longitudinal study examining the attitudes of students, within selected professional programs, to matters of ethics and professional conduct.

Chapter 1, ‘Crime in the Professions: An Introduction’,[3] by Russell Smith,[4] places crime in the professions into context by providing a very good review of professionalism generally. There is the standard overview of the trait and functionalist perspectives on how one defines a profession as well as a discussion of the distinction between professional and associate professionals.[5] The section closes with a brief and balanced reference to deprofessionalisation and the manner in which professional practice has changed as a result of economic reforms associated with competition policy, multi-disciplinary practices and the effects of globalisation and information technology.[6] The reference to deprofessionalisation was interesting but struck me as strange by not making explicit reference to the role of gender in that process.[7] Smith then makes the first full set of statements about the gravamen of the book – that is, crime in the professions. This is done by way of indicating the continuum of deviant conduct.[8] Smith concludes the chapter with a concise analysis of the ‘current systems of professional control’: civil action, criminal action, disciplinary action, consumer complaints systems and the limitations within those systems.[9]

Chapter 2, ‘Defining Crime in the Professions,[10] is a short chapter by Kenneth Hayne.[11] Befitting a judicial officer, Hayne J raises a number of questions associated with the term ‘crime in the professions’. Specifically Hayne J asks pertinent questions about definitional and related matters such as: ‘Is ‘crime in the professions’ all ‘white-collar crime’?’; ‘Is there something deficient about the way in which society responds to [the problem of a person abusing a relationship of trust or dependence]?’ and ‘Is the problem of crime in the professions a growing problem... [or] are we seeing an increased frequency in publicity rather than occurrence?’[12] These questions are not answered in depth but are used to raise the readers’ awareness of why it is that crime in the professions is an important issue. Hayne J then speaks of the change to professional regulation over time and in so doing provides the judicial definition of infamous conduct. For lawyers this is a neat summary of some of the foundational legal authorities associated with improper behaviour of professionals, and will bring back memories of some of the foundational cases associated with legal ethics.[13]

Chapter 3, ‘The Nature and Characteristics of Professional in Australia’,[14] is written by a project team comprising John Western,[15] Toni Makkai,[16] Julie McMillan,[17] and Kathryn Dwan.[18] This focus of the chapter is on the concept of what a professional is as opposed to the specific connection between professionals and criminal behaviour. For the reader more interested in the closer analysis of crime and professions skipping this chapter is possible, but not without having missed some important elementary material that goes to a deeper understanding as to what professionals are and how they are changing: factors relevant to a consideration of criminal behaviour by professionals. The first part of the chapter provides an analysis of the way in which professions have been studied over the last one hundred years. From early Spencerian sociology, through Carr-Saunders’ and Wilson’s seminal work on the professions the reader is treated to a brief history of the development of this field of intellectual inquiry up to and including the writings of Friedson and Larson.[19] The changes in thinking about professionals is brought to an end with a note about the recent application of competition principles and the removal of traditional privileges accorded the professions in Australia.[20] The real focus of the chapter is on the ‘Professions in Australia’ project. This project, established by a consortia of universities in the 1960s, is an interesting longitudinal study of students studying engineering, law, medicine and teaching. The focus of the project was the ascertainment of survey feedback about the manner in which ‘recruits to the professions acquire the values, dispositions, preferences and practices... [characteristic of] the professions they seek to enter’.[21] Follow up surveys in 1978 and the late 1990s provide a rich set of data. The authors of this chapter then provide some commentary about their analysis of the data with reference to the social origins of the students,[22] the role of universities in providing professional education,[23] professional misconduct.[24]

Part II examines ‘The Nature and Extent of Crime in the Professions’. The authors of chapters in this part write about the professions they are closely associated with, being accounting, medicine and nursing. The clear link between the disciplinary apparatus of the professions and the criminal justice system is noted in each chapter.

