How regulators conduct fitness to practise investigations
In this detailed guide to fitness to practise investigations, Stewart Duffy outlines the steps involved in investigations by different regulators.
How regulators conduct fitness to practise investigations
How does an investigation start?
In the vast majority of cases, fitness to practise investigations begin when a complaint is made to the regulator about a registrant. However, investigations may also begin when a registrant notifies their regulator in respect of an issue concerning their own fitness to practise.
In a small proportion of cases, investigations commence when the regulator becomes aware of information by other means e.g. media reports of misconduct on the part of a professional or where a complaint made about registrant A also raises concerns about registrant B.
Whilst the approach to investigation is not identical for all regulators, the general scheme is consistent.
In the first instance, the regulator must determine whether the person about whom concerns were raised is on its register. If they are not, the regulator has no jurisdiction to conduct a fitness to practise investigation.
However, some regulators will explore the matter further if the complaint suggests a non-registrant is practicing illegally e.g the GDC.
Where the individual is on the register, the regulator will typically apply a threshold test before determining whether to open an investigation. Such threshold tests set a low bar, simply asking whether the subject matter of the complaint or information raises a question about the Registrant’s fitness to practise.
Where that is the case, an investigation is opened and the regulator will usually write to the complainant and the registrant to tell them that this step has been taken.
The regulator will then begin to gather evidence. This will usually involve asking the registrant to provide details of their employment and asking the registrant’s employers whether they have any fitness to practise concerns about the registrant.
The regulator will also begin to gather specific evidence about the complaint. This may involve taking statements from the complainant, and other key witnesses, gathering copies of relevant clinical records, or seeking evidence from other authorities, such as the police.
In cases that relate to clinical conduct, or the registrant’s own health, the regulator is also likely to obtain some input from an expert witness.
Once the evidence has been gathered, the regulator will review it with a view to identifying such criticisms as the evidence might support and formulating those as specific allegations.
The evidence and allegations are then disclosed to the registrant who has an opportunity to respond. That response could include fresh factual evidence, expert evidence or evidence of insight and remediation. The complainant may be provided with a copy of the registrant’s submissions and may have an opportunity to comment, with those comments being added to the case papers.
The real prospect test
All the documentary evidence together with any submissions filed by the registrant, and any comments in response from the complainant, are then considered by the designated decision-maker — either a pair of case examiners or an investigating committee.
Whilst the precise process varies between regulators, the decision to be made at this stage of the process is a filtering decision — whether the allegations ought to be referred to a full panel hearing for the evidence to be tested and findings made.
The test which is applied is the same across the Regulators. It is referred to as the real prospect test. It requires the decision-makers to be satisfied that there is a real prospect of a fact-finding committee determining that at least some of the allegations could, in principle:
- be found proved;
- if proved, those matters would be sufficient to establish a ground of impairment, such as misconduct or deficient professional performance, and
- that there is either a risk of repetition or that the alleged conduct is so serious that there is also a real prospect of establishing current impairment of the Registrant’s fitness to practice.
Where the decision-makers determine that there is no real prospect of establishing current impairment they may be able to close the case in a variety of ways which include taking no action or, in the case of some regulators, issuing a warning. The precise details vary depending on the Regulator.
It is common for the rules to permit a decision not to refer a case to a hearing to be reviewed, at least within the first two years following the decision.
When health is a fitness to practise issue
Relevant legislation allows for the possibility that a healthcare professional’s fitness to practise may be impaired by reason of a health condition afflicting that individual, often referred to as the registrant’s “adverse health”.
That is not to say that any illness provides a sufficient platform for regulatory action. Healthcare professionals, like the population at large can suffer from the full gamut of health conditions.
Some health conditions will mean that a registrant needs to take time off work, either because that is in their own interests or because they are unable to safely and effectively perform their professional role.
In the normal course, such matters are left to the good judgment of the registrant and do not merit the involvement of their regulator.
It is little surprise then that the vast majority of health cases that lead to fitness to practise investigations relate to conditions which themselves impair the registrant’s judgment, in many instances because a lack of insight is a feature of the particular condition. Depression, and drug or alcohol problems are among the most frequent examples.
Of course, there are cases where individuals with these conditions do have insight, recognise their illness and take appropriate steps to absent themselves from work until sufficiently recovered.
