1. OIA Perspectives on Fitness to Practise GMC-MSC Student Fitness to Practise Training Conference 2 May 2014 www.oiahe.org.uk 1 Christine Child, Adjudication Manager Hilary Jones, Assistant Adjudicator

2. About the OIA   Created in the 2004 Higher Education Act – “An Act to make provision about ……complaints by students against institutions providing higher education…”   The OIA is overseen by an independent Board, whose duties include preserving the independence of the Scheme and of the role of the Independent Adjudicator   England and Wales only   Transparent, independent, free to students   OIA statistics now being shared with GMC on a quarterly basis   OIA received 12 complaints from medical students in first quarter of 2014   Various categories of complaint, not just fitness to practise 2

3. COMPLAINTS RECEIVED BY THE OIA 3

4. What do we do?   Student must exhaust the internal complaints/appeals procedure of the university before coming to the OIA   We review complaints about any act or omission of a university to see whether those complaints are Justified, Partly Justified or Not Justified :   Did the university properly apply regulations and follow procedures?   Was the university’s decision reasonable in all the circumstances?   We cannot review complaints about admissions, academic judgment, student employment or matters which are/have been the subject of Court/Tribunal proceedings, unless proceedings “stayed”   Good practice recommendations and dissemination of good practice to Higher Education sector 4

5. Fitness to Practise: What do we look at?   The University’s regulations and procedures:   Are they clear and unambiguous?   Were they followed?   Have the additional requirements of studying for a professional qualification been adequately explained to the student?   Does the evidence support the allegation, and has the student had a fair opportunity to meet the case against him/her?   The University’s decision:   Was it reasonable in all the circumstances?   Is there evidence of bias in the decision making process?   Adequate reasons given?   Our focus is the University’s final decision (usually outcome of any appeal against decision of FtP panel)   NOTE: The actions and decisions of placement staff will fall outside the scope of the OIA’s review 5

6. Academic Judgment/Professional Judgment   The OIA cannot interfere with the operation of an institution’s academic judgment (HEA 2004 and OIA Rules) and will not interfere in matters of professional judgment   Academic judgment is a decision about a matter that only an experienced academic can make (it is not any judgment made by an academic)   Professional judgment is a decision about professional standards that only an experienced professional can make   Fitness to practise is likely to be a matter of professional judgment but OIA will look at the regulations and procedures followed and the fairness/reasonableness of the outcome 6

7. Procedural fairness   ‘Natural Justice’ - Procedural fairness – duty to act fairly   Nobody shall be a judge in his own cause   Hear the other side   Requirement of reasonableness   Reasons given for decision   Article 6 (1) : European Convention on Human Rights - "In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”   Application to students? 7

8. Representation at FtP hearings   Published decisions on the right to legal representation (see Appendix)   Concern employees and their rights to continue practising their professions   Application to students who have not yet completed their studies and passed fitness to practise requirements?   OIA view is that Students’ Union probably best placed to advise/represent students in FtP matters BUT   University regulations should not completely rule out legal representation at FtP hearings e.g. where behaviour could constitute a criminal offence   University regulations could provide, for example, for SU representation ‘except in exceptional circumstances’ 8

9. Burden and standard of proof   Burden on university – it must prove the student is not fit to practise   s60A Health and Social Care Act 2008 - standard of proof in fitness to practise proceedings is that applicable to civil proceedings – the balance of probabilities   Panel/hearing must be satisfied that it is more likely than not that the allegations against the student are true   If outcome will have a significant outcome for student’s future the standard does not change but panel has to ensure evidence provides sufficient basis for that outcome   If the student admits misconduct but wishes to defend or mitigate then up to the student to prove that defence – again on balance of probabilities 9

10. Disability issues   Universities should be proactive in encouraging disclosure of disability   Ensure that atmosphere and culture is welcoming and open   GMC Professional values and fitness to practise requirements   The OIA will consider whether the university has:   considered Equality Act, including duty to make reasonable adjustments   followed its own fitness to practise procedures   made or considered adjustments to its fitness to practice procedures and/or appeal procedures themselves   Duty to make reasonable adjustments applies in relation to a provision, criterion or practice other than a competence standard   Universities should consider each case on its individual circumstances; rarely should a university have a blanket policy in considering FtP/disability cases 10

11. Introduction to case studies   We have used examples from different professions – the OIA’s approach to Fitness to Practise issues is consistent across the professions – issues also relevant to medical student cases   If you think you recognise a case as being from your own institution, it may not be BUT please maintain confidentiality in any event   We have simplified case studies to pick out key points in each 11

12. Approach to case studies   What are the key issues and what would the OIA look for?   Remember the OIA approach:   Focus is the university’s final decision   University’s procedures - are they clear, are they fair and were they followed?   ‘Natural Justice’ – ‘hear both sides’, ‘be reasonable’, ‘give reasons for decision’   Burden/standard of proof to be applied   Disability – university’s obligations   Academic or professional judgment   C is the student and H is the University 12

