Regulation of Health and Social Care Professionals Consultation

to us that these powers may not be effective and that the regulators should have
the ability to access information in cases where a decision to bar an individual
had not been taken (such as if an individual is under consideration for inclusion in
the relevant barring list). Moreover we are interested in any difficulties or practical
issues that arise as a result of the interface between professional regulation and
the different safeguarding schemes in England, Wales and Northern Ireland and
Scotland.
7.36 Following the list of statutory grounds, the statute would then provide that if the
allegation is proved to the requisite standard, the Panel must decide whether or
not the practitioner’s fitness to practise is impaired.
7.37 The establishment of a two-stage approach in the statute would have the
advantage of maintaining a system with which the regulators are familiar and of
preserving legal concepts that have been the subject of a long history of case law
which are now largely settled. However, the major disadvantage of this option is
that it fails to address some of the existing difficulties that are apparent in
determining impaired fitness to practise. These are discussed in more detail
under option 4 below.
Option 3: the Shipman Inquiry proposal
7.38 Under option 2 above, impaired fitness to practise would remain undefined. This
has the advantage of flexibility, being capable of embracing a multiplicity of
problems, but also has the disadvantages that flow from a lack of clarity and
definition, which include ongoing disagreements regarding both the meaning of
impaired fitness to practise and the nature and quality of the evidence that can be
relied upon. 39
7.39 The Fifth Report of the Shipman Inquiry argued that there are two stages at
which a clear definition of impaired fitness to practise is required. The first is at
the investigation stage and the second at the adjudication stage. The report
recommended the following two-stage test at the investigation stage which
related the impairment of fitness to practise to the underlying reasons why the
practitioner’s fitness to practise might be impaired:
(1) is there one or more allegation of misconduct, deficient professional
performance, or adverse health, and/or one or more allegation of
conviction, caution or determination which if proved or admitted might
show that the practitioner:
38 This would consist of a conviction or caution in the “British Islands”; an order under section
246(2) or (3) of the Criminal Procedure (Scotland) Act 1995 discharging the person
absolutely (admonition and absolute discharge); a conditional offer under section 302 of
the Criminal Procedure (Scotland) Act 1995 (fixed penalty: conditional offer by procurator
fiscal); agreement to pay a penalty under section 115A of the Social Security
Administration Act 1992 (penalty as alternative to prosecution); and agreement to be
bound over to keep the peace by a magistrates’ court in England or Wales.
39 See, The Shipman Inquiry Fifth Report: Safeguarding Patients, Lessons from the Past –
Proposals for the Future (2004) Cm. 6394, para 25.42 and Martin Forde QC, “Impairment
of Fitness to Practise: has the Pendulum Swung?” (2009) 15 Clinical Risk 2, 64 to 68.
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