Regulation of Health and Social Care Professionals Consultation

THRESHOLD TEST
8.52 Having undertaken the appropriate inquiries, the regulator must decide whether
or not to refer the case to a Fitness to Practise Panel. Some regulators make this
decision by reference to a threshold test stated in the legislation itself; for
example, whether there is a “real prospect” that the regulator will be able to
establish at a hearing that the registrant’s fitness to practise is impaired or
whether there is a “case to answer”. 42 The other regulators do not have a specific
test stated in their legislation. 43
8.53 However, the practice adopted by all the regulators, irrespective of whether or not
this is stated in their legislation, is to use the “real prospect test”. 44 That test is
derived from Swain v Hillman where Lord Woolf MR noted:
The words “nor real prospect” do not need any amplification, they
speak for themselves. The word “real” distinguishes fanciful prospects
of success … or, as [Counsel] submits, they direct the court to the
need to see whether there is “realistic” as opposed to a “fanciful”
prospect of success. 45
8.54 Most cases do not make it to a final stage fitness to practise hearing because
during the investigation stage the regulator decides that the complaint does not
meet the threshold test. 46 As described in Part 10, the Council for Healthcare
Regulatory Excellence has powers to audit the regulators’ decisions not to refer
individual cases.
Provisional view
8.55 Our provisional view is that the statute should state the threshold test for a
referral to a Fitness to Practise Panel. This test is an essential part of the fitness
to practise procedures, and it is important that the public and practitioners are
clear about what the test is and when it applies. In practice all the regulators have
adopted the real prospect test. In our view, this is relatively straightforward and
easy to understand and apply.
8.56 We therefore provisionally propose that statute should state clearly that the test
for referrals to all Fitness to Practise Panels is whether there is a real prospect
that the registrant’s fitness to practise will be found to be impaired. This test will
be consistent across the regulators. The Council for Healthcare Regulatory
42 For example, the General Pharmaceutical Council (Fitness to Practise and Disqualification
etc) Rules Order of Council 2010, SI 2010 No 1615, refers to a “real prospect” (r 9(7)(a))
and the Nursing and Midwifery Order Council Order 2001, SI 2002 No 254, refers to “case
to answer” (art 26(2)(d)(i)).
43
The General Dental Council, General Medical Council, and General Optical Council do not
specify a test.
44
See, for example, Health Professions Council, Practice Note: Case to Answer
Determinations (2011) p 1.
45 [1999] EWCA Civ 3053, [2001] All ER 91 at [7].
46 Council for Healthcare Regulatory Excellence, Fitness to Practise Audit Report: Audit of
Health Professional Regulatory Bodies’ Initial Decisions (2011) para 2.8.
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