Learning from Complaints:
Fitness to Practise
Felicity Mitchell
Siobhan Hohls
11 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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