For most registrants the fitness to practise process is a once-in-a-career event, so it is unlikely that you will have previous experience of how a hearing works.
A hearing is divided into four stages:
- preliminary issues – legal and procedural points
- findings on the facts – whether the charges are proven or not
- deciding whether the registrant is currently impaired
- if the registrant is found to be impaired, what sanction should be applied
The general format for a fitness to practise hearing is set out below. We are assuming that the registrant has a lawyer who is representing them to make it easier to understand the different roles.
The starts by the parties and the panel dealing with preliminary issues, which are often legal and procedural points relating to evidence or, for example, whether the charges are correctly worded, or how the hearing will run over the coming days.
The charges are then read out and the registrant has the opportunity to admit or deny each individual charge. Any charge that is admitted is automatically deemed to be found ‘proven’ for the purposes of the following steps.
The regulator then ‘opens’ its case, which means giving an overview of the charges and some of the key evidence that will be presented in support.
The regulator calls witnesses to give ‘live’ evidence before the panel, although witnesses often give evidence via video link. The regulator’s case presented puts questions to the witness, designed to help the panel understand how their evidence relates to the charges. The registrant’s representative then has an opportunity to put their questions to the witness – these questions are framed in a way that highlights discrepancies or gets the witness to concede certain things which will support the registrant’s defence. Finally the panel may want to ask questions to clarify anything that has already been said or to elicit information that the panel members think may be useful when it comes to making decisions
Once the regulator has gone through all of the witnesses who support their case, they ‘close’ their case. At this point the registrant’s representative can make a ‘submission of no case to answer’ – legal and factual arguments as to why they think that the regulator has not produced sufficient evidence for the panel to find one or more of the charges proven. It is important to note that this happens BEFORE the registrant sets out their defence. The panel then review the evidence and decide if they think there is enough evidence on which they COULD find a charge proven.
Any charges where the panel do not think there is sufficient evidence are then struck out, so they do not need to be dealt with in the registrant’s defence. In very rare cases all of the charges might be struck out, so the case would end at that point because there are no remaining charges for the registrant to answer.
The registrant then has the opportunity to put their defence to the panel and call any witnesses in support of their case, including the registrant themselves giving evidence. The registrant’s representative will ask questions of the registrant or witnesses, followed by an opportunity for the regulator’s case presenter to ask question (designed to undermine that witness’ evidence) and then the panel to also put any questions that they have to the witness.
Once the registrant’s evidence has been explored, both the regulator’s case presenter and the registrant’s representative make ‘submissions on the facts’ – essentially arguing how the panel should interpret the evidence and how this supports or undermines the charges. The panel may ask for clarifications on any of the points which have been raised, before going away to decide which charges they find proven and based on the evidence, giving reasons why they arrived at those conclusions.
The panel’s decision on the facts is shared, in writing, with the parties. If one or more charges has been found proven (or proven because it was admitted) then the case proceeds to the next stage – considering whether the registrant is currently impaired. The panel will usually allow a reasonable amount of time (perhaps a few hours or overnight) for the parties to be able to read through and understand the decision on the facts before they are expected to make ‘submissions on impairment’ – again, legal and factual arguments, based on the evidence, which suggest whether the registrant is impaired. Again, the panel has the opportunity to ask questions to clarify any points made by the the parties, before taking time to decide on impairment.
If none of the charges were found proven then by default the hearing ends right there and then.
Following a finding on the facts or at any stage where the panel feels it is appropriate they may make an interim order to restrict the registrant’s ability to practise. This will usually happen when a decision has been reached which means that there may be an immediate risk to patients or the public and the panel wants to safeguard against that pending the full outcome of the case.
Once they have reached a decision on impairment, the panel will give written reasons to the parties. If the registrant is found to be impaired then the case proceeds to the sanction stage. The parties will be given time to prepare submissions on what the sanction should be, before presenting them to the panel, followed by questions from the panel, before the panel decides what the appropriate sanction is.
If the panel have found that the registrant is not impaired then the the hearing does not move to the sanction stage.
The panel’s decision on sanction is shared with the parties and this is the final outcome of the hearing. The written reasons will usually be shared during the hearing, and then a formal notification of the panel’s full decision, covering the entire hearing, will be formally sent to the registrant by the regulator.
Depending on how efficiently the hearing went, it may be that the hearing cannot be completed in the time which was originally scheduled, referred to as “going part heard”. New dates will need to be allocated and the panel, along with the parties, will try to estimate how many additional days will be required. Due to the number of people involved in a hearing, their availability and the resource requirements for hosting a hearing, there may be a delay of weeks or even months before the hearing can resume. The panel will always take into account the availability of the registrant and their representative when finalising dates to make sure that there is no unfairness to the registrant.
Once the hearing has closed, the registrant then has an opportunity to consider whether to appeal all or part of the panel’s decision, within a specified time limit. Appeals are heard by a judge in the High Court Administrative Decision, not the panel who heard the original case.