The greatest concern relates to registrants who, despite not being well enough to work safely, continue to care for patients. This may be because either they do not recognise they are unwell or sometimes because of a misguided sense of duty to their patients or because they feel unable to stop working for financial reasons.
It is in cases of this sort that the regulator is likely to intervene.
There has been a welcome evolution in the approach that the regulators take to such cases over the last decade.
Registrants can now expect that the regulator’s approach will be compassionate and considerate, whilst respecting their obligation to protect patients. Most health cases are capable of being dealt with without the need for a full hearing, through conditions or undertakings on the practitioner’s registration.
These typically involve obligations to engage with appropriate medical treatments and to modify work commitments in accordance with the recommendations of the treating doctor.
On rare occasions, a registrant may be suspended from the register but that will usually be limited to situations where the registrant is in the acute phase of an illness which has significantly impaired their insight and reasoning.
It is relatively common for interim restrictions to be put in place whilst a regulator is investigating more significant health concerns associated with a lack of insight and associated clinical risk.
Normally restrictions on registration will be lifted when the condition has stabilised and the registrant has returned to work for a reasonable period without incident.
his allows the registrant to demonstrate that they have developed insight and an appropriate network of professional support and coping mechanisms so that they can take appropriate action at the first signs of recurrence.
The duty of healthcare professionals to self-report convictions and cautions
Probity allegations are amongst the more serious allegations which the regulators must consider.
They sometimes arise in relation to a registrant’s failure to meet their obligation to notify the regulator of an event such as a caution or conviction. In some of those cases, the allegedly dishonest failure to declare those matters to the regulator becomes a significantly more serious concern than the conviction or caution.
The regulators’ processes vary, but it is common for them to seek a declaration from registrants at the time of their annual renewal to the effect that they have not been the subject of any convictions or cautions.
However, that is intended to function as something of a safety net for the regulators as the respective codes of conduct require registrants to notify their regulator upon certain events occurring.
Typical triggers include being charged with a criminal offence, conviction or acceptance of a caution, regardless of where in the world that happens.
It may also include other types of disposals in the criminal justice system and the obligation is typically to notify the regulator “without delay”, “as soon as possible” or “immediately” after the triggering event.
For example, Good Medical Practice states:
“You must tell us without delay if, anywhere in the world:
- you have accepted a caution from the police or been criticised by an official inquiry
- you have been charged with or found guilty of a criminal offence
- another professional body has made a finding against your registration as a result of fitness to practise procedures.”
Guidance issued by some of the regulators specifically excludes certain criminal disposals from the obligation. For example, the GDC does not require notifications of fixed penalty notices for road traffic offences. As details vary between regulators, it is crucial to review the relevant current guidance from your regulator.
Annual renewal of registration
Registrants should always have regard to the declarations which they make on annual renewal which may include a commitment to notify the regulator if you receive any cautions or convictions in the future.
You should not assume that some other authority will notify your regulator. That might well happen, but even so, the obligation to notify falls on the registrant personally. Similar requirements apply to Performers on NHS Performers Lists and many contracts of employment will impose a contractual obligation to notify your employer.
Declarations at the time of First Registration
The requirement to declare existing convictions or cautions at the time of first seeking registration is complicated by the scheme by which certain convictions are ‘filtered’ and therefore do not need to be declared.
However, the filtering regime only applies to convictions or cautions once they have reached a particular age and so the regime does not affect the obligation to disclose at the time of the caution or conviction.
The take-home message
You should familiarise yourself with the relevant provisions of your regulator’s code in relation to the obligations to notify the regulator and read any supplemental guidance which your regulator produces.
The duty to co-operate with Fitness to Practise investigations
It is common for regulators’ codes of conduct to impose an obligation on Registrants to co-operate with investigations or complaints procedures.
HCPC Standard 9.6 states:
”You must co-operate with any investigation into your conduct or competence, the conduct or competence of others, or the care, treatment or other services provided to service users.”
Whilst the GMC’s Good Medical Practice states:
“You must cooperate with formal inquiries and complaints procedures and must offer all relevant information while following the guidance in Confidentiality.”
