The “real prospect” test – the standard by which you will be judged

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14
Nov

The “real prospect” test – the standard by which you will be judged
By: Anonymous | Published On: 14/11/21 10:02 pm

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.

Fitness to practise triage stage

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:

  • the seriousness of the concern
  • whether there is likely to be any evidence to support the concern
  • whether the incident is isolated or repeated
  • whether there has been a breach of established standards or guidance
  • what action has been taken already to address the concern, including whether you have taken any steps to remediate
  • any outcomes of any previous regulatory investigations

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

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: 

  1. decide whether there is a real prospect (that is, a real possibility) of the facts being proved by a fitness to practise committee; and
  2. deciding whether the facts, if they were proved, could show that the professional’s fitness to practise is currently impaired.

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.

Insight and remediation

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.

However, it is vital that you seek legal advice on the right strategy and approach when considering insight and remediation in the context of the real prospect test.  

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.

What you can expect when instructing us?

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.

If you are facing fitness to practise investigation, speak to one of our expert barristers today for a free, no obligation case assessment.



Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.