“Wait and See” – Is it the right fitness to practise defence strategy?

When faced with a fitness to practise investigation, should health care professionals “wait and see” or does constructive engagement make a difference to the outcome of a fitness to practise investigation? 

Health care regulators will investigate allegations of impaired fitness to practise.  Investigations are complex and go through a number of stages before reaching its conclusion.  Not all investigations end up before a fitness to practise tribunal.  In fact, the majority are closed, or dealt with, during the investigation stage.  This, therefore, provides health care professionals with opportunities to engage with their regulator.  Health care professionals may ask themselves if engagement really makes a difference to the outcome of an investigation and what constructive engagement looks like in practice.  

Impairment

First, what do we mean by impairment?  Whilst not exhaustive, fitness to practise allegations can relate to:

• lack of competence;
• insufficient knowledge of English;
• criminal convictions and cautions;
• health;
• misconduct; and/or
• determinations by other health organisations.

Impairment means “weakened or damaged” or “damaged in a way that makes something less effective”.  Broadly speaking, in the context of fitness to practise, “impairment” refers to circumstances where a health care professional’s ability to practise safely and effectively has been weakened, damaged or negatively affected.

This may mean that they should not practise at all, or that they should be limited in what they are allowed to do.

Proactively responding to allegations

As we mentioned above, not all investigations end up before a fitness to practise tribunal and that the majority are closed, or dealt with, during the investigation stage.  This, therefore, provides health care professionals with opportunities to engage with their regulator, which offers them with the potential to achieve an early closure of their investigation.  

Whilst each regulator’s investigation process varies, generally, health care professionals will be notified by their regulator that they have opened an investigation.  During the “Preliminary Enquiries” stage, they will be given an opportunity to respond to the complaint(s) made. Additionally, if a regulator opens an investigation, there should be a further opportunity to submit a response and evidence during the “Case Examiners” stage.

Both these junctures in the fitness to practise investigation process offer health and care professionals a real opportunity to have their investigation(s) closed without the need for a full fitness to practise tribunal hearing.

It is a well-established fact – from research and drawing on our extensive experience – that health care professionals who proactively engage with their regulator generally face less severe outcomes than those who “wait and see”.  

What is important here is the quality of the engagement because rash and ill thought through responses and information may have the opposite effect.  This is where legal advice and representation is critical for health care professionals facing a fitness to practise investigation. 

Specialist legal advice and representation will assist health care professionals with written submissions, in response to correspondence from their regulator, advise on the evidence that should be obtained/submitted to, for example, Case Examiners and assist with ensuring responses are made within strict time scales.

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It is worth noting that, in certain cases, it may serve the health care professional to not respond to correspondence from their regulator, but key to this is legal advice. 

The fact that health care professionals who engage constructively with their regulator, generally, face better outcomes has also been shown as true in external research and common law.  For example: 

• GMC peer-reviewed research, published in BMC Medicine, the outcome of MPTS decisions was ‘consistently’ linked to doctors’ engagement during hearings, and those who failed to attend or did not have legal representation led to more serious outcomes.
• A high court previously said negative conclusions can be drawn if doctors do not testify or give evidence in their disciplinary tribunal.

There are a number of reasons why engagement is important, including:

1. Regulators could view this as evidence of insight. Insight is about being able to see or understand something clearly.  In the context of fitness to practise, factors that can be relevant to genuine insight include evidence that the professional has considered the concern, understood what went wrong and accepted they should have acted differently by for example demonstrating that they fully understand the impact or potential impact of their performance or conduct.
2. Regulators and tribunals are likely to draw negative inference from health and care professionals who do not engage with them during a fitness to practise investigations.
3. An important aspect of Case Examiner’s work is to review all the relevant evidence gathered by casework, including any evidence provided by the registrant or the informant.  Based on this evidence, case examiners can decide to, amongst other things, to close the case and take no further action.
4. The real prospect test means that the case examiners have to decide if there is a genuine, not remote or fanciful, possibility of establishing that the registrant’s fitness to practise is currently impaired.