Regulation of Health and Social Care Professionals Consultation

It identifies the various types of activity which will arise for
consideration in any case where fitness to practise is in issue; it
requires an examination of both the past and the future; and it distils
and reflects, for ease of application, the principles of interpretation
which appear in the authorities. It is, as it seems to me, entirely
consistent with the judicial guidance to which I have already referred,
but is concisely expressed in a way which is readily accessible and
readily applicable by all Panels called upon to determine this
question. 44
7.44 However, the potential disadvantages of this approach are discussed in more
detail under option 4 below.
Option 4: risk to the public/confidence in the profession approach
7.45 There are several existing difficulties that are apparent in determining impaired
fitness to practise. First, the current system is difficult to understand for
complainants and the public due in part to the use of imprecise and confusing
concepts. For instance, what amounts to deficient professional performance and
how it differs conceptually from misconduct can sometimes appear obscure.
Furthermore, as the Shipman inquiry pointed out, in most cases of misconduct
and convictions “impairment of fitness to practise is not a helpful concept”; where
a registrant has been found guilty of the theft of a pair of shoes from a shop or
falsifying medical records, they might be considered a disgrace to the profession
or untrustworthy but it is difficult to say that their fitness to practise was
impaired. 45 It has also been argued that complainants find it difficult to
understand why a Panel can find that a professional has committed professional
misconduct and caused considerable suffering but no sanction is handed down. 46
7.46 Second, it is not clear why is it necessary to prove facts by reference to a list of
pre-determined and largely pejorative legal categories of impaired fitness to
practise. The use of statutory grounds appears to limit unnecessarily the scope of
the evidence that can be produced. For example, conduct which does not fall
within the legal definition of misconduct or deficient performance cannot be taken
into account or can only be taken into account insofar as it is relevant to these
categories. It is at least arguable that in such cases the focus should be on
proving the facts by reference to the need to protect the public rather than
engaging in protracted and unnecessary legal argument about whether the
admission of evidence is relevant to a number of predefined categories.
7.47 The use of statutory grounds for impaired fitness to practise is associated with
the statutory committee system. Dividing allegations into categories was
historically a means through which fitness to practise cases could be siphoned off
to the relevant statutory committee, such as the health or conduct committee.
However, the use of categories for allocating cases is less relevant today given
44 Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council [2011]
EWHC 927 (Admin), [2011] ACD 72 at [76].
45 The Shipman Inquiry Fifth Report: Safeguarding Patients, Lessons from the Past –
Proposals for the Future (2004) Cm 6394, para 25.45.
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