Chapter 4, ‘Crime and Misconduct in the Accounting Profession’,[25] is written by Andrew Williams.[26] Here the author briefly examines the types, consequences and motivations of crime by accountants before explaining some of the ways in which risk may be managed.[27] The rest of the chapter is a précis of recent criminal cases and professional disciplinary matters involving accountants and their victims.[28] For the reader interested in the ‘how it happens?’ this chapter is valuable: if the reader is after a more academic treatment of the topic then the next chapter may be more inviting.

Chapter 5, ‘Crime and Misconduct in the Medical Profession’,[29] is written by Andrew Dix.[30] The chapter begins by positing that medical crime is the most salacious of those committed by professionals. Dix then suggests that the answer to why that is the case may be found in an examination of the types of crimes committed by the medical profession, a determination as to whether they are different from other types of criminal behaviour and whether they are somehow just deemed worse because they have been committed by doctors.[31] In describing the crimes committed by doctors the author explains the special relationship between doctor and patient before characterising them as those occurring within the practise of medicine and those outside.[32] Like the concept of professional misconduct as applied to lawyers, doctors are equally at risk of being struck from the roll of practitioners for conduct outside the practise of the profession that is incompatible with the retention of a practising certificate.[33] Those crimes that result from the doctor-patient relationship usually arise from a reach of the duty of trust and may include assaults and sexual assault. The author also identifies a final group of crimes committed by doctors that are philosophically rich pickings for students of jurisprudence and human rights law: for example, doctors engaging in experimentation in Nazi Germany as well as those involved in state sponsored torture and killing today.[34] Dix highlights the point that apart from notifications to the relevant medical board there is no standard way for determining the incidence of criminality.[35] He then appraises the effect of conviction on registration and in so doing visits the area familiar to lawyers, of character and the right to practise.[36] In so doing Dix makes pertinent points about the distinctions between the criminal jurisdiction and the disciplinary tribunal.[37] The chapter concludes with a description of, and some legal discussion related to, crimes involving sexual abuse, prescription drugs, dishonesty, and termination of pregnancy.[38]

Chapter 6, ‘Crime in the Nursing Profession: A Nurse Regulatory Authority Perspective’,[39] is written by Leanne Raven.[40] This chapter almost mirrors the preceding one. Here Raven begins with national data collected in relation to child molestation and nursing before moving to the way in which nurse regulatory authorities deal with crime in the context of unprofessional conduct.[41] She then examines the incidence of unprofessional conduct by nurses with particular reference to two case studies.[42] The chapter concludes with an overview of how the profession of nursing attempts to prevent unprofessional conduct by improving competence and the education of the profession about ethical issues, before noting that the profession will be affected by changes to health budgets, population health trends and increasing responsibilities, such as that of prescribing medication.[43]

Part III is entitled ‘Dealing with Crime in the Professions’ and examines the prevention of professional crime, fraud control, unprofessional behaviour, whistleblowing and corruption in public life.

Chapter 7, ‘The Role of Codes of Ethics in Preventing Professional Crime’,[44] is written by Margaret Coady.[45] Coady argues that codes of ethics, if used for the purpose of increasing ethical behaviour in a profession, are one way of reducing criminal conduct by professionals.[46] Coady notes that codes of ethics are not a complete solution to unethical or criminal behaviour in a profession and takes some time outlining the problems associated with failures of enforcement of ethical codes.[47] Coady then moves to an examination of how codes of ethics can change behaviour and here she mentions both the theoretical and the empirical research findings.[48] The reader is then taken on a journey that explains how ethics is different from law with the pertinent ‘pro-criminal’ observation that ‘while co-operation with the law is generally a good thing, the particular role of a professional may involve non-compliance with the law.’[49] The ‘Challenger’ space shuttle disaster is used as the basis for a discussion about the roles of codes of ethics in the inculcation of professional values.[50] Coady mentions the problem of group-think and corruption in professional contexts as well as the distinctions between professions and businesses before making recommendations about how to ensure that codes of ethics are vital and useable documents that should be visited many times during the professional life of an individual.[51]

