How regulators deal with poor registrant behaviour: the fitness to practise process explored

We've probably all seen articles about doctors or nurses being 'struck off' and the fitness to practise process even made a recent appearance on prime-time ITV in its crime drama 'Unforgotten'. But what exactly is fitness to practise and why is reforming it long overdue?

Professional regulation is often a mystery to most of the population. However, fitness to practise, the means by which regulators ensure that those on the professional register are safe and competent to practise in their field of health or care, is probably the best-known aspect.

Articles in the tabloids about professionals being ‘struck off’ is usually the public’s primary source of information about fitness to practise. Healthcare professionals without personal experience of the process may have a general awareness or fear about being referred to the regulator based on stories from colleagues.

But what is fitness to practise? How does it work and why does it need reform to make it work better for patients and professionals? Through a series of three blogs we’ll be exploring:

1. How fitness to practise works now and the case for reform
2. Incremental change – ways that we can improve fitness to practise in the here and now
3. Radical reform – how can we design a fitness to practise model for the future?

What is fitness to practise?

Fitness to practise is the process used by statutory professional regulators to handle complaints made about health and care professionals. Although a range of complaints get raised with regulators they can only proceed with cases where:

• the registrant in question can be identified
• the concern that is raised is relevant to public protection
• restrictions may need to be placed on the registrant’s registration.

In carrying out their functions, including fitness to practise, all regulators are bound by an overarching objective to protect the public. There are three ‘limbs’ of public protection which are:

• Protecting the public from harm
• Maintaining public confidence in the profession
• Declaring and upholding professional standards.

How does fitness to practise work?

There are nine different professional healthcare regulators and the legislation that governs how they operate is all different. However, in general terms, the fitness to practise process works as follows.

Regulators will review a complaint received from an employer, member of the public or from the registrant themselves to decide whether it meets a threshold for investigation. They may also decide to consider a concern arising from an external report or patient safety incident.

They will then carry out an investigation into the complaint and decide whether there is a ‘realistic prospect’ of the registrant’s fitness to practise being found to be impaired. In this context, impaired means that if they continue to practise one of the three ‘limbs’ we mentioned above could be compromised. So, they could pose an ongoing risk to the public; or there may be a threat to public confidence; or a need to uphold professional standards.

If the realistic prospect test is not met, then the case can be closed, although the registrant may still receive a warning.

If the test is met, then the case will usually proceed to a public hearing with a panel, normally comprised of two lay people (non-professionals) and a professional. They will decide on the question of impairment and on an appropriate sanction.

This diagram illustrates the key stages in the process.

Figure 1: A generic fitness to practise process

Why is reform overdue?

We have long argued that reform of the fitness to practise process is badly needed. This is largely due to the many variations/inconsistencies across the regulators due to their differing legislation. The regulatory bodies were created at different times and given different legal frameworks to start with. Furthermore, some regulators have been modernised more than others, in part because opportunities for piecemeal reform have not been equally distributed – and none of the processes are quite the same.

There are a range of other issues inherent in the current system:

• Sanctions imposed vary between regulators for different professional groups – this could cause issues with public protection but could also be seen to be unfair.
• The language of fitness to practise varies across the regulators which can make it unnecessarily confusing and complex for patients, the public and employers.
• The process is heavily influenced by criminal law and as such is inherently adversarial/combative; the process involves the regulator putting their case forward and the registrant and/or their legal representative defending it. This can be stressful for all parties and may not lead to a satisfactory resolution.
• The process is also lengthy – some cases can take several years from the initial complaint to the final panel decision, and can be very expensive. What’s more, the longer a hearing takes, the more it gives the appearance of being about punishment rather than protecting the public.

Frustratingly, despite a compelling case for reform, previous attempts have been stymied. In 2015, the Law Commissions published a draft Bill to reform the system which was accepted by Government but this ran out of Parliamentary time to make it into law.

The Government has recently consulted again on proposals for reform, but with pressures on Parliamentary time due to Brexit legislation and a range of other projects being bumped to the front of the queue, the chance of wholesale legislative reform any time soon seems slim.

Light at the end of the tunnel?

However, there are signs of change afoot. The proposed model for the new social care regulator, Social Work England may pave the way for a new approach to fitness to practise hopefully addressing some of the problems we’ve identified with the current model. (Read the latest issue of our e-newsletter for more details about Social Work England.)

In the next blog in the series, we’ll look at ways of improving fitness to practise both now and in the long term whilst ensuring that regulators continue to protect the public.

You can read more about our ideas for reform of fitness to practise here.

Related material

Read our chapter on fitness to practise from our special report Right-touch reform

Read a summary of our thinking about reforming fitness to practise 

Find out more about our power to appeal final fitness to practise decisions

See some of our key statistics on fitness to practise from our 2017/18 annual report