Learning from Complaints: Fitness to Practise

1. Learning from Complaints:Fitness to Practise Felicity Mitchell Siobhan Hohls 11 March 2010

2. Fitness to Practise: What is it? • “The qualities of an individual that makes it appropriate for them to be registered to practise in a particular profession. 'Fitness' in this context may refer to health (mental or physical), behavioural or attitudinal characteristics as well as to relevant competences.” QAA code of practice for disabled students • “Being fit to practise means having the skills, knowledge, good health and good character to do your job safely and effectively.” Nursing and Midwifery Council Guidance on Professional Conduct • GMC says most often: “attitude, behaviour and clinical competence”

3. Fitness to Practise: What do we look at? • Has the University correctly applied its regulations and followed its procedures? • Was the University’s decision fair in all the circumstances? • Have the additional requirements of studying for a professional qualification been adequately explained to the student? • Are the regulations and procedures clear and unambiguous? • Were they followed? • Does the evidence support the allegation, and has the student had a fair opportunity to meet the case against him/her? • Is there evidence of bias in the decision making process? • Has the student been given adequate reasons for the decision?

4. Academic Judgment/Professional Judgment • The OIA cannot interfere with the operation of an institution’s academic judgment • Part 2 of the Higher Education Act 2004 • Our Rule 3.2 states that we do not cover a complaint to the extent that it relates to a matter of academic judgment. • Academic judgment is a decision about scholarship that only an experienced academic can make. • Professional judgment is a decision about professional standards that only an experienced professional can make.

5. Academic Judgment/Professional judgment • Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 • Higham v University of Plymouth [2005] EWHC 1492 • Courts reluctant to interfere with academic or professional judgment – “degree of respect and deference” • Other professions are not afforded the same deference (doctors/solicitors/barristers can all be sued for professional negligence)

6. Professional Judgment • OIA cannot interfere with academic judgment and will not interfere with professional judgment • Fitness to practise is likely to be a matter of professional judgment • OIA will look at the regulations and procedures followed and the fairness/reasonableness of the outcome.

7. Natural justice • Procedural fairness – duty to act fairly • Nobody shall be a judge in his own cause; • Hear the other side; • Requirement of reasonableness; • Reasons.

8. Article 6:European Convention on Human Rights "(1) In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” • Is a student’s civil right being determined by a FTP hearing? • There is a civil right to practise one’s chosen profession. Is that engaged before the student has qualified?

9. Article 6 – right to legal representation? • Governors of X school v G [2010] EWCA Civ 1 – civil right (teaching assistant) • Kulkarni [2009] EWCA Civ 789 – contractual right (doctor)

10. Burden and standard of proof • Burden of proof on HEI – it must prove the student is not fit to practise • Standard of proof • s60A Health and Social Care Act 2008 Standard of proof in fitness to practise proceedings is that applicable to civil proceedings. • Sliding scale? Or take extra care to be fair? • The more serious the allegation, the more cogent the evidence will be needed, and the more astute the courts should be to ensure that the trial process is a fair one. International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158 • Burden and standard of proof must be clearly identified in procedures

11. Procedures • Disciplinary or FTP? • Requirement of procedural fairness in each • Is it clear to student what process is being followed? • Parallel proceedings: complaint by student and FTP proceedings against student • Should FTP procedures wait until the complaint has been investigated? • What do procedures say? • Balancing rights – what is a fitness issue? • Freedom of speech vs discrimination • Right to private life vs requirements of profession • What do the HEI’s policy documents say?

12. Disability issues “Good health means that a person must be capable of safe and effective practice without supervision. It does not mean the absence of any disability or health condition. Many disabled people and those with long-term health conditions are able to practise with or without adjustments to support their practice.” NMC Guidance on professional conduct • Is the student disabled? • If so, what provisions are we now applying to him? • Do those provisions place him at a substantial disadvantage? • What could be done to prevent that disadvantage? • Would it be reasonable for us to take those steps?

13. Disability issues: disclosure • HEIs must encourage disclosure • Responsibility on student to disclose • Eg Nursing and Midwifery Council Guidance on Professional Conduct: “Health concerns • failure to seek medical treatment or other support where there is a risk of harm to other people • failure to recognise limits and abilities, or lack of insight into health concerns that may put other people at risk”

14. QAA Code for disabled students • Disclosure should lead to discussion – will impairment affect student’s ability to qualify for registration? • Fitness to practise requirements specified by professional or other body should be regularly reviewed. • Staff should keep up to date with changes in FTP requirements of professional bodies and keep students informed. http://www.qaa.ac.uk/academicinfrastructure/codeOfPractice/section3/Section3Disabilities2010.pdf

15. Case Example 1 – Partly Justified • Student was interviewed after University found out that she was married to a man who had sexual convictions against children – she had not disclosed. • She had not disclosed that she had previously gone by another name & she had misrepresented her husband’s name in a number of documents. • Found not fit to practise and withdrawn from the course. • OIA found the complaint Partly Justified. • Decision that she was not suitable to the course was professional judgment. • BUT: there were concerns relating to fairness of initial investigation and the guidance that was available. • Recommended University revise guidance and pay her £3000.

16. Case Example 2 – Not Justified • Nursing student with undisclosed dyslexia. • Attended a Fitness to Practise Panel after complaints made about her while on placement. • Found not fit to practise and was withdrawn from the course. • OIA found the complaint Not Justified • Why? • Procedure invoked due to genuine concerns regarding safety. • Disability had not been disclosed & no evidence the issues giving rise to the Fitness to Practise Panel were related to her disability. • Procedures were correctly followed.

17. Case Example 3 – Partly Justified • Disabled student given three informal warnings while on placement. • At a formal meeting his placement is terminated. • University investigate & find him guilty of plagiarism. • Assessment Board considers placement termination & plagiarism and withdraw him from the course. • OIA found complaint Partly Justified. • Procedural irregularities in the termination process. • Penalty for plagiarism was reasonable. • No evidence to show University had properly considered placement provision in light of his disabilities. • Appeal decision therefore not reasonable.

18. Case Example 4 – Not Justified • Diagnostic Radiography student – reports from hospital about his behaviour. • Practice Enquiry Meeting held and his placement was terminated and he was referred to a Fitness to Practise Panel who withdrew him from the course. • OIA found complaint Not Justified. • Why? • No evidence of racist antipathy towards student. • Concerns about bullying and racism had not been raised previously. • No procedural irregularities identified. • University’s decision was reasonable and the penalty appropriate. • Ultimate decision to withdraw him – academic/professional judgment.

19. Why the OIA have found Fitness to Practise cases Justified/Partly Justified • Unreasonable delay. • Failure to follow University procedures/regulations. • Failure to have regard for principles of natural justice (duty to act fairly). • Student not made aware of all evidence to be considered. • No proper records kept by University. • University’s guidance and regulations/procedures not clear. • Not having proper regard to student’s disability.