Fitness to Practise & Professional Conduct
Many professionals will face professional fitness to practise proceedings at some point during their careers. There are a wide variety of circumstances that can draw the attention of regulators, for example, accusations of deficient performance, accepting police cautions, being accused of serious allegations of criminality, misconduct or gross negligence.
Although investigations into fitness to practise pursue the goals of holding professionals to account, protecting members of the public and safeguarding the reputation of the profession, they can be profoundly disruptive and jeopardise the future of those under investigation. The ability to work may be restricted or suspended during proceedings, which, in the most serious cases, may result in loss of career and livelihood.
While such potentially serious consequences are readily acknowledged, it is often overlooked that criminal proceedings often trigger, run alongside or follow fitness to practise proceedings. Here we provide examples of the categories of allegations of criminality that may raise fitness to practise investigations. We also look at the key elements of preparing for and defending fitness to practise proceedings that can minimise the likelihood of being suspended or struck from a regulator’s register.
Fitness to Practise & the Criminal Law in the UK
Professionals are those whose occupations involve the exercise of specialist skills and expertise that place them in a position of trust, such as health care and legal professionals, estate agents, teachers and those who carry out important public duties, such as social workers.
It is axiomatic that professionals are also private individuals subject to the criminal law. However, unlike many non-professional individuals, when they face any allegations of criminality or wrongdoing, they must navigate two distinct but interconnected legal frameworks: professional regulation and the criminal justice system.
The Duty to Report
Many professionals are under a duty to report to their regulator when they come into contact with the criminal justice system, which can result in regulatory investigations into their fitness to practise. It is therefore essential that members of referable professions, such as doctors and health care professionals, solicitors, barristers, officers of the court, social workers, care workers and teachers are aware of the consequences of there actions and decisions when dealing with the police.
Cautions are recorded by the police and available for search by the Disclosure and Barring Service (DBS). The DBS replaced the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA) and is responsible for processing criminal record checks and deciding whether individuals who work with children or vulnerable adults, such as teachers and health care professionals, should be barred from doing so.
Sadly, the legal meaning and effect of a caution is often misconceived. Although the offer of a caution may seem the best way to resolve an allegation of criminal conduct, accepting one is to formally admit to committing an offence. Although they do not usually have to be disclosed for many individuals, most professionals, particularly those subject to DBS/CRB checks, will have their cautions reported to their regulators.
For example, a health professional attending at a police station may be offered a caution in relation to a minor offence. They accept it, despite being innocent, so they can return home. The solicitor they were provided with at the Police Station failed to advise them that they were in a referable profession. It is only when they receive correspondence from the police saying that their matter has been referred to their regulator that they realise that, having accepted the caution, they now find themselves facing professional conduct proceedings.
Although not accepting a caution and being charged with an offence may result in concurrent fitness to practise and criminal proceedings, good character may be maintained if the defence is successful.
Receiving specialist legal advice focused on criminal defence and mitigating any chances of regulatory proceedings is, therefore, essential. At Tuckers Solicitors, our expert lawyers provide advice and assistance on all criminal matters that might have an impact on professionals and their careers. Where individuals have come into contact with the criminal justice system and are looking to mitigate the potential impact, we provide representations to their regulators as well as to the relevant authorities, such as the DBS.
Criminal Offences and Fitness to Practise
Professions are regulated to ensure their members meet the standards expected of them. Allegations of criminal behaviour will give rise to concerns about fitness to practise, attracting the scrutiny of both the regulatory and criminal systems. We have extensive experience providing legal advice and assistance on offences that may also result in regulatory and criminal proceedings. For instance:
- Medical professionals or teachers accused of a sexual offence, also investigated by their regulatory body for gross misconduct;
- Directors at risk of being charged for criminal fraud, such as fraudulent trading, also subject to disqualification proceedings brought by the Department of Business Skills & Innovation (BIS);
- Solicitors facing a potential investigation following allegations of behaviour covered by the Proceeds of Crime Act, who are simultaneously investigated by the Solicitors Regulation Authority (SRA) following allegations of breaches of the Professional Rules of Conduct;
- Footballers accused of assault or the more serious offence of assault causing actual bodily harm in the criminal courts, while also facing allegations of breaching the laws of the game or rules and regulations of the FA, UEFA or FIFA.
At Tuckers Solicitors, we approach our client’s cases tactically so that the course that best protects their interests is followed. Our expert Special Casework Team are available 24 hours a day, 7 days a week, to deliver expert legal advice and representation for any professional.
