Professional Competence / Fitness to practice issues and the Inclusion of Disabled Students in College – Declan Treanor, Director College Disability Service Executive Summary The report evolved in response to both disabled students who were concerned over possible discrimination and academics concerned about supporting such students while at the same time maintaining adequate professional standards. From time to time a number of anecdotal borderline cases arose which illustrate the gaps in present practice, for example: Students with ongoing health issues or who experience fatigue find that the structure of the courses, and the practice education exhausting. There seem to be few strategies currently used to rationalise the workload. Some accreditation bodies require minimum hours of full-time or extended practice education. Students who are hard of hearing or deaf have experienced difficulties understanding speech in certain practice education settings, such as care of the elderly and in group situations. Compliance with equality legislation regarding ‘reasonable accommodation’ is a fairly realistic goal while the student is in 3rd level education, but placements and practice education are more problematic. Grey areas, then, exist around exactly which competencies are regarded as ‘core’ in any given profession. These are not always clearly defined in the learning outcomes for a given programme. Similarly, a situation exists whereby it is lawful – though, debatably, ethical to allow disabled students to complete a professional course, pass exams and then to take no further part in assisting them to gain employment. A seminar in TCD in January 2007 met to discuss to discuss the creation of a set of specific guidelines, particularly the creation of a pro-forma to handle matters arising from fitness to practice in order 1) to protect students from discrimination on the basis of disability; 2) to protect the College from liability arising from possible discrimination; and 3) to ensure sound academic standards within professional programs and for professional certifying bodies. Research was carried out to determine how other countries were dealing with this complex issue. In the UK, The Disability Rights Commission (DRC) has concluded that the arbitary health standards currently adopted are un unhelpful to either public or professions, and that a set of core competencies need to be decided and upheld. It is therefore concluded that a clear policy document needs to be in place to take account of relevant legislation protecting disabled students from discrimination and setting out guidelines for reasonable accommodation, competency levels, disciplinary procedures and disclosure of disability. In TCD a working group over an eighteen month period (2007-2008) chaired by the Dean of Students set out to develop College policy in this area. All professional course Schools representatives and other relevant stakeholder’s were invited to participate. This fitness to practice guidelines clearly set out procedures for dealing with fitness to practice cases and ensuring the School has ensured disabled students are reasonably accommodated. These guidelines are working their way through the relevant committee’s in College (Undergraduate and Postgraduate Committee) and it is expected this policy will be implemented before the end of this academic year. Background There are a number of students with a variety of disabilities registered with the Disability Service (DS), who are undertaking professional courses in Health Sciences, Teaching and other disciplines. These include the therapies, medicine, dentistry, nursing, teaching, post-graduate courses in psychology and social work. At the end of these courses, it is expected that students may work in a professional capacity. Each year, it is likely that disabled students will apply for these courses. The number of students with disabilities entering health sciences and other professional courses in College is increasing. At present there are one hundred and nine students rising from 77 in 2006 (total students with disabilities studying in TCD is 560). This figure obviously only relates to those who have actually disclosed a disability. Table 1: Number of students with disabilities in the Health Sciences and other professional courses, by course Number of Students 2006 7 14 0 8 1 6 5 2 13 Number of Students 2009 5 20 1 8 6 8 7 3 32 2 1 Psychiatric Nursing 3 0 Bach Science in Midwifery 0 2 Course Social Studies Medicine Human Genetics Occupational Therapy Radiotherapy Pharmacy Physiotherapy Dental Science Nursing Studies Intellectual Disability Nursing Page 2 of 13 Clinical Speech and Lang Studies 2 8 0 9 7 2 0 0 1 0 3 1 0 1 0 2 1 Msc. In Pallative Care 0 1 Msc. in Mental Health 0 2 0 1 0 1 Masters in Global Health 1 0 Masters in Health Science Management 1 0 0 1 0 2 77 115 B.Ed Education^ Marino Froebel Church of Ireland Professional Doctorate in Education PG Dip Education* Higher Diploma in Children's Nursing Post. Diploma in Midwifery Msc. Molecular Medicine Masters in Social Work Postgraduate Diploma in Community Pharmacy Phd in Physiology Doc in Phil in Molecular Medicine Total ^Disability: 5 SLD, 1 AS, 1 Medical, 1 Mental Health, 1 Physical *Disability: 1 Deaf, 1 SLD, 1 Medical Table 2: Breakdown of students’ disability/impairments in Health Sciences and other professional courses Disability Dyslexia Mental health Physical Disability Medical Number of Students 2006 Number of Students 2009 36 11 10 7 59 17 10 22 Number of Education Students 2009 