How regulators conduct fitness to practise investigations
This is the first in a series of briefings exploring the process for fitness to practise investigations in detail.
How does an investigation start?
In the vast majority of cases, fitness to practise investigations begin when a complaint is made to the Regulator about a Registrant. However, investigations may also begin when a Registrant notifies their Regulator in respect of an issue concerning their own fitness to practise. In a small proportion of cases, investigations commence when the Regulator becomes aware of information by other means eg media reports of misconduct on the part of a professional or where a complaint made about Registrant A also raises concerns about Registrant B.
Whilst the approach to investigation is not identical for all Regulators, the general scheme is consistent. In the first instance the Regulator must determine whether the person about whom concerns were raised is on its register. If they are not the Regulator has no jurisdiction to conduct a fitness to practise investigation. However, some regulators will explore the matter further if the complaint suggests a non-registrant is practicing illegally e.g the GDC. Where the individual is on the register the Regulator will typically apply a threshold test before determining whether to open an investigation. Such threshold tests set a low bar, simply asking whether the subject matter of the complaint or information raises a question about the Registrant’s fitness to practise.
Where that is the case, an investigation is opened and the Regulator will usually write to the complainant and the Registrant to tell them that this step has been taken. The Regulator will then begin to gather evidence. This will usually involve asking the Registrant to provide details of their employment and asking the Registrant’s employers whether they have any fitness to practise concerns about the Registrant. The Regulator will also begin to gather specific evidence about the complaint. This may involve taking statements from the complainant, and other key witnesses, gathering copies of relevant clinical records, or seeking evidence from other authorities, such as the police.
In cases which relate to clinical conduct, or the Registrant’s own health, the Regulator is also likely to obtain some input from an expert witness. Once the evidence has been gathered, the Regulator will review it with a view to identifying such criticisms as the evidence might support and formulating those as specific allegations. The evidence and allegations are then disclosed to the Registrant who has an opportunity to respond. That response could include fresh factual evidence, expert evidence or evidence of insight and remediation. The complainant may be provided with a copy of the Registrant’s submissions and may have an opportunity to comment, with those comments being added to the case papers.
The Real Prospect Test
All the documentary evidence together with any submissions filed by the Registrant, and any comments in response from the complainant, are then considered by the designated decision-maker – either a pair of Case Examiners or an Investigating Committee. Whilst the precise process varies between Regulators the decision to be made at this stage of the process is a filtering decision – whether the allegations ought to be referred to a full panel hearing for the evidence to be tested and findings made. The test which is applied is the same across the Regulators. It is referred to as the Real Prospect Test. It requires the decision makers to be satisfied that there is a real prospect of a fact-finding committee determining that at least some of the allegations could, in principle:
- be found proved;
- if proved, those matters would be sufficient to establish a ground of impairment, such as misconduct or deficient professional performance, and
- that there is either a risk of repetition or that the alleged conduct is so serious that there is also a real prospect of establishing current impairment of the Registrant’s fitness to practice.
Where the decision-makers determine that there is no real prospect of establishing current impairment they may be able to close the case in a variety of ways which include taking no action or, in the case of some regulators, issuing a warning. The precise details vary depending on the Regulator.
It is common for the rules to permit a decision not to refer a case to a hearing to be reviewed, at least within the first two years following the decision.
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.