Confidentiality and anonymity
34Providers should keep in mind their obligations under data protection legislation regarding sensitive personal information or “special category data”. This includes explaining to students how the provider will store and use information about them, and in what circumstances it might have to pass information to external bodies. Information about students who are subject to fitness to practise proceedings should be kept confidential as far as possible. The information should be disclosed to as few people as possible, and only to those involved in investigating or deciding the matter. Sensitive information should not be disclosed to panel members until their membership has been confirmed (so that the student has had an opportunity to object to a panel member, for example on grounds of bias, before they have seen the sensitive information).
35If a person makes an anonymous complaint about a student, for example under whistleblowing procedures, the provider needs to take extra care to ensure that it investigates the concerns carefully. Those investigating the concerns will normally need to know the identity of the person making the complaint so that they can rule out the possibility that the report is made maliciously. Witnesses who are giving their professional opinion are not expected to be anonymous. If the witness does not agree to the student knowing their identity it may not be appropriate to rely on their evidence. Where evidence comes from service users during a practice placement, the placement provider will need to protect the confidentiality of service users, particularly where those service users are children or vulnerable adults. In these cases, the provider should obtain as much information and evidence from the placement provider as possible. This may include a summary of allegations made by service users, or anonymised witness statements. In every case the student needs to have enough information about the concerns raised to be able to respond to them.
36Fitness to practise proceedings can be particularly stressful for students, and the outcomes can have serious consequences for their studies and future careers. It is therefore particularly important that the investigations, hearings and appeals are conducted as quickly as possible, consistent with fairness. It is good practice where possible:
- to tell the student as soon as possible that fitness to practise concerns have been raised;
- to complete the entire process, including any appeal, within 90 days of the student being told of the concerns; and
- where the student has been through related disciplinary proceedings, the fitness to practise process should be carried out as quickly as possible, and within 45 days of the disciplinary decision. In such cases the fitness to practise process will not need to prove facts, allowing for proceedings to be concluded swiftly.
37It may be reasonable for the process to take longer than 90 days where, for example, the case is complex, the student or witnesses are not available to attend meetings or hearings, or where proceedings are put on hold because of a criminal investigation or the student’s impending assessments. Providers may also sometimes find it difficult to assemble a panel with the right professional involvement, or with panel members that have had no previous involvement in the fitness to practise concerns. In those cases, the provider should keep the student and any witnesses informed about the progress of the investigation, and when it is likely to conclude.
38Where the provider puts in place supportive measures to help the student to reach the necessary standards, the fitness to practise process should be put on hold.
Support and representation
39Providers should direct students who are going through fitness to practise procedures to the support services available, for example the students’ union or relevant professional trade unions, which can provide independent support and advice. It is good practice to give students access to support and advice and, where it is not practical to do so internally, providers should consider arranging for students to access support services at neighbouring institutions, partner providers or other local community services. International students are likely to need additional advice and help, for example with visa issues, with any unexpected costs of having to return to their home country, and with attending meetings and hearings remotely.
40The provider’s fitness to practise procedures should explain who is permitted to accompany or represent the student at meetings and hearings, what that will involve and what is expected of them.
41Students who have access to well-trained and resourced student support services will not normally need to seek legal advice, although they may wish to in serious cases. It is good practice for providers to permit legal representation in complex cases, or where the consequences for the student are potentially very serious. Most professional regulators permit legal representation when dealing with fitness to practise issues for practitioners.
42Whether or not the student has a representative, the student will normally be expected to answer any questions about what has given rise to the fitness to practise concerns.
CASE STUDY 3: Representation
A second-year social work student is asked to attend a fitness to practise panel hearing because of concerns about her relationship with a service user. The student denies doing anything wrong and asks the provider for permission to bring a legal representative to the hearing. The student explains that they are already a qualified nurse, and that a finding that they are unfit to practise could have serious consequences, not just for their future on the social work programme, but for their career as a nurse. The provider allows the student to be legally represented.
Reasonable adjustments to the process
43It is good practice to ensure that procedures are available to all students in accessible formats. Providers should consider in each case whether to make reasonable adjustments to procedures to take account of the individual needs of students. It is good practice to keep a record of any adjustments made. In fitness to practise procedures, providers may need to make adjustments for hearings, or allow a student longer to respond to allegations.
44In some cases, the student may not be well enough to go through a fitness to practise process. In those cases, the provider should offer the student time away from their studies until their health is improved. The provider should explain to the student that the fitness to practise process will start again when the student is ready to return.
