Legal representation key to fitness to practise success

Research published concluded that health and care professionals facing fitness to practise proceedings face adverse outcomes if they do not have legal representation.

Overview

Engagement with regulators was a key consideration when considering any aggravating and mitigating factors.
Health and care professionals who engage during the fitness to practise process can make a positive difference to the outcome of their case.
However, key to engagement is specialist legal representation to support and guide registrants through the fitness to practise process, which is complex and legalistic.
The lack of specialist legal representation has been identified as being associated with more severe sanctions outcomes in fitness to practise cases.

The research was commissioned by the General Dental Council (GDC) and the Nursing and Midwifery Council (NMC) and was undertaken by Plymouth University to investigate how seriousness in Fitness to Practise (FtP) cases is understood and applied by UK health professions regulators.

Seriousness in fitness to practise

The research sought to understand how regulators approach seriousness in fitness to practise cases.

It concluded that the concept of seriousness is used in two main ways in fitness to practise processes across health regulators:

to help define misconduct itself; and
to place a particular misconduct on a spectrum of seriousness to determine an appropriate sanction.

Some types of misconduct carry a presumption of seriousness that is broadly consistent across all regulators. These are sexual misconduct, dishonesty, and criminal convictions.

Engagement is key

Engagement with regulators was a key consideration when considering any aggravating and mitigating factors in a fitness to practise case. The findings reinforce that health and care professionals who engage during the fitness to practise process can make a positive difference to the outcome of their case.

Not attending the hearing meant that registrants were not able to defend themselves against concerns raised, and panels were more dependent on the statements of witnesses. The registrant’s credibility and reliability as a witness, demonstration of insight, remorse and regret, and any remediation which has taken place are also important aggravating and mitigating factors.

Importance of legal representation

The extent to which a registrant engages with the regulatory process, from initial complaint to the final hearing, has been recognised as vitally important to the severity of sanctions. The research has shown that registrant’s engagement and legal representation can impact on decisions about seriousness, and that the lack of legal representation has been identified as being associated with more severe sanctions outcomes in fitness to practise cases.

“Legal representation was seen as important by participants because legal advice could support and guide registrants through the FtP process, which is complex and legalistic. Legal advice was seen as important in aiding registrants to understand regulators’ expectations, especially in terms of the need for registrants to demonstrate insight and perhaps to show evidence of remediation activities. Lack of legal representation was, therefore, seen to potentially have an impact in terms of the seriousness of the outcome for registrants who are perhaps unaware of how to present their case to best effect.”

Groups more likely to have legal representation

The research found that legal representation varied between professional groups with doctors, dentists and pharmacists typically said to have legal representation while nurses, dental care professionals and pharmacy technicians were reported as having higher levels of self-representation.

Doctors, dentists, and pharmacists, covered by professional indemnifiers, were reported as typically being represented when engaged with the fitness to practise process.

Other groups, such as nurses, dental care professionals, and pharmacy technicians were reported as having higher levels of self-representation or representation from professional bodies that is not seen as “high quality” compared to legal representation from specialists. This is particularly significant bearing in mind that legal representation can affect the way in which a registrant engages with fitness to practise processes.

In upholding the appeal, Alan Bates, sitting as a Deputy Judge of the High Court, said:

Failure to assess witness credibility and reliability The panel did not sufficiently evaluate the general credibility and reliability of key witnesses, whose evidence was essential to the charges. It failed to consider factors such as contradictions between witnesses' accounts and whether their testimonies should be approached with caution. This omission undermined the panel's ability to justify its conclusions.
Lack of explanation for preferred evidence The panel failed to provide adequate reasons for preferring the complainants' evidence over the appellant nurse's and the paramedic's. Simply stating a preference for certain witnesses' accounts without detailed justification left the appellant without a clear understanding of why her evidence was rejected.
Errors in evidence evaluation The panel assessed each charge in isolation without considering broader patterns or contextual evidence. It failed to recognize that inaccuracies in one allegation (contradicted by CCTV) could cast doubt on the reliability of witnesses' accounts in other allegations, leading to flawed conclusions.
Improper handling of contextual evidence The panel neglected to evaluate the behaviour of the complainant nurses during the investigation, which was relevant to determining their credibility. Additionally, it overlooked the appellant nurse's claims that the allegations were fabricated to remove her from her managerial position.
Insufficient reasoning for findings The panel provided inadequate reasoning for its findings of misconduct. It did not fully explain how the evidence supported its conclusions, including why the NMC had met the burden of proof for each disputed allegation. This failure left the appellant with unsubstantiated conclusions, undermining the credibility of the process.

Lessons

This case highlights several critical considerations for fitness to practise tribunals. One key lesson is the importance of thoroughly evaluating the credibility and reliability of witnesses, particularly when their testimony is central to the charges. Without such assessments, the accuracy and fairness of the tribunal’s findings can be compromised. Witness accounts must be examined not only in isolation but also in a broader context, taking into account patterns and inconsistencies to achieve a holistic evaluation.

Additionally, tribunals must provide clear and rational reasoning for their decisions. Merely preferring one witness’s account over another without detailed explanations can lead to procedural unfairness. Ensuring transparency in decision-making fosters trust in the process and supports robust outcomes. Tribunals must also maintain procedural fairness by upholding the burden of proof on the prosecuting body. Accused parties should never feel pressured to disprove allegations, as fairness is crucial to preserving the system’s integrity.

Finally, the impact of procedural delays cannot be underestimated. Prolonged proceedings can cause undue harm to the accused, affecting their career and reputation. Timely resolutions are essential to upholding justice while minimizing unnecessary stress on all parties involved. By focusing on these principles, fitness-to-practise tribunals can enhance the fairness and effectiveness of their proceedings.

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.