By Melanie McDonald
The concept of “impairment of fitness to practise” in healthcare regulatory proceedings has always been slightly problematic. Smith LJ in the Fifth Shipman report summarised the difficulty :
Some concepts are difficult to define but relatively easy to recognize when found. It is often said that elephants fall in to that category but I have never understood why; definition cannot be too difficult. However I fear “impairment of fitness to practise” will be not only difficult to define but also not easy to recognize, because (unlike recognizing an elephant) recognizing “impaired fitness to practise” involves making a value judgment (25.46)
In grappling with the concept of impairment, the fundamental adjustment FTP panels had to make was to understand that they were being asked to assess current fitness to practise – i.e. whether, at the date of the hearing the practitioner’s fitness to practise was impaired. Under the previous disciplinary regime the discussion had centred largely on the nature of the misconduct itself, and although the courts had repeatedly stated that the purpose of sanction in professional disciplinary proceedings was not punitive, there was still a strong parallel to be drawn with sentencing in the criminal courts.
The concept of impairment of fitness to practice was introduced in 2004 and involved a shift in focus away from the act or events which formed the basis of the charges to the practitioner him or herself. For the first time panels in deciding whether it was necessary to impose a sanction, were able to take in to account material relating to the practitioner’s history, including previous/recent clinical practice and any steps taken to address the professional or personal issues the case raised.
This change initially posed evidential problems. FTP panels were used to excluding such evidence until they were considering sanction and this resistance to admitting or – if it was admitted – attaching any weight to material which gave a broader view of the practitioner’s history and conduct since the index event, led to several successful High Court challenges, most notably Cohen v GMC (2008) EWHC 581 (Admin). 
Cohen involved the mismanagement of a single case by a consultant anaesthetist . The facts were largely admitted and expert evidence led by the GMC resisted the characterisation of the incident as misconduct. Mr Cohen also produced a number of glowing references from senior colleagues. Nevertheless the FTP panel found that the matters charged did amount to misconduct and, having done so, it appears to have assumed that it must follow that Mr Cohen’s fitness to practise was impaired.
In allowing the appeal, Silber J. emphasised the importance of treating impairment as a separate issue from misconduct and noted that in a case such as this:
It must be highly relevant in determining if a doctor’s fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. (paragraph 65)
Thus the formulation of what has subsequently become known as the “3 fold test”, which is now widely applied by FTP panels at the impairment stage.
The advantage of such an approach is that where the practitioner has taken active steps to address his or her failings, this can properly be taken in to account by FTP panels and can, in an appropriate case, lead to a complete acquittal notwithstanding a finding that the facts amount to misconduct.
The risk is that too narrow an application of the “3 fold test” leaves out of the equation other factors which may be just as important in the context of regulatory proceedings. In particular the public interest considerations which underpin all regulatory proceedings, may be overlooked; and this was, as Cox J. found, precisely what had occurred in the recent case of CHRE v NMC(1) and Grant(2) (2011) EWHC 927 (Admin).
Paula Grant was a senior midwife who faced a number of charges before the NMC. These included bullying a junior colleague and the wholly inappropriate and insensitive treatment of two women in her care, one of whom was being delivered after her baby had died in utero while the other had gone in to labour at 20 weeks so that there was no prospect of the child surviving. In the latter case Ms Grant had altered the register to record the delivery as a stillbirth notwithstanding the fact that both the parents and junior midwife present noted signs of life. The incidents had thus taken place in a clinical setting but did not call in to question the registrant’s clinical skills.
The case was referred to the NMC in 2007 and Ms Grant remained subject to an interim suspension order until her case came before the Conduct and Competence Committee for hearing in June 2009. In practical terms this meant that when the panel came to assess fitness to practise there was no evidence available – one way or another – about her subsequent conduct in a clinical setting.
Despite Ms Grant’s vehement denial of the charges, most of the facts were found proved, the CCC expressing a clear preference for the evidence of the other witnesses to that of the registrant.
