Why so serious? The concept of seriousness in Fitness to Practice cases

13th May 2022 Business Crime

On 17 February 2022, the General Dental Council (GDC) published cross-regulatory research into the concept of seriousness in Fitness to Practice (FtP) cases.

The research was published with the aim of understanding how the concept of ‘seriousness’ is defined and applied across healthcare regulators in FtP cases.

What is the concept of ‘seriousness?’

There is no clear regulatory definition of seriousness in fitness to practice, however it is a concept used across healthcare regulators concerning the severity of a particular type of misconduct, which is used to help define misconduct in regulatory settings and to place misconduct on a seriousness scale, to assist in determining an appropriate sanction.

What did the research find?

The research found that whilst some types of misconduct carry a presumption of seriousness across healthcare regulators i.e. criminal convictions, dishonesty and sexual misconduct, when trying to place an act or omission on a seriousness scale, differences between and within regulators were identified due to a variety of factors.

What factors were considered in determining seriousness?

Regulators were found to consider a number of factors to help decide the level of seriousness in misconduct cases, aside from the nature of the misconduct itself. These included:

  • Extent or risk of harm
  • Registrant’s engagement level, including within FtP proceedings
  • Attitude of the registrant
  • Environmental factors
  • Location of the misconduct i.e. at work or in a social setting

Whilst legal advice and representation were seen as important in steering registrants through the fitness to practice process and ensuring their awareness in the importance of full participation with proceedings, the research found that legal representation varied between professional groups, with some seeking advice more than others.

Areas for development

The research report highlighted a number of implications and areas for development concerning the concept of seriousness in FtP cases. These included:

  • FtP Processes

It was noted that reform may be needed to achieve basic common processes, ensuring greater consistency in legislative frameworks.

  • Public expectations

It was suggested that further research may be required to investigate any necessary differences between regulatory practices, arising from the different nature of professions within the healthcare sphere.

  • Contextual factors

The research suggested that there may be barriers to individuals’ ability to meet their professional obligations in challenging work environments. It was proposed that a greater understanding of contextual factors in FtP cases is required to understand any differences in regulators’ approaches.

  • Engagement and representation

As mentioned above, the research identified that registrant engagement and legal representation can have an impact on decisions concerning seriousness. It was suggested that further work to monitor the impact of this on outcomes may be worthwhile.

  • Public confidence

The research also identified that the concept of maintaining public confidence, which features heavily in UK health regulators’ statutory objectives, would benefit from more guidance around how significant this concept really is, given that it appears that FtP decision-makers apply this concept in different ways.

Whilst there is clearly still work to do to ensure greater consistency across the understanding and application of ‘seriousness’ in FtP cases, we hope that this research provides scope for positive change and will inform regulators and their practices going forward.

How can JMW help?

JMW offer full-service representation to regulated professionals across all of the major sectors.

Evan Wright is a partner in the Professional Regulation and Compliance department and can be contacted on 07850207306 or evan.wright@jmw.co.uk.

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Evan Wright is a Partner located in Manchester in our Business Crime & Regulation department

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Jessica Major is a Trainee Solicitor located in Manchesterin our Trainee Solicitors department

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