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OIA Perspectives on Fitness to Practise

GMC-MSC Student Fitness to Practise Training Conference2 May 2014

www.oiahe.org.uk

Christine Child, Adjudication Manager

Hilary Jones, Assistant Adjudicator

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About the OIA Created in the 2004 Higher Education Act – “An Act to make provision

about ……complaints by students against institutions providing higher education…”

The OIA is overseen by an independent Board, whose duties include preserving the independence of the Scheme and of the role of the Independent Adjudicator

England and Wales only Transparent, independent, free to students OIA statistics now being shared with GMC on a quarterly basis

OIA received 12 complaints from medical students in first quarter of 2014

Various categories of complaint, not just fitness to practise

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COMPLAINTS RECEIVED BY THE OIA

2005 2006 2007 2008 2009 2010 2011 20120

500

1000

1500

2000

2500

34 42 52 41 76 56 114 154

508 544682

859931

1285

1491

1858

0 0

0

00

0

0

0

Series3England

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What do we do? Student must exhaust the internal complaints/appeals procedure of

the university before coming to the OIA We review complaints about any act or omission of a university to

see whether those complaints are Justified, Partly Justified or Not Justified : Did the university properly apply regulations and follow

procedures? Was the university’s decision reasonable in all the

circumstances? We cannot review complaints about admissions, academic

judgment, student employment or matters which are/have been the subject of Court/Tribunal proceedings, unless proceedings “stayed”

Good practice recommendations and dissemination of good practice to Higher Education sector

Fitness to Practise: What do we look at? The University’s regulations and procedures:

Are they clear and unambiguous? Were they followed?

Have the additional requirements of studying for a professional qualification been adequately explained to the student?

Does the evidence support the allegation, and has the student had a fair opportunity to meet the case against him/her?

The University’s decision: Was it reasonable in all the circumstances? Is there evidence of bias in the decision making process? Adequate reasons given? Our focus is the University’s final decision (usually outcome of any

appeal against decision of FtP panel) NOTE: The actions and decisions of placement staff will fall outside the

scope of the OIA’s review

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Academic Judgment/Professional Judgment

The OIA cannot interfere with the operation of an institution’s academic judgment (HEA 2004 and OIA Rules) and will not interfere in matters of professional judgment

Academic judgment is a decision about a matter that only an experienced academic can make (it is not any judgment made by an academic)

Professional judgment is a decision about professional standards that only an experienced professional can make

Fitness to practise is likely to be a matter of professional judgment but OIA will look at the regulations and procedures followed and the fairness/reasonableness of the outcome

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Procedural fairness

‘Natural Justice’ - Procedural fairness – duty to act fairlyNobody shall be a judge in his own causeHear the other sideRequirement of reasonablenessReasons given for decision

Article 6 (1) : European Convention on Human Rights - "In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”

Application to students?

Representation at FtP hearings

Published decisions on the right to legal representation (see Appendix)Concern employees and their rights to continue practising

their professions Application to students who have not yet completed their

studies and passed fitness to practise requirements? OIA view is that Students’ Union probably best placed to

advise/represent students in FtP matters BUTUniversity regulations should not completely rule out legal

representation at FtP hearings e.g. where behaviour could constitute a criminal offence

University regulations could provide, for example, for SU representation ‘except in exceptional circumstances’

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Burden and standard of proof

Burden on university – it must prove the student is not fit to practise

s60A Health and Social Care Act 2008 - standard of proof in fitness to practise proceedings is that applicable to civil proceedings – the balance of probabilities

Panel/hearing must be satisfied that it is more likely than not that the allegations against the student are true

If outcome will have a significant outcome for student’s future the standard does not change but panel has to ensure evidence provides sufficient basis for that outcome

If the student admits misconduct but wishes to defend or mitigate then up to the student to prove that defence – again on balance of probabilities

Disability issues Universities should be proactive in encouraging disclosure of disability

Ensure that atmosphere and culture is welcoming and open GMC Professional values and fitness to practise requirements

The OIA will consider whether the university has: considered Equality Act, including duty to make reasonable adjustments followed its own fitness to practise procedures made or considered adjustments to its fitness to practice procedures

and/or appeal procedures themselves Duty to make reasonable adjustments applies in relation to a provision,

criterion or practice other than a competence standard Universities should consider each case on its individual circumstances;

rarely should a university have a blanket policy in considering FtP/disability cases

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Introduction to case studies

We have used examples from different professions – the OIA’s approach to Fitness to Practise issues is consistent across the professions – issues also relevant to medical student cases

If you think you recognise a case as being from your own institution, it may not be BUT please maintain confidentiality in any event

We have simplified case studies to pick out key points in each

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Approach to case studies

What are the key issues and what would the OIA look for? Remember the OIA approach:

Focus is the university’s final decisionUniversity’s procedures - are they clear, are they fair and

were they followed? ‘Natural Justice’ – ‘hear both sides’, ‘be reasonable’, ‘give

reasons for decision’Burden/standard of proof to be appliedDisability – university’s obligationsAcademic or professional judgment