The case was then adjourned due to lack of time. The issue of impairment did not fall to be determined until April 2010. At the restored hearing Ms Grant gave evidence that she had started a counselling course in September 2010. This was relied on as evidence that she had remedied the misconduct in line with the Cohen test. When cross examined she remained equivocal about the findings of fact, maintaining that it was really a matter of how her actions had been perceived. When asked by a member of the panel why, in effect, she had not taken rehabilitative steps sooner she replied that she had been seriously ill. This was the first time any issue in respect of her health had been raised.
The CCC confined its consideration of impairment to a narrow application of “the 3 fold test” which, it was taken as read, was the correct approach. It found that her fitness to practise was not impaired. In doing so the panel relied on the registrant’s oral evidence about the counselling course and evidence received from 2 former colleagues that she was a competent clinician. Although it had received no medical evidence, the registrant’s assertion that she had suffered from ill health was also readily accepted by the CCC as an explanation for why she had taken no steps to remedy her failings until after the facts had been proved.
Curiously, despite having previously made adverse findings about Ms Grant’s credibility and the serious nature of the misconduct, these matters played no part at all in the decision on impairment.
This decision was the subject of a s.29 appeal to the High Court by the Council for Healthcare Regulatory Excellence. The appeal was supported by the NMC, which had taken the unusual step of asking the CHRE to review the case.
In her judgement Cox J. highlighted a number of features of Cohen which are often overlooked. In particular Cohen involved a single clinical error in an otherwise exemplary career. By contrast the conduct in Grant was characterised as “serious, attitudinal or behavioural issues rather than issues of clinical competence” that had taken place over a period of 20 months. It was also emphasised that Silber J. had prefaced his discussion of impairment by highlighting the importance of the wider public interest considerations. Finally while in Cohen the facts were largely admitted, Ms Grant had “maintained a vigorous denial of the allegations…disputing the facts and therefore requiring the evidence, including the evidence of the patients themselves, to be called and challenged.”
The CCC’s error was, the court concluded, to elevate the factors identified by Silber J. in Cohen as being potentially “highly relevant” to impairment to be a “legal test” which was determinative of the issue. That approach is to be contrasted the analysis of Smith LJ that deciding whether fitness to practise is impaired is essentially a value judgement. It therefore follows that a more complex and fact sensitive approach is required.
At paragraph 25.67 of the Fifth Shipman Report, Smith LJ had gone on to formulate guidance for FTP panels on how the issue of impairment might be approached:
Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a. Has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. Has in the past and/or is liable in the future to bring the medical profession into disrepute, and/or
c. Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
d. Has in the past acted dishonestly and/or is liable to act dishonestly in the future.
That guidance was emphatically endorsed by Cox J. in Grant at paragraph 76:
The value of this test, in my view, is threefold: it identifies the various types of activity which will arise for consideration in any case where fitness to practise is in issue; it requires an examination of both the past and the future; and it distils and reflects, for ease of application, the principles of interpretation which appear in the authorities. It is entirely consistent with the judicial guidance…but is concisely expressed in a way which is readily accessible and readily applicable by all panels called on to determine this question.
Although Cox J. found that the CCC had fallen in to error in its narrow application of the “3 fold test”, it is important to realise that there is no tension between her analysis and the judgement in Cohen. The “3 fold test” remains a helpful tool in identifying the extent to which a practitioner has demonstrated insight and addressed any clinical or related issues that his or her case may raise. There will always be cases such as Cohen where the evidence of rehabilitation is compelling and a panel can properly conclude that fitness to practise is not impaired. However in cases where the misconduct is not related to clinical practice, or is very serious, the “3 fold test” may be of only limited assistance.
What the judgement in Grant does is to remind FTP panels that in making, as it must, a value judgment on the practitioner’s current fitness to practise, they should recognize and accommodate the need to maintain public confidence in the profession. This does not undermine the restorative approach to the regulation of healthcare professionals, particularly in cases involving problems with clinical practice or isolated minor incidents, but it should avoid the mechanical tick box approach that panels are in danger of adopting when they confine their assessment of fitness to practise to the “3 fold test”. A finding of impairment does not preclude the imposition of a lenient or no sanction, but it does mark wrongdoing or lack of competence by professionals whose contact with the public occurs almost inevitably at times of particular physical or emotional vulnerability.