Fitness to Practise investigations – what are undertakings?
Where restrictions are imposed on a professional’s registration by their regulator, they are referred to as Conditions, or Conditions of practice. Many regulators operate a facility to agree restrictions with a Registrant without the need for a fitness to practise hearing. Where the Registrant agrees restrictions on their registration they are referred to as undertakings.
The most significant differences between conditions and undertakings are the way in which they are arrived at and the process for their review/amendment. Substantive conditions, that is conditions imposed at the conclusion of the fitness to practise investigation, can only be imposed by a fitness to practise panel at the end of a formal hearing, which is usually held in public. In contrast undertakings can be agreed by the Registrant without the need for a formal hearing and so can bring the investigation process to an end more quickly
When restrictions are imposed on a professional’s registration, they are usually in place for a significant period, often 1 – 2 years. During that time the Registrant’s circumstances may evolve, or unanticipated problems caused by the conditions may come to light. However, conditions can only be reviewed by a fitness to practise panel at hearing and so the process of varying or amending conditions is cumbersome, time consuming and potentially expensive, even where the Registrant and regulator agree on the desirability of amendment. In contrast undertakings can be varied on a paper-based exercise without a hearing and so offer significant advantages in terms of flexibility.
Similarly, conditions can only be revoked by a fitness to practise panel whereas a Registrant may be released from their undertakings without a hearing. Undertakings are commonly deployed in cases involving adverse health or deficient professional performance, where there is little dispute about the underlying concerns and the Registrant has shown insight and a willingness to engage in suitable remediation and to be subject to suitable oversight or monitoring.
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.