FITNESS TO PRACTISE - The process

Preliminary stage / cause for concern

66It is good practice for providers to have a preliminary stage or a “cause for concern” procedure to assess whether the student’s fitness to practise may be in question, or whether the concern is about less serious competency issues. This stage of the procedure is intended to be developmental and supportive. It gives the student the opportunity to improve their practice or approach.

67Providers should agree with the student supportive improvement measures, which should be set out in an action plan along with associated timescales for improvement. Providers should make it clear to students what the next steps are if they do not meet the improvements outlined in the action plan.

68Students need to be able to demonstrate that they have the necessary insight into their behaviour or the issues leading to concerns about their fitness to practise. Providers may ask the student to complete a piece of work to reflect on their practice. Providers should make it clear to the student what the purpose of this work is, how it will be assessed and the consequences if the student doesn’t complete it to a satisfactory standard.

69It is good practice to tell the student that concerns have been raised about their practice or behaviour even if the provider decides to take no action. The information the provider gives the student will vary depending on the nature of the concerns raised. If the provider intends to keep a record of the concerns then the student should be allowed to respond to them if they wish to.

70A provider may sometimes bypass the “cause for concern” procedures if the issue leading to the fitness to practise concern is sufficiently serious. This may be appropriate for example if the student has harmed or is at risk of harming others, or if fitness to practise concerns have arisen following a criminal conviction. It may also be appropriate to move to the more formal stages of the procedure if the student disputes the events or behaviour leading to the cause for concern. This is to ensure that the student has a fair opportunity to present their case.

When immediate action is required during a fitness to practise investigation

71Where a student may be a danger to themselves or others, providers have a responsibility to do what they can to protect their students, staff, service users at practice placements and members of the public. In some cases, the provider may need to take immediate action, particularly where a student is undertaking a practice placement. These may include, but are not limited to:

• cases involving a threat of serious harm to the student and/or others;
• cases involving gross misconduct/serious incidences of unprofessional behaviour;
• cases where a student has demonstrated unsafe practice;
• cases where the student’s mental health is at risk; or
• cases raising serious safeguarding concerns.

72Fitness to practise procedures should set out what action a provider can take and in what circumstances and who has the authority to decide this. Examples might include temporarily removing a student from placement but allowing them to continue to attend academic teaching; limiting access to the provider’s services; or a period of temporary suspension.

73The Disciplinary procedure section of the Good Practice Framework provides further good practice guidance for providers when taking such action.

The formal stage

74The procedures followed should be proportionate to the nature and complexity of the issues raised, and potential consequences for the student.

Formal stage investigations

75Where a student's fitness to practise is being considered because of previous findings under a disciplinary procedure, or as a result of a criminal conviction, a formal investigation of the facts is generally not necessary or required.

76The provider will need to conduct an investigation where the facts of the case have not yet been established, or where further information is needed about the effects of the matter leading to concern about the student’s fitness for practice. In those cases, the investigation should be carried out by a member of staff who has had no previous involvement in the case. Staff members charged with investigating fitness to practise concerns should be properly trained, resourced and supported.

77The investigator should meet with the student as soon as possible. The student should be given notice of the meeting and provided with enough information to allow them to respond to the concern(s), and a copy of the relevant procedure at that time. The student should also be told how to access advice and support, and who can accompany them to the meeting. It is good practice to provide the student with a note of the meeting, but it will not normally need to be a full transcript.

78It is essential to be clear about exactly what is being investigated and how it applies to the relevant professional standards, to ensure that both the staff member and student understand the purpose and scope of the investigation and the possible outcomes. The member of staff investigating the case may talk to staff at the provider, staff at the placement and/or other students. They will also consider documents and other evidence, including medical evidence, the student provides in support of their case. The investigator should also consider any wellbeing issues.

79The staff member should produce a report based on their investigations which outlines the process followed, the information gathered, and their conclusions. The student or their representative should receive copies of the information obtained during the investigation, a copy of the investigation report and information about the next steps in the process. Where necessary, the provider should anonymise personal information obtained during the investigation before sending it to the student or their representative. The student should also be told who they can contact with any queries about the progress of the case.

80Where the investigator believes that the student’s fitness to practise may be impaired, the matter should be referred to a fitness to practise panel hearing. The investigator may present the case to the panel but should not be involved in the panel’s decision making.

Fitness to practise panel hearings

81It is good practice to hold a hearing or meeting with a specialist panel because of the serious potential consequences of fitness to practise proceedings for a student. This is particularly important where there are questions of fact to be decided.

82The role of the panel will differ depending on whether the facts of the case have already been established (for example in criminal proceedings or disciplinary proceedings). Where the fitness to practise concerns relate to something that has not been proven, the panel must first establish the facts and allow the student an opportunity to put forward their case. The provider should, during this stage of the process, follow the Disciplinary procedures section of the Good Practice Framework.

83Once any disputed facts have been decided, either through a separate disciplinary procedure or criminal proceedings, or by the fitness to practise panel, the role of the panel will be to consider whether the established facts lead to a genuine fitness to practise concern and, if so, what action should be taken.