7 1 2 2 Page 3 of 13 Deaf/Hearing Disability Visual/Blind 4 3 5 2 1 1 The experiences to date Experiences of students with disabilities and the departments involved had not been formally collected, although DS was aware of a number of anecdotal situations that had arisen. Examples include: TCD Higher Diploma in Education seems to attract deaf graduates due to positive experience of graduates of this programme (over the last five years and four deaf (ISL). Graduates of this programme are now teaching in the deaf schools in Cabra. Over half of the students in health sciences registered with DS have dyslexia. There have been a number of difficulties in relation to writing up notes in medical or discipline-specific files. One student has created a practice-specific word-book for use when in practice education settings. Others find that there is a lack of understanding of dyslexia, which has caused difficulties. A significant proportion of the students with mental health issues are studying Medicine. Some people have raised concern about safety issues and patient/client contact if and when a student with a mental health issue becomes unwell, particularly if he /she becomes psychotic. Students with ongoing health issues or who experience fatigue find that the structure of the courses, and the practice education exhausting. There seem to be few strategies currently used to rationalise the workload. Some accreditation bodies require minimum hours of full-time or extended practice education. A student with uncontrolled epilepsy – concerns was raised about the ability to find practice education settings, as well as health and safety in certain practical sessions. A student with a physical / medical disability had difficulty registering due to the practice education setting having concerns about health and fitness for the course. Reasonable accommodations are required in respect of certain clinical tasks. Students with back injuries or other physical disabilities may be expected to do moving and handling or other physical tasks, which may put them at risk. Generally “knowledge” of correct procedure is considered enough for clinical competence – but this standard may not be used for all departments / disciplines. Students who are hard of hearing or deaf have experienced difficulties understanding speech in certain practice education settings, such as care of the elderly and in group situations. Some students do not disclose their disability, particularly in the case of mental health issues. If there is no disclosure, then what is the position of College in relation to fitness to practice? Page 4 of 13 Factors that affected College’s response Disability and Equality legislation Under the Disability Act (2005), it is clearly illegal to discriminate against students on the grounds of disability. Therefore, College is not permitted to exclude students with disabilities. The law states that “reasonable accommodation” must be provided. These accommodations must be provided for all aspects of the course, including lectures, tutorials, lab-work and practice education settings. Reasonable accommodation may be relatively straightforward when it comes to in-College education, such as lectures, tutorials and lab-work. When it comes to practice education where there is patient/client contact, the situation may be more complicated. The UK Health Professions Council (2005), the regulatory body for thirteen health professions, states that it is the responsibility of the University to ensure that there is reasonable accommodation for disabled students in practice education settings. It further clarifies that students do not need to complete all types of practice to be registrable as professionals, but that it is the University’s responsibility to provide placements that best demonstrate students’ abilities to meet their standards (HPC, 2005). Reasonable accommodation, in relation to all aspects of medical / health profession education (including lectures, labs, practice education and even eventual employment) does include the provision of an assistant for the disabled person. A study of the situation for doctors with a disability in the UK states that one of the largest difficulties is the pre-registration year, in which certain elements (such as cardiac resuscitation) are essential for completion of the year, and hence registration. It is stated that exceptions and alternatives are made for disabled students, but that this is an ad-hoc arrangement and not satisfactory. The report calls for more guidance from the GMC (Roberts et al, 2004). There appears not to be clarity about who is responsible or if it is reasonable if a practice education setting refuses to take a student because they are disabled. Fitness to Practice Issues Fitness to practice has been defined as a person’s ability to practice their profession in a way which meets appropriate standards, meaning that a person has the skills, knowledge, attitudes, character and health to perform necessary functions safely and effectively (adapted from HPC, 2005). The discussion regarding admission of students with disabilities health science courses centres on the principle that admission to medical education implies selection for the medical profession (Council of Heads of Medical Schools, 1999). This is based on the current situation in the UK, whereby a medical degree entitles the graduate provisional registration with the GMC under the UK Medical Act, 1983 (Council of Heads of Medical Schools, 1999). Page 5 of 13 According to the UK Health Professions