45Providers should tell students who have mental health difficulties about the specific support services available to them, for example counselling services and, where appropriate, services external to the provider.
Relationship with other procedures
46It is important to remember that fitness to practise concerns can arise from disciplinary or misconduct issues, or from health-related or disability issues, and different procedures may apply in each case. Providers must explain in their procedures how those procedures relate to each other. The provider should set out clearly to the individual student how the different processes will be followed in their case and in what order.
47Fitness to practise is not disciplinary in nature and is distinct from support for study (or fitness to study) processes. A disciplinary matter might lead to fitness to practise proceedings if the behaviour that led to disciplinary action against the student calls into question the student’s fitness to practise. The Disciplinary procedures section of the Good Practice Framework sets out principles of procedural fairness for disciplinary proceedings.
48If a separate disciplinary process is conducted before fitness to practise proceedings, the student should be given the opportunity to appeal the disciplinary outcome. If the student is disputing the facts of the case, the provider should not usually start fitness to practise proceedings until the internal disciplinary procedure is concluded. It may be necessary to take immediate action to protect the student or others (see paragraph 71 to 73).
49Where a student submits a complaint during fitness to practise proceedings, it may be appropriate to pause the fitness to practise process while the complaint is being investigated. This will depend on the nature of the fitness to practise concerns and the nature of the complaint, and how they relate to one another. Where the issues are closely related, it will normally be appropriate for the provider to consider the issues raised in the complaint as part of the fitness to practise process. Providers must keep students informed about which process is being followed, what is likely to happen next and likely timeframes.
50Providers should follow the OIA’s guidance on issuing Completion of Procedures Letters when more than one procedure is being followed.
CASE STUDY 4: Academic misconduct and fitness to practise
A first-year law student is accused of plagiarising an assessment. The student is told that academic misconduct may lead to concerns about fitness to practise. At the end of the disciplinary process, the student is found to have plagiarised the work, but that this is because they haven’t properly understood and followed guidance on avoiding plagiarism. The student is given a mark of zero, but they are allowed to resubmit the assessment for a capped mark.
The provider then writes to the student to say that it is investigating the fitness to practise concerns. After a meeting with the student, the provider decides that the student has not been deliberately dishonest and that there are no concerns about their fitness to practise. The provider explains this to the student and keeps a record of the process and the outcome on the student’s file.
Support for study
51Support for study, or fitness to study, processes apply to all students, not just to those on professional courses, and relate to a student’s wellbeing. If a student’s health or wellbeing causes the provider concern about that student’s ability to study on their programme, the provider may take action under its support for study procedures. This may arise where, for example, the provider has concerns that the student poses a risk to their own health or safety or that of other people (at the provider or placement provider) or the student’s behaviour is affecting the learning experience of other students.
52Support for study procedures are different to fitness to practise procedures, but concerns about whether a student is fit to continue with their studies in the short term may lead to concerns about their fitness to practise in the long term. Providers should ensure that students understand the process or processes that will be followed.
CASE STUDY 5: Support for study and fitness to practise
A veterinary student suffers a deterioration of an existing mental health condition. Other students report that the student has been behaving erratically and has talked about harming themselves. The provider is concerned about the student’s wellbeing and takes steps under its support for study process. At the end of that process the student agrees to suspend their studies so that they can get treatment and recover their health. The provider explains that it will need to make sure that the student is fit to practise when they are ready to return.
When the student returns, the provider starts a fitness to practise investigation to see whether the student has taken responsibility for their own health, and whether they have recognised that their health might affect their ability to practise safely and effectively.
The provider decides that the student had been aware that their health was deteriorating and had contacted their GP before the support for study referral. They had shown insight into their health and had also reacted positively to the support for study intervention, getting treatment and support during their period of suspension. There is no suggestion that the student has done anything unsafe. It concludes that the student is fit to practise and can return to their studies.
Behaviour that amounts to a criminal offence
53If the police or courts are involved, providers should normally wait for the outcome of the investigation or proceedings before conducting an internal investigation. The provider should keep in touch with the student(s) involved and with the police during this process. The provider may need to take some form of temporary action against the student, in order to protect other students, staff members and service users. For example, a student may be suspended, or temporarily withdrawn from their placement. Providers should consider each case individually, weighing up the risk to others against the potential disadvantage to the student of what might be a long suspension while the criminal investigation is happening.
