Higher Education Today – December 2023

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Healthcare professionals and fitness to practice: how should Universities and Higher Education Institutions deal with conduct concerns?

Fitness to practice (FTP) issues involving students on professional vocational courses – such as medicine, dentistry, nursing and others – raise unique challenges for providers. Universities, and individual schools and departments, can find themselves performing multiple roles, with responsibilities to students who are the subject of complaints, complainants, and regulators, whilst facing often complex issues involving the public interest.

Members of our Higher Education Group and our Litigation, Regulatory and Public Law team recently presented a webinar on the key issues Higher Education Institutions should consider when managing conduct concerns. A summary of the key issues is below.

What are the roles of the various bodies involved?

1. Higher Education Institution and medical school

When an investigation is triggered under the higher education institution’s procedures it will be responsible for:

• appointing an investigator
• appointing a decision-maker to consider the investigator’s report
• appointing and supporting a decision-making panel
• conducting proceedings
• applying any outcome
• reporting to regulators

2. Professional Regulator

Its role is to:

• set the standards expected of the profession
• make decisions on registration (including student registration)
• potentially make its own inquiries, or ask schools for further information, once an application for registration has been made.

3. Office of the Independent Adjudicator (OIA) for Higher Education

The OIA has set out guidance within its “Good Practice Framework” on fitness to practice and disciplinary procedures. This is helpful in highlighting the distinction between fitness to practice procedures and Universities’ broader disciplinary procedures:

“The purpose of a fitness to practise process is not to punish the student for wrongdoing. It is to ensure the safety of the student and those around them, including members of the public, and to safeguard public confidence in the profession. The process should be supportive even when the outcome is that the student can’t continue with their studies.”

What is the test of fitness to practice?

Regulators articulate the test slightly differently but with common themes. For example:

• GMC uses “domains” – knowledge, skills and performance; safety and quality; communication, partnership and teamwork; maintaining trust.
• HCPC and GDC both say: “the skills, knowledge, character and health to practise their profession safely and effectively”

How are these standards applied to students? The threshold is not lower for students than registered professionals, but the context introduces different considerations. For example, students are less likely to be unsupervised contact with patients, and so risk may manifest itself in different ways. There are also risk areas for students which may be less prevalent among registered professionals, such as plagiarism.

Concerns may have a particular impact during the final year of study, given the GMC’s instructions to medical schools:

“in cases where there is an outstanding, justifiable concern over a student’s fitness to practise, the medical school must not graduate the student”

Low-level concerns

Most Higher Education Institutions have a screening/triage process, for identifying and responding to low-level concerns, allowing many issues to be addressed early and informally. This does not mean that such issues are forgotten or ignored – it can also help to identify patterns, causes or possible escalation, and repetition could justify escalation to the formal procedure. It is, therefore, important to keep records and ensure that students are aware of how they have caused concern, the expectations of them, and the possible consequences of repetition.

Initiating formal procedures

Where a formal procedure begins, the preliminary stages should ensure proper engagement with the student. The organisation’s procedure may provide for considering support for improvement measures. Care should be taken to ensure effective record-keeping and clear communication with the student, even if a decision is made not to take any formal action.

Interim measures

Disciplinary codes will provide for interim measures, which may be necessary to protect the public, complainants or the student who is the subject of the complaint. These could involve suspension from studies, or placing limits on access or scope of studies (eg. withdrawal from placement).

Escalation into a formal procedure

Where a formal procedure is invoked, the organisation’s regulations or procedures are likely to include the following stages:

• Investigation: This is key if the facts have not already been established, and may require specialist investigators. It is likely to involve speaking with the student under investigation.

• Decision-making following investigation: the institution’s disciplinary process will set out how decisions should be taken once an investigation is complete and the range of decisions available.

• Referral to fitness to practice panel/committee: this stage requires careful consideration of multiple factors including:
  • Appointment of committee
  • Disclosure and documents
  • Witness evidence
  • Communication and support for the student
  • A hearing or meeting
  • Deciding on, and recording, the outcome
  • Publication and confidentiality
  • The range of available outcomes

Bevan Brittan’s Higher Education team has considerable experience of supporting institutions in handling complex and sensitive disciplinary and fitness to practice issues, including investigation, preparing for formal procedures, advising committees, handling legal challenges and engagement with regulators. If you have any queries about the topics covered in this article please contact Daniel Purcell, Partner.

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Calculate the cost of your Net Zero Journey

One of the biggest challenges in Higher Education is getting a handle on the cost of the Net Zero Pledge. It is estimated that to decarbonise the Higher Education sector will cost £37.1bn.

AUDE, BUFDG and the EAUC have launched their new Cost of Net Zero Calculator tool, together with a report 'The Cost of Net Zero' which helps to assist with the challenge and support higher education institutions in the planning. An innovative and easy to use tool, the report and calculator was launched back in the summer but a reminder feels as we approach COP28.

While the higher education sector has made and seen real activity and focus on climate change, understanding the costs of doing in an already pressured financial environment have made both planning and unlocking finance difficult.

The Cost of Net Zero report contains details of a typical carbon footprint for a higher education institution and worked examples of the calculator. The report itself has detailed instructions on the methodology behind the calculator, how to use the calculator but also how to phases implementation. The programme phasing means that Universities will be able to see annual expected investment (and reduction in emissions) by category and allows for adjustments.

The calculator also contains opportunities for Scope 1 (direct emissions) and 2 (indirect emissions, like energy purchased for heating and cooling) as well as Scope 3 (indirect emissions up and down the supply chain) that higher education institutions can review together with cost and payback range.

The most important thing to note is that you to be able to use the calculator you will need to know what your carbon emissions as an institution. If you have not done so there is guidance on how to do that.

For more information about the Cost of Net Zero Calculator or to have a discussion about the energy issues facing Higher Education Institutions more generally, please contact Harriet Murray-Jones, Partner.

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Say hello to us

Our Higher Education team is attending and speaking at a number of in-person and online events over the next few months, please follow the links for details. If you are also at these events, please come and say hello to us.

• British Universities Finance Directors Group – Annual Finance Festival 2024, 11-13 March, online – Harriet Murray Jones is presenting
• Association of University Directors of Estates Annual Conference – 15-18 April, Northumbria University

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