Council (2005), it is the responsibility of those providing approved courses to ensure that graduates of the course are able to meet the stated standards of proficiency for each profession. While there are standards for some professions in Ireland, this is a developing area in other professions, which will be further established when State registration requirements are enacted into law. Difficulties may arise in the interpretation of “Professional Standards”, for example, a required professional skill may be that a person has good listening and communication skills, which may be interpreted as good hearing and speech; a required behaviour may be the maintenance of notes, which may be interpreted as the ability to hand-write legibly. In the UK, the HPC draft guidelines (2005) and interpretations of the GMC “Good Medical Practice” (CHMS, 2001) both state that these interpretations of professional skills are inaccurate, and may be unlawful. It appears that an assistant is a reasonable and appropriate accommodation that does not jeopardise fitness to practice or registration, provided that the task performed by the assistant relies on the student’s skills, knowledge and experience rather than that of the assistant. This typically relates to the need for a student, for example, to have a full understanding of tasks (such as moving and handling) such that it is possible to direct an assistant, as the required professional skill. In the UK, it is the responsibility of admissions staff to decide whether a course can be delivered in a manner in which a student can complete the course and demonstrate the required standards of proficiency. Prejudicial views or actions, stereotypes or blanket expectations of what a person with a particular impairment can and cannot do may lead to unlawful action. It is likely that a similar line of responsibility applies here, with similar concern that certain actions, particularly to exclude a student with a disability may be unlawful under disability legislation. Who decides if a person is “fit to practice”, and when should this decision be made? Currently, there seems to be a mixture of influences on a decision, and premature assumptions (as described above) may be unlawful. The use of clearly stated, defined behavioural standards (such as core professional competences), as interpreted for those using reasonable accommodations would mean that if a student reaches those standards, then they can be seen to be fit to practice. If the student does not, they in effect “fail” the course. This approach implies that it will be necessary for the individual departments on behalf of the University to both provide the appropriate accommodations, but also to fail students, regardless of disability, if they do not meet the stated core competences. Alongside the fitness to practice issue may be the issue of whether or not a person will be employable. UK documentation states that employability is not the responsibility of the University. If, with reasonable accommodation a person has the required essential professional skills then, it appears, that the University’s duty is completed. Once reasonable accommodations have been provided by the University, and the graduate has demonstrated that he/she has the required competences, then it is the responsibility of the employer to make reasonable accommodations to employ a disabled practitioner. Page 6 of 13 Some may argue that it is ethically unsound to accept a disabled student if it is unlikely that they will be employable, but legally this is dangerous, and likely to be unlawful. Fitness to Practice Seminar – January 2007 A meeting was held in January to discuss issues relating to fitness to practice. The meeting was well represented by the health sciences, social work, and other services, such as the disability service, health services, Senior Tutors Office, Admissions Officer, the Mature Student Officer and CAPSL. There were a number of aims of this meeting, including to present the situation to those attending, to outline reasonable accommodations, and to begin a discussion which it was hoped would lead to the eventual production of a proforma to outline decision-making regarding fitness to practice, to enable College to successfully manage both duties of non-discrimination and ensuring that graduates are competent and fit to practice. Outcome of the meeting A summary of the discussion outcomes are outlined below. A suggestion for mandatory health checks / medical declaration on an annual basis was suggested, subject to a feasibility study. This, based on subsequent review of recent findings may, however, be discriminatory (see section below). College information (prospectus, calendar etc.) needs to be reviewed and updated, as necessary, to ensure that they are not discriminatory. A clear fitness to practice statement is needed in College documentation. Schools and departments, in collaboration with the Professional Bodies need to establish core competencies, which are “reasonable, quantifiable, rigorously defensible, and universally applied”. One suggested mechanism for achieving this goal is to make a SIF application for funding to support the work. Within College, there needs to be a clear decision regarding the provision of reasonable accommodations. This should include a pilot study with Academic Support Tutors doing on-site work in Nursing. Separate procedures are needed to deal with disability / mental health and disciplinary issues that deal with potential fitness to practice issues. The defining goal is