Why fitness to practise investigations must be investigated
Registrants are sometimes frustrated when they perceive that their regulator is investigating a complaint with no merit. They wonder why they must labour under the stress of an investigation which they perceive will inevitably be closed with no action.
It is important to recognise that the regulator’s process is set out in statute. The person with day-to-day conduct of the regulator’s investigation does not have any decision-making power.
Even where the case investigator might readily appreciate the weakness of the evidence against the practitioner, it is only the designated decision-maker who can terminate the investigation.
The precise nature of the designated decision-maker varies between regulators. They are typically either a pair of decision-makers acting together and known as case examiners or a committee known as the investigating committee.
In the majority of cases they will only make a decision about the further progress of the case after the Council have concluded their preliminary evidence gathering, formulated allegations and afforded the Registrant an opportunity to provide written submissions.
The filtering stage of the Fitness to Practise process – Case Examiners/Investigating Committees
Not every complaint against a registrant will merit a fact-finding hearing in front of a Fitness to Practise Panel. This may be apparent relatively early on in the investigation process.
Only the designated decision-makers (the case examiners or investigating committee depending on the regulator) will be able to determine whether the investigation should be closed or the matter referred to a full hearing.
Before that decision is made, the regulator’s preliminary investigation will be concluded. Usually, the regulator will have written to the registrant disclosing the evidence which has been gathered, together with specific allegations based on that evidence.
The registrant will have been afforded an opportunity to submit evidence and representations.
Where, at the conclusion of the investigation, it seems highly likely that the designated decision-makers would close the investigation and take no further action, some regulators send the case for consideration without disclosing evidence to the registrant or affording them the opportunity to make submissions (this approach is adopted by the GMC).
If the case examiners determine to close the matter with no further action, that brings the process to an end more swiftly. If the designated decision-makers feel some other disposal is appropriate, then the registrant is afforded the usual opportunity to review the evidence and make representations.
The key decision for the designated decision-makers is whether the case ought to be referred to a full fact-finding hearing in front of a Fitness to Practise Panel.
At many regulators, at the filtering stage, the decision-makers have the power to close the investigation whilst at the same time taking some action, such as giving advice or warning. The HCPC is an exception.
In making the decision about referral the decision-makers apply the real prospect test.
Is there a case to answer? The real prospect test
The real prospect test is applied at the filtering stage of the fitness to practise process to determine whether allegations ought to be referred to a full fact-finding hearing in front of a fitness to practise panel. As a filtering test, it sets a relatively low bar for referral.
The key principle is that a case should not be referred to a full hearing unless there is more than a remote or fanciful prospect that the hearing will result in some restriction being imposed on the registrant’s registration.
Restrictions can only be imposed if a panel make a finding that the Registrant’s fitness to practise is currently impaired by establishing one of the statutory grounds of impairment e.g misconduct or conviction.
In applying the real prospect test, the decision-maker must consider the evidence in support of each of the allegations.
They are not determining whether the allegation is true; rather they are asking whether, if accepted by the panel, the evidence which supports the allegation would be sufficient to prove the allegation.
This is a low threshold, as allegations are proved on the balance of probabilities. So, the question is whether, if accepted, the evidence which best supports the allegation would be adequate to allow the panel to find that the alleged fact is more likely to be true than untrue.
In many instances the allegations will be disputed by the registrant but, at this filtering stage, the decision-maker is not deciding which account is more persuasive; that is simply not their role.
There will be a minority of cases where the evidence in support of an allegation is obviously unreliable. In these cases, the decision-makers are entitled to conclude that the allegation would be incapable of persuading a panel.
With respect to allegations that are determined to have a real prospect of being found proved, the decision-maker must then consider whether, if they were in fact proved, they would be sufficient to establish one of the statutory grounds such as — misconduct, deficient professional performance or adverse health.
If they conclude that there is no more than a fanciful prospect of a ground being established, the case will not be referred to a full hearing.
However, even if they determine that there is a real prospect of a statutory ground being established, referral does not necessarily follow. The decision-makers must move on to the final stage of the real prospect test.
Often, this is the stage of the filtering exercise where submissions by the registrant can often have the greatest impact on the decision-makers.
The decision-makers must consider whether, if a ground of impairment is established, that would give rise to there being more than a remote or fanciful prospect of establishing that the registrant’s fitness to practise is impaired at the time of the hearing.
