Should you engage with your regulator during a fitness to practise investigation?

Engagement does matter

Should you engage with your regulator during a fitness to practise investigation?  Yes.  It is important that you engage with your regulator when you receive correspondence, queries and/or request for information etc.

There are a number of reasons why engagement is important, including:

1. Regulators could view this as evidence of insight. Insight is about being able to see or understand something clearly.  In the context of fitness to practise, factors that can be relevant to genuine insight include evidence that the professional has considered the concern, understood what went wrong and accepted they should have acted differently by for example demonstrating that they fully understand the impact or potential impact of their performance or conduct.
2. Regulators and tribunals are likely to draw negative inference from health and care professionals who do not engage with them during a fitness to practise investigations.
3. We know from our own experience, backed up by evidence from research, that health and care professionals who proactively engage with their regulator during a fitness to practise investigation, generally, receive better outcomes or less severe sanctions (if impairment is found).

There are reasons why health and care professionals who proactively engage with their regulator during a fitness to practise investigation, generally, receive better outcomes. 

1. Opportunities for early resolution

Fitness to practise investigations offer health and care professionals with the potential to achieve an early closure of their investigation.  You will be notified by your regulator that they have opened an investigation.  During the “Preliminary Enquiries” stage, you should be given an opportunity to respond to the complaint(s) made. 

Should your regulator open an investigation, there should be a further opportunity to submit a response and evidence during the “Case Examiners” stage.

Both these junctures in the fitness to practise investigation process offer health and care professionals a real opportunity to have their investigation(s) closed without the need for a full fitness to practise tribunal hearing.

The reality is that the vast majority of fitness to practise investigations are closed either during the Preliminary Enquiries or Case Examiners stages.

2. Duty of Candour

Every health and care professional must be open and honest with patients and people in their care when something goes wrong with their treatment or care causes, or has the potential to cause, harm or distress.  This is referred to as the Duty of Candour.

The duty also requires health and care professionals to be open and honest with their colleagues, employers and relevant organisations, and take part in reviews and investigations when requested. They must also be open and honest with their regulators, raising concerns where appropriate. They must support and encourage each other to be open and honest, and not stop someone from raising concerns.

Failure to comply with the Duty of Candour is likely to amount to misconduct, particularly if there is any element of deliberate steps or intent to avoid being candid or to prevent someone else from being so.

3. Evidence of insight

Insight is about being able to see or understand something clearly.  

Where things have gone wrong, assurances will need to be demonstrated that there will be a negligible risk and that any ongoing risk can be adequately managed.

Factors that can be relevant to genuine insight include evidence that the professional has considered the concern, understood what went wrong and accepted they should have acted differently by for example demonstrating that they fully understand the impact or potential impact of their performance or conduct.

Demonstrating remorse involves taking responsibility and exhibiting regret for their actions. This could include evidence that the professional has:

• been open and honest about their wrongdoing and apologised;
• undertaken appropriate remediation.

Health and care regulators place substantial weight to insight and remediation.  If a health and care professional can show evidence of remediation, this may be sufficient to close an investigation without the need for a full fitness to practise tribunal hearing.

Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.

When to say what? Legal advice is important to better outcomes

Engagement is key and offer health and care professionals with the real prospect of an early resolution to a fitness to practise investigation.  However, this engagement requires careful thought to ensure it is clear, effective and timely.  This is where legal advice and representation is absolutely important.

Expert legal advice and representation will ensure your response and evidence are clear, relevant and submitted in a timely manner.  Expert legal advice will also help you set the right strategy to ensure you are well-placed to respond to your regulator, for example, remediation training or coaching to help you understand the process, the importance of insight and remediation and how to present this effectively.

Kings View Chambers have a proven track record of success, acting for a range of health and care professionals facing fitness to practise issues.  You can read more about our case success, our excellent reviews and contact us for a free, no obligation case assessment.