Protecting professions proficiently
What makes fitness to practise procedure fit for purpose? VWV's Kris Robbetts explains all
Posted by Julian Owen | April 15, 2018 | Finance, legal, HR
protecting-professions, vwv, kris-robbetts, fitness-to-practise, misconduct, ewca-civ-13

Fitness to practise proceedings can be complex, raising issues of professional judgement, procedural fairness and potentially leading to the end of a student’s choice of career before it has even started. Broadly speaking, fitness to practise may be called into question on the basis of misconduct, lack of competence, physical and mental health or being convicted or cautioned for particular offences.  

The process is necessarily legalistic. The standard of proof as to whether a student’s fitness to practise is impaired is the civil standard – the balance of probabilities. Mitigating factors should only be considered by a panel after it has concluded that fitness to practise is impaired. There will usually be consideration of a mixture of issues that are private (relating to the student) and public (relating to the profession in question) before a final determination is made.  

Unsurprisingly, both registered professionals and students enrolled on professional courses have taken legal action to challenge institutional decisions they believe to be flawed. As a result, there is a body of legal precedent that can help inform those involved in fitness to practise cases, from which a number of key principles can be drawn.

The most recent of those decisions was handed down by the Court of Appeal in January: R (on the application of Thilakawardhana) v Office of the Independent Adjudicator for Higher Education [2018] EWCA Civ 13. The case concerned a student who had completed three years of his medical course and was enrolled on a intercalated Bachelor of Science degree when disciplinary proceedings were initiated in connection with a meme he posted on Facebook which was deemed to be offensive and threatening towards another student. The student was sanctioned with a reprimand (the lowest possible penalty). The university subsequently instigated fitness to practise proceedings. These concluded he was not fit to practise, a decision upheld by an appeal panel of the university and resulted in the termination of his studies and the end of his career in medicine. The student referred his complaint to the Office of the Independent Adjudicator for Higher Education (OIA), which concluded it to not be justified. The student then applied for, and was granted, Judicial Review of the OIA’s decision, and appealed the unsuccessful claim to the Court of Appeal.

The student's appeal was limited to the issue of sanction only and he argued that:

 - the university appeal panel’s decision was inadequately reasoned

 - the sanction imposed by the university appeal panel was disproportionate

 - the university appeal panel failed, or failed adequately, to take into account the mitigating circumstances and/or the Guidance from the General Medical Council (GMC) and the Medical Schools Council (MSC)

In reaching the conclusion that the appeal should be dismissed on all grounds, Lord Justice Gross made a number of significant points:

The adequacy of appeal panel reasoning – The court accepted the argument that the appeal panel was entitled to reach its decision under the advisory GMC/MSC guidance and that it took the range of potential sanctions and mitigating factors into account before deciding to expel.  Whilst the panel did not give reasons for the possible outcomes it rejected (ie sanctions lesser than expulsion) it did give sufficiently clear reasons why it believed expulsion was appropriate. Even where grave consequences for the student are at stake, a lay panel is not required to provide an ‘elaborate formalistic product of refined legal draftsmanship’. The reasons should be intelligible and adequate, such that the parties can understand why the matter was decided as it was, what conclusions were reached on the principal issues and why they have won or lost.

The proportionality of the sanction – It is expected that an appeal panel will consider whether any sanctions or remedial actions could be put in place to address shortcomings identified before completion of the student’s course. However, this does not mean that a panel cannot conclude that there is a fundamental unsuitability for the profession that cannot be corrected.

The test when considering whether the decision of a panel was disproportionate (and therefore irrational and unreasonable) is ‘whether the decision is one to which no reasonable decision-maker possessed of expertise reasonably to be expected of the defendant could have come’. This is deemed to be a high hurdle in this context as it involves professional judgement as to fitness to practise medicine. When considering the subsequent decision-making of the OIA, the court distinguished professional judgement from academic judgement. The OIA may adjudicate on the former but not the latter. Professional judgement, like academic judgement, demands deference but is not beyond review. This means that students on professional courses such as law or medicine are entitled to expect the OIA to be able to review fitness to practise decisions of universities. 

Mitigating circumstances and GMC guidance – The status of the joint GMC and MSC guidance on fitness to practise was confirmed to be advisory not mandatory. The GMC has no direct authority to deal with or advise on individual fitness to practise cases involving university students. In fact, the GMC entrusts university medical schools to ensure that students are not unfit to practise medicine and expects that if they are found to be unfit they will not be permitted to complete their training through to professional registration. The court was satisfied that the panel had fulfilled this function and had taken the guidance into account – indeed the university’s fitness to practise procedure was designed to reflect the guidance. Regarding mitigation, the panel demonstrated that it did consider mitigating factors once it had concluded that fitness to practise was impaired. In particular, due regard was given to the unreserved apology the student gave, the fact that the student was permitted to adduce new psychiatric evidence and it was noted that the misconduct was an isolated incident.

Kris Robbetts

Other points of note include:

While the same misconduct may lead to the disciplinary and fitness to practise processes, their purposes are distinct – The disciplinary process defines, deters and punishes behaviour which amounts to improper interference with the proper functioning or activities of the institution or those who work or study in the institution or action which otherwise damages the institution. By contrast, fitness to practise regulations determine whether a student is fit to practise in a particular profession, where evidence emerges which calls that into question.

The OIA’s remit to consider complaints is restricted but still wide, which is vital if it is to be an effective sector ombudsman – OIA rule 6.2 requires it to consider whether a university decision was ‘reasonable in all the circumstances’. As explained in the recent Zahid decision, ‘reasonable’ in this context means reasonable in the non-technical sense and the OIA is not confined to ‘the antithesis of legally perverse or, Wednesbury unreasonable’ (ie irrational decisions). If this was not so, students would more often have to bypass the OIA and proceed directly to court, which is exactly what the OIA is designed to help prevent.

Students on courses leading to registration in professions such as medicine, optometry, pharmacy, teaching, nursing and social work should expect to be held to a high standard before, as well as after, they qualify. Equally, universities have a duty to ensure that fitness to practise proceedings are rigorous and fair. Decisions which may end a student’s choice of career in order to protect the public and the integrity of a profession should be proportionate and adequately reasoned, if not legally elaborate. 

To be kept up to date on legal, regulatory and governance issues, please register for VWV's HE portal OnStream at www.vwv.co.uk/he-onstream.

Kris Robbetts is a senior associate at leading education law firm VWV. Kris can be contacted on 0117 314 5427 or at krobbetts@vwv.co.uk.

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