Professions still reluctant to reveal complaints, statistics show


Professions still reluctant to reveal complaints, statistics show

Professional bodies in the fields of law and medicine make more information available on conduct of their professionals

Transgressions by lawyers and medical practitioners are more openly reported than those in other professions, an investigation has revealed.

Research by Nation Newsplex  shows that certain regulatory bodies readily publish information on complaints against the professionals they oversee and the outcomes of those complaints.

Some regulatory bodies are more guarded, while others do not publish any information. Investigations show that professional bodies in the fields of law and medicine make more information available on conduct of their professionals.  Other bodies in the study are accounting, insurance, engineering, architecture, surveying and media.

Research revealed complaints against lawyers in recent years dropped by more than 26 per cent from 1,114 to 884 between 2012 to 2015. Complaints against lawyers are contained in the Advocates Complaints Commission ACC) database.

According to the commission’s secretary James Marienga, they receive five to seven complaints a day, but only a few are actually serious enough to warrant opening a file. 

The data shows only 14  to 16 per cent of the complaints have a file opened, while the rest, which constitute the majority, are dealt with at the preliminary stage.  For example, in 2015, only 134 of the 844 complaints received had a file opened.

Mr Marienga says most lawyers observe professional conduct, but a few taint the profession. One reason for the number of complaints, he says, is the adversarial nature of the legal profession, in which one party wins while the other loses.

“You know when you go to a lawyer, you are already aggrieved and you must have a winner and a loser, that is the nature of our justice system. The loser will often complain,” he says.

Ineffective communication by lawyers is also a source of problems. Lawyers, Mr Marienga says, do not communicate clearly to their clients, particularly when their client has a weak case.  Still other lawyers keep their fees secret from clients until the case is over.

Of the 134 complaints that the commission opened a file on in 2015, 67 cases were for withholding funds from a client, while 32 were for failure to render professional services. This is where a lawyer receives money but fails to carry out instructions as required. Another 10 per cent of complaints are for failure to account for client funds.

LICENSE CANCELLED

In one case adjudicated by the Law Society of Kenya (LSK) Disciplinary Tribunal in 2015, lawyer Japheth Chidzipha Chijumba who had received Sh60,000 in legal fees to file a suit wrote to his client, claiming to have filed the suit at the Malindi Law Courts and requesting Sh400,00 in additional fees.

It later emerged that the suit had not been filed and the case number he had given the client was fictitious.

Last year, 20 lawyers were struck off the roll of advocates and another 12 suspended.  There are 6,228 lawyers currently practicing, according to the LSK.

Anybody aggrieved by a lawyer can choose among three avenues: the LSK Disciplinary Tribunal, the Advocates Complaints Commission or a private prosecution through the courts.

The investigation shows keen interest in reporting misconduct in the health-care sector. Between 1997 and March 2017, 936 complaints were lodged against medical practitioners and dentists, according to numbers given to Newsplex by the Kenya Medical Practitioners and Dentists Board Chief Executive Officer, Mr Daniel Yumbya.

Since 1997, one doctor has been deregistered by the board and four doctors have had their licenses cancelled, while another six have had their licenses suspended for a period of six to twelve months for misconduct.

Nearly one in four of those complaints is connected to obstetrics and gynaecology, while 16 per cent had to do with internal medicine. Cases touching on surgery were reported at 14 per cent, while finances, the biggest cause of complaints against lawyers accounted for 10 per cent of the complaints. Cases on paediatrics were at 10 per cent.

Of the 936 cases lodged, 41 are pending and 895 have been determined, 97 per cent of them by the preliminary inquiry committee. 

DISCIPLINARY OUTCOMES

The one doctor who was de-registered in 2013, William Omondi Oduor, was found to have attended to a patient while drunk, leaving her with an open belly during surgery, from which she died.

Active practitioners stand at 64 per cent of all registered doctors and dentists who number 12,019, according to numbers that the board made available to Newsplex.

Journalists have also come under increasing scrutiny. Most complaints at the Media Council of Kenya (MCK) are filed for “inaccurate and biased reporting”.

According to the MCK website, a total of 23 complaints have yet to be fully resolved. Of these, eight were lodged in 2016, 18 in 2015 and seven in 2014.

Another eight have been resolved with the offending media houses required to make retractions or apologies, or pay fines ranging from Sh200,000 to Sh1.5 million. Another two cases were resolved through conciliation between a media house and the aggrieved party.

Regulators in the insurance and accounting industries also provide complaints data to the public, but remain silent on disciplinary outcomes, unlike in medicine, law and the media.

For example, the 2015 annual report of the Insurance Regulatory Authority of Kenya (IRA) shows the regulator received 620 complaints that year, down 13 per cent from 715 the year before.

Although the authority reveals 80 per cent of the complaints were resolved during the year, there is no word on disciplinary measures.

However, the IRA provides a comprehensive complaints section on its website and even provides an online form to fill and submit.

ONLINE DATABASE

The Institute of the Certified Public Accountants of Kenya (ICPAK) oversees the accounting profession in Kenya. According to its 2015 report, ICPAK received 19 complaints in 2015.

Of these, five were deemed to require mediation, while 14 were found to be suitable for investigation and disciplinary action.

Notably, last year Mr Jonathan Ciano, the former chief executive of Uchumi was forced to resign as chairman of the Institute’s disciplinary committee, after an audit revealed he had manipulated financial statements to hide losses. A search for his name on the institute’s online database came up empty. Newsplex called senior ICPAK officials to ascertain his current status, but the calls were not answered.

In 2009, ICPAK published the name of an accountant, Charles Tela Alusala, whom it had reprimanded, in the Kenya Gazette, for failing to undertake an audit, despite having been paid professional fees amounting to Sh85,000. He was found guilty of failing to keep client funds in a separate banking account.

Information in the fields of engineering, architecture and quantity surveying is sparse. Newsplex reached out via email to the Engineers Registration Board and the Board for the Registration of Architects and Quantity Surveyors of Kenya, which regulates architects and quantity surveyors. 

By the time of going to press, Newsplex had not received any information on complaints from these two bodies.

Editor's Note: The number of active lawyers refers to the number of lawyers who had valid practising certificates from LSK at the time of writing this story.