Learning from Complaints:Fitness to Practise

Felicity MitchellSiobhan Hohls11 March 2010

Fitness to Practise: What is it?

• “The qualities of an individual that makes it appropriate for them to be registered to practise in a particular profession. 'Fitness' in this context may refer to health (mental or physical), behavioural or attitudinal characteristics as well as to relevant competences.” QAA code of practice for disabled students

• “Being fit to practise means having the skills, knowledge, good health and good character to do your job safely and effectively.” Nursing and Midwifery Council Guidance on Professional Conduct

• GMC says most often: “attitude, behaviour and clinical competence”

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Fitness to Practise: What do we look at?

• Has the University correctly applied its regulations and followed its procedures?

• Was the University’s decision fair in all the circumstances?

• Have the additional requirements of studying for a professional qualification been adequately explained to the student?

• Are the regulations and procedures clear and unambiguous?

• Were they followed?

• Does the evidence support the allegation, and has the student had a fair opportunity to meet the case against him/her?

• Is there evidence of bias in the decision making process?

• Has the student been given adequate reasons for the decision?

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Academic Judgment/Professional Judgment

• The OIA cannot interfere with the operation of an institution’s academic judgment• Part 2 of the Higher Education Act 2004• Our Rule 3.2 states that we do not cover a complaint to the

extent that it relates to a matter of academic judgment.

• Academic judgment is a decision about scholarship that only an experienced academic can make.

• Professional judgment is a decision about professional standards that only an experienced professional can make.

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Academic Judgment/Professional judgment

• Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988

• Higham v University of Plymouth [2005] EWHC 1492

• Courts reluctant to interfere with academic or professional judgment – “degree of respect and deference”

• Other professions are not afforded the same deference (doctors/solicitors/barristers can all be sued for professional negligence)

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Professional Judgment

• OIA cannot interfere with academic judgment and will not interfere with professional judgment

• Fitness to practise is likely to be a matter of professional judgment

• OIA will look at the regulations and procedures followed and the fairness/reasonableness of the outcome.

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Natural justice

• Procedural fairness – duty to act fairly• Nobody shall be a judge in his own cause;• Hear the other side;• Requirement of reasonableness;• Reasons.

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Article 6:European Convention on Human Rights

"(1) In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”

• Is a student’s civil right being determined by a FTP hearing?

• There is a civil right to practise one’s chosen profession. Is that engaged before the student has qualified?

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Article 6 – right to legal representation?

• Governors of X school v G [2010] EWCA Civ 1 – civil right (teaching assistant)

• Kulkarni [2009] EWCA Civ 789 – contractual right (doctor)

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Burden and standard of proof

• Burden of proof on HEI – it must prove the student is not fit to practise

• Standard of proof• s60A Health and Social Care Act 2008 Standard of proof in fitness to

practise proceedings is that applicable to civil proceedings.

• Sliding scale? Or take extra care to be fair?• The more serious the allegation, the more cogent the evidence will be

needed, and the more astute the courts should be to ensure that the trial process is a fair one. International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158

• Burden and standard of proof must be clearly identified in procedures

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Procedures

• Disciplinary or FTP?• Requirement of procedural fairness in each

• Is it clear to student what process is being followed?

• Parallel proceedings: complaint by student and FTP proceedings against student• Should FTP procedures wait until the complaint has been

investigated?

• What do procedures say?

• Balancing rights – what is a fitness issue?• Freedom of speech vs discrimination

• Right to private life vs requirements of profession

• What do the HEI’s policy documents say?

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Disability issues

“Good health means that a person must be capable of safe and effective practice without supervision. It does not mean the absence of any disability or health condition. Many disabled people and those with long-term health conditions are able to practise with or without adjustments to support their practice.” NMC Guidance on professional conduct

• Is the student disabled?

• If so, what provisions are we now applying to him?

• Do those provisions place him at a substantial disadvantage?

• What could be done to prevent that disadvantage?

• Would it be reasonable for us to take those steps?

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Disability issues: disclosure

• HEIs must encourage disclosure

• Responsibility on student to disclose

• Eg Nursing and Midwifery Council Guidance on Professional Conduct:

“Health concerns• failure to seek medical treatment or other support where there is a risk of

harm to other people• failure to recognise limits and abilities, or lack of insight into health

concerns that may put other people at risk”

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QAA Code for disabled students

• Disclosure should lead to discussion – will impairment affect student’s ability to qualify for registration?

• Fitness to practise requirements specified by professional or other body should be regularly reviewed.

• Staff should keep up to date with changes in FTP requirements of professional bodies and keep students informed.

http://www.qaa.ac.uk/academicinfrastructure/codeOfPractice/section3/Section3Disabilities2010.pdf

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Case Example 1 – Partly Justified• Student was interviewed after University found out that she was married

to a man who had sexual convictions against children – she had not disclosed.

• She had not disclosed that she had previously gone by another name & she had misrepresented her husband’s name in a number of documents.

• Found not fit to practise and withdrawn from the course.

• OIA found the complaint Partly Justified.

• Decision that she was not suitable to the course was professional judgment.

• BUT: there were concerns relating to fairness of initial investigation and the guidance that was available.

• Recommended University revise guidance and pay her £3000.

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Case Example 2 – Not Justified

• Nursing student with undisclosed dyslexia.

• Attended a Fitness to Practise Panel after complaints made about her while on placement.

• Found not fit to practise and was withdrawn from the course.

• OIA found the complaint Not Justified

• Why? • Procedure invoked due to genuine concerns regarding safety.

• Disability had not been disclosed & no evidence the issues giving rise to the Fitness to Practise Panel were related to her disability.

• Procedures were correctly followed.

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Case Example 3 – Partly Justified

• Disabled student given three informal warnings while on placement.

• At a formal meeting his placement is terminated.

• University investigate & find him guilty of plagiarism.

• Assessment Board considers placement termination & plagiarism and withdraw him from the course.

• OIA found complaint Partly Justified.• Procedural irregularities in the termination process.

• Penalty for plagiarism was reasonable.

• No evidence to show University had properly considered placement provision in light of his disabilities.

• Appeal decision therefore not reasonable.

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Case Example 4 – Not Justified

• Diagnostic Radiography student – reports from hospital about his behaviour.

• Practice Enquiry Meeting held and his placement was terminated and he was referred to a Fitness to Practise Panel who withdrew him from the course.

• OIA found complaint Not Justified.

• Why?• No evidence of racist antipathy towards student.

• Concerns about bullying and racism had not been raised previously.

• No procedural irregularities identified.

• University’s decision was reasonable and the penalty appropriate.

• Ultimate decision to withdraw him – academic/professional judgment.

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Why the OIA have found Fitness to Practise cases Justified/Partly Justified

• Unreasonable delay.

• Failure to follow University procedures/regulations.

• Failure to have regard for principles of natural justice (duty to act fairly).

• Student not made aware of all evidence to be considered.

• No proper records kept by University.

• University’s guidance and regulations/procedures not clear.

• Not having proper regard to student’s disability.

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