Fitness to Practise – what is current impairment?
This is the second in our series of briefings about the Fitness to Practise investigations process.
What is current impairment?
The concept of “current impairment” of fitness to practise sits at the heart of the regulatory fitness to practise regimes of the healthcare regulators. Although the regime which applies to osteopaths and chiropractors does not specifically require a finding of impaired fitness to practise as a prerequisite to the imposition of a sanction, similar considerations apply. The expression “current impairment” is not defined in the statutes but there is a considerable body of case law which assists in understanding what the concept means. To be registered without restrictions a practitioner ought to be competent to practice their profession, ought to limit their practice within the bounds of their current competence and should be of appropriate character. Actions which call any of those things into question will give rise to concerns about the practitioner’s fitness to practise. The sort of questions which may be raised are varied, they may relate to fundamental issues of character or be limited to narrow concerns about a particular area of practice. Perhaps more importantly, they may relate to matters which are easily remedied or to matters which are incapable of remedy.
The purpose of fitness to practise processes is not simply to punish Registrants for past failings, rather it is to ensure that those who are on the register without restrictions are currently fit to fulfil that role. Deficiencies in skills and knowledge can typically be remedied – more easily so if the individual is willing to acknowledge the need to address gaps in their skills and knowledge. In many instances the Registrant will have addressed those matters by the time of the filtering stage of the process.
The grounds on which current impairment can be found
The relevant statutes underpinning the fitness to practise processes of the healthcare regulators define the only grounds on which a finding of impaired fitness to practise may be made. Whilst there is variation in the detail across regulators the general principles below are broadly applicable.
Impairment of fitness to practise can be found only after the regulator has established one of the following:
- Misconduct/ unacceptable professional conduct
- Deficient professional performance/lack of competence/professional incompetence
- Adverse health
- Findings of another regulator
- Language competence
The precise range of grounds which apply depend on the regulator. There is significant case law which assists in understanding what those concepts mean in the context of fitness to practise case and we explore each of them separately.
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.