healthcare professionals: the consequences of non-attendance at fitness to practise hearing

Any healthcare professional called to a fitness to practise panel hearing by their own regulatory body will know the worry and sense of dread brought by these proceedings.

Many choose to bury their heads in the sand, ignore the correspondence, remain absent at the hearing and hope for the best. Others engage with the process and represent themselves, failing to realise that the regulators are not there to assist them with their case. The more cautious engage specialist healthcare defence solicitors from the start and are represented at these hearings.

Every healthcare professional is entitled to take any of the options described above. However, a recent High Court decision has warned that not attending their own fitness to practise Panel hearings could be ‘severely prejudicial’.

Burrows v GPhC [2016] EWCH 1050 (Admin) (16 May 2016)

The facts

The Appellant (Ms Burrows) in this case was a Pharmacist who bought four dresses from a shop. She swapped the labels from the two more expensive dresses to the two cheaper dresses and then took the two cheaper dresses back to the shop on two separate occasions, where she obtained a refund at the higher price for the cheaper dresses.

Ms Burrows admitted during police interview that she had swapped the labels on the dresses but said that she had only returned the two cheaper dresses because they were too small and not for financial gain.

Ms Burrows was offered a police caution for her actions and accepted it, signing the caution to acknowledge that she understood what she was signing.

As Ms Burrows was a Pharmacist, she was duty-bound under Rule 4 of the General Pharmaceutical Council (Fitness to Practise and Disqualification etc) Rules Order of Council 2010 to inform her regulatory body, the GPhC, of the Caution within 7 days of receiving it but she failed to do so.

The police then informed the GPhC of the caution and an investigation began. Ms Burrows’ case was that she believed she had been warned by the police and was not aware that she had been cautioned by the police and did not therefore believe that she needed to inform the GPhC. She later questioned whether she had, in fact, received a police caution as the police had failed to provide a copy of the document. This was a moot point in the end as Ms Burrows later accepted that that she had received a police caution.

A GPhC Fitness to Practise Committee hearing was listed to begin in July 2015. Ms Burrows did not attend this hearing and it was adjourned in her absence and re-listed without obtaining her availability.

Just prior to the resumed hearing’s commencement date, the GPhC was informed by Ms Burrows’ solicitor that she would not be attending the hearing as she would be away on a pre-booked holiday. Ms Burrows had, however, instructed Counsel to represent her at the hearing, in her absence.

At the hearing, Counsel for Ms Burrows argued that she had not returned the dresses in order to benefit financially and therefore the police caution had been issued wrongly. It was also argued that because she had not intended to be fraudulent, that the Fitness to Practise Committee could not find her fitness to practise to be impaired and they could not make a finding of misconduct because of Ms Burrows’ lack of intention to commit a criminal offence.

The Fitness to Practise Committee asked Ms Burrows’ Counsel about her non-attendance at the hearing and he conceded that Ms Burrows had not made any attempt to change the date of the hearing to enable her to attend.

The Fitness to Practise Committee decided that Ms Burrows’ actions had been dishonest and commented that she lacked insight given that:

  • a.She started her case stating that she did not believe that she had been cautioned by the police before eventually admitting that she had indeed received a police caution;
  • b. That she continued to deny that her actions were dishonest; and
  • c.That she did not engage with the GPhC investigation and hearing process, without accepting the allegations against her or offering any apology or expression of regret.

The Fitness to Practise Committee therefore found Ms Burrows’ fitness to practise to be impaired and erased her name from the pharmacy register, stating that a suspension was not appropriate in these circumstances.

The appeal

Ms Burrows then appealed to the High Court submitting that the Fitness to Practise Committee had been wrong and unreasonable in assessing Ms Burrows’ insight, had not given Ms Burrows sufficient credit for her cooperation with the police, the fact that the police did not bring criminal proceedings against Ms Burrows that may or may not have resulted in a conviction and that insufficient credit was given to the admissions made by Ms Burrows.

It was stated that Ms Burrows had been confused in relation to the caution she had received and what it meant and that this should not have been taken as a denial of the caution itself.

Mr Justice Kerr, hearing the case, made it clear that the problem with the submissions made on Ms Burrows’ behalf was that she had not attended the Fitness to Practise Committee hearing herself in order to answer questions about the caution and what she believed to be the case and that she had not provided any reasons as to why she had not asked for the hearing date to be changed when she was aware that she was going to be on holiday at the relevant time.

Mr Justice Kerr also stated the Ms Burrows’ actions in swapping the labels on the two dresses was clearly dishonest, whether or not the caution was valid and whether or not Ms Burrows understood the caution and that she had not expressed any contrition or remorse in relation to her actions. He stated that she had decided instead to down play her actions despite the swapping of the labels being a “seriously wrong thing to do”.

Mr Justice Kerr was of the view that by Ms Burrows’ continuously denying any wrongdoing in relation to the swapping of the dress labels, she had relinquished the chance to show the Fitness to Panel Committee that she was insightful and contrite about her actions and that she made things worse for herself in not attending the hearing.

Mr Justice Kerr stated, “In a case of obvious dishonesty, not attending the hearing amounts virtually to courting removal” and he offered the following advice to disciplinary bodies because of the high number of healthcare professionals appealing to the High Court when their names are erased from their respective regulator’s register when they have not attended the hearing:

“I think it would be a good idea for the disciplinary bodies to forewarn the defendant that…the consequences of non-attendance are likely to be severely prejudicial.”

Ms Burrows’ Counsel also argued that the sanction imposed of erasure from the pharmacy register was too severe and that a suspension would have been proportionate. Mr Justice Kerr agreed that this was a severe sanction but was unable to make a judgment that it was wrong. He stated that the decision had been made by the Fitness to Practise Committee and that the Court, on this occasion, was unable to state that their reasoning had been wrong.

Ms Burrows’ Counsel also argued that the legally qualified chair person of the Fitness to Practise Committee should have informed the parties of the legal advice that he was going to give to the Committee, to enable the parties to comment on that advice. This Ground of Appeal was borne from the Chair of the Fitness to Practise Committee’s statement “Ms Burrows cannot say that she did not intend to have that financial benefit unless there are circumstances which would act so as to vitiate her capacity to form the necessary intent.”

Ms Burrows’ Counsel argued that this statement constituted legal advice and the parties should therefore have been given the opportunity to comment on it.

Mr Justice Kerr, however, disagreed. He stated that this was not a legal ruling by the legally qualified Chair of the Committee but a statement expressing the Fitness to Practise Committee’s opinion that Ms Burrows’ acceptance of the Caution should be taken at face value as there was nothing to suggest that it should not do so.

Mr Justice Kerr stated that the key question was whether or not the proceedings had been fair and he found that they had been.

Ms Burrows’ appeal was therefore dismissed and the decision to erase her name from the pharmacy register stands.

Consequences of this decision

The decision on appeal in this case offers a very stark warning to those healthcare professionals who do not intend to attend Fitness to Practise hearings being held in relation to their actions. Mr Justice Kerr could not have made it any clearer. In his view, non-attendance at these hearings could prove extremely prejudicial to the defendant healthcare professional and could, as in this case, lead to erasure of the defendant’s name from the relevant register, