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Art. 19 Examination and Licensing Regulations for Lawyers and Legal Agents (sGS 963.73, PBR): Termination of the bar exam. Conditions under which dropping an exam due to illness is considered involuntary and has no consequences in the sense that it does not result in failing the exam or affecting the possibility of repetition. General remarks (E. III.2).

Case of an exam candidate who was bedridden several days before the exam due to illness and decides to take the exam on the basis of her own assessment. By refraining from seeking medical advice, the candidate took the risk of misjudging her ability to take exams and thus voluntarily breaking off the exam. the failure in purchase. In particular, anyone who does not seek medical advice despite being ill for several days cannot claim that the illness in particular made an objective assessment of one's own ability to take examinations impossible (E. III.3) (Cantonal Court, 3rd Civil Chamber, February 19, 2016, BR.2015.1).

 

 

Facts (summary):

 

X passed the bar exam for the second time in spring 2015 and passed the oral but not the written exam. She registered for the 2015 fall exam date for a written review. On the first day of the exam (September 3, 2015), after about two and a half hours at around 10.30 a.m., X informed the President of the Examination Commission - after contacting the examination supervisor - that she was sick and could no longer concentrate. When the President advised that the exam could be assessed as unsatisfactory if it was discontinued, she continued the exam until it ended at 12 noon and then consulted her doctor. She did not take the second written exam on September 4, 2015. On September 3 and 8, 2015, she applied to the examination committee to consider the canceled re-examination as not written due to illness and to be able to repeat the re-examination in spring 2016 without losing the oral examination or without having to take it again having to take an oral exam. In a resolution dated October 6, 2015, the examination committee deemed the autumn 2015 re-examination and thus the second attempt at the bar examination to be failed.

 

 

From the considerations:

 

III.

 

1. Pursuant to Art. 19 PBR, an exam that has been voluntarily terminated is deemed to have been failed.

 

[…]

 

2.a) Neither the examination regulations (Art. 19 PBR), which are brief on this point, nor the Lawyers Act regulate the fact that a reason arises before or during an examination which calls into question the ability of a candidate to take an examination; There is also no explicit regulation in the relevant regulations, for example in the neighboring cantons of Zurich, Thurgau (where at least a categorization of excusable or non-excusable reasons for not showing up is implicitly assumed, Art. 6a AnwV, RB 176.11), Appenzell Innerrhoden, Appenzell Ausserrhoden (der The wording of Art. 7 (2) of the Ordinance on the Bar Examination, BGS 145.521, corresponds to that of Art. 19 PBR) and Graubünden. This does not harm insofar as it is possible to fall back on principles recognized in case law (cf. Zurich Administrative Court, January 13, 2010, VB.2009.00267 E. 5.4 Ingress). These can be summarized as follows:

 

Health impairments of the person to be examined, which significantly reduce their performance during the examination and thus result in an inability to take the examination, regularly entitle the person concerned to cancel or postpone the examination without consequences - i.e. without counting the possibility of repetition. The person concerned has to assert the inability to take an examination due to illness immediately by submitting a medical certificate and to cancel the examination or not to take it at all. Those who, on the other hand, undergo or continue an examination with knowledge of an existing health impairment consciously accept the risk of failure and cannot subsequently invoke an inability to take an examination; rather, in such cases the (unsatisfactory) examination is deemed to have been failed (Bern Administrative Court, VGE 100.2009.295 of November 27, 2009, BVR 2010, 104 ff., E. 4.1.1 mwH; also VGE 100.2014.316U of June 5 2015, E. 4.3; Baumann, The Appeals Commission of the University of Friborg: Organization, Procedure and Selected Questions, in FZR 2001 p. 235 ff., In particular p. 269 ff., Point 3.1.5 al. 1; Plotke, Schweizerisches School law, 2. A. 2003, p. 452)

 

