Referring an Employee

It is the responsibility of an employer of one of these professionals to refer the employee to their regulatory body if they have concerns that the employee in question may present a risk to members of the public if they are allowed to continue to practice without restriction.  An employer should refer an employee if the employee has been dismissed for gross misconduct, has been charged with committing a criminal offence, or has been dismissed on capability grounds for reasons of competence or health.  It is also advisable to refer an employee for conduct falling short of gross misconduct which none the less may have had the potential to put members of the public at risk of harm.  The overriding objective of these regulatory bodies is protection of the public.  Therefore any concerns which might suggest that the professional is not fit to practice in the sense that they do not have the knowledge, skills and character to practise their profession safely and effectively or have acted in a way which may have an impact on public protection or confidence in the profession should be referred.The reasons for referral reflect the three types of cases which regulatory bodies hear.  A registrant's fitness to practice can be found to be impaired by reason of misconduct (including criminal convictions), lack of competence or physical or mental illness.

Following a referral the regulatory body will carry out its own investigations and if it is felt that the registrant has a case to answer other members of staff will usually be called to give evidence at a hearing.  It is therefore important that employers are aware of the legal principles governing the assessment of whether a registrant should be allowed to continue practicing without restriction.  What this article sets out to do is bring to your attention some of the most commonly cited cases in these proceedings and explain the concepts which are addressed within them.

The Procedure

Regulatory disciplinary proceedings are unusual in that they involve a three stage process - the fact finding stage, the impairment stage and the sanction stage.The fact finding stage is the evidential part of the proceedings.  The regulatory body will have drafted charges which set out the alleged misconduct, lack of competence or health condition.  The burden of proof is on the regulatory body to prove the charges on the balance of probabilities. 

If, and only if, the facts are found proved will the committee move to the second stage.  This is not an evidential stage but requires the committee to exercise their own professional judgement to determine whether the registrant's fitness to practice is currently impaired by reason of misconduct, lack of competence or a health condition.If, and only if, the committee decides that the registrant's fitness to practice is currently impaired will they move to sanction.  The most serious sanction is striking off from the register.  Other sanctions include temporary removal from the register (suspension), a condition of practice order or a caution.

So what is meant by the phrase "the registrant's fitness to practice is currently impaired by reason of misconduct, lack of competence or health" and what is the procedure to be followed in addressing this question?

Second Stage Procedure

Cheatle v General Medical Council [2009] EWHC 645 (Admin) - A finding by a panel that a medical practitioner's fitness to practise was impaired required the application of a two-stage process: there had firstly to be a finding of serious misconduct, and secondly the panel had to conclude that, as a result of its finding, the medical practitioner's fitness to practise was impaired. In coming to a conclusion on impairment, the panel had to look forward. It had to consider whether, in the light of what had happened, and of evidence as to the medical practitioner's conduct and ability demonstrated both before and after the misconduct, the medical practitioner's fitness to practise was impaired.

Misconduct

Roylance v General Medical Council (No 2) [2000] 1 A.C. 311 - The Privy Council in Roylance defined “misconduct” as “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.The various regulatory bodies will have published a Code of Conduct for its registrants and it is inevitably against this that the seriousness of the registrant's misconduct is assessed.

Lack of Competence

Andrew Francis Holton v General Medical Council [2006] EWHC 2960 - In assessing lack of competence, the standard to be applied was that applicable to the post to which the registrant had been appointed and the work he was carrying out. The public was entitled to expect that the work of a registrant who performed in any specialty was at the standard applicable to that post in that speciality.

Current Impairment

Azzam v General Medical Council [2008] EWHC 2711 (Admin) - A Fitness to Practise Panel was obliged to look forward in considering facts material to a practitioner's fitness to practise, and for that purpose to take into account evidence as to his present skills and any steps taken to remedy any defects in skill.  Evidence of a doctor's overall ability was relevant to the question of fitness to practise.

Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin)  - This case made reference to the "helpful and comprehensive approach" to determining the issue of current impairment formulated by Dame Janet Smith in her Fifth Report from Shipman.  Dame Janet Smith identified the following as an appropriate test for panels considering impairment of a doctor's fitness to practise.  A test the Court stated which would be equally applicable to other practitioners governed by different regulatory schemes.

"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/orhas in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/orhas in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/orhas in the past acted dishonestly and/or is liable to act dishonestly in the future."

In the view of the Court the value of the test, was threefold: it identified the various types of activity which will arise for consideration in any case where fitness to practise is in issue; it required an examination of both the past and the future; and it distilled and reflected, for ease of application, the principles of interpretation which appear in the authorities.

Conclusion

HR Professionals must be mindful of the fact that if disciplinary proceedings are being investigated in relation to an employee who is a registered professional with a regulatory body then serious consideration must be given to referring that employee to the body in question.