Misconduct in Fitness to Practise
Regulators often cite “misconduct” as grounds for impaired fitness to practise. What is misconduct and is it remediable?
Misconduct in Fitness to Practise
In order to understand misconduct, you must firstly understand what fitness to practise means. Whilst each healthcare regulator’s definition is different in certain respects, generally speaking, fitness to practise means that a health and social care practitioner must have the relevant skills, knowledge, health and character to perform their work and practise safely.
It follows therefore that if a health and social care practitioner’s fitness to practise is impaired, it means there are concerns about their ability to practise safely and effectively. The types of cases a health care regulator can consider are those that question whether a registered professional’s fitness to practise is “impaired” and this universally includes, amongst other things, ‘misconduct’.
What is misconduct?
In general, misconduct is defined as “behaviour that falls short of what can reasonably be expected of a professional.”
There is no explicit legal definition of ‘misconduct’ in statute, in so far as it relates to fitness to practise. It is however defined in common law (i.e. senior court judgements).
By way of a general overview, in Meadow v General Medical Council [2007], the Court of Appeal made clear that “misconduct” should not be viewed as anything less than “serious professional misconduct”.
In Roylance v GMC [1999], the Privy Council identified “the essential elements of the concept” of misconduct:
“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word “professional” which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word “serious”. It is not any professional misconduct which would qualify. The professional misconduct must be serious.”
For fitness to practise to be found impaired, the courts have made clear that the misconduct must “serious professional misconduct”.
There is no definitive list of what would constitute misconduct, and each case would need to be considered on its own merits. However, there are obvious examples of conduct that is more likely to be considered misconduct, for example, criminal convictions, drug taking and abuse, sexual impropriety and/or gross negligence.
It is important to note that conduct in a health and social care practitioner’s private life (i.e. outside of practice) could be considered serious professional misconduct in the context of fitness to practise.
This will usually happen if the concerns raise fundamental questions about their trustworthiness as a registered health and social care practitioner or suggest a deep-seated attitudinal issue such as displaying discriminatory views and behaviours.
Is misconduct remediable?
In most cases, yes.
In broad terms, remediation refers to rectifying or correcting a certain behaviour that has generated fitness to practise concerns. More specifically, in the context of fitness to practise, remediation is where a registered health and social care practitioner addresses concerns about their conduct, behaviour or health.
Certain forms of misconduct are harder, or impossible, to remediate. This is normally misconduct that points to fundamental character flaws, such as dishonesty.
Remediation is often a long process because it is important to ensure remediation is genuine and demonstrable. In many cases, remediation steps can take many months to fully achieve.
With over 30 years combined experience, Kings View Chambers have established itself as one of the best when it comes to fitness to practise defence. We fully understand that fitness to practise defence is not merely about processes and procedures. We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.
We are proud to be rated ‘excellent’ by our clients. Our commitment to client care is genuine in both seeking the very best outcomes for our clients, but also ensuring we do what we can to support them through the process.
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.
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