The test applied to determine if your fitness to practise investigation will be referred to a full fitness to practise hearing is called the “real prospect” test.
Triage (or filtering) is the first step in any fitness to practise investigation. It is at this stage of the fitness to practise investigation when regulators will apply the “real prospect” test to determine if a complaint or allegations should be referred to a full fitness to practise hearing, or be closed.
Regulators will normally ask for supporting information or evidence from third parties, such as your employer or the police, before deciding whether to open an investigation.
When deciding whether there are reasonable grounds to investigate your fitness to practise, your regulator my take into consideration matters such as:
They will also consider whether the allegation or concern is for them to investigate. If it falls outside the scope of the regulator’s remit, they will refer it elsewhere, for example, your employer, the police or another regulator.
The key point here is that a fitness to practise allegation or complaint should not be referred to a full fitness to practise hearing unless there is a real prospect (that is, a real possibility) of the facts being proved will show current impairment.
The real prospect test will apply to both the factual allegations and the question whether, if established, the facts would demonstrate that the practitioner’s fitness to practise is impaired to a degree justifying action on registration. It will reflect a genuine (not remote or fanciful) possibility.
The real prospect test therefore involves two questions:
In applying the real prospect test, each of the allegations will be considered in turn in light of the evidence.
It is important to note that the real prospect test does not seek to prove that the complaint(s) or allegation(s) are true. The test merely seeks to ensure the evidence which supports the complaint(s) or allegation(s) would be sufficient to prove the allegation.
As mentioned above, when deciding whether there are reasonable grounds to investigate your fitness to practise, your regulator may take into consideration your insight and steps taken to remediate. It is at this stage of the process where you can often have the greatest impact on the decision-making. Evidence of real insight and remediation can result in an investigation being closed at an early stage.
Through our case success, we have shown time and again early engagement with an expert legal advisor is absolutely key to good outcomes. Remediation often takes time to achieve and demonstrate.
The time invested up front could pay dividends. Our barristers are vastly experienced and understand the complexities of the situations health and care professionals face. By instructing Kings View, there is the added benefit of our knowledge and experience of criminal law and proceedings that will provide you with an additional level of assurance.
Kings View are specialist medical defence barristers. For over a decade, we have represented hundreds of health and care professionals facing fitness to practise investigations and hearings.
We pride ourselves on complete transparency and all quotations are given with fixed fees for preparation and representation, agreed in advance and payable in stages. No hidden costs ever.