Regulation of Health and Social Care Professionals Consultation

PART 7
FITNESS TO PRACTISE: IMPAIRMENT
7.1 Parts 7, 8 and 9 of the consultation paper consider the fitness to practise
process, and how it should be provided for in the new statute. Fitness to practise
attracts a significant amount of public and media attention and is undoubtedly the
most high profile aspect of the regulators’ work. The costs of running a fitness to
practise procedure also take up a substantial proportion of the regulators’
resources. 1 This Part considers how impaired fitness to practise is determined.
The following Parts consider the procedures that apply once an allegation of
impairment has been made, namely investigation and adjudication.
7.2 Before 2004, all the regulators approached the task of determining a
practitioner’s fitness to practise by focusing on whether the facts alleged have
been proved to the requisite standard. In order to do this, most regulators ran
three separate legal processes to which cases were allocated at an early stage:
health, conduct and performance. This produced difficulties of demarcation and
procedural complexity. In 2004, amendments to the Medical Act 1983 introduced
a new unified procedure at the General Medical Council under the jurisdiction of
the Fitness to Practise Panel. This procedure inserted an additional stage
whereby if the facts alleged are proved to the requisite standard the Panel must
then decide whether or not the practitioner’s fitness to practise is impaired. In
effect, fitness to practise determinations consist of three distinct stages: the fact
finding stage, the fitness to practise finding and sanctions. It follows that not
every case of misconduct or deficient performance will mean automatically that
the practitioner's fitness to practise is impaired. 2 This approach has since been
adopted by all the regulators.
7.3 This Part of the consultation paper considers the first two stages of fitness to
practise determinations: the fact finding stage and the fitness to practise finding.
The sanctions stage is considered in Part 9.
THE FACT FINDING STAGE
7.4 At the first stage, the task for the Panel is to consider whether the facts alleged
are proven and, if so, whether those facts amount to the statutory ground
specified in the allegation. The statutory grounds are legal categories of conduct
or explanations of conduct which form the basis of a finding of impaired fitness to
practise. The principal statutory grounds fall under the following headings:
misconduct; deficient performance; convictions and determinations; and health.
7.5 The statutory grounds often vary between the regulators. There is also
considerable overlap between the different grounds, such that a single case may
demonstrate one or more of the different categories.
1 For example, in 2000 the General Medical Council spent just under £15 million on fitness
to practise and in 2010 this increased to just under £44 million out of a total expenditure of
£87 million. See, General Medical Council, Reform of the Fitness to Practise Procedures at
the GMC: Changes to the Way We Deal with Cases at the End of an Investigation: A
Paper for Consultation (2011) p 17.
2
Cohen v General Medical Council [2008] EWHC 581 (Admin), [2008] LS Law Medical 246
at [63].
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