Healthcare Professionals – Fitness to Practise Representation (HCPC, GMC, GCC)

December 17, 2014

healthcare-gmc-hcpc-lawyersHealthcare professionals work in a particularly volatile environment that can make them vulnerable to allegations of misconduct in clinical and care settings. Although easy to make, such allegations can threaten, or even have the potential to end, a professional’s career because they can be so difficult to defend.

Whether seeking to mitigate risk or to remediate for previous lapses, our specialist legal team can help. Having represented many healthcare professionals, including surgeons, GPs, paramedics, radiographers, chiropodists and chiropractors, we are best placed to provide sensitive and reliable legal advice and assistance. Available 24 hours a day, 7 days a week, our Special Casework Team is ready to advise healthcare professionals and practitioners no matter the issue that they face.

Fitness to Practise Regulators: HCPC, GMC, GCC & More

Here we provide an overview of what happens should an allegation of impaired fitness to practise be made to one of the health professions Regulators, such as the Health and Care Professions Council (HCPC), the General Medical Council (GMC), General Chiropractic Council (GCC) or indeed any other Regulators.

Allegations Likely to Raise Fitness to Practise Investigations

It is a requirement for all healthcare professionals working in a regulated profession to register and meet with their Regulators’ standards for training, professional skills, behaviour and health.

If a complaint has been made against a registrant, whether by a patient, a work colleague, other professional or by the Regulator (registrar) themselves, the fitness to practise process begins.

Regulators investigate many and various allegations, including:

  • clinical negligence;
  • dishonesty or fraud;
  • having abused a position of trust [link];
  • having an improper relationship with a patient;
  • failing to meet professional standards on one or more occasions;
  • sexual misconduct (with a patient or otherwise);
  • having accepted a police caution;
  • having health problems which could affect the safety of patients or the general public.

Some of these allegations attract the attention of the criminal law and may result in a criminal investigation. This means a robust, yet sensitive, approach must be taken to defending against substantive allegations of misconduct.

The Regulators can also deal with technical issues that have consequences in the criminal law as well, such as the misuse of a professional title. For example, a registrant’s registration may have lapsed or someone may have held themselves out as being a practitioner in a particular field when in fact they are not. Such a misuse of title can be prosecuted by the Regulators and may result in a conviction in a Criminal Court where, if a person does this with the intention to deceive, they can be fined of up to £5,000.

At Tuckers Solicitors, we understand the relationship between healthcare and the criminal law, and how fitness to practise and criminal cases can sometimes dovetail with each other. We are sensitive to the serious consequences this can have on the livelihood of a healthcare professional and their family, let alone their reputation. If you are looking for expert legal advice relevant to the specific circumstances of healthcare professionals and their Regulators, please contact us.

Healthcare Professionals Fitness to Practise Process

The fitness to practise process is designed to protect the public from those who fail to meet expected professional standards of conduct and to maintain the reputation of the health care profession.

The process generally comprises an initial investigative stage. This can then lead to a registrant attending either before:

  • an Interim Suspension Panel, if allegations are particularly grave or serious;
  • the Health Committee of the Regulator, if allegations relate to serious health issues; or,
  • a final hearing before a Professional Conduct Committee or its equivalent.

Hearings and evidence are decided on the balance of probabilities. This is the same standard of proof that applies to the civil law. However, the more serious the allegation, the more cogent the evidence must be for an adverse finding to be made against a registrant. For example, an allegation that may also amount to a criminal act or omission, such as sexual misconduct, is likely to require more substantive evidence before the Committee hearing the matter will accept it as being so.

If the Professional Conduct Committee or Panel (sometimes referred to by a different name by different Regulators) decides that a registrant’s fitness to practise is impaired, to the extent that it is unacceptable professional misconduct, they can, or in some cases must, impose a sanction.

Sanctions

Sanctions can take many and various forms, including:

  • an admonishment or caution (a warning or telling off);
  • a Conditions of Practice Order (having conduct as a healthcare professional restricted or regulated in some way or being asked to complete a further course of CPD or similar);
  • suspension from the register for a fixed period of time (although for no longer than one year); or,
  • striking off or erasure (removal of the registrant’s name from the register).

The sanction imposed in any given case will largely depend on the particular circumstances, although the Panel will always have regard to the need to protect patients, to maintain public confidence in the profession and to uphold professional standards and conduct.

Fitness to Practise – Interim Orders

If an allegation is serious enough to suggest that a healthcare professional may cause harm to themselves, a patient or the public, the Regulator may apply for an Interim Order to prevent them from practising or, so far as certain Regulators are concerned, to place limits on their practise until the case is heard.

Hearings for Interim Orders are usually held at relatively short notice, and if granted, any restriction on practising will be reviewed within a short period of time. Interim Orders can also be extended, depending on the circumstances of each case, up to a date when the final hearing takes place. It is possible, however, to apply for an early review, which can help bring the matter to a conclusion more swiftly.

Representation

In relation to any fitness to practise matter, including Interim Orders, representations can be made in writing to the regulator. Registrants usually have to prepare and submit their representations within 28 days of being made aware of the matter, although in some cases, it is possible to obtain an extension of time from a Regulator.

Sometimes the content and quality of the representations can lead the Investigating Committee dealing with the matter at first instance to decide there is no case to answer. This means that the case does not need to go any further. However, there is no guarantee that this will happen, and if it does not, then the matter, in the absence of an interim application, will proceed to a final hearing.

Legal Advice and Representation for Healthcare Professionals

At Tuckers Solicitors, our specialist lawyers can help you if you need to make representations or attend any hearing before your Regulator. We draft written responses at short notice and have vast experience in defending registered healthcare professionals.

Often, where an individual in one of the caring professions accepts that they have done something they ought not to have done, the Committee hearing the case is concerned about the individual’s insight. What this means is they have an understanding of the harm that they have caused or wrong that they have done. Demonstrating insight can help mitigate a finding of impairment and avoid more serious sanctions.

Here at Tuckers, we can assist you in relation to dealing with the issue of insight and what you should and should not do to demonstrate this. We can also help you to identify mitigating factors relevant to your particular case, such as personal pressures or external factors that may demonstrate that the subject of a complaint or allegation was an isolated incident. We also help you to obtain testimonials and statements from relevant people which may assist at the evidence giving stage or at the sanction stage.

We also carry out investigations in relation to your case to determine the cogency of any evidence against you or the evidence you wish to present.

Lawyers & Legal Advice for Healthcare Professionals

Healthcare professionals may get advice from their union or professional body who are protected by legal expenses insurance. Please remember that even if you have insurance in relation to your legal fees for such matters, you still have a right to choose your own solicitor and ensure you get the best possible representation. See also our new post: Staying Within The Law – 5 Things Healthcare Professionals Should Be Most Aware Of.

Our expert lawyers are ready to provide expertise 24 hours a day, 7 days a week. For more information, please e-mail suttons@tuckerssolicitors.com, or contact Stuart Sutton on 0808 164 6795 or 0808 169 5980.