13. Case study 1: Facts   February 2009 - C, a student doctor, was formally diagnosed with OCD having suffered symptoms since childhood   May 2009 - C suspended under FtP procedures (concerns about behaviour, performance and on-going health issues), although no FtP hearing held as C requested a formal leave of absence   Spring 2011 - H requested a psychiatric assessment of C; report concluded that C lacked insight into her limitations and doubted C would be able to overcome her limitations   June 2011 – C withdrawn from course following FtP hearing (FtP panel concluded that continued treatment would not have a realistic prospect of achieving the required improvement to enable C to function as doctor)   C appealed the FtP panel’s decision on grounds including:   New evidence which she said she could not previously have given to FtP panel - statements relating to her academic record and a Dr’s letter referring to C’s assessment of her health in March 2011   Procedural irregularities – various issues including lack of support for her disability   The appeal panel rejected the appeal 13

14. Case study 1: OIA conclusions   Not Justified decision   C had been advised of right to provide additional information to FtP panel   Reasonable for appeal panel to conclude that additional evidence would not have altered FtP panel’s decision in any event – Dr’s letter did not give contemporaneous account of C’s health at relevant time and academic record not relevant to reasons for C’s withdrawal   Evidence of support provided to C and no evidence that she had complained about the lack of support at the time or had sought further support   OIA unable to interfere with H’s professional judgment to accept conclusions in psychiatrist’s report and therefore find C not fit to practise   Observations   Some confusion over which procedure – Leave of Absence or FtP – was being applied   Good practice to clearly identify relevant procedure and, where two might apply, which will prevail 14

15. Case Study 2: Facts   C, a student teacher, was accused of inappropriate behaviour with a pupil on placement and the placement was terminated in March   H informed C that he would be expelled from PGCE course and that any dispute of the allegations must be made through the placement school   C contacted school but was told it was a matter for H   First expulsion hearing at H in June   C given no opportunity to view CCTV footage of alleged incident until shortly beforehand   C not given written documentation about allegation in advance and given no opportunity to challenge pupil’s evidence   Following further investigation H concluded that ‘it is not possible to dismiss the accusation made against [C] unequivocally’   Second expulsion hearing in August; report refers variously to different standards of proof   In September, C told that H had ‘not found against him’, he would be readmitted to the course and that the pupil’s allegation would be disclosed in any reference from H 15

16. Case study 2: OIA conclusions   Partly Justified decision   H was unclear as to its procedures about handling complaints against students on placement   C was not provided with evidence about the allegations in advance   C was not provided with an opportunity to challenge the pupil’s evidence, before or at the expulsion hearing, notwithstanding the pupil’s age   Confusion over standard of proof to be applied; evidence of lower standard than ‘balance of probabilities’ having been applied   Unreasonable delay in dealing with the matter   Recommendations   £9000 compensation (distress and inconvenience and loss of opportunity to complete PGCE - C had felt unable to continue with the course)   Reconsider wording of reference   H confirmed that it was in the process of reviewing/drafting professional suitability and FtP procedures 16

17. Case Study 3: Facts   Hospital terminated C’s nursing placement following complaints about her unprofessional behaviour and lack of skills required of a second year student. C had previously been assigned an Action Plan amidst concerns about her behaviour and skills   H investigated the matter and referred it to a FtP Hearing   The FtP panel found that C was not fit to practise and C was withdrawn from the course   C appealed on grounds which included that: (i) she had had no opportunity to address the issues in her Action Plan before being withdrawn; and (ii) previously undiagnosed dyslexia   The FtP Appeals Panel upheld the decision of the FtP panel 17

18. Case Study 3: OIA conclusions   Not Justified decision   Reasonable to expect improved standards of competence at each level of study   Whilst C had not had opportunity to address the Action Plan, the FtP procedure had been invoked due to genuine concerns regarding safety   Disability had not been disclosed & no evidence that the issues giving rise to the FtP were related to C’s disability in any event   FtP and appeal procedures were correctly followed   Ultimate decision to withdraw C was an exercise of H’s professional judgment 18

19. Conclusions and questions   Concluding remarks   Any further questions? 19

20. CONTACTS Christine Child, Adjudication Manager christine.child@oiahe.org.uk Hilary Jones, Assistant Adjudicator hilary.jones@oiahe.org.uk Tel: 0118 959 9813 20

21. Appendix: Article 6 – right to legal representation?   Kulkarni [2009] EWCA Civ 789 – In circumstances of this kind, Art 6 should imply a right to legal representation because the doctor is facing what is in effect a criminal charge, although it is being dealt with by disciplinary proceedings. Although the consequences of a finding of guilt cannot be deprivation of liberty, they can be very serious.   Governors of X School v G [2011] 30 UKSC - The Supreme Court held that there was no automatic right to legal representation at a disciplinary hearing and that G’s career as a music assistant was not determined by the school disciplinary hearing but would be decided by a later tribunal at which he could be represented - the issue is fact sensitive and the Supreme Court leaves open the possibility that legal representation may be required in limited cases, although it stopped short of providing examples where this would be the case   Mattu [2012] EWCA Civ 641 Most recent case narrowed down rights. Less of a requirement to allow legal representation to employees facing disciplinary proceedings and the disciplinary and appeal panels are not required to comply with Article 6 rights. 21