Chapter 8, ‘Fraud Control in the Australian Defence Organisation’,[52] is written by Carla Day.[53] This brief chapter summarises the changes that have occurred in the Australian Defence Organisation in recent years in relation to fraud control via a systems and personnel perspective. The system approach is essentially the determination of areas of risk, the development of systems nomenclature associated with levels of fraud so as to quantify risk, and the development of a plan to reduce risks and improve systems.[54] The remainder of the chapter explains the four main components to a personnel approach to controlling fraud: policy, training and awareness, culture and support.[55] The chapter concludes with a description of the evaluation process and future challenges.

Chapter 9, ‘Protecting Consumers of Financial Services’,[56] is written by Tim Philips.[57] Philips writes in an uncomplicated and practical way about crime in the financial world. While the message in his chapter is claimed to be to examine corporate crime from the consumers’ perspective it is really a call for a balanced approach to competing interests when unethical business conduct is detected. Philips concisely takes the reader through the problem of regulation by government and oversight bodies before making reference to some of the more notorious unethical business practices in Australia over the last decade. The message received is that business crime will still occur, governments will become better regulators by using multi-faceted approaches, but that consumers need to be more self-reliant.

Chapter 10, ‘Health Providers, Complaints and Unprofessional Behaviour in a Changing Environment’,[58] is written by Beth Wilson.[59] This chapter provides a fine overview of the structures and processes in place to deal with unprofessional and possibly criminal behaviour by health care professionals. Part of the difficulty in this area revolves around the overlap, or sometimes the gaps, between structures and processes – Wilson deals with the health complaints commissioners and the professional registration boards[60] – as well as the distinctions one can make between misconduct, crime, and negligence.[61] Of interest to connoisseurs of matters jurisdictional is the discussion about whether doctors should be able to de-register themselves to avoid prosecution for unprofessional conduct.[62] For those with an interest in professionalisation and the power of professional groups to protect themselves and/or the public the sections relating to the naming of practitioners facing disciplinary hearings, mandatory reporting of unprofessional conduct by peers, and non-registered practitioners are well worth reading.[63]

Chapter 11, ‘The Professions and Whistleblower Protection’,[64] is written by Sitesh Bhojani.[65] This strange chapter brings together several bits of information under the rubric of whistleblowing. The author links the Trade Practices Act 1975 (Cth) provisions regarding protection of informants with an example of the Australian Competition and Consumer Commissions’ (ACCC) approach to investigations and punishment of those assisting the ACCC.[66] The example, which is not strictly about whistleblowing, is followed with a description of the nature of professional relationships.[67] The end of the chapter is an attempt to bring these points together by suggestions that the professions should play a leadership role in relation to whistleblowing by supporting whistleblower policies and protection.[68]

Chapter 12, ‘Preventing Corruption in Government: A Transparency International Perspective’,[69] is written by Peter Willis.[70] This, the longest chapter in the book, is, in my view, one of the best. This is because it is a well-researched piece that provides a lovely historical basis for the categories discussed by the author. Willis’ task, to show how Australia is perceived as one of the least corrupt countries in the world, is based upon defining corruption – done in a most comprehensive way[71] – and then explaining the development of systems, still far from perfect, that have been used to reduce corruption risks in public office. The categories examined are: ‘Honest Elections of Honest Politicians’;[72] ‘Honest, Neutral and Qualified Public Servants’;[73] ‘Auditing and Accountability of Public Receipts and Expenditure’;[74] ‘Independent Investigation and Adjudication of Complaints against Government’;[75] ‘Access to Information’;[76] and ‘Honest and Independent Prosecutors and Judges’.[77] Willis concludes this very informative chapter by making suggestions for the reduction of corruption: ‘removing corrupt incentives’,[78] ‘creating ... integrity in public life’,[79] ‘perpetual vigilance’,[80] ‘organisational change’,[81] ‘program and policy reform’[82] and ‘involving civil society’.[83]

The final part, Part IV examines ‘New Professions and New Regulatory Approaches’. Here the authors survey complementary medicine, probation services, the effect of modern technology, and a scheme for inculcation of ethical values into professional life so as to reduce professional crime.

