We're often asked the question: What is fitness to practise? Mark Stobbs, our Director of Scrutiny and Quality, gives us a breakdown of what it means and explains how crucial it is to public protection.
Regulation has its own terminology and jargon and it isn’t always easy for the public to understand what’s involved or what’s meant.
The term 'Fitness to Practise' is a good example. It is the process the health and social care regulators use to deal with complaints or concerns about their registrants. Other sectors call it 'discipline' or 'complaints handling'. In health, calling it 'fitness to practise' is helpful because it emphasises that the key question is whether the registrant is ‘fit’ to provide health or social care to the public and, if not, what action should be taken. In this case ‘fit’ doesn’t just look at their health, but also at their competence and whether they are a ‘fit and proper’ person to be a member of a profession The system aims to:
- ensure the public receives safe care
- uphold professional standards
- maintain public confidence in the profession.
But what does this mean in practice? Different regulators have different processes (and use different terminology) but the key points are similar.
The system looks at cases of:
- Lack of competence
- Criminal convictions
- Health conditions
- Poor knowledge of English.
Let’s look at what these concepts mean and how the panels which have to decide these cases might look at them.
Misconduct doesn’t have a legal definition, but the courts have made clear that it means seriously bad behaviour that other professionals would think of as 'deplorable'. This can apply to conduct both in a registrant’s professional and private life. Obvious examples include:
- Breaching professional boundaries
- Sexual misconduct and abuse
- Serious clinical errors
- Racist, sexist, homophobic or other discriminatory behaviour.
And there are many others.
Equally, there are a number of things that aren’t serious enough to amount to misconduct and which don’t worry regulators. These include:
- Single, minor mistakes that don’t cause any harm
- Disputes over fees or poor service – though some regulators provide mechanisms for resolving these disputes
- Matters that are legal, part of a registrant’s private life and don’t have a link to their clinical practice – disputes over a game of Monopoly or, more seriously, around divorce or similar matters aren’t a regulator’s business
- Employment matters – some things like poor time-keeping or breaching an employer’s rules are rarely serious enough to be misconduct and, unless they involve dishonesty, harassment or other very serious conduct, should be dealt with by the employer.
Lack of competence
This covers cases where there’s a pattern of mistakes which, while not individually serious, suggests that the registrant may not be competent to provide care safely.
It’s important that regulators are aware of convictions or cautions and can decide if someone with these on their record is suitable to stay on the register, while recognising that some minor matters may not need action.
Many people have health conditions. Some are temporary and just need a short time off work. Others are life-long but can be managed without affecting patient safety. Regulators shouldn’t be interested in these cases. However, they need to act if the condition does cause a risk to patients, particularly if the registrant isn’t managing it well. Obvious examples are addictive illnesses and some mental health conditions where the registrant isn’t following medical advice.
Registrants obviously need to be able to communicate properly with patients and other professionals. Many regulators will use independent testing, such as the International English Language Test System (IELTS) to be satisfied that a registrant’s English is at the right level.
If a panel finds that concerns in one of those categories are well founded, it has to consider whether the registrant’s fitness to practise is 'impaired'. More jargon. To decide this, the panel has to ask whether, at the time of the hearing:
- The registrant presents a risk to patient safety – the panel will look at the registrant’s insight into what went wrong, remorse and any training that they have done and consider whether there’s a risk of repetition
- Professional standards need to be upheld
- Public confidence in the profession needs to be maintained
So, a registrant may well have made a number of errors but, if they have reflected, trained and understand why it happened and can show the error is unlikely to happen again, then they may well be not impaired. At that point, the process ends.
Equally, however, an incident may be so serious that simply being able to show that you’re not likely to repeat may not be good enough. The panel needs to consider whether the conduct is so serious that the profession needs to be sent a signal that it’s unacceptable, and the public reassured that the regulator will take action.
If the panel decides that the registrant’s fitness to practise is impaired, it then decides the sanction. In some exceptional cases, it can decide that no sanction is appropriate. Typically, panels can impose the following sanctions:
- A caution or warning – which is on the registrant’s record usually for up to five years. This doesn’t stop them practising but it marks the fact that something inappropriate happened.
- Conditions of practice – usually this might require the registrant to undertake further training, or be supervised. Usually conditions are used where there are clinical concerns or where the registrant has a health condition. They give the registrant time to put things right.
- Suspension – this prevents the registrant practising for up to a year and is used where conditions aren’t suitable (perhaps because the registrant hasn’t taken part in the process and there’s no evidence that they’ll comply with the conditions) or where the misconduct is very serious.
- Removal from the register (sometimes called erasure and informally known as 'striking off') – for the most serious conduct where nothing less will do to mark its seriousness or maintain confidence.
Suspensions and conditions are usually reviewed after a period of time, particularly if there are actions that a registrant needs to take to show that they will be fit to practise. A panel can then decide whether the concerns have been addressed or if a further sanction is needed.
So, where there are concerns about a registrant, the process tries to look at the seriousness of the matter and what needs to be done to reach a proportionate outcome that protects the public. When thinking about it, it’s important to remember:
- The process is there to deal with serious problems that affect patient safety or compromise high professional standards
- It’s meant to be forward looking – its main purpose isn’t to punish the registrant but to protect the public and maintain high standards
- These decisions often aren’t easy – facts are often complex and may not point to an obvious outcome – adults can disagree about the seriousness of a matter and the right sanction.
The Government is looking to reform the system. As part of that, it would be good if it could ensure that all the regulators at least use the same language.