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Is there a case to answer? The real prospect test

This article is part of a series of briefings on the Fitness to Practice process.

The real prospect test is applied at the filtering stage of the fitness to practise process to determine whether allegations ought to be referred to a full fact-finding hearing in front of a fitness to practise panel. As a filtering test it sets a relatively low bar to referral. The key principle is that a case should not be referred to a full hearing unless there is more than a remote or fanciful prospect that the hearing will result on some restriction being imposed on the Registrant’s registration. Restrictions can only be imposed if a panel make a finding that the Registrant’s fitness to practise is currently impaired by establishing one of the statutory grounds of impairment e.g misconduct or conviction.

In applying the real prospect test the decision-maker must consider the evidence in support of each of the allegations. They are not determining whether the allegation is true; rather they are asking whether, if accepted by the panel, the evidence which supports the allegation would be sufficient to prove the allegation. This is a low threshold, as allegations are proved on the balance of probabilities. So, the question is whether, if accepted, the evidence which best supports the allegation would be adequate to allow the panel to find that the alleged fact is more likely to be true than untrue. In many instances the allegations will be disputed by the Registrant but, at this filtering stage, the decision-maker is not deciding which account is more persuasive; that is simply not their role. There will be a minority of cases where the evidence in support of an allegation is obviously unreliable. In these cases, the decision-makers are entitled to conclude that the allegation would be incapable of persuading a panel.

With respect to allegations which are determined to have a real prospect of being found proved, the decision-maker must then consider whether, if they were in fact proved, they would be sufficient to establish one of the statutory grounds such as – misconduct, deficient professional performance or adverse health. If they conclude that there is no more than a fanciful prospect of a ground being established, the case will not be referred to a full hearing. However, even if they determine that there is a real prospect of a statutory ground being established, referral does not necessarily follow. The decision-makers must move on to the final stage of the real prospect test.

Often, this is the stage of the filtering exercise where submissions by the Registrant can often have the greatest impact on the decision-makers. The decision-makers must consider whether, if a ground of impairment is established, that would give rise to there being more than a remote or fanciful prospect of establishing that the Registrant’s fitness to practise is impaired at the time of the hearing.[1] In addressing that question the decision-makers are entitled to consider evidence of insight and remediation to assess whether there is a risk of repetition.

The purpose of the fitness to practise process is not to punish Registrants for past failings but to ensure that they are currently fit to practise. If the decision-maker can be satisfied that the risk of repetition is remote, the case should only be referred for a full hearing if the alleged matters are so serious that there is a public interest in them being ventilated at a hearing and determined by a panel. By way of illustration, the Case Examiners at the GDC often view allegations relating to consent as being sufficiently serious to merit a referral in the public interest even where they are satisfied that the risk of repetition is low.

[1] In the case of the GOsC and GCC the test of impairment does not apply but similar issues, such as the risk of repetition, insight, and the public interest are considered to determine whether there is a real prospect of a sanction being imposed.


Disclaimer

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.

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