54Where a student is acquitted of a criminal offence, or where the criminal investigation has been dropped, the provider may still take action under its disciplinary and/or fitness to practise process.
55If the student is convicted of a criminal offence, the role of the fitness to practise panel is to determine whether what the student has done impairs their fitness to practise.
CASE STUDY 6: Criminal proceedings and fitness to practise
A student social worker is formally charged with a violent offence. The provider suspends the student from practical placements during the police investigation and subsequent court case. The student is permitted to continue attending academic teaching.
The student pleads not guilty, but is subsequently found guilty of the offence and given a suspended sentence. The provider then starts fitness to practise proceedings.
The student continues to deny that they have committed the offence. The fitness to practise panel does not rehear the allegation but takes as its starting point the student’s criminal conviction for the offence. Its role is to decide whether what the student has done impairs their fitness to practise. The panel decides that the nature of the offence means that it is not appropriate for the student to work with vulnerable adults. It therefore decides that the student is not fit to practise and terminates their place on the programme.
56Concerns about a student’s fitness to practise often first arise during practical placements in a professional setting, for example in a school or hospital, when students interact with the public. Providers should have clear processes in place to allow for any concerns to be brought to their attention promptly.
57Where a placement is suspended or terminated because of concerns about the student’s fitness to practise the provider should carry out its own investigation into events which led to the termination. Where possible it should get witness statements from staff at the placement, that the student can comment on. In some cases, it may be appropriate to ask placement staff to attend a fitness to practise hearing.
58It is reasonable for the provider to attach significant weight to the professional opinion of staff at the placement. But it should also listen to the student’s account of what happened on the placement and investigate any factual disputes or allegations that the student has not been treated fairly.
59If the provider decides that the student should be allowed to continue with their studies (with appropriate support in place) it may not be possible for the student to return to the same placement because the relationship has broken down. If it is the provider’s responsibility to find or arrange placements, every effort should be made to find other placement opportunities for the student. It is reasonable for providers to expect students to positively engage in this process. If it proves to be impossible to find an alternative placement the provider should discuss with the student whether they might be able to transfer to another course, and what exit awards might be available.
60Providers should where possible distinguish between a student’s failure to achieve the standard necessary to pass the placement, and a student’s fitness to practise. A student who fails to achieve the necessary standards might expect an opportunity to extend the placement or repeat it so that they can improve their practice. A student who is found to be unfit to practise will not be able to continue unless the provider agrees supportive improvement measures to give the student an opportunity to put right the issues identified with their practice.
CASE STUDY 7: Placements
A trainee teacher is on a placement in a school. The placement school have some safeguarding concerns about the trainee’s practice. The school immediately terminates the placement and reports the matter to the Local Authority Designated Officer (LADO), who is appointed by the local authority to investigate child safeguarding concerns. The LADO investigates the concerns and concludes that they are “substantiated”. During the LADO investigation the trainee is allowed to attend lectures at the provider but is not allowed to go on a practical placement.
At the end of the LADO investigation, the provider starts fitness to practise proceedings. The trainee’s case is considered by a fitness to practise panel. The panel does not reinvestigate the concerns, but considers whether the LADO’s decision means that the trainee is not fit to practise. The panel decides that the concerns identified by the placement school and subsequent LADO investigation are so serious that the trainee’s behaviour is fundamentally incompatible with being a teacher. The panel concludes that the trainee is not fit to practise and terminates their place on the programme.
61The question of whether the student is fit to practise in a particular occupation is often a question that can only be answered by someone with specialist knowledge of that profession. That conclusion would be a professional judgment.
62A panel exercising professional judgment must do so on the basis of sound evidence. For example, where staff at a placement say that a student’s behaviour is unprofessional, the panel should consider witness evidence and placement records to see whether they support the allegations against the student.
63In some cases, the decision about whether the student is fit to practise will not require professional judgment, for example, where the student is imprisoned for a violent offence.
64Providers should ensure that they keep proportionate records of fitness to practise proceedings and outcomes. Records should be kept even when the proceedings don’t result in any action being taken against the student. This is because behaviour or concerns that are not considered serious enough to need any action may be relevant in later proceedings if the student behaves in a similar way again or other concerns are raised. It is good practice to keep a record even if the student is completely exonerated in case a dispute later arises about the proceedings or outcome. Providers should have clear policies that set out how long such records will be kept, and under what circumstances they might be disclosed to other bodies.
65The provider should explain to the student what record has been kept and for what purpose.