Current impairment looks at fitness to practise at the point of consideration, in the present tense, not at the time in the past when, for example, something went wrong.
In practice, this means that even where there has been harm to a patient or service user, if a health and care professional can demonstrate that they have learned from it, and therefore no longer a risk to patient safety, there is an increased probability that a healthcare regulator will find a health and care professional’s fitness to practise not impaired.
In Cohen v GMC, the High Court stated:
It must be highly relevant in determining if… fitness to practise is impaired that…first the conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated.”
What is misconduct?
Misconduct is considered particularly serious by regulators, but does not necessarily mean that a finding of impaired fitness to practise will follow.
Misconduct does not have a legal definition, but the courts have made clear that it means seriously bad behaviour that other professionals would think of as ‘deplorable’. This can apply to conduct both in a registrant’s professional and private life. Examples include, but not limited to:
- Breaching professional boundaries
- Sexual misconduct and abuse
- Serious clinical errors
- Racist, sexist, homophobic or other discriminatory behaviour.
It is important to note that fitness to practise allegations are not limited to misconduct. A health and care professional’s health, professional competence and/or performance can also raise fitness to practise concerns.
How allegations are considered
Generally speaking, an allegation is comprised of three elements, which fitness practise panels are required to consider sequentially:
- whether the facts set out in the allegation are proved;
- whether those facts amount to, for example, misconduct; and
- in consequence, whether the registrant’s fitness to practise is impaired.
Throughout this process, particularly the last element, there are opportunities for a health and care professional to present evidence to show that they have taken steps to address the issue(s) that gave rise to the fitness to practise concerns. This is also known as remediation.
Remediation in regulatory proceedings is where the health and care professional actively addresses concerns about their behaviour, skills, performance, or health.
The quality of the steps taken to remediate the concerns is key to assessing the impact it has had or is capable of having. Remediation should be:
- relevant – in that the steps taken to remediate have directly addressed the concerns identified
- measurable – in that there is objective evidence available that helps understand what has been done and what, if anything, is left to be done, and
- effective – in that there is enough information for the tribunal to see how any learning has been assessed and/or applied and its impact or success.
Not all fitness to practise concerns are remediable. Certain conduct is deemed so serious that they are, either, very difficult to remediate or are irremediable, including, but not limited to:
- Criminal convictions
- Cases involving serious dishonesty
- Sexual misconduct and/or impropriety
- Drug or alcohol use
Remediation is often a long process and in many cases, remediation steps can take many months to fully achieve.
Insight Works Training
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Courses are delivered by both leading healthcare experts with years of experience in mentoring and coaching who also sit on regulatory tribunal panels and, leading legal experts in the field of defence at health and social care regulatory tribunals.
Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.
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Kings View are rated excellent and have successfully represented many health and care professionals facing fitness to practise investigations and hearings.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.
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