Impairment of Fitness to Practise

Impairment of Fitness to PractiseImpaired Fitness to Practise in GMC MPT Cases

What does it mean when a doctor’s fitness to practise is found to be impaired?

The concept of “fitness to practise” as part of the statutory regulatory scheme came about, principally, as a consequence of the Shipman Inquiry and GMC internal review of procedures.

A doctor’s fitness to practise can be found to be impaired by reason of: serious professional misconduct; deficient professional performance (relating to competence); adverse mental or physical health; convictions and cautions; poor knowledge of English; a finding by another regulatory body. The Medical Act 1983, as Amended: 35C(2) sets out the statutory criteria:

35C(2): A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of—

(a) misconduct;

(b) deficient professional performance;

(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;

(d) adverse physical or mental health; or

(d(a)) not having the necessary knowledge of English (but see section 2(4));]

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.

The construction of impaired fitness to practise within the statutory scheme has led to a number of legal challenges in the appeal courts. We have compiled a digested case law webpage on some of the case law relevant to impaired fitness to practise evaluations, and we recommend that doctors read those cases. In the case of Cohen v GMC [2008] EWCH 581 (Admin) per Mr Justice Silver (at para 63):

63. “I must stress that the fact that the stage 2 is separate from stage1 shows that it was not intended that every case of misconduct found at stage1 must automatically mean that the practitioner’s fitness to practice is impaired.” (March 2008)

Where a doctor has taken steps to show insight and has undertaken remediation, they might be successful in demonstrating that their fitness to practise is not currently impaired, as at the time of the adjudication of the case by the GMC or a Medical Practitioners Tribunal (MPT). If that is the case, the doctor might be given a warning or undertakings, a letter of advice, or there might be no further action.

While a finding of no current impairment is a possibility, it will be very much dependent on the seriousness of the issues that are being considered by the tribunal, including the factual matrix of the case, the level of insight of the doctor, the evidence of remediation, the feedback from others about the doctor’s professionalism and abilities, and considerations of public policy, at the time.

As a matter of public policy, there are certain classes of cases that will almost inevitably lead to a finding of impaired fitness to practise (such as serial dishonesty, or sexually inappropriate conduct – this list is not exhaustive), so as to uphold public confidence in the profession, to maintain standards and for reasons of public interest.

See also our guidance on the MPT fitness to practise hearing process as well, and the investigatory stage of GMC proceedings, where the concept of impairment of fitness to practise is also relevant.

If you are a doctor facing an allegation that your fitness to practise is impaired, contact us on 0800 10 88 739, or use our contact form to arrange a call back.