84All panel members should be properly trained so that they have a clear understanding of the process, the remit of the panel, the possible outcomes, relevant professional requirements and equalities legislation. The panel should include at least one professional with relevant expertise in fitness to practise issues. Some professional regulators require providers to run fitness to practise panels in a certain way. The General Dental Council, for example, requires a registered dental practitioner to be on the panel and makes other suggestions for the composition of the panel. It also lays down requirements for an appeal mechanism.

85The procedures should set out:

• who may sit on a panel and who may chair it;
• what would happen if the panel members are unable to agree;
• that the student can be accompanied and/or be represented and by whom;
• whether the student is permitted to attend the hearing or meeting by alternative means (for example by video call);
• whether the hearing or meeting will proceed if the student chooses not to or is unable to attend;
• the process for rearranging the date of the hearing or meeting if the student or other witness is unable to attend for good reason;
• who may attend the hearing or meeting and in what capacity; and
• whether the panel may seek support from legal advisers or other external people.

86The panel will not normally need to hear oral evidence from witnesses (other than the student) when the facts have already been decided. Where the facts leading to the fitness to practise concern are disputed, the procedures should also set out that:

• the student may call witnesses;
• whether other witnesses may be called and whether the student may ask them questions directly or through the panel’s chair; and
• whether any witnesses may attend by alternative means (for example by video call).

87The hearing or meeting should be arranged promptly, and the student should be given adequate notice of it. This includes informing the student of the purpose of the meeting or hearing; of their right to attend; how to access advice and support; their right to be accompanied and/or represented and what role any representative or companion is permitted to play in the hearing or meeting. If the student is permitted to attend the hearing or meeting by alternative means (for example by video call) the provider should explain how it will arrange and facilitate this.

88It is essential to provide the student in advance with information about who will be on the panel and who will attend and what their role will be. Students must also be given a copy of the information to be considered before the hearing.

89Fairness requires panels to be free of any bias or any reasonable perception of bias. In the context of a fitness to practise process, a perception of bias might arise where the student has a close relationship with a panel member, or the student has made a formal complaint about a panel member. In fitness to practise proceedings, panel members are more likely to know the student involved because it may be necessary to involve staff members with expertise of the profession and the course. However, the provider must ensure a balance of panel members and those members should have had no previous involvement in the fitness to practise concerns. The panel should include some members who are completely independent and providers may need to invite staff from other institutions. The student should have the right to object to a panel member before information about their case has been disclosed to panel members.

90The cultural mix or diversity of the panel may be a relevant consideration in some cases and is important in reducing the risk of unconscious bias. The provider needs to consider the structure of panels and take steps to ensure that those responsible for reaching a decision come to the matter afresh and are properly trained, resourced and supported.

91Fitness to practise procedures are internal to a provider and should not be unduly formal. It will not normally be necessary for a student or the provider to be legally represented at a fitness to practise hearing, but it is good practice for the procedures to permit this where there are good reasons.

92A written record should be kept of any meeting or hearing, setting out who attended, a brief outline of the proceedings and the reasons for the decisions taken, including the outcome for the student and/or any conditions applied. The reasons given should be detailed enough to enable the student to understand the reasons for the decision. It is not normally necessary to make an oral recording or full transcript of the meeting or hearing, but it may be helpful to do so, particularly where the case is complex or there is a significant factual dispute. The written record should include details of any disciplinary decision or criminal conviction that led to the fitness to practise concerns.

Relevance of previous misconduct or fitness to practise findings

93It is reasonable for a provider to consider a student’s previous disciplinary and fitness to practise record and, if relevant, their health record, when determining their overall fitness to practise.

Outcomes and conditions imposed by fitness to practise panels

94A finding that a student is not fit to practise is different from a finding of misconduct. A finding of misconduct under a disciplinary process may attract a range of penalties whereas a finding that a student is not fit to practise may result in the student being removed from their course, with little chance that they will be able to train elsewhere. Providers may sometimes suspend students for a period, or put in place a series of supportive improvement measures to give students an opportunity to put right the issues identified and demonstrate fitness to practise.

95Where a provider puts in place conditions that the student needs to meet, those conditions should be proportionate, carefully explained to the student, and with a clear and demonstrable outcome. If the conditions are related to the student’s health the provider should tell the student what evidence they will need, for example a satisfactory occupational health report, before they can resume their studies.

96The decision as to what action to take when a student’s fitness to practise is found to be impaired will usually require professional judgment. The panel should explain the reasons for the action or actions it has decided to take, especially in cases where the action has serious consequences and may prevent the student from starting or continuing with their intended career.

97Before reaching a decision about what action it should take, it is good practice for the panel to consider each option, starting with the least serious. The intention is not to punish the student, but to act proportionately where there is a need to protect the public or preserve public confidence in the profession. Providers have a responsibility to explain what they have decided to do, why remedial action is not considered to be possible, and how the decision relates to the relevant professional requirements.