Chapter 13, ‘Occupational Regulation of Complementary Medicine’,[84] is written by Anne-Louise Carlton.[85] This chapter examines the process by which an occupational grouping -- here the focus is on Traditional Chinese Medicine (TCM), which has many of the traits of a professionalising occupation -- can and should be regulated, if not self-regulated. After defining ‘complimentary medicine’[86] Carlton explores the national ‘criteria for assessing the regulatory requirements of unregulated health occupations’[87] before examining the concept of self-regulation and its merits; mechanisms for supporting self-regulation; and current examples in the complimentary health care fields.[88] The author then concludes the chapter with a detailed analysis of the Victorian health care regulatory scheme and how the regulation of TCM by statute impacts upon existing drugs legislation and complements other forms of health professional regulation.[89] Included in that examination is detail about the nature of various offences that may be committed by both regulated and unregulated practitioners of TCM.

Chapter 14, ‘National Standards and the New National Probation Service in England and Wales: Regulation of Professionals in the Community?’,[90] is written by Graham Brooks.[91] This interesting chapter, while not about crime in the profession of probation officers, essentially examines the de-professionalisation of probation officers in England and Wales. Its relevance to crime in the professions is the connection between the reasons for the perceived reduction in professional status of those probation officers, the ‘new penology of actuarial justice’[92] and its impact throughout the community. Brooks’ argument -- and here his chapter is more thesis-like than many of the other chapters in this book -- is that ‘an intellectually restrictive managerial culture ... is beginning to affect ‘professional’ working practice [by being] [p]rescriptive of all its working practice[s].’[93] From the historical ‘moral mission’ of probation workers Brooks takes the reader through the development of a scientific professionalisation of probation workers to the imposition of national standards, the public management system developed by conservative government in the late 1970s, and the current restraints on all aspects of probation service work.[94] For supporters of the professions perhaps the most frightening part of Brooks’ paper was the connection that could be made to many current professions, including the academic, when he states:

Individual independent officers with a specific body of knowledge are becoming anachronistic as set guidelines predominantly determine working practice. Instead of professional autonomy, set standards provide a benchmark against which the successful administration of probation can be judged where the numbers of orders completed are seen as the ultimate mark of success.[95]

In the context of crime in the professions Brooks’ statement, which concerns the bureaucratisation of professions, is one of the difficulties faced by governing bodies of professional groupings when faced with criminal or unprofessional activity.

Chapter 15, ‘The Regulation of Professionals in the Digital Age’,[96] is written by Russell Smith.[97] Here Smith provides a neat snapshot of the types of crimes that professionals may engage in with the advent of modern computerised tools of communication. Smith examines ‘Electronic Registration Fraud’,[98] ‘Unregistered Practice’,[99] the problems of ‘Advertising’,[100] ‘Breach of Confidentiality’,[101] ‘Theft and Dishonesty’,[102] and ‘Online Unprofessional Conduct’.[103] Following this, Smith outlines some of the ways in which these criminal and unprofessional activities are exacerbated by territorial or jurisdictional issues, including conflicting standards and codes of conduct.[104] He then posits several solutions, some of which lawyers will recognise from recent developments in that profession in Australia: mutual recognition, national regulation, global regulation, and the use of technologies to assist in reducing fraud, preventing misconduct, assisting in tax compliance and reducing inappropriate activities.[105]

