Businessdictionary.com defines misconduct as behaviour outside the bounds of what is considered acceptable or worthy of its membership by the governing body of a profession. In this regard, professional misconduct could be seen as contravening a standard of practice of the profession or failing to meet the standard of practice of the profession. Professional misconduct refers to the breach and contravention of the rules and regulations set out by the professional bodies stating ways and manners by which the individual professional must conduct himself with the public and private individuals in the discharge of his professional duties. Each of the following is professional misconduct, and any licensee found quality of such misconduct under the procedure prescribed by law( then rules and regulations) shall be subject to penalties prescribed by law except that the charges may be dismissed in the interest of justice.
In law, malpractice is a type of misfeasance, or nonfeasance of a professional, under a duty to act fail to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury of a plaintiff who suffers damages. The expressions misfeasance and nonfeasance, and occasionally malfeasance, is used with reference to the discharge of obligation according to law, custom or statute. Misfeasance determines privity of contract (i.e. doing a proper act in a wrongful or injurious manner) provides that a contract cannot confer right or impose obligations arising under it on any person or agent except the parties to it. The premise is that only parties to contracts should be able to sue and enforce their right or claim damages as such. However, the doctrine is problematic due to its implications upon contracts made for the benefit of the third party who are unable to enforce their obligations of the contracting parties. Privity of contract occurs only between the parties to the contract, most commonly in contract of sale of goods and services. Horizontal privity arises when the benefits from a contract are to be given to a third party. Vertical privity involves a contract between two parties, with an independent contract between one of the parties and another individual or company. If a third party gets a benefit under a contract, he does not have the right to go against the parties to the contract beyond his entitlement to a benefit.
When a contract creates a duty that does exist at common law, the parties can do one of these three things
- To perform the duty fully
- To perform the duty inadequately or poorly; or
- Fail to perform the duty at all when a party fails to perform at all, it is nonfeasance.
Malfeasance is used to denote outright sabotage which causes intentional damage. The rule of law lay provides that an action in contract will lay only misfeasance or malfeasance. The doctrine was formally applied to certain endeavours carried out publicly.
Difference between professional misconduct and negligence
Misconduct | Negligence |
Lack of proper provision for the protection of life, property and wellbeing of a person who is affected by the work for which the practitioner is held liable. | Completing a final drawing, specification or other documents not properly prepared or checked by the practitioner. |
Insufficient reasonable effort to comply with applicable statutes regulations standard | Not acting according to plans or regulations other than an action that is solely a breach of the code of ethics. |
Not acting to correct or report a situation that the practitioner may endanger the safety or the welfare of the public in general. | Following the plan of the practitioner is not able to perform the duties of the practitioner training and experience. |
Acts that constitute professional misconduct
- A professional that practices without being registered with ESVARBON is liable of professional misconduct.
- Estate Surveyors and Valuers who represent parties with conflicting interests without disclosing the fact to the parties.
- An estate firm operating with a name (pseudo name) other than the surname of the principal of the firm.
- Estate Surveyors and Valuers that operate under multiple business names.
- Keeping of client’s money in the firm’s or personal account of the Estate Surveyors and Valuers.
- Collection of commissioning fees from two or more clients on the same property in the same transaction, tantamount to misconduct.
- Estate Surveyors and Valuers who give names to quacks to use in operating consultancy firms have committed an act of professional misconduct.
Forms of penalties for professional misconduct
- Reprimanding of members.
- Imposition of fines.
- Suspensions of members.
- Expulsion of members.
- Registering of defaulter’s name in Amber book.
Reference
Businessdictionary.com. http://www.businessdictionary.com/definition/professional-misconduct.html
