Most professional bodies make fitness to practise a requirement for registration to practise. So higher education providers running professional courses need to have processes in place to deal with any concerns about their students’ fitness for their chosen profession.
Many fitness to practise processes are initiated in response to a student’s conduct. This can be related to something that has happened in a placement setting, or how the student has behaved elsewhere. Examples include:
- A student who taped vials of someone else’s urine to his thighs to avoid a drugs test;
- A student who forged their placement mentor’s signatures on attendance records, and then lied about it;
- A student who began a relationship with a vulnerable service user;
- A student who threatened another student on social media;
- A student who failed to disclose relevant information about their family history; and
- A student who did not respond to verbal directions from qualified staff during a medical procedure.
Mental and physical health and disability-related issues can also have an impact on a student’s ability to meet the necessary professional standards.
How do students understand fitness to practise rules?
The complaints we see suggest that students are not always clear about what is expected of them, and what they need to tell their provider about. Students sometimes make a bad situation worse, by trying to conceal what is happening rather than seeking help.
Typically students complain to us about the fairness of the process that has been followed, and the outcome of that process which can be that the student is removed from the course. Providers don’t always explain or record clearly the reasons for their decisions, or for the course of action they have decided to take.
On 7 October 2019 we published the new Fitness to practise section of our Good Practice Framework following consultation over the summer. This pulls together the learning from the complaints we see, our good practice outreach, and our work with sector bodies. Its purpose is to help higher education providers support students to understand and, wherever possible, achieve the necessary professional standards, to follow fair, proportionate, and prompt processes, and to reach reasonable and consistent decisions.
As ever, the consultation responses, from higher education providers, student representative bodies, and professional, statutory and regulatory bodies among others, raised some thought-provoking and interesting points which we have tried to address in the final version of the section.
When is a competency not (just) a competency?
It is not always easy to tell what is an academic or professional competency that a student is expected to learn, and what is a professional standard which, if the student fails to meet it, will lead to fitness to practise concerns. This varies from course to course – so more will be expected of a student whose lack of competence might be a risk to safety. It’s not for us to define where the boundary is: that is for the professional regulators to set, and for the providers that deliver and award professional qualifications to interpret.
The important thing is for providers to make it as clear as possible to their students what is expected of them and when, to give them the support they need to help them meet those expectations, and to follow a fair, timely and proportionate process when it looks as if they may not be able to.
Clear information upfront is key to this. If a student’s criminal record or vaccination status is likely to mean that they won’t be able register as a professional then this needs to be spelt out before the student starts. The student may still want to study for the degree without pursuing professional registration (if this is possible). A student’s disability might mean that they find it more difficult than other students to reach the required professional standards, even when the means of assessing those standards have been adjusted to make them accessible. The provider will need to explore with the student before they start what support or assistive technology they need and what it can reasonably offer, and whether that is likely to be enough.
Once the student has been accepted onto the course, they need to be reminded of the relevant professional standards right at the beginning, and also throughout their studies. They need to be well equipped when it comes to practical placements.
It is often in the placement setting that fitness to practise concerns first arise. Supporting the student is all the more important at this point. It can be difficult for providers to balance the need to support their students whilst preserving the essential relationship with placement providers. But whatever has happened, the student must have a fair process.
Separating facts from fitness
Deciding whether a student is fit to practise usually involves two separate questions.
- What has happened – or what has the student done, or how have they behaved?
- How does that affect their fitness to practise?
Often the first question will be decided under a separate disciplinary process and the fitness to practise process just needs to decide what to do about it. But where the facts of the case have not yet been decided it is important for the decision makers to make that clear distinction between what has happened and what to do about it.
We gave a lot of thought to timeframes when drafting the guidance. We settled on 90 days for the whole process, or within 45 days of a related disciplinary decision. Perhaps inevitably, the consultation responses were split as to whether that was too long, or unreasonably short. We think it’s about right.
It’s important to minimise delays for the student so that they can get on with their studies when that is possible. We mustn’t lose sight of how stressful this process can be for students. Of course some cases will take longer, and some cases may need to be suspended if the student is given a chance to improve their behaviour or practice, or if there are related proceedings going on elsewhere. The availability of important witnesses or independent panel members, or even the student’s assessments, may also legitimately delay matters. In those cases, the provider should keep the student and any witnesses informed about what is happening and how long it is likely to take.
Several responses raised concerns about allowing legal representation in fitness to practise processes, just as they did in response to the disciplinary procedures section of the Good Practice Framework last year.
We think it’s fair to allow students 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. We think students deserve the same.
That said, and as I explained in my article on Wonkhe last year on the disciplinary procedures section,
the involvement of a legal representative should not be permitted to change the dynamic of a hearing. These are not legal proceedings … legal representatives have to recognise the difference between these internal processes and legal processes, to focus on the critical issues, and not to try to bamboozle the panel with technical legal arguments that do not often translate well into the student environment.
In other words, a student’s legal representation should not result in a legal arms race, and the lawyers should not be allowed to run the show!
Different professional courses, and different regulatory bodies, have different requirements and often these change as the student progresses. It has been challenging to develop guidance that captures principles that should apply across the board whilst giving enough detail to be useful in practice. The purpose of the guidance is to help providers treat their students fairly, not to provide answers to what are often complex questions that involve professional judgement.
Later this autumn we will be publishing a discussion paper outlining our current thinking on how providers should be looking at requests for special consideration. This follows on from the Mitigating Circumstances Forum we held in the spring. We hope the discussion paper will help focus the conversation about these issues, and we plan to develop all of this into a new section of the Good Practice Framework next year.