In the case of the GOsC and GCC, the test of impairment does not apply but similar issues, such as the risk of repetition, insight, and the public interest are considered to determine whether there is a real prospect of a sanction being imposed.
In addressing that question the decision-makers are entitled to consider evidence of insight and remediation to assess whether there is a risk of repetition.
The purpose of the fitness to practise process is not to punish Registrants for past failings but to ensure that they are currently fit to practise. If the decision-maker can be satisfied that the risk of repetition is remote, the case should only be referred for a full hearing if the alleged matters are so serious that there is a public interest in them being ventilated at a hearing and determined by a panel. By way of illustration, the Case Examiners at the GDC often view allegations relating to consent as being sufficiently serious to merit a referral in the public interest even where they are satisfied that the risk of repetition is low.
What is ‘Advice’ and what is its significance?
When a fitness to practise investigation is closed at the filtering stage, without the need for referral to a full fitness to practise hearing, it is relatively common for the Registrant who has been subject to the investigation to be issued with advice. This is a formally expressed expectation of how the Registrant should act in the future. The precise status of that advice varies depending on the regulator. Advice given by the Case Examiners at the GMC has no status in statute and, as a matter of law, a GMC investigation closed with advice is a closure with “no further action”. In contrast, at other regulators, advice has a formal status in statute and is distinguished from closure with no further action. This is the position at the GDC and GPhC. In the case of those regulators, the fact that a Registrant has received advice will count as part of the individual’s fitness history and may be treated as an adverse outcome.
In practical terms the fact that a Registrant has received advice may become particularly important if that Registrant:
- is the subject of a complaint in the future;
- the complaint related to care provided after the advice was issued; and
- the complaint relates to a topic which had been the subject of the advice.
Thus, if a Registrant is given formal advice about their record keeping in 2020 and three years later is the subject of a complaint, relating to treatment provided after the advice was received, and their clinical records of that treatment are deficient, it will be said that they had been specifically on notice of the need to keep clear and accurate records and any deficiencies will be judged in light of that fact.
However, it is important to note that receiving advice does not restrict the professional’s registration, rather it “marks their card” and will be taken into account if they find themselves in the regulatory spotlight again in the future.
Warnings and their effect
Warnings are a step up the ladder in terms of the seriousness of response from a regulator.
Warnings are most commonly issued when the relevant decision-maker determines that the test for referral to a full hearing is not met because the Registrant:
- has demonstrated insight and has taken steps to remediate an admitted failing; or
- the matters referred to in the complaint are seen as a one-off event and not regarded as sufficiently serious to merit referral, but where any repetition would be regarded as serious.
By issuing a warning the decision-maker marks the seriousness of the concerns. This serves to maintain public confidence in the regulator and to uphold proper standards of behaviour for the profession. It also means that the Registrant cannot plead ignorance of the rules if their behaviour is found wanting in respect of the same issues in the future. Any future failings will be judged in light of the warning issued and, even if the alleged failings which led to the warning had been disputed, the regulator will approach the matter on the basis that the Registrant ought to have been especially alert to the importance of the particular obligation to which the warning related.
Depending on the regulator, warnings may be published or unpublished. For example, when issuing a warning the Case Examiners at the GDC must decide whether the warning ought to published and, if so, for how long. By contrast, warnings issued by the Case Examiners at the GMC are always published for two years, not by virtue of any decision of the Case Examiners but as a matter of policy.
As a matter of law, warnings do not limit a Registrant’s freedom to practise; they are not a restriction. However, the practical reality for many Registrants is that warnings can have a range of adverse impacts including affecting their access to indemnity cover and practising privileges in the private sector. Warnings constitute an adverse fitness to practise history and so will need to be disclosed in a variety of settings even after they have ceased to be published the Regulator.
What are undertakings?
Where restrictions are imposed on a professional’s registration by their regulator, they are referred to as Conditions, or Conditions of practice. Many regulators operate a facility to agree restrictions with a Registrant without the need for a fitness to practise hearing. Where the Registrant agrees restrictions on their registration they are referred to as undertakings.