98The panel should also consider mitigating and aggravating factors, such as the level of insight the student has shown, evidence of good practice, personal circumstances and previous disciplinary concerns or patterns of behaviour. The student should be given the opportunity to put forward any mitigating factors before the panel decides what action it should take.

99If the provider concludes that the student is currently unfit to practise, but that they may become fit to practise in the future, it should explain to the student what steps they may be able to take to resume their studies.

100If the provider concludes that the student is unfit to practise and should be terminated from the programme, the provider should consider whether the student can be given an exit award, or can be transferred to a different programme without professional registration.

101The provider may have to report to the professional body or regulator that the student has been withdrawn from their course because they are not fit to practise. The provider should explain this to the student, and whether the outcome will also need to be disclosed by the student when applying for other regulated courses.

102In the final stages of professional training, standards of behaviour for students are often measured against what would be expected of a newly qualified professional. The NMC's online Fitness to Practise Library provides some useful guidance about decision-making factors in fitness to practise cases for qualified professionals.

Concluding the formal stage

103The provider should write to the student setting out the outcome of the formal stage, giving a clear explanation of, and setting out the reasons for its decision and any conditions in straightforward language. This will help the student decide whether to appeal.

104The decision letter should also give information about:

• the student’s right to appeal;
• the grounds on which they can do so;
• the time limit for submitting an appeal;
• the appropriate procedure; and
• where and how to access support.

105If the student does not appeal within the time limit for doing so, the provider should close the matter and tell the student in writing. It is good practice to issue a Completion of Procedures Letter at this stage if the student asks for one, but the letter should explain that the student has not completed the provider’s internal processes. The OIA publishes guidance on issuing Completion of Procedures Letters.

The appeal stage

106The student should be permitted to appeal against a fitness to practise decision, including the action the provider has decided to take. Providers can require a student (or their representative) to submit an appeal in writing, by email or online by completing the appropriate form. It is good practice to set out the grounds on which a student may appeal. Those grounds might include:

• that the procedures were not followed properly;
• that the decision maker(s) reached an unreasonable decision;
• that the student has new material evidence that they were unable, for valid reasons, to provide earlier in the process;
• that there was bias or reasonable perception of bias during the procedure; or
• that the action the provider has decided to take is disproportionate, or not permitted under the procedures.

107The provider may decide to reject an appeal without assembling an appeal panel, if the student’s appeal submission does not fall within one of the grounds set out in its procedures, or if it is submitted out of time without a good reason. The person making a decision not to assemble an appeal panel should not have had any previous involvement in deciding the student’s fitness to practise (or, if relevant, in any related disciplinary proceedings). It is important that the decision maker understands the parameters of their role, and maintains the distinction between deciding whether the student may have grounds for an appeal, and establishing whether the appeal the student is making should be upheld. If the appeal is rejected without being put to an appeal panel, the provider should issue a Completion of Procedures Letter at this stage, explaining its decision.

108It is important to be clear about the remit of an appeal to ensure that students understand the purpose and scope. An appeal may be considered at a hearing or only on the basis of written submissions. The appeal stage may involve a review of the formal stage or a complete rehearing of the case. The procedures should say whether the appeal panel can overturn the outcome of the formal stage and substitute its own decision, or whether the matter needs to be referred back to the formal stage for reconsideration. The appeal panel should consist of members who have not been involved at a previous stage. Where the appeal panel is rehearing the case or may substitute its own decision, it should include at least one member of the relevant profession. The Disciplinary procedure section of the Good Practice Framework provides further good practice guidance for providers.

109Students should be given information about how to access support and advice during the appeal process.

Concluding the appeal stage

110If the appeal is not upheld, or is not permitted to proceed under the grounds of appeal, a Completion of Procedures Letter should be sent to the student within 28 days. This should include, or be accompanied by, an explanation of the decision reached and the reasons for it, in straightforward language. This will help the student decide whether to pursue the matter further.

111The decision should also advise the student about:

• their right to submit a complaint to the OIA for review;
• the time limit for doing so; and
• where and how to access advice and support, especially where the provider has set conditions that the student must meet before they can continue with their studies.

112The time limit for bringing a complaint to the OIA is 12 months from the date of the Completion of Procedures Letter. It is good practice to tell the student any particular reasons why they should bring the matter to the OIA promptly. For example, learning may become out of date, some professions may have a deadline for registration or placements may be difficult to find.

113Where an appeal is upheld, the provider should give the student a written outcome that explains what action the provider will take. It is good practice to issue a Completion of Procedures Letter if the student asks for one. If the outcome involves referring the case back to the formal stage for reconsideration, it is good practice to ensure that reconsideration is concluded as soon as possible and, where practical, within the 90-day timeframe.

Independent external review (OIA)

114Once the appeal stage has been completed, the student can ask the OIA, the independent ombuds service, to review their complaint about the outcome of the provider’s fitness to practise process. The complaint needs to be submitted to the OIA within 12 months of the date of the Completion of Procedures Letter.