Regulation of Health and Social Care Professionals Consultation

that many of the regulators have developed a single Fitness to Practise
Committee or Panel. Moreover the use of categories for allocating cases has
always been problematic given that in practice allegations overlap so that a single
case may demonstrate one or more of the different categories.
7.48 In order to address these difficulties, an alternative option for reform would be to
remove the statutory grounds for impairment altogether and introduce a simplified
test of impaired fitness to practise based on whether the registrant poses a risk to
the health, safety or well-being of the public (and whether confidence in the
profession has been or will be undermined). The precise form of words will
depend on the eventual approach that is taken to the main duty of the regulators
(see Part 3)
7.49 We envisage that this option would operate as a two-stage test:
(1) the regulator would need to consider whether the facts alleged are
proved and if so, whether they indicate that the Registrant is a risk to the
health, safety or well-being of the public (and whether confidence in the
profession has been or will be undermined). A wide range of evidence
could be gathered as evidence and would not be restricted to any
predetermined categories; and
(2) the regulator would need to consider on the basis of those facts, whether
the registrant’s fitness to practise is impaired.
7.50 Arguably, this option for reform would be clearer and more straightforward than
the current system, and would emphasise the paramount duty of professional
regulation (see Part 3). In effect, any evidence of risk to the public (and that
confidence in the profession has been or will be undermined) could be submitted
to support an allegation and it would not be necessary to prove that the evidence
amounted to pre-existing categories such as misconduct or deficient professional
performance.
7.51 On the other hand there may be concerns that by removing the statutory
grounds, the threshold for an allegation will be reduced. In effect, allegations
would not necessarily have to meet the criteria of, for example, misconduct or
deficient performance but would merely have to indicate a potential risk to the
health, safety or well-being of the public (and that confidence in the profession
has been or will be undermined). This may mean an increase in the number of
cases which are referred to formal fitness to practise proceedings.
PROVISIONAL VIEW
7.52 There are three options for reform that we wish to test at consultation. The first is
option 2 (consolidation of the existing framework) which would establish a single
framework for determining impaired fitness to practise based on the current twostage
approach. The second is option 3 (the Shipman Inquiry proposal) which is
based on a two-stage test at the investigation stage, and a further test at the
46 G Micklewright and B Lapthorne, “Impairment of Fitness to Practise: Is the Concept
Undermining Public Confidence in Professional Regulation?” (2011) Association of
Regulatory and Disciplinary Lawyers Quarterly Bulletin (March), 1.
132