Fitness to practise:

For healthcare professionals, a referral to your regulator can cause a significant amount of stress and anxiety, with permanent erasure a possibility in the most serious of cases. The impact of a referral is often compounded by the protracted nature of these proceedings, with practitioners often waiting a number of years for an outcome following the initial referral. In a recent survey of 197 doctors investigated by the GMC over a five-year period, 91% reported that the referral triggered stress and anxiety, with an alarming 31% reporting that they had suicidal thoughts as a consequence of the referral (i.e., almost one in three participants).

The purpose of this article is to provide a brief overview as to when referrals are made, the types of matters investigated, and the initial stages of an investigation by the regulatory bodies.

Fitness to practise

Regulatory bodies (i.e. regulators), for example, the General Medical Council (GMC), General Dental Council (GDC) and the Nursing and Midwifery Council (NMC), maintain registers and set standards for the medical practitioners they regulate. The primary duty of the regulators is to protect and promote public safety. In exercising this function, the regulators investigate complaints made against registered professionals, and have the power to issue sanctions, including permanent erasure (i.e. removal from the register).

All regulators have their own variations of a code of conduct, with broadly similar principles and standards. In essence, fitness to practise concerns the competency, respectability, trustworthiness and honesty of a regulated (i.e. registered) professional. All professionals, including healthcare professionals, but also solicitors and barristers, are often described as the “pillars of society” with the scope of a regulator, such as the GMC, GDC and NMC therefore extending beyond an individual’s professional life, with matters outside of an individual’s professional life occasionally triggering an investigation into whether their fitness to practise is impaired. 

In summary, a registered professional’s fitness to practise can be impaired by any or all of the following:

• Misconduct (including clinician and non-clinical issues);
• Deficient professional performance (i.e. lack of clinical competence);
• A criminal conviction or caution;
• Adverse physical or mental health (creating a risk to patients);
• Inadequate knowledge of English;
• A determination made by another regulatory body.

Referrals to the regulatory bodies

An initial referral to the regulatory can come from number of sources, including:

• A self-referral by the registrant;
• A complaint from a patient, family member, competitor, or member of the public;
• A report from an employer or individual, in accordance with a requirement of the regulator;
• A report from the monitoring arm of the regulator;
• Information passed from one regulator to another;
• Publicly available information (i.e. press reports or social media);
• A report from an official investigation or inquiry.

All registered professionals are under a duty to inform their regulator, without delay (i.e. as soon as practicable) if they have accepted a caution from the police, have been charged with and/or found guilty of a criminal offence, or another professional body has made a finding against their registration as a result of fitness to practise procedures. Additionally, doctors are under a specific duty to make the General Medical Council (GMC) aware if they have been criticised by an official inquiry, including an inquest into the death of a patient, or where they are suffering from a health condition that may pose a risk to patients.

Whilst it is relatively rare in practice, coroners investigating deaths may decide to refer healthcare professionals involved in the care of the deceased to their regulators, including doctors, but also general nurses, midwives, mental health nurses and other healthcare professionals involved in the care and treatment. Generally, this is where there are serious concerns around the individual’s fitness to practise. However, referrals have also been made by coroners for reasons relating to individuals’ conduct in court, particularly where there are concerns with regards to the individual’s honesty or integrity. In a recent inquest concerning the death of a prisoner, every single clinician employed by the prison healthcare provider (17 in total) who gave evidence were referred by the coroner to their regulator, with the coroner expressing grave concerns with regards to what was considered a systemic failure in regards to the duty of candour.

Initial stages following a referral

Regulators are under a duty to investigate any concerns raised regarding a registrant’s fitness to practise, and will consider every concern raised, before deciding whether to close the matter or progress this to the next stage in the process. In the event concerns are to be investigated further, a caseworker will be allocated, who will gather the relevant information, assess the sufficiency of the evidence obtained (not its accuracy and/or reliability), and determine what, if any, specific allegations concerning the registrant’s fitness to practise require further investigation. In the event the matter is to proceed, the allegations will be referred to the regulator’s investigating committee, or case examiners. 

In essence, the investigating committee or case examiner stage is a triage process, prior to any matters proceeding to a substantive hearing before a practice committee. The test to be applied at this stage is whether there is a “real prospect” of a practice committee finding that the registrant’s fitness to practise is impaired (i.e. whether there is there a case to answer). This is broken down into three stages:

• Is there a real prospect of the facts being proved (on the balance of probabilities);
• If so, is there a real prospect of the facts amounting to the ground of impairment (e.g. misconduct, deficient professional performance);
• If so, is there a real prospect of a practicing committee finding the registrant’s fitness to practise is currently impaired (i.e. has the registrant already remedied any concerns and demonstrated that such conduct is highly unlikely to be repeated).

The real prospect test is arguably a low-threshold, with consideration only given at this stage to whether there is a genuine possibility of a matter being established before a practice committee, not whether the allegations are true.

The registrant must have been afforded a reasonable opportunity to submit written representations, which will be considered by the case examiners or investigating committee, before determining the outcome of the referral. Not only does this allow a registrant an opportunity to dispute the facts underpinning the allegations, and whether the conduct alleged is sufficient to constitute impairment. For example, where misconduct is alleged, that their conduct was not a serious departure from the expected standards (i.e. not far below the standard expected). It also allows the registrant an opportunity to evidence how they have reflected on their conduct and taken specific action to remedy their practice. For example, by undertaking additional training relevant to the concerns raised, or by making practical changes to their practise in the aim of mitigating the risk of such conduct being repeated.

In circumstances where you are invited to respond to allegations referred to case examiners or investigating committee, it is vital that you seek specialist advice and support from your medical defence organisation, professional indemnity provider, and/or a legal service provider specialising in fitness to practise proceedings.

At Hill Dickinson, we frequently act for a wide range of healthcare professionals in fitness to practise proceedings, and aim to achieve the best outcome for the registrant as efficiently as possible. If you have any queries on reading this article, or if you require support with an investigation into your fitness to practise, please do not hesitate to contact David Crone or one of the team who will be able to advise further.