Once the Health and Care Professions Council (HCPC) has decided that a fitness to practise complaint falls within its regulatory jurisdiction (triage), it will move to the initial investigation stage.
At this point in the HCPC fitness to practise investigation process, the HCPC will formally inform you of the investigation in writing. It is important to seek legal advice at this stage. Setting the right approach and strategy at an early stage in the fitness to practise investigation can lead to better outcomes for HCPC registrants.
An initial HCPC investigation will gather relevant information about the concern. This may involve gathering information from a number of sources relevant to the complaint. The HCPC might also notify your employer and request information from them directly, depending on the nature of the concern.
Once they have completed their initial investigation, they will assess the concern, and the information against the HCPC threshold criteria for fitness to practise investigations.
If the HCPC decide that the concern does meet the threshold, the matter will be referred to the HCPC Investigating Committee, who will decide if there is a case to answer or not.
HCPC Threshold Policy for Fitness to Practise Investigations
The HCPC defines fitness to practise as:
“a registrant has the skills, knowledge, character and health to practise safely and effectively. It is about more than being a competent health and care professional. For fitness to practise, registrants need to keep their skills and knowledge up to date and to work within their field of competence. Fitness to practise, also, requires registrants to treat service users with dignity and respect and to act with honesty and integrity.”
A HCPC registrant’s fitness to practise may be impaired for one or more of the following five reasons:
- Lack of competence
- Conviction or caution for a criminal offence
- Physical or mental health
- A determination by another health or social care regulatory or licensing body
“Impaired fitness to practise means more than a suggestion that a professional has done something wrong. It means a concern about their conduct, competence, health or character. This is serious enough to suggest that the registrant is unfit or unsafe to practise without restriction, or at all.”
The threshold test the HCPC applies at the initial investigation stage is whether the concern and any associated information amounts to an allegation that your fitness to practise may be impaired on one or more of the statutory grounds. The main criteria it takes into account when assessing whether the information it has received meets that test include the following:
- The actual or potential risk to public safety
- Whether the matter may undermine public confidence in the profession. Whether the matters complained of could amount to a breach of HCPC’s standards of conduct, performance and ethics, standards of proficiency and other relevant guidance for registrants
- Whether the matter is a serious concern of the type listed below
- Whether the information calls into doubt the registrant’s honesty or integrity
- If the registrant has a physical or mental health condition that may present a risk to their ability to practise safely or effectively
- Whether the matter relates to an isolated incident or indicates a wider pattern of behaviour
- If the registrant has taken action to remediate their practise
- Whether there have been previous, similar concerns about the registrant
- Any other public interest considerations.
It is worth noting that certain concerns are deemed so serious that they will meet the threshold criteria at the triage stage. Examples of serious concerns include:
- serious violence;
- sexual assault or indecency;
- any criminal offence relating to a child;
- improper sexual, emotional or financial relationship with a service user;
- any criminal offence where the registrant has been given a custodial sentence;
- dishonesty; and
- serious or reckless errors in a registrant’s practise which have caused, or have the potential to cause, serious harm to service users.
If the HCPC considers that the threshold has been met, it will draft formal allegations, which will be referred to the Investigating Committee (IC). The IC will decide if there is a case to answer or not.
Serious cases will be referred automatically to the IC from the triage stage, without going through an initial investigation.
Your right of reply
Once the HCPC have drafted the allegation(s) against you, the HCPC will write to you including a copy of the information and evidence. At this stage you will have a right to respond, in writing, within 28 days. Under certain circumstances, the HCPC might agree to an extension of a further 28 days to give you more time to respond.
Importance of Legal Advice
As mentioned earlier in this article, seeking legal advice at an early stage can be important to a positive outcome for your case. Seeking legal advice at an early stage will ensure the right strategy and approach to take including when and how to reply to correspondence from the HCPC, seeking extensions to provide you with sufficient time to draw up a response, and the right approach to remediation where necessary.
The HCPC Threshold Policy states, in relation to remediation, that where a registrant submits information that indicates steps they have taken to remediate fitness to practise concern:
“this information will be assessed against our threshold criteria in the usual way. If we consider that the information demonstrates that any retraining, learning or improvements are embedded in the registrant’s practise, we may decide that the registrant no longer presents a risk to members of the public or the wider public interest and that the threshold criteria is not met.”
We can advise and work with you on the right approach to remediation. In some cases, remediation can take a some time to put in place and for this too, early engagement with expert legal advice is important.
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.