Subsequent assertion of the inability to take an examination or the subsequent revocation of examination results due to illness is an exception if the person concerned was, from an objective point of view and through no fault of their own, in a position to assert the reason for the prevention immediately by exercising their own will. This is to be assumed in particular if at the given time she lacked the ability to sufficiently survey her health situation to make a decision about taking or continuing an examination, or if she was aware of the health problems to act according to her understanding . In these cases, too, the person concerned must, however, immediately refer to the inability to take the examination at the earliest possible point in time at which a corresponding declaration can reasonably be expected from them. In these cases, the immediate withdrawal is measured by the point in time from which the person concerned recognized the pathological reduction in their physical or mental performance or should have recognized it given the care that is generally to be expected. It does not depend on whether the person concerned is able to medically diagnose their condition as a certain disease or legally as an inability to take an examination, but on whether they are aware of the main characteristics of the health complaints and their effects recorded on the performance (Administrative Court Bern, VGE 100.2009.295 of November 27, 2009, BVR 2010, 104 ff., E. 4.1.2 and VGE 100.2014.316 of June 5, 2015, E. 4.4; see Baumann, loc. cit , P. 271 f .; Zurich Administrative Court, January 13, 2010, VB.2009.00267, E. 5.4 and July 6, 2005, VB.2005.00146, E. 3.3.1; BVGer A-2226/2013 E. 4.2; A- 677/2015 E. 3.4.3). In particular, the case law of the Federal Administrative Court presupposes the strict fulfillment of five criteria for the subsequent assertion of the inability to take an examination: (1.) The illness must only become noticeable at the time of the examination without any symptoms having been recognizable beforehand, (2.) during the No symptoms were discernible in the exam, (3.) the candidate immediately seeks medical advice, (4.) the doctor diagnoses a severe and sudden illness, which inevitably leads to the conclusion that despite the absence of symptoms, there is a causal relationship between the onset of the illness and the failure of the exam and (5. ) the failure in the examination part in question is causal for the passing or failure of the overall examination (BVGer A-541/2009 E. 5.5; B-2597/2010 E. 2.6.1; Plotke, loc. cit., p. 452 f., case studies, 1 According to Baumann, op. Cit. P. 269 and 271, the Appeals Commission of the University of Friborg distinguishes the sudden, unpredictable K admission and the lack of insight into the inability to take the examination [due to the mental state of the candidate] as two exceptions).

 

b) The doctoral regulations of the nearest Swiss universities of St. Gallen and Zurich explicitly state that they are unable to take examinations (due to health reasons), essentially transferring the principles set out above into general abstract standards. Those at the University of St. Gallen record under the margin "Failure to take an exam and delay" (cf. Examination Regulations for the Bachelor's Degree at the University of St. Gallen from March 6, 2002, Art. 20to resp. for the master’s level of February 24, 2003, Art. 35to, each section 1-3):

  1. If, with valid registration for an examination, which is to be taken on a regular or extraordinary examination date, students do not take the relevant part of the examination for no excusable reason, this is considered not to have been taken.
  2. In particular, illness or accident are excusable reasons.
  3. They must be documented with a medical certificate or medical certificate and reported to the university before the examination begins. Subsequent reports will only be taken into account if this was objectively not possible before the start of the examination. The University of St. Gallen can make formal requirements for the certificate.

The framework ordinance on the bachelor's and master's degree [...] at the Law Faculty of the University of Zurich of August 20, 2012 regulates in § 28:

  1. If a compelling, unforeseeable and unavoidable reason for hindrance arises before the beginning of or during the implementation of a performance assessment, a written, reasoned and with appropriate evidence (in particular medical certificate) request for cancellation must be submitted to the dean's office immediately, at the latest five working days after the occurrence of the reason for the hindrance.
  2. If a candidate fails to provide evidence of performance without excuse, it is deemed to have been failed.
  3. After the performance assessment has been carried out, reference to known or recognizable problems that had or could have a negative impact on performance is excluded.

3.a) X presents a doctor's certificate, according to which she was unable to take the exam on September 3 and 4, 2015 for health reasons. During the exam on September 3, 2015, she contacted the President of the Examination Commission by telephone via the Examination Supervisor, consulted a doctor on the same day and submitted a written report to the Examination Commission.

 

Inability to take an examination as well as immediate reporting and documentation are proven and do not require any further explanations. For the sake of completeness, it should be mentioned that X does not harm that she ended the examination on September 3, 2015, after the President of the Examination Board warned that the termination could be considered a voluntary one, and it therefore does not need to be discussed further the certainty with which this information was given.

 

The test was finally canceled - in the present case, a decision has to be made as to whether the cancellation is to be regarded as a voluntary one. Against the background of the catalog of criteria set out above (E. 2.a a.E.), the causal relationship between the illness-related termination and failure to pass the partial and overall examination is to be assumed as given.