GMC, HCPC, NMC, Health Care Professional Defence
As well as advising clients in many non-medical professions, we have vast experience helping health care professionals regulated by the: General Medical Council (GMC); Health Care Professions Council (HCPC); General Pharmaceutical Council (GPhC); General Osteopathic Council (GOC); General Chiropractic Council (GCC); Nursing & Midwifery Council (NMC); General Dental Council (GDC); or, General Optical Council (GOC).
Fitness to Practise Legal Process
Being called to appear before a regulatory body because of an allegation of failing to meet professional standards or to adequately perform can be a stressful experience. Here we provide an overview of the fitness to practise process for those accused of professional impropriety, such as misconduct, lack of competence or malpractice.
Initial Referral to a Regulatory Body
In the first instance, fitness to practise enquiries are often made to regulators by public organisations responsible for reviewing performance but may also be made by colleagues, managers, other members of the profession, police or a client or patient themselves.
Once a referral or complaint has been made, the relevant investigation committee or interim orders panel will assess whether the matter can be dealt with informally or justifies a fitness to practise investigation and hearing, bearing in mind the major impact regulatory proceedings may have on the professional.
If the allegation is deemed sufficiently serious and cannot be dealt with internally, the professional will be notified that a fitness to practise hearing process will begin.
Responding to a Notice of Investigation
The potential to jeopardise careers and the extreme stress caused by fitness to practise hearings means an investigation must determine a fitness to practise concern expediently. The decision is by no means straightforward. Each fitness to practise case is unique and peculiar to its facts, often resulting in a deep analysis of an individual’s subjective acts.
Professionals may significantly reduce the chances of an investigation into fitness to practise going any further than is necessary by responding to a notice of investigation promptly and in detail. Although tight deadlines are often imposed for responses, well drafted written representations in the first instance are a good way to get one’s point across to any investigating regulator.
At Tuckers Solicitors, we are experts in drafting written responses at short notice and within set time limits. The quality of our Special Casework Team’s drafting is regularly commended. We tackle any concerns regarding the fitness to practise of our clients head-on, diligently and thoroughly, and do our upmost to protect their professional status.
Fitness to Practise Hearings
If it is decided by the regulator that further action is needed following an initial investigation, the case will be referred to a conduct committee or panel for a hearing. Hearings must be conducted objectively, fairly and expeditiously.
We provide a robust defence against all allegations relating to an individual’s fitness to practise being impaired. A central element of this is a forensic examination of the evidence and the obtaining of character references that touch all relevant points relating to a case.
Character references are invaluable when allegations are made of sexually motivated misfeasance by a health professional while treating a patient. Although they are commonly thought of as a means for mitigating any potential sanctions, they also have the potential to undermine allegations and can be introduced not only at the end of the evidence giving procedure, but sometimes as part of it, in cases of allegations of sexual or fraudulent misconduct.
Health Committee Hearings
Some professionals may also find themselves subject to Health Committee proceedings because they have been diagnosed as bipolar, HIV positive or for many other reasons. This does not mean that they will be suspended from the register. Our Special Casework Team have represented many professions at Health Committee hearings who have remained in practice without restriction whilst the matter is determined.
For those looking for thorough, competent advice and support in maintaining their professional status during fitness to practise proceedings, we can help.
Interim Orders & Restrictions
Professionals being investigated following concerns about fitness to practise may find themselves subject to interim restrictions that prevent them from working while under investigation. The use of these orders has been the subject of much criticism from the High Court in recent years, particularly in regard to the medical and healthcare professional regulators’ internal delays.
In one case, described by Mr Justice Leggatt as ‘a case study for how a disciplinary case should not be conducted’, professionals notified of allegations of misconduct and suspended by the Nursing and Midwifery Council (NMC) had to wait over eight years for a substantive hearing that resulted in findings of misconduct. Those findings were found unlawful and quashed, with the Judge concluding ‘a decade after this misconceived and mismanaged case was brought against the registrants, their names are clear’.
As the comments of the High Court demonstrate, regulators have a legal duty to ensure any investigation or hearing is fair and properly managed, and any restrictions placed on professionals are proportionate.
Fitness to Practise and Sexually Motivated Behaviour
Professionals who work in a position of trust, such as doctors, teachers and lawyers, must register with their regulating body and meet the standards expected of them. When a professional’s conduct is alleged to have fallen below those standards, an investigation into the incident will follow to determine whether they maintain fitness to practise in light of their conduct.
Professional regulating bodies investigate a wide range of complaints against their registrants, with accusations of sexually motivated behaviour being taken particularly seriously. Such allegations are easy to make (for example, the General Medical Council (GMC) receives thousands of complaints about its registrants each year, many of which allege sexually motivated conduct), yet difficult to defend and the consequences of these claims can be severe for professionals. Reputations can be ruined, financial and personal difficulties can be caused and, in especially serious cases, careers might be ended. Further, where a complaint is of a criminal nature, the professional under investigation may also face criminal prosecution.