C is the student and H is the University

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Case study 1: Facts February 2009 - C, a student doctor, was formally diagnosed with OCD having

suffered symptoms since childhood May 2009 - C suspended under FtP procedures (concerns about behaviour,

performance and on-going health issues), although no FtP hearing held as C requested a formal leave of absence

Spring 2011 - H requested a psychiatric assessment of C; report concluded that C lacked insight into her limitations and doubted C would be able to overcome her limitations

June 2011 – C withdrawn from course following FtP hearing (FtP panel concluded that continued treatment would not have a realistic prospect of achieving the required improvement to enable C to function as doctor)

C appealed the FtP panel’s decision on grounds including: New evidence which she said she could not previously have given to FtP panel

- statements relating to her academic record and a Dr’s letter referring to C’s assessment of her health in March 2011

Procedural irregularities – various issues including lack of support for her disability

The appeal panel rejected the appeal

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Case study 1: OIA conclusions Not Justified decision

C had been advised of right to provide additional information to FtP panel Reasonable for appeal panel to conclude that additional evidence would not

have altered FtP panel’s decision in any event – Dr’s letter did not give contemporaneous account of C’s health at relevant time and academic record not relevant to reasons for C’s withdrawal

Evidence of support provided to C and no evidence that she had complained about the lack of support at the time or had sought further support

OIA unable to interfere with H’s professional judgment to accept conclusions in psychiatrist’s report and therefore find C not fit to practise

Observations Some confusion over which procedure – Leave of Absence or FtP – was being

applied Good practice to clearly identify relevant procedure and, where two might

apply, which will prevail

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Case Study 2: Facts C, a student teacher, was accused of inappropriate behaviour with a pupil

on placement and the placement was terminated in March H informed C that he would be expelled from PGCE course and that any

dispute of the allegations must be made through the placement school C contacted school but was told it was a matter for H First expulsion hearing at H in June

C given no opportunity to view CCTV footage of alleged incident until shortly beforehand

C not given written documentation about allegation in advance and given no opportunity to challenge pupil’s evidence

Following further investigation H concluded that ‘it is not possible to dismiss the accusation made against [C] unequivocally’

Second expulsion hearing in August; report refers variously to different standards of proof

In September, C told that H had ‘not found against him’, he would be readmitted to the course and that the pupil’s allegation would be disclosed in any reference from H

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Case study 2: OIA conclusions Partly Justified decision

H was unclear as to its procedures about handling complaints against students on placement

C was not provided with evidence about the allegations in advance C was not provided with an opportunity to challenge the pupil’s evidence,

before or at the expulsion hearing, notwithstanding the pupil’s age Confusion over standard of proof to be applied; evidence of lower standard

than ‘balance of probabilities’ having been applied Unreasonable delay in dealing with the matter

Recommendations £9000 compensation (distress and inconvenience and loss of opportunity to

complete PGCE - C had felt unable to continue with the course) Reconsider wording of reference H confirmed that it was in the process of reviewing/drafting professional

suitability and FtP procedures

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Case Study 3: Facts Hospital terminated C’s nursing placement following complaints about

her unprofessional behaviour and lack of skills required of a second year student. C had previously been assigned an Action Plan amidst concerns about her behaviour and skills

H investigated the matter and referred it to a FtP Hearing

The FtP panel found that C was not fit to practise and C was withdrawn from the course

C appealed on grounds which included that: (i) she had had no opportunity to address the issues in her Action Plan before being withdrawn; and (ii) previously undiagnosed dyslexia

The FtP Appeals Panel upheld the decision of the FtP panel

Case Study 3: OIA conclusions Not Justified decision

Reasonable to expect improved standards of competence at each level of study

Whilst C had not had opportunity to address the Action Plan, the FtP procedure had been invoked due to genuine concerns regarding safety

Disability had not been disclosed & no evidence that the issues giving rise to the FtP were related to C’s disability in any event

FtP and appeal procedures were correctly followed Ultimate decision to withdraw C was an exercise of H’s professional

judgment

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Conclusions and questions

Concluding remarks

Any further questions?

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CONTACTS

Christine Child, Adjudication Managerchristine.child@oiahe.org.uk

Hilary Jones, Assistant Adjudicatorhilary.jones@oiahe.org.uk

Tel: 0118 959 9813

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Appendix: Article 6 – right to legal representation?

Kulkarni [2009] EWCA Civ 789 – In circumstances of this kind, Art 6 should imply a right to legal representation because the doctor is facing what is in effect a criminal charge, although it is being dealt with by disciplinary proceedings. Although the consequences of a finding of guilt cannot be deprivation of liberty, they can be very serious.

Governors of X School v G [2011] 30 UKSC - The Supreme Court held that there was no automatic right to legal representation at a disciplinary hearing and that G’s career as a music assistant was not determined by the school disciplinary hearing but would be decided by a later tribunal at which he could be represented - the issue is fact sensitive and the Supreme Court leaves open the possibility that legal representation may be required in limited cases, although it stopped short of providing examples where this would be the case

Mattu [2012] EWCA Civ 641 Most recent case narrowed down rights. Less of a requirement to allow legal representation to employees facing disciplinary proceedings and the disciplinary and appeal panels are not required to comply with Article 6 rights.