Regulation of Health and Social Care Professionals Consultation

Question 9-22: Should the statute guarantee the right of registrants to give
evidence at Interim Order hearings?
Provisional Proposal 9-23: The right of appeal against an Interim Order should
continue to be to the High Court in England and Wales, the Court of Session in
Scotland and the High Court in Northern Ireland.
FINAL SANCTIONS AND OTHER DISPOSALS
9.89 All Fitness to Practise Panels have powers to impose sanctions following a
finding that a professional’s fitness to practise is impaired. It is well established in
case law that the purpose of sanctions is not punitive but to protect the public,
although they may have a punitive effect. 65 However, commentators have pointed
out that the rationales for sanctions and punishments share much common
ground, such as seeking to communicate to society the unacceptability of a given
conduct. 66 In addition, some Panels have powers to agree consensual forms of
disposal.
9.90 As discussed in Part 7, the final decision as to whether a registrant should be the
subject of a formal sanction is informed by an assessment of whether or not their
fitness to practise is impaired at the time of the hearing. 67 The system therefore
allows for factors such as insight, contrition and remediation to be taken into
account. Even if the professional’s fitness to practise is found to be impaired, the
Panel may take no action, for example where they have demonstrated
considerable insight and undertaken remedial action. But in the overwhelming
majority of cases a sanction will be imposed.
Erasure
9.91 Erasure from the register is the most severe sanction available to a Panel. The
effect of erasure is that the registrant is not able to practise during the period of
erasure. The General Medical Council’s guidance suggests that in accordance
with the principle of proportionality, this sanction is available only where this is the
only means of protecting the public and the wider public interest. 68 In most cases,
erasure is not an option available where the allegations relate solely to health.
The Health Professions Council and the Nursing and Midwifery Council also do
not have a power to erase in most cases relating solely to performance. 69 Former
registrants whose registration entry has been erased can apply to be restored to
the register once a minimum period has passed (see Part 5).
65 See, for example, Raschid v General Medical Council [2007] 1 WLR 1460 at [18] and
Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] 1 QB 462 at [32].
66
See F Zacharias, “The Purpose of Lawyer Discipline” (2003) 45 William and Mary Law
Review 2, 675.
67 Zygmunt v General Medical Council [2008] EWHC 2643 (Admin).
68
See, General Medical Council, Indicative Sanctions Guidance for the Fitness to Practise
Panel (2009) para 77.
69 Health Professions Order 2002, SI 2002 No 254, art 29(6) and Nursing and Midwifery
Order 2001 SI 2002 No 253, art 29(6).
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