the creation of a pro-forma to handle matters arising from fitness to practice in order 1) to protect students from discrimination on the basis of disability; 2) to protect the College from liability arising from possible discrimination; and 3) to ensure sound academic standards within professional programs and for professional certifying bodies. Some of these conclusions were reconsidered based on the recommendations from the formal investigation of the DRC in the UK, which is described below. Research - DRC Report in the UK The Disability Rights Commission (DRC) in the UK undertook a formal investigation, “ examining the barriers that disabled people (including people with long-term health conditions) face when entering, and staying in nursing, teaching and social work... specifically… the barriers posed by the statutory regulation of health in these professions” (p. 5). The investigation involved a Page 7 of 13 number of pieces of research and formal panel inquiry elements. Results of the investigation and the research sub-components are all available at http://www.maintainingstandards.org/ The investigation focused on three main areas, these being: regulation, particularly pertaining to health and fitness; assessment of health status and disclosure of disability. Health Standards and Core Competences One of the key findings of the formal investigation was that “the statutory regulation of ‘good health’ and ‘physical and mental fitness’ for students and professionals in nursing, teaching and social work has a negative impact on disabled people and offers no protection to the public” (p174). The purpose of including health requirements is to safeguard the public, and its inclusion as a statutory regulation followed reports into prominent incidents where professionals caused harm to the public, such as the Clothier report into the actions of Beverly Allitt and the report into the actions of Harold Shipman. The DRC found that there were significant gaps, particularly in the Clothier report, and that systems such as appropriate monitoring, supervision and management are more likely to reduce the risk of harm to the public than health requirements. Another concern is that use of these health standards may provide a false sense of security for the professions, as they were found to be ineffective in managing risk to the public. The recommendation is that all arbitrary health standards should be revoked. The DRC recommend the establishment of core competences. It found that the health regulation was not a legitimate competence, (as defined in the DDA), because it does not determine competence to practice and it also leads to discriminatory practices. The discrimination arises as a result of the assumption that disabled people may pose a risk to the public, but the DRC found no evidence to support this assumption. Recommendation 17 is to, “Maintain high professional standards for disabled and non-disabled students alike but not prejudge the professional competencies of disabled applicants or students.” “We consider, in the light of the extensive evidence we received… an academic, competence and conduct framework (with reasonable adjustments, where appropriate, including as to how any standards are to be achieved) with a focus on the skills actually needed is entirely sufficient to meet the needs of the profession. Competencies should be reviewed to ensure that they are designed around the skills and knowledge needed for that profession, bearing in mind that there are a variety of job roles within each profession and that most people – whether disabled or not – would not be suited to all of them. Testing a person for their competencies and ensuring that those who commit serious acts of misconduct cannot practice is a much more rational basis for regulating the profession than arbitrary health standards. A diagnostic label is valueless in measuring competence and conduct. Health might be material to compliance with competence or conduct standards, or may not be, but diagnosis is irrelevant in determining competence or conduct.” (DRC Report, p.90) Page 8 of 13 Need for clear policy that reflects disability (and non-discrimination) legislation A finding of the formal investigation that is particularly pertinent to College is that third level institutions in the UK tended to have generic statements and policies around disability, but that they lacked specific policies that balance the need not to discriminate with the need to recommend disclosure of disability and ensure fitness to practice of disabled students. A recommendation is that, as a matter of urgency, higher education institutions (HEIs) need to put such policies in place. It was also found that transparency in the decision-making process is important to reduce the risk of discrimination. It is recommended that a more specific policy document can facilitate transparency. It is suggested that the policy document should apply disability legislation (the DDA, in the case of the UK) into clear, substantive and tangible procedures and practices. As with HEIs, it was found that the professional bodies lack reference to disability (and anti-discrimination) legislation in their codes of practice or ethics, and that this needs to be included. Cases where disciplinary and other issues arise in conjunction with disability At times, issues of discipline arise where there is also a health or disability element. The DRC report suggests that these should be dealt “fairly and sensitively”, and there is protocol within the DDA for hearings of