The most significant differences between conditions and undertakings are the way in which they are arrived at and the process for their review/amendment. Substantive conditions, that is conditions imposed at the conclusion of the fitness to practise investigation, can only be imposed by a fitness to practise panel at the end of a formal hearing, which is usually held in public. In contrast, undertakings can be agreed by the Registrant without the need for a formal hearing and so can bring the investigation process to an end more quickly
When restrictions are imposed on a professional’s registration, they are usually in place for a significant period, often 1 – 2 years. During that time the Registrant’s circumstances may evolve, or unanticipated problems caused by the conditions may come to light. However, conditions can only be reviewed by a fitness to practise panel at hearing and so the process of varying or amending conditions is cumbersome, time-consuming and potentially expensive, even where the Registrant and regulator agree on the desirability of amendment. In contrast, undertakings can be varied on a paper-based exercise without a hearing and so offer significant advantages in terms of flexibility.
Similarly, conditions can only be revoked by a fitness to practise panel whereas a Registrant may be released from their undertakings without a hearing. Undertakings are commonly deployed in cases involving adverse health or deficient professional performance, where there is little dispute about the underlying concerns and the Registrant has shown insight and a willingness to engage in suitable remediation and to be subject to suitable oversight or monitoring.
Who are the panel?
The precise make up of fitness to practise panels varies between regulators but there is some commonality of approach. Such panels typically include at least one lay member and at least one member from the same profession as the defendant Registrant, although not necessarily from the same field of practice within that profession, and at least one other member. There is a trend toward such panels having a chairperson who is legally qualified and who can provide legal guidance to the panel as a whole. However, the more traditional model of the Panel sitting with an independent legal assessor, who advises them on matters of law but does not participate in their decision making, is still common.
The panellists will not have had any previous involvement in the investigation and so will be coming to the evidence fresh. The panel members are required to declare any conflict of interest. Occasions may arise where a panel member deems it necessary to recuse themselves from hearing the case because they have an association with the defendant, a complainant or a witness which would create a perception of bias. There are other occasions where a panel member may have a more tenuous or distant connection that does not require them to recuse themselves.
The Role of the Legal Assessor or Legally Qualified Chair
Fitness to Practise Panels act like a jury, in that they determine whether factual allegations are true. They also act like a judge, in that they determine the appropriate sanction. However, they act like a judge in other ways too. For example, when there is a dispute between the prosecution and defence as to whether it would be fair to admit certain evidence the Panel determined the legal issues which are raised by such a dispute. Historically, FTP panels did not include lawyers and they were assisted by an independent legal assessor, an experienced lawyer who could give them independent advice as to the correct legal principles to apply. Although the independent legal assessor would retire with the Panel when the Panel were making their decisions, they would not take any part in making those decisions. Any advice given by the legal assessor had to be shared with the parties.
That system still applies at many regulators. However, the GMC has been at the forefront of introducing a system of legally qualified chairs on fitness to practise panels, doing away with the need to have an independent legal assessor. The legally qualified chair advises their colleagues on the legal principles which are applicable to their decision-making.
How is oral evidence dealt with at Fitness to Practise hearings?
It is now common practice for witnesses who are to give evidence at an FTP to provide a written witness statement in advance of the hearing. That statement should set out the witnesses’ account of the relevant events.
At the hearing witnesses may be called by either the prosecution or the defence. When the turn comes for a witness to give evidence, they are called to the witness stand and asked to take an oath or make an affirmation to tell the truth. The panel chair will typically introduce the witness to the other panel members and explain who else is in the room before indicating that the representative for the party who has called the witness can begin their questioning. Thus, if the prosecution has “called” a witness the prosecution lawyer will be the first to ask that witness questions. However, those questions will often be limited to a few questions confirming that the witness has provided a witness statement previously and confirming that they have read that statement recently and asking whether there are any aspects of the statement they would wish to change or correct. This process is called “examination-in-chief”. During examination-in-chief the witness should only be asked open questions, not leading questions. However, where aspects of the witness’s evidence, such as their qualifications, are not in dispute leading questions will usually be acceptable.
Once the examination-in-chief has concluded the other party’s representative is permitted to ask the witness questions. This is referred to as “cross-examination”. During cross-examination the questioner may ask leading questions and challenge the truth or accuracy of the account which is being provided. After cross-examination it is common for the panellists to ask some questions by way of clarification.