It is, therefore, essential that professionals from medical and other professions are aware of best practice, as well as what to do in the event that a complaint of sexually motivated behaviour is made. Should a professional find themselves under investigation by their regulator for fitness to practise issues, expert advice and representation should be sought as soon as possible to mitigate the potential consequences.
At Tuckers, we have much experience in this area, providing professionals from various occupations with sensitive advice and skilful representation during disciplinary and criminal proceedings. Here we explain how sexual misconduct allegations can arise, what happens when a complaint is made and the key elements involved in defending against such allegations.
How do sexual behaviour allegations occur?
Regulated professionals may find themselves the subject of an allegation of sexually motivated behaviour made by anyone they come into contact within their professional capacity, such as patients, students, clients and co-workers. If a person believes a professional in a position of trust has behaved towards them in a sexually motivated manner, they are encouraged to report the incident. Such behaviour isn’t just physical, it also covers sexually suggestive comments or gestures.
Health professionals are particularly vulnerable to accusations of sexual behaviour because of the sensitive nature of their work. Consequently, intimate clinical examinations are often at the centre of complex fitness to practise cases.
What happens when a complaint is made against a professional?
If a professional is subject to criminal proceedings regarding suspected sexual offences following an allegation of sexually motivated conduct, they could additionally face a professional misconduct hearing, even if they are acquitted by a criminal court. This is due to the fact that fitness to practise and criminal offences are treated as two separate issues.
The regulating body will notify the registrant when a complaint is made against them. The professional under investigation will be given the opportunity to respond in writing to the accusations, after which the regulator will determine whether the facts warrant a fitness to practise hearing.
Professionals are advised to take complaints seriously, even if they are confident they can prove their innocence. Poorly drafted, incomplete and delayed statements may prolong the process and even lead to additional charges, whereas quality submissions could mean the case is closed without the need for a hearing. The advice of lawyers who have experience in regulatory law is instrumental to developing an approach that aims to limit the impact on the professional’s career.
During the fitness to practise process, an interim order may be made against the professional if the allegations are particularly serious and it is believed there is a risk to the public. These measures place restrictions on the professional until the complaint has been dealt with. For example, a doctor may be suspended or required to be chaperoned when carrying out examinations.
Fitness to practise cases are decided on the balance of probabilities; the panel will decide, based on the evidence presented, which version is more probable. They will determine whether the behaviour complained of was sexually motivated and will judge whether fitness to practise has been impaired. As well as evidence from the complainant and the professional, other evidence may be provided by expert witnesses and colleagues.
Where the conduct in question is considered inappropriate, but not sexually motivated, a warning may be deemed the appropriate sanction. However, where sexual motivation is proven, a finding of impaired fitness to practise is presumed and a stronger sanction is likely to be handed down (the facts of the case as well as the need to protect the public and the reputation of the profession will be taken into account).
Defending complaints of sexually motivated conduct
At Tuckers, our lawyers are highly experienced in drafting quality submissions for investigation, interim and professional conduct committees, often at short notice. We thoroughly prepare each case to ensure our client’s version of events is supported by strong evidence, including character references and expert evidence. Our solicitors scrutinise the complainant’s allegations in order to identify and highlight any issues with the credibility and reliability of the evidence presented.
Where the professional admits their conduct fell below the professional standards expected, by presenting mitigating circumstances and demonstrating insight into what happened, severe sanctions, such as suspension or erasure from the regulator’s register, may be avoided.
Our specialist team have represented many professionals against allegations of sexual behaviour in fitness to practise proceedings. Our defence lawyer Stuart Sutton has been in practice since 1987, and for the majority of this time, involved in defending clients accused of sexual offences. Stuart and the special casework team work tirelessly to protect their clients’ careers, reputations and personal lives. Our expert sexual defences team cross-refer work in this area to ensure the highest quality of advice and representation.
Specialist Fitness to Practise Legal Advice & Defence Lawyers for Professionals
It is important to obtain expert legal advice as early into the process as possible.
Our expert Special Casework Team takes a holistic approach when taking instructions and managing client affairs. For those facing allegations concerning their fitness to practise, or criminal behaviour that may call into question their ability to meet expected standards, we ensure that every aspect of their professional lives is robustly defended. If you are facing investigation for impaired fitness to practise, our solicitors can assist immediately. We are available 24 hours a day, seven days a week.