Fitness to practise hearings – Who are the panel?
The precise make up of fitness to practise panels varies between regulators but there is some commonality of approach. Such panels typically include at least one lay member and at least one member from the same profession as the defendant Registrant, although not necessarily from the same field of practice within that profession, and at least one other member. There is a trend toward such panels having a chairperson who is legally qualified and who can provide legal guidance to the panel as a whole. However, the more traditional model of the Panel sitting with an independent legal assessor, who advises them on matters of law but does not participate in their decision making, is still common.
The panellists will not have had any previous involvement in the investigation and so will be coming to the evidence fresh. The panel members are required to declare any conflict of interest. Occasions may arise where a panel member deems it necessary to recuse themselves from hearing the case because they have an association with the defendant, a complainant or a witness which would create a perception of bias. There are other occasions where a panel member may have a more tenuous or distant connection that does not require them to recuse themselves.
The Role of the Legal Assessor or Legally Qualified Chair
Fitness to Practise Panels act like a jury, in that they determine whether factual allegations are true. They also act like a judge, in that they determine the appropriate sanction. However, they act like a judge in other ways too. For example, when there is a dispute between the prosecution and defence as to whether it would be fair to admit certain evidence the Panel determined the legal issues which are raised by such a dispute. Historically, FTP panels did not include lawyers and they were assisted by an independent legal assessor, an experienced lawyer who could give them independent advice as to the correct legal principles to apply. Although the independent legal assessor would retire with the Panel when the Panel were making their decisions, they would not take any part in making those decisions. Any advice given by the legal assessor had to be shared with the parties.
That system still applies at many regulators. However, the GMC has been at the forefront of introducing a system of legally qualified chairs on fitness to practise panels, doing away with the need to have an independent legal assessor. The legally qualified chair advises their colleagues on the legal principles which are applicable to their decision-making.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.