this nature. There is a two-stage approach to dealing with issues where discipline and disability occur together. The first stage is to examine whether the disciplinary issues or poor performance is due to a lack of appropriate accommodations for the person, i.e. whether if accommodations were in place, the behaviour or performance would have been better. If this is the case, then the disciplinary aspect of the hearing is abandoned, and the appropriate supports are put in place, for future review. The second important stage is to ensure that reasonable accommodations are in place for the actual hearings of disciplinary issues. The DRC report recommends clear, consistent disciplinary procedures for all, which are entirely separate of disability. It is suggested that having clear disciplinary procedures in conjunction with clear competence standards is likely to be the most effective means to ensure fitness to practice. Disclosure of disability It is recognised that disclosure of disability is the ideal. Upon disclosure, reasonable accommodations should be provided to the person. It may be possible to have mandatory disclosure, but the DRC has found that this can result in people being more afraid to disclose or seek reasonable accommodations. It is strongly argued that generalised health questions are not appropriate, nor do they provide adequate or specific information. Using generalised health questions were found to be more likely to lead to prejudicial views, resulting in an increased risk of discrimination. Page 9 of 13 A difficulty with health standards that was identified by the DRC is that they are more likely to result in non-disclosure of disability, particularly in the case of people with mental health issues. It is argued that non-disclosure in turn has resulted in character judgements being made if or when a crisis happens, and a student needs to subsequently disclose their disability. It is recommended that a failure to disclose is not taken as evidence of bad character (recommendation 16). Non-disclosure can also result in a lack of reasonable accommodation for the disabled practitioner or student, which may improve the person’s ability to work effectively and safely. Non-disclosure is understandable, due to negative attitudes and assumptions, but is described as unsatisfactory, and in no way could be said to be in the public interest. It is recommended that strategies to promote and support disclosure be put in place, which lead to reasonable accommodations and safeguard the disabled student or practitioner. Placements / Practice Education Practice Education was found to be an area of particular difficulty. This is reported to be because supervisors / practice settings are unaware of disability legislation, and also because the HEIs were found to be poor at communicating reasonable accommodation requirements to practice educators. Further work and research recommendations The DRC report recommended that research about the provision of reasonable accommodations is needed. This should include both the university-based and practice education settings, so that information about good practice can be compiled (recommendation 11). This would also be useful for College, and within the Irish context. Findings The DRC has found evidence of discrimination in the higher education sector against students wanting to train in nursing, teaching and social work. The influence of the statutory and regulatory frameworks requiring physical and mental fitness is less obvious at the employment stage. …There is a widespread practice of health screening, which is frequently not related to the specific job role. This has the potential to lead to discrimination and to deter disabled people from applying for jobs or from disclosing disabilities and long-term health conditions. Found no evidence that the use of generalised health standards is an effective way of assessing or managing risk All the regulatory bodies, across England, Scotland and Wales, should review their competence standards to ensure that any negative impact on disabled people is eliminated. They should provide guidance on reasonable adjustments and consider what other guidance to provide to encourage others (such as higher education institutions) to adopt an enabling approach to disabled people. Page 10 of 13 The health standards, with their implicit assumptions about the ‘risk’ from disabled people within these professions, discourage positive organisational cultures. There is evidence that disabled people, where they recognise that they are covered by the DDA, gain real confidence from this legislation and feel empowered to negotiate with their higher education institutions about adjustments as a result of it. In contrast to this, the DRC’s Inquiry Panel heard repeatedly that the regulations requiring good health or physical and mental fitness create a climate where disability is not perceived positively, so affecting people’s willingness to disclose and to ask for adjustments. a framework of professional standards of competence and conduct, coupled with effective management and rigorous monitoring of practice, is the best way to achieve equality for disabled people and the effective protection of the public. Based on the conclusions of the discussion meeting held in January 2007 and the report of the DRC, it appeared clear that a number of steps were essential to enable College to balance non-discrimination with maintaining standards of practice. These included: The establishment of clear guidelines (or a pro-forma) that