Case Examiners – Case Closed

Case Examiners – who are they?

At the conclusion of the initial investigation stage, if there is evidence that a health and care professional’s fitness to practise may be impaired, the case must be referred to the case examiners for more in depth consideration.  Case examiners are normally made up of both lay people and professionals in the area of regulation.

The case examiners are not asked to decide the facts of the case. They do not consider if the allegations made against a registrant are true or not true. The case examiners are required instead to consider if there is a real prospect that the allegation in the case could be proved and that, if proven, it would suggest that the registrant’s fitness to practise might be impaired.

Case examiners therefore are appointed with a statutory duty to make decisions, for example to close cases without further action, give advice, warnings, agree undertakings and referring some cases for a full hearing.

What is Impaired Fitness to Practise

The general dictionary definition of impaired means weakened or damaged. In regulatory proceedings, it means that there are concerns about the registrant’s ability to practise safely and effectively. This may mean that they should not practise at all, or that they should be limited in what they are allowed to do.

Many healthcare professionals believe that impaired fitness to practise simply applies to their ability to do their job and their level of knowledge, skills, and competence, however the terms encompasses a far wider meaning. Impairment is also about your health and good character, which in turn can have a negative impact on the reputation of your profession, your employer, and your regulator.

Opportunities for Case Closed

An important aspect of Case Examiner’s work is to review all the relevant evidence gathered by casework, including any evidence provided by the registrant or the informant.  Based on this evidence, case examiners can decide to, amongst other things, to close the case and take no further action.

The real prospect test means that the case examiners have to decide if there is a genuine, not remote or fanciful, possibility of establishing that the registrant’s fitness to practise is currently impaired.

Engagement and Evidence

When case examiners make decisions whether to close a case or not, evidence provided by the registrant is taken into consideration.  What can a registrant do and/or submit to achieve an early resolution of their case?  Whilst the circumstances of each case will differ, below are common considerations for registrants:

1. Seek legal advice at the earliest opportunity
2. Insight & Remediation – Case examiners will consider evidence of insight and remediation. Often, investigations can take a considerable amount of time to conclude at the initial investigation stage.  During this time, registrants should use the opportunity to take advice, consider the circumstances and take steps as necessary.
3. Engagement – Registrants should engage with their regulator during a fitness to practise investigation. Regulators are likely to draw a negative, or adverse, inference if registrants do not engage.  However, responding and submitting evidence must be carefully considered, ensuring it is relevant, concise and makes the right points.  It is strongly advised that you seek legal advice.
4. Make sure you respond in time – Some regulators place strict deadlines for registrants to submit evidence and responses. Failure to comply is likely to result in the evidence and responses to be disregarded.  This is again points to the value of seeking legal advice at the earliest opportunity.
5. Context is key – The circumstances that an incident(s) happened in may be relevant to the assessment of risk and whether there’s a realistic possibility that a registrant’s fitness to practise is currently impaired. Registrant’s will therefore need to carefully consider the contextual factors relevant to any incidents.  For example, in the current Covid pandemic, health and care professionals might need to practices outside their specialisms or depart from established procedures and this will be relevant when case examiners consider whether there is justification supporting the closure of a case.

Contesting allegations & Evidence

Case examiners cannot test the evidence, and they don’t decide whose evidence they would choose if there is a disagreement between parties.  In some circumstances, registrant’s may decided to contest allegations and evidence.  Under these circumstances, might opt for a contested hearing, in which case their case cannot be closed at the case examiner stage.  Registrants must seek legal advice when considering contesting evidence.

Case Examples

Kings View has a successful track record in achieving no case to answer for clients.  Recent case success examples:

• Case closed for social worker with no case to answer
• Kings View Chambers secure no case to answer for nurse
• Kings View Chambers successful in securing no case to answer for doctor