 

b) However, the complainant's illness did not occur unexpectedly during the course of the examination. Rather, the doctor's certificate shows that X presented himself to the doctor on September 3, 2015 (Thursday) (bf.act. 2/1: "Today ... consulted"; bf.act. 2/2: "is due to Illness in my treatment since 3.9.15 "), but before that I was bedridden for the whole last week".

 

aa) X explains that she suffered from influenza "the week before the exam", that she was "bedridden most of the time" and that she spared herself the exam because she did not miss the six-monthly exam opportunity want. On the morning of September 3, 2015, she felt "reasonably in shape and ready to take the exam", but noticed that her state of health was unable to cope with an exertion of this duration and intensity. She specifies that, despite the infection, she did not want to miss the exam, had appeared for the exam, especially since she had taken special care of herself and taken medication in the previous days, and felt increasingly better. She consciously cured herself with the aim of being able to take the exam and wanted to gain strength during the rest days. However, she apparently misjudged her strength, which is probably due to the fact that she was sparing herself and did not test her "actual ability to take an exam while doing this". But this cannot be held against her, because rest and protection are the necessary measures for healing - the simulation of an examination situation runs counter to this. On the morning of September 3, 2015, she also "didn't feel sick", but subjectively felt confident enough to be able to take the exam. She was wrong about that. That could not be held against her because she had not experienced a comparable burden in the days before. Furthermore, she "obviously" lacked the ability to realistically assess her performance, which was probably due to the illness-related impairment; she was not able to assert the reason for the prevention on her own responsibility.

 

bb) Especially since the theoretically possible case that two mutually independent illnesses had an effect is neither alleged nor apparent, a uniform illness state can be assumed. X thus started the test in a sick state. Against the background of the above (E. 2.a al. 2), it must be checked whether she was, in good faith, objectively and through no fault of her own, in a position to assert her reason for hindrance immediately by exercising her own responsibility, namely whether she was the They lacked the ability to have a sufficient overview of their health situation to make a decision about taking the exam, or to act according to their understanding if they were aware of the health problems.

 

In this context, the complainant cannot be accused of not carrying out a "stress test". However, she can be reproached for the fact that after several days of illness, which forced her to rest, even to be "bedridden", she said that she was able to make the decision in the early morning of the exam day solely on the basis of a subjective feeling. X found herself in a situation in which she had to be accountable for her ability to take examinations, namely with regard to a regulation that draws a line between voluntary and involuntary termination. That there is such a demarcation, resp. must give, can not be surprising for you as a candidate for a bar exam (but so the claim in the complaint, p. 6 middle): it follows from the clear wording of Art. 19 PBR that a "voluntarily aborted examination" a "withdrawal "represents and" not passed "applies - a" voluntary termination "is not explicitly regulated in the regulations, but the technically experienced candidate must be clear that such a counterpart had to be implicitly regulated (with the only contrary and conceivable consequence that an involuntary termination does not count as a failed attempt, but rather as terminated without consequences [there is no serious discussion that it could be regarded as passed]). In view of the approaching exam, X - she was already taking the written exam for the third time - should have sought medical treatment and discussed the ability to take the exam with her doctor in view of her illness that lasted several days, which tied her to bed. Since the exam took place on Thursdays, she would have been able to do that on three days of the week before the exam. Since it corresponds to general life experience that a flu patient feels relatively fit in the morning, this misjudgment could have been prevented with - in this special situation before an important examination - obvious and reasonable action. By renouncing to seek medical advice and relying solely on her own judgment in a recovered state, X accepted the possibility of a misjudgment; this took place in the situation in which X was, therefore not through no fault of its own. In this respect, it is not convincing that it was the illness itself that led to the wrong decision being made on the morning of September 3, 2015: Exactly this situation, to decide under the deceptive impression of morning recovery, could have been taken into account with a prior medical consultation and must. Finally, the doctor's certificate does not give any indication of an illness-related lack of insight.

 

c) In summary, X took the exam in a sick state and thus accepted having to abort it or not being able to pass it. She cannot rely on the inability to have a proper overview of the state of health, as she had deprived herself of this possibility by - although this would have been possible and reasonable - she had refrained from seeking medical advice. The examination is thus voluntarily canceled in accordance with Art. 19 PBR and is therefore considered to have not been passed. The complaint must be dismissed.