deal specifically with both disability / equality legislation and the fitness to practice issues. The pro-forma should include the decision-making route throughout a student’s (or prospective student’s) experience in College. An audit of all College documentation to assess its compliance with disability and equality legislation. The separation of disability and disciplinary issues, resulting in the production of separate policies / procedures. The suggestion of linking closely with professional bodies to establish clear, legitimate core competences remains highly relevant, and an important step. The recommendation from the January meeting, to apply for funding under the strategic innovation fund for this purpose should be considered. Development of a Fitness to Practice Policy in College A working group was set up by the Dean of Students in conjunction with Schools in College. The objective of this working group was to develop guidelines about Fitness to Practice that both reduce the likelihood of discrimination, and ensure that those graduating from professional courses are fit to practice. DS specific objectives in this area were: To discuss and decide what are College’s responsibilities under relevant legislation (Disability Act 2005 and Equality legislation), including reasonable accommodations for practice education settings To clarify what constitutes reasonable (and unreasonable) accommodations for students with disabilities undertaking professional courses To start the process to produce a pro-forma in relation to decision-making around admissions, reasonable accommodations and practice education Page 11 of 13 This group met over an eighteen month period and a draft discussion document (appendix 1) was presented the Undergraduate and Postgraduate Committee’s in College in February 2009. It was adopted by Council and Board in April and May 2009. The document contains guidelines for Schools and Course Committees on the content of school/departmental fitness to practice policies, together with recommendations on new procedures for dealing with fitness to practice cases. The report outlines the substantive elements of the policy noting that relevant Schools/disciplines should when formulating a policy address (i) the competencies that are being assessed in the specific course and/or placement, (ii) whether the competency requirement is justifiable in relation to each specific course and/or placement, (iii) how competencies are assessed, and (iv) in the case of a student with a disability, whether the School/discipline has engaged with the Disability Service to determine how the student’s needs might be reasonably accommodated. The adoption of this policy is a positive step and will protect students who disclose a disability and seek reasonable accommodations in placements as part of their professional courses. The Disability Service continues to engage with relevant schools in supporting them to identify problem areas in placements and in understanding the reasonable accommodation process in work based environments. The policy is available on the TCD webpage at: http://www.tcd.ie/disability/projects/fitness/index.php Page 12 of 13 References ‘Fitness to Practise in the Medical Profession’ – A Report to Universities UK and the Council of Heads of Medical Schools by Eversheds Solicitors (July 2001) (http://www.chms.ac.uk/fastuds.htm) Council of Heads of Medical Schools (CHMS) (1999) Guiding Principles for the Admission of Medical Students CHMS (http://www.chms.ac.uk/fastuds.html) Disability Act, 2005 Health Professions Council (2005) A disabled person’s guide to becoming a health professional. Consultation document London: The Health Professions Council. Medical Council (2004) A Guide to Ethical Conduct and Behaviour 6th ed. Dublin: Medical Council (Ireland) Roberts, T., Butler, A., Boursicot, K. (2004) The Higher Education Academy, Special Report 4: Disabled students, disabled doctors – time for a change? A study of different societal views of disabled people’s inclusion to the study and practice of medicine Newcastle-upon-Tyne: The Higher Education Academy. Fitness Standards Formal Investigation - The Disability Rights Commission (DRC) launched a general formal investigation (FI) on 22 May 2006 looking at the barriers people with impairments and long-term health conditions face in trying to pursue careers in teaching, nursing and social work.Maintaining Standards: Promoting Equality Professional regulation within nursing, teaching and social work and disabled people’s access to these professions Disability Rights Commission. Available at www.naintainingstandards.org/ Bibliography / Further Reading Council of Heads of Medical Schools (CHMS) (2005) Recommendations on Selection of Medical Students with Specific Learning Disabilities including Dyslexia Wray, J., Fell, B., Stanley, N., Manthorpe, J., Coyne, E. (2005) Best Practice Guide: Disabled social work students and placements Hull: The University of Hull ‘Good Medical Practice’, General Medical Council, (Third Edition, May 2001) (http://www.gmc-uk.org/global_sections/search_frameset.htm) ‘QAA Subject Benchmark Statements: Medicine’, The Quality Assurance Agency for Higher Education (2002) (http://www.qaa.ac.uk/crntwork/benchmark/phase2consult.htm) ‘Tomorrow’s Doctors’, General Medical Council (July 2002) (http://www.gmcuk.org/med_ed/default.htm) ‘Student Health and Conduct: Guidance for Universities and Medical Students’, General Medical Council (November 2002) (http://www.gmcuk.org/med_ed/default.htm) Page 13 of 13