The “real prospect” test – the standard by which you will be judged

The test applied to determine if your fitness to practise investigation will be referred to a full fitness to practise hearing is called the “real prospect” test.

Fitness to practise triage stage

Triage (or filtering) is the first step in any fitness to practise investigation. It is at this stage of the fitness to practise investigation when regulators will apply the “real prospect” test to determine if a complaint or allegations should be referred to a full fitness to practise hearing, or be closed.

Regulators will normally ask for supporting information or evidence from third parties, such as your employer or the police, before deciding whether to open an investigation.

When deciding whether there are reasonable grounds to investigate your fitness to practise, your regulator my take into consideration matters such as:

the seriousness of the concern

whether there is likely to be any evidence to support the concern
whether the incident is isolated or repeated
whether there has been a breach of established standards or guidance
what action has been taken already to address the concern, including whether you have taken any steps to remediate
any outcomes of any previous regulatory investigations

They will also consider whether the allegation or concern is for them to investigate. If it falls outside the scope of the regulator’s remit, they will refer it elsewhere, for example, your employer, the police or another regulator.

The key point here is that a fitness to practise allegation or complaint should not be referred to a full fitness to practise hearing unless there is a real prospect (that is, a real possibility) of the facts being proved will show current impairment.

The real prospect test

The real prospect test will apply to both the factual allegations and the question whether, if established, the facts would demonstrate that the practitioner’s fitness to practise is impaired to a degree justifying action on registration. It will reflect a genuine (not remote or fanciful) possibility.

The real prospect test therefore involves two questions:

decide whether there is a real prospect (that is, a real possibility) of the facts being proved by a fitness to practise committee; and
deciding whether the facts, if they were proved, could show that the professional’s fitness to practise is currently impaired.

In applying the real prospect test, each of the allegations will be considered in turn in light of the evidence.

It is important to note that the real prospect test does not seek to prove that the complaint(s) or allegation(s) are true. The test merely seeks to ensure the evidence which supports the complaint(s) or allegation(s) would be sufficient to prove the allegation.

Insight and remediation

As mentioned above, when deciding whether there are reasonable grounds to investigate your fitness to practise, your regulator may take into consideration your insight and steps taken to remediate. It is at this stage of the process where you can often have the greatest impact on the decision-making. Evidence of real insight and remediation can result in an investigation being closed at an early stage.

However, it is vital that you seek legal advice on the right strategy and approach when considering insight and remediation in the context of the real prospect test.

Through our case success, we have shown time and again early engagement with an expert legal advisor is absolutely key to good outcomes. Remediation often takes time to achieve and demonstrate.

The time invested up front could pay dividends. Our barristers are vastly experienced and understand the complexities of the situations health and care professionals face. By instructing Kings View, there is the added benefit of our knowledge and experience of criminal law and proceedings that will provide you with an additional level of assurance.

What you can expect when instructing us?

Kings View are specialist medical defence barristers. For over a decade, we have represented hundreds of health and care professionals facing fitness to practise investigations and hearings.

We pride ourselves on complete transparency and all quotations are given with fixed fees for preparation and representation, agreed in advance and payable in stages. No hidden costs ever.

If you are facing fitness to practise investigation, speak to one of our expert barristers today for a free, no obligation case assessment.

Is legal representation the answer?

It is widely accepted and proven that legal representation makes a real difference to the outcome of investigations and results in lesser sanctions for doctors.

What is also unquestionably clear is that GMC investigations and MPTS hearings are complex, daunting, prolonged and legalistic leaving doctors stressed and anxious. Where legal advice and representation can have the biggest impact on this, is helping doctors understand the process, what to expect and how to engage with the GMC during an investigation and hearing.

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, stating:

“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.”

A compassionate approach to legal representation

The right legal advice and representation is not just about the legalities and technicalities of a case. Our barristers fully understand the stress and anxiety that doctors experience during prolonged GMC investigations.

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 never lose sight of the human aspects of FtP investigations and hearings. We will always give an open and honest assessment of cases, but we will marry that with an approach that also supports health and care professionals through the duration of a case.

“I was not optimistic about the case, I felt that it is a lost case that we couldn’t do much about and especially just before the start of the trial I lost my confidence and was very nervous. Mr McCaffrey was there to prove me wrong. He turned everything around in a victorious , panegyric manner. I was stunned.” – CL

Catherine is professional, empathic and very knowledgeable. She provided all the necessary assistance throughout the long thorough investigation. – AR

A colleague recommended me to Catherine. She was very experienced , professional, empathetic , non-judgemental and listened to me. – Mel

I found myself consumed with dark thoughts, isolated and afraid. Stephen worked with me and slowly but surely formulated a plan not to just to fight my case and win, but to build me back up bit by bit so as to prepare me to face external scrutiny and present with confidence to panels where this was necessary. – FJ

What you can Expect when Instructing Kings View

All clients are entitled to an initial, no obligation and free telephone consultation about their case. During this consultation, we will outline the stages and next steps, including indicative timeframes and fixed price quotations for preparation and representation and confirmed in writing at each and every stage.

We understand that timescales are entirely dependent on the stage you are at in proceedings, what work needs to be done and dictated by internal investigations or hearing dates. We always meet those timescales however should more time be needed, then we will apply for such on your behalf and with your permission.

Contact us today for a no obligation and free telephone consultation about your case in the knowledge that you are speaking to one of the best in the business.

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.