The final chapter, Chapter 16, ‘Raising the Standard: An Integrated Approach to Promoting Professional Values and Avoiding Professional Criminality’,[106] is written by Charles Sampford[107] and Sophie Blencowe.[108] Here the authors argue that genuinely inculcating ethics into professional life by a combination of ‘ethical standard setting, legal regulation ... and institutional reform’[109] will cause criminal behaviour to become rarer, easier to detect and police. The persuasive argument begins with the view that the criminal behaviour of professionals is simply a part of a continuum beginning with ‘the highest professional standards, through good work, sub-par work, misconduct and criminality.’[110] Sampford and Blencowe then outline a model that melds the behavioural continuum with the normative. They explain that ‘[a] critical part of this strategy is to bring the values at different points on the continuum into sync so that the norms for each type of behaviour ... are mutually supportive and broadly consistent.’[111] They continue explaining their model as follows:

What each profession needs to do is to have a clear appreciation of the different normative systems involved, the way they interact and the way they can be mutually reinforcing. ... At each stage of the behavioural continuum we must look at means by which values are articulated, enforced and reinforced.’[112]

After determining what might be mechanisms for standard setting, interpretation, enforcement, and reinforcement at each normative/behavioural level[113] the authors conclude their chapter by discussing two reasons behind the current failure to reach the highest of standards: reluctance to report colleagues and the conflict between the professions duty to the public and individual practitioners duty to an individual client.[114] The aspirational call for a ‘conspiracy of virtue’ based upon an ability to question professional and business practices in changing times is a welcome note upon which to end the book.[115]

The drawback for any multi-author book is always the difficulty of ensuring an evenness of approach. A positive is that with one or two exceptions the chapters are all about the same, very readable, length. The most noticeable unevenness however, derives from the fact that the source material has a variety of styles and obvious levels of background research. Based upon conference papers many of the contributions are more content focussed than argument driven. For someone new to the area of crime in the professions this descriptive content focus brings the reader up to speed quite well. For a more sophisticated reader the desire to move into more theoretical and intellectually challenging territory more often can be a little frustrating.

Overall, the value of this book is in its provision of an easy ‘snapshot’ of research into professional crime and associated fields by experts in those fields. A particular benefit for interested readers is the useful and comprehensive bibliography.[116]

Michael Brogan

School of Law

University of Western Sydney

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[1] Smith, R. D., (ed) Crime in the Professions, Ashgate Publishing Limited, Aldershot, 2002, xvii + 294 pages.

[2] Pages xv-xvii.

[3] Pages 3-26.

[4] Deputy Director of Research, Australian Institute of Criminology. All author descriptions are as noted at the time of publication.

[5] Pages 5-8.

[6] Pages 9-18.

[7] Readers might be interested in the recent discussion on this topic in England in relation to the medical profession: Jones, S., ‘Women doctors at top ‘harm status’, The Guardian, 2 August 2004 and Hall, C., ‘Influx of women doctors ‘will harm medicine’, Telegraph, 3 August 2004.

[8] Pages 19-20.

[9] Pages 20-25.

[10] Pages 27-32.

[11] Justice of the High Court of Australia.

[12] Pages 27-30.

[13] Pages 30-32.

[14] Pages 33-52.

[15] Director, Social and Economic Research Centre, University of Queensland, Australia.

[16] Director of Research, Australian Institute of Criminology.

[17] Research Fellow, Australian Council for Educational Research.

[18] Doctoral candidate, University of Queensland, Australia. Formerly Senior Policy Officer, Queensland health Department.

[19] Pages 33-37.

[20] Pages 37-39.

[21] Page 39.

[22] Most of the project students came from higher socio-economic backgrounds and more recent research indicates that there is little change in student backgrounds today.

[23] A majority of students believed that university education was of value, yet self-education and experience in current employment were rated highly by professionals.

[24] Equal numbers of students and graduate lawyers believe in responding personally to perceived serious incompetence of another lawyer, one third believe in the propriety of a professional response to such a situation and one third believe that there is no need to respond. This latter response is quite different to the views of the engineers and medical students surveyed. All groups of students desire any form of judgement about negligence to be by one’s peers.

[25] Pages 55-65.

[26] Divisional director, Aon Professional Services.

