Checking and appealing fitness to practise decisions

One of our key oversight roles is reviewing decisions made by regulators' fitness to practise panels. This is where concerns or complaints about health and care professionals are reported to regulators, investigated and can result in fitness to practise hearings. The regulators send us final fitness to practise panel decisions. We check all of them and can appeal those decisions we believe do not protect the public adequately. (There is a more detailed explanation below.)

How our fitness to practise process works

The 10 statutory professional regulators we oversee have a ‘fitness to practise’ process for handling complaints or concerns about health and care professionals on their registers. The most serious cases are referred to formal hearings known as fitness to practise panels or committees. The regulators send us the final decisions made by their fitness to practise panels. We check them and where we identify any issues or have concerns, we ask for more information. 

We review this information to identify whether the panel decision is wrong or unjust because of a serious or other procedural irregularity, and if so, whether the decision may be insufficient to protect the public.

What happens when we identify a concern

If we have concerns about a panel decision and believe it poses a risk to public safety, does not maintain public trust in the health and care professions, or uphold professional standards, we can refer it to the relevant Court for further consideration. The Court has strict rules and time limits to follow when making a judgment about the panel decision.

We also have the power to join an appeal brought by the General Medical Council.

Our power to review these  decisions comes from Section 29 of the NHS Reform and Health Care Professions Act 2002. This is why we often use ‘Section 29’ as our shorthand when referring to this power.

You can read more about the Section 29 process here.

What happens if we decide not to appeal

We will only refer panel decisions to Court if there is no other effective way of protecting the public.

Where we have identified concerns with a panel decision but have decided not to refer it to Court, we will share our concerns and any learning with the regulators. 

Read our learning points bulletin

Protecting the public

When we review a panel decision, we can't just disagree. In considering whether the panel decision is sufficient for public protection we must carefully consider the following three questions:

  • Will it protect the health, safety and wellbeing of the public?
  • Will it maintain public confidence in the profession concerned?
  • Will it maintain proper professional standards and conduct for members of that profession?

As part of our consideration of these questions, we need to consider whether the panel’s decision is materially wrong or unjust because of a serious of other procedural irregularity.

Court powers

The Courts have strict rules about when they'll overturn a regulator's decision, which we must follow. They'll usually only interfere with a decision of a regulator’s independent panel if:

  • the decision was wrong
  • there was a procedural impropriety
  • the decision was irrational i.e. no reasonable panel would have made that decision.

There has been a failure to give adequate reasons and we cannot determine whether the decision is sufficient for the protection of the public.

This means it’s difficult for us to appeal a case successfully unless at least one of these elements is present.