Fitness to practise includes health – both physical and mental.  With adverse health, what should be considered and when is a fitness to practise referral appropriate?

Health in Fitness to Practise

Health is an important consideration in fitness to practise.  Health and care professionals must have the health necessary to practise safely and effectively.

Health and care professionals with illness (referred to as “adverse health”) can normally continue to practise safely but in some cases, the nature of the adverse health is such that it cannot be managed to the extent that the practitioner can continue to practise safely.

In the context of fitness to practise and health, there are two principal considerations for health and care professionals; acknowledging their adverse health and managing it.  Adverse health includes physical and mental illness.

In terms of managing adverse health, it is worth noting that this goes beyond medical treatment and intervention.  It is also possible to manage an illness through adjustment in practice.  What constitutes a reasonable adjustment will depend on the individual circumstances of each case.

How regulators deal with fitness to practise and health

It is clear from the above that any fitness to practise consideration will consider whether the registrant has acknowledged their adverse health (i.e. demonstrated insight) and taken action to manage their adverse health.

Whilst each regulator will have its own particular standards and guidance pertaining to impairment as a consequence of adverse health, broadly speaking, the types of circumstances that might lead a regulator to conclude a registrant’s fitness to practise may be impaired include:

  • unmanaged serious mental illness;
  • untreated alcohol or drug dependence; or
  • failure to make reasonable adjustments to make sure service users are safe in light of a physical or mental-health condition.

The absence of either/both acknowledgement and management of adverse health is likely to lead to a finding impairment.  Whilst each case will be determined on its merits, a finding of impairment in the context of adverse health does not necessarily lead to suspensions or striking off orders.  Lesser sanctions could be used as an alternative without the need for a full fitness to practise hearing:

  • Undertakings – are restrictions on a registrant’s practice or behaviour agreed between them and their regulator.
  • Conditions – Similar to undertakings, conditions restrict a registrant’s practice or require them to do something. But conditions are imposed on, rather than agreed.

Outside of these, regulators could issue a warning.  Warnings can be issued where a finding of impairment was not made.  In certain circumstances, a warning could be issued where health is raised as an issue.  For example, the MPTS’ sanction guidance states:

“The tribunal may issue the doctor with a warning about their future conduct or performance, with reference to the facts found proved. Where the departure from Good medical practice that requires a response relates to a doctor’s health or knowledge of English, a warning would not be appropriate. Warnings may be issued in multifactorial cases in which health or knowledge of English is raised as one of a number of issues, but not where they are the only area the tribunal wishes to address.”

Health related fitness to practise referrals

Health and care professionals suffering with adverse health are often faced with the dilemma – should they self-refer or is continued management of their adverse health sufficient?

The answer to this question will largely depend on the individual circumstances of each case.  However, there are general considerations that will be relevant to any consideration of this questions.

Generally speaking, a health or care professional that has gained sufficient insight to acknowledge their adverse health and are fully engaging with their treatment should generally not need to be concerned with regulatory action.  Regulators rely on the professional judgement of their registrants to judge their continued fitness to practise notwithstanding their adverse health.

Health and care professionals should also consider legal advice at the earliest possible opportunity particularly when the circumstances around their adverse health change such as a referral to their regulator or considering a self-referral.

More information

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.

Stephen McCaffrey

I am a NMC Defence Barrister who has represented large number of medical professionals before their regulatory bodies in either first instance proceedings or appeals. 

I can help with all matters relating to NMC Fitness to Practise referrals issues including:

  • What to do if you have been referred to the NMC
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  • Consensual Panel Determinations
  • Interim Orders Hearings
  • Advice, assistance and representation for hearings before the Conduct and Competence Committee
  • Advice, assistance and representation for hearings before the Health Committee
  • Appeals against the decisions of the NMC
  • Police cautions
  • DBS [Disclosure and Barring Service] issues

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