[27] Pages 55-61. Of particular interest is the anecdote about the ‘dummy advertisement’ produced by the Australian Securities and Investments Commission that exposed the willingness of people to respond to very high risk financial strategies in an effort to get rich: p 59.

[28] Pages 61-65.

[29] Pages 67-78.

[30] Registrar of the New South Wales Medical Board, Australia.

[31] Page 67.

[32] Pages 67-68.

[33] Compare Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 and Re Paltos Unreported NSW Medical Tribunal, 17 December 1986. Also note the recent decision of the High Court in relation to allegations of indecent assault, in a non-professional context, against a solicitor: A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1.

[3434] Page 69.

[35] Pages 69-71.

[36] Pages 71-75.

[37] Particularly in relation to their functions, the standard of proof and autrefois convict: p 75.

[38] Pages 75-78.

[39] Pages 79-89.

[40] Chief Executive Officer, Nurses Board of Victoria, Australia.

[41] Pages 80-82.

[42] Pages 86.

[43] Pages 86-88.

[44] Pages 93-108.

[45] Senior Lecturer, Education Faculty, University of Melbourne, Australia.

[46] Page 93.

[47] Pages 94-96.

[48] Pages 96-99.

[49] Page 101.

[50] Pages 101-103.

[51] Pages 103-108.

[52] Pages 109-114.

[53] Doctoral student, Australian National University. Formerly Director, Fraud Control Policy and Ethics Directorate, Inspector General Division, Australian Defence Organisation.

[54] Pages 110-111.

[55] Pages 111-113.

[56] Pages 115-121.

[57] National forensic partner, Deloitte Touche Tomhatsu, Australia.

[58] Pages 123-138.

[59] Health Services Commissioner, Victoria, Australia.

[60] Pages 123-126.

[61] Pages 126-131.

[62] Pages 131-133.

[63] Pages 133-137.

[64] Pages 139-150.

[65] Member, Australia Competition and Consumer Commission.

[66] Pages 140-142. The chapter also contains an appendix, which is the ACCC statement about its ‘leniency in circumstances flowing from co-operation’: pages 147-150.

[67] Pages 142-144.

[68] Pages 144-146.

[69] Pages 151-181.

[70] Barrister & Director, Transparency International Australia.

[71] Pages 152-153.

[72] Pages 154-161.

[73] Pages 161-167.

[74] Pages 167-169.

[75] Pages 169-172.

[76] Pages 172-174.

[77] Page 175.

[78] Pages 176-177.

[79] Pages 177-179.

[80] Page 179.

[81] Pages 179-180.

[82] Page 180.

[83] Pages 180-181.

[84] Pages 185-209.

[85] Manager, Practitioner Regulation Section, Department of Health, Victoria, Australia.

[86] Pages 186-188.

[87] Pages 188-189.

[88] Pages 189-195.

[89] Pages 195-209.

[90] Pages 211-225.

[91] Lecturer, School of Social Work and Social Policy, University of Birmingham, England.

[92] Page 211. Citing Feeley, M., & Simon, J., 1994, ‘Actuarial Justice: The Emerging New Criminal Law’, in Nelken, D., (ed) The Futures of Criminology, pp 173-201, Sage, London at 173.

[93] Page 212.

[94] Pages 213-224.

[95] Page 220.

[96] Pages 227-249.

[97] Note 4.

[98] Page 228.

[99] Pages 228-230.

[100] Pages 203-232.

[101] Pages 232-234.

[102] Pages 234-235.

[103] Pages 235-236.

[104] Pages 236-239.

[105] Pages 239-248.

[106] Pages 251-267.

[107] Foundation Director, Key Centre for Ethics, Law, Justice and Governance, Griffith University, Australia.

[108] Research Fellow, Key Centre for Ethics, Law, Justice and Governance, Griffith University, Australia.

[109] Page 255.

[110] Page 255.

[111] Page 258.

[112] Page 258.

[113] Pages 258-263.

[114] Pages 263-266.

[115] Page 267.

[116] Pages 269-287.