CHAPTER ONE – INTRODUCTION
Scope
This book is intended as an introduction to assist advocates appearing for the first time before healthcare regulators in fitness to practise (FTP) proceedings – that is to say, in proceedings seeking to limit or remove a professional’s registration with their regulator. It does not seek to apply these principles to other regulatory environments, although of course there will be considerable cross-over.
I stress this is an introduction only. For a compendious summary of the relevant caselaw, I thoroughly recommend investing in a copy of Kenneth Hamer’s “Professional Conduct Casebook”.
It is important to be clear at the outset there is no uniform or unified FTP process across healthcare regulators. Each regulator is governed by its own legislation, rules and guidance. The General Medical Council (GMC) FTP regime, for example, is underpinned by the Medical Act 1983. It is also governed by its Fitness to Practise rules, which are set out in a statutory instrument. A tribunal will also have regard to various forms of guidance issued by the GMC – e.g. its sanction policy, its interim orders guidance etc. Much of these sources of law and guidance will be substantially similar to those governing the General Dental Council (GDC), Nursing and Midwifery Council (NMC), Social Work England (SWE) etc. However, there are also significant differences in procedure and practice. By way of example, in a typical case most regulators require a tribunal to determine the facts, decide if these amount to misconduct, consider if the registrant is currently impaired, and – if so – issue the appropriate sanction. However, not all do. The General Chiropractic Council (GCC) and General Osteopathic Council (GOsC) have no separate impairment stage.
Nonetheless, each healthcare regime shares broadly the same features and process. They borrow heavily from each other’s procedures, and rely extensively upon each other’s caselaw. Of note, they are all subject to the same oversight by the Professional Standards Authority – the “regulator of regulators” – which can challenge their decisions in the High Court if they are insufficient to protect the public.
In respect of terminology, a member of a healthcare profession is generally referred to as a “registrant” – I have done so already. Regulators perform several different roles. In the context of FTP, each regulator will both investigate complaints and – through its FTP committees / panels / tribunals – adjudicate upon them. These functions are performed by separate departments within the same regulatory body. To emphasis this distinction, the GMC rebranded its adjudicating functions as the Medical Practitioners Tribunal Service (MPTS). This is operationally independent of the GMC but has no separate legislative existence. Other regulators have followed suit – the GDC’s adjudicating function is now referred to as the Dental Professionals Hearing Service (DPHS). Not all bodies have formalised the separation in the same way.
Civil proceedings?
It is not my intention to set out any kind of potted history to FTP proceedings. However, it is right to say that for a long time FTP proceedings were considered quasi-criminal in nature. Not least, determinations were made to the criminal standard. The position has shifted markedly over the years. The standard of proof is now the civil standard across all healthcare regulators. The courts also have expressly commented that proceedings are civil in nature – e.g. R (Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin).
Nonetheless, FTP proceedings still draw heavily upon elements of criminal law. Any application for abuse of process, or to exclude hearsay evidence, or to stop a case at half time are likely to be rooted in principles drawn from the criminal law. The format of the FTP process shares few of the mutual disclosure obligations we see in civil proceedings. By this I mean, in general, the registrant cannot be compelled to provide documents which may assist the regulator. Rather, the regulator sets out charges it wishes to bring against the registrant, and the registrant defends themselves in much the same way as in a criminal trial. Moreover, there is limited scope for any form of settlement, and – as a rule – costs do not simply follow the event.
In short, without taking anything away from the court’s repetition that these are civil proceedings, it is important to appreciate they have their own procedure and character, and much of this has a basis in criminal law.
Process
In general, most FTP processes follow the same basic pattern –
A concern (referral) is submitted to the regulator alleging a professional is not fit to practise. This referral must be relevant to one or more of the statutory grounds for finding the registrant impaired. Each Act sets out these bases for impairment in slightly different ways. However, these are commonly misconduct, deficient professional performance, health or criminal conviction.
Regulators have screening processes to discard those referrals which are not potentially relevant to a registrant’s fitness to practise. Assuming a referral is not screened off, the regulator will commission an investigation to gather evidence. This investigation, and any response from the registrant, will be considered by the Case Examiners or Investigating Committee, depending on the organisation.
The Case Examiners / Investigating Committee sit in private and consider on the papers whether there is a realistic prospect of the facts being proved, and – if so – if there is a realistic prospect of a finding of impairment. If these tests are met the case is likely to be sent to a final hearing.
Certain regulators allow their Case Examiners broader powers – for example, to offer warnings or to suggest agreed undertakings to avoid a case otherwise going to a hearing. Since the focus of this book is the hearing process itself, I do not propose to go into these alternative disposals.
At the final hearing the registrant will face an allegation that their fitness to practise is impaired on the bases of one or more of the statutory grounds. The Notice of Hearing will set out the factual allegations, and allege that as a result of these acts the registrant is impaired by reason of misconduct etc.
The Tribunal must consider:
- are the facts proved,
- if so, do any of them amount to the statutory ground of impairment pleaded (e.g. misconduct),
- if so, is the registrant still impaired as a result,
- if so, what sanction is appropriate.
This reference to current impairment will be dealt with in depth in due course. Essentially it means: should there be some kind of restriction to protect the public or the reputation of the profession.
Typically (i) is called the facts stage. Once this is concluded and announced most tribunals will hear evidence and submissions on (ii) and (iii). This is the impairment stage. Once this decision is announced, (iv) is the sanction stage.
There is, as always, some variation. As noted already, some regulators like the GOsC and GCC have no impairment stage. The General Optical Council (GOC) separate out misconduct and impairment into separate stages. The GDC hear stages (ii)-(iv) together.
As an example of how a case may operate in practice, I will consider a (slightly contrived) example. Dr Smith is alleged to have sexually assaulted a patient and to have kept poor records. The allegation may be set out like this:
“It is alleged that Dr Smith, on or around 1 December 2023:
- Touched Patient A’s breast:
- Without her consent
- Without clinical justification;
- His actions at 1 above were sexually motivated;
- Failed to keep accurate records of this appointment.
And his fitness to practise is impaired by reason of misconduct”
The hearing would broadly work like this:
Facts stage: the tribunal has to consider whether the factual particulars are proved. Each must be proved to the civil standard. It hears evidence and submissions from both parties in the usual way. It goes into private to make a decision. It then moves back into public session and announces its decision. In this example the facts are all proved.
Impairment stage: the representatives make submissions on the issue of both misconduct and impairment. In private the tribunal first consider whether any of those facts amount to misconduct. In this case the tribunal finds 1 and 2 constitute misconduct but 3 does not. The tribunal will then move on to consider, in light of 1 and 2 only, whether Dr Smith’s practise is currently impaired. The tribunal considers that it is. It returns to public session and announces its decision on misconduct and impairment.
Sanction stage: the parties make further submissions. The tribunal then retires to decide what sanction is appropriate. This is announced in public.
Barring the need for an interim / immediate order (which I will deal with in due course) or very exceptionally an application for costs, that is the end of the process.
Importantly at each stage the tribunal provides reasons.
Tribunal
The terminology differs across regulators – panel / committee / tribunal. There is nothing significant in this choice of name.
When a case goes to a final hearing, or an interim hearing, each regulator requires that a tribunal includes a mixture of both lay and professional experience. In other words, for a nursing case at least one member of the tribunal must be a nurse, and at least one must not be.
It used to be the rule that most tribunals would comprise three members, and they would be assisted by advice from an independent legal assessor who would not participate in the decision-making process. Certain regulators have moved away from this model (e.g. GMC, General Pharmaceutical Council (GPhC) and now have a legally qualified chair, a registrant member and a third member (lay or professional). In such cases there is no need for an independent legal assessor.
Some regulators use tribunals with five members (GOC), but most use three. However they are constituted, the common feature is this: they all include experience from within the profession and outside it.
Adversarial or inquisitorial?
There is an important distinction between an FTP panel and a judge considering a case at first instance. The High Court in Ruscillo v Council for the Regulation of Health Care Professionals [2004] Ewca Civ 1356 commented,
“The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it.” [para 80]
Therefore, as PSA v General Medical Council and Lingam [2023] EWHC 967 (Admin) put it, “an inquisitorial duty falls upon a Panel hearing a professional regulatory matter in the public interest” [para 16]. Mostyn J went further in Towuaghantse v General Medical Council [2021] EWHC 681 (Admin) when he said “Regulatory proceedings of the type with which I am concerned are quintessentially inquisitorial.” [para 31]
In my view that puts the position too strongly. Coronial proceedings are “quintessentially inquisitorial” – the coroner decides what evidence to call, leads on the questioning of witnesses, and there is no scope for advocates to make submissions on what evidence should be preferred or rejected. FTP proceedings still operate in the usual adversarial way in most regards. Not least, the prosecutor, not the tribunal, lead on the questioning of their witnesses.
However, tribunals can and do question witnesses after both parties have had their chance to do so. The tribunal can amend particulars of the allegation on its own initiative. It has a duty to ensure a case is not under-prosecuted, and can even add a further particular of charge, if appropriate. It can compel the prosecution to call a witness or produce a document. These powers are discussed in Professional Standards Authority v (1) Nursing and Midwifery Council and (2) Jozi [2015] EWHC 764 (Admin). In that sense, it is inquisitorial. However, in reality, it is comparatively rare for tribunals to adopt such an interventionalist approach.