Overview

• Engagement with regulators was a key consideration when considering any aggravating and mitigating factors.
• Health and care professionals who engage during the fitness to practise process can make a positive difference to the outcome of their case.
• However, key to engagement is specialist legal representation to support and guide registrants through the fitness to practise process, which is complex and legalistic.
• The lack of specialist legal representation has been identified as being associated with more severe sanctions outcomes in fitness to practise cases.

The research was commissioned by the General Dental Council (GDC) and the Nursing and Midwifery Council (NMC) and was undertaken by Plymouth University to investigate how seriousness in Fitness to Practise (FtP) cases is understood and applied by UK health professions regulators.

Seriousness in fitness to practise

The research sought to understand how regulators approach seriousness in fitness to practise cases.

It concluded that the concept of seriousness is used in two main ways in fitness to practise processes across health regulators:

• to help define misconduct itself; and
• to place a particular misconduct on a spectrum of seriousness to determine an appropriate sanction.

Some types of misconduct carry a presumption of seriousness that is broadly consistent across all regulators. These are sexual misconduct, dishonesty, and criminal convictions.

Engagement  is key

Engagement with regulators was a key consideration when considering any aggravating and mitigating factors in a fitness to practise case.  The findings reinforce that health and care professionals who engage during the fitness to practise process can make a positive difference to the outcome of their case.

Not attending the hearing meant that registrants were not able to defend themselves against concerns raised, and panels were more dependent on the statements of witnesses. The registrant’s credibility and reliability as a witness, demonstration of insight, remorse and regret, and any remediation which has taken place are also important aggravating and mitigating factors.

Importance of legal representation

The extent to which a registrant engages with the regulatory process, from initial complaint to the final hearing, has been recognised as vitally important to the severity of sanctions.  The research has shown that registrant’s engagement and legal representation can impact on decisions about seriousness, and that the lack of legal representation has been identified as being associated with more severe sanctions outcomes in fitness to practise cases.

“Legal representation was seen as important by participants because legal advice could support and guide registrants through the FtP process, which is complex and legalistic. Legal advice was seen as important in aiding registrants to understand regulators’ expectations, especially in terms of the need for registrants to demonstrate insight and perhaps to show evidence of remediation activities. Lack of legal representation was, therefore, seen to potentially have an impact in terms of the seriousness of the outcome for registrants who are perhaps unaware of how to present their case to best effect.”

Groups more likely to have legal representation

The research found that legal representation varied between professional groups with doctors, dentists and pharmacists typically said to have legal representation while nurses, dental care professionals and pharmacy technicians were reported as having higher levels of self-representation.

Doctors, dentists, and pharmacists, covered by professional indemnifiers, were reported as typically being represented when engaged with the fitness to practise process.

Other groups, such as nurses, dental care professionals, and pharmacy technicians were reported as having higher levels of self-representation or representation from professional bodies that is not seen as “high quality” compared to legal representation from specialists.  This is particularly significant bearing in mind that legal representation can affect the way in which a registrant engages with fitness to practise processes.