If the proceedings are interrupted during a witness’s evidence, e.g for a lunch break, the witness remains bound by their oath/affirmation and is not permitted to speak to anyone else about their evidence or the case. Traditionally this is referred to as being “in purdah”.
Practical observations about the burden and standard of proof – post Kuzmin
The regulator always bears the burden of proving allegations of misconduct or deficient professional performance. In conviction cases the certificate of conviction is usually deemed conclusive proof of the conviction.
It is now well settled that the standard of proof which applies in fitness to practise cases is not the criminal standard of proof — beyond reasonable doubt — but the lower civil standard of proof. The Panel will find an allegation proved if, having considered all of the evidence, they are of the opinion that the alleged facts are more likely to be true than not true. Thus, if the Panel receive credible evidence that event X occurred, and receive no evidence to support a contrary position, they will be entitled to find the allegation proved. As the allegations are formulated after the regulator has gathered their evidence, the expectation is that the regulator has already determined that it is in a position to adduce sufficient evidence to prove all of the allegations, assuming the Panel accept the correctness of the regulator’s evidence.
Many of the most serious allegations which are dealt with at fitness to practise panels require determination of the Registrant’s state of mind at the relevant time. This includes allegations of dishonesty and sexual motivation. A particular set of facts may be open to an innocent explanation or a culpable one — was an error on a time sheet deliberate or an innocent mistake? In many instances the Registrant will be best placed to explain. It is a matter for the Registrant whether they give evidence to the Panel. However, the Registrant needs to be aware that if they do not give evidence, the Panel may draw an adverse inference. In other words, the Panel may say — “If there were an innocent explanation the Registrant would have provided it. In the absence of such an explanation it is more likely than not that there was an improper motive”.
It will not always be permissible for a Panel to draw an adverse inference from the fact that a Registrant did not give evidence. The Panel would need to be satisfied that it is fair to do so in the circumstances. Clearly the decision whether to give evidence or not is an important one and must be given careful consideration.
The regulator’s power to require disclosure of information in Fitness to Practise investigations
The precise nature of a regulator’s powers will be determined by the relevant statute establishing that regulator. Most regulators have the power to require a Registrant who is the subject of investigation to provide details of the indemnity cover and their employer or the organisation(s) for whom they provide services. They also have wider powers to require third parties to provide information or documents. This usually requires the service of a notice requiring the supply of the information and the power to enforce such a notice through the courts.
In relatively recent times the GMC obtained a power to require the Registrant who is the subject of an investigation to provide a wide range of information to the Council. The powers to require disclosure do not disapply the data protection legislation. Broadly speaking they allow the Regulator to impose an obligation to disclose material which the third party would have had a discretion to disclose in any event. Where there was no such discretion to disclose in the first instance, the Regulator cannot create an obligation to disclose.
Any party receiving a notice from a regulator requiring them to disclose information as part of a fitness to practise investigation should seek independent advice to avoid the risk of disclosing material which goes beyond the scope of the notice thus breaching data protection requirements.
Evidence – the basis of admissibility
The rules of evidence have become gradually more relaxed over the decades. Complex rules such as the hearsay rule and its even more complicated exceptions are no longer directly applicable in the context of Fitness to Practise hearings. The general principle which applies is that evidence is admissible if it is relevant to a disputed issue and that any concerns with respect to the reliability of the evidence are dealt with by the Panel determining what weight to attach to the evidence. Evidence which would have been excluded in the past under the stricter regime can be admitted but may well have little or no weight attached to it by the FTP panel.
However, it is important to bear in mind that the prosecutor is still expected to present the best evidence. They should not choose to rely on the hearsay evidence of an important witness if that witness could be available to attend and have their evidence tested by cross-examination. The fact that a witness is unavailable to attend and answer questions will not automatically lead to the exclusion of their evidence but may do so where the FTP panel determines that admitting the evidence would lead to unfairness which could not be addressed simply by them exercising a judgment as to the weight to be attached to the evidence.
It should be noted that some tribunal’s have introduced verification requirements for testimonial evidence. This is largely directed at ensuring that testimonial witnesses are aware that their letters will be provided to a FTP and are aware of the nature of the allegations which the tribunal is considering.
For support with fitness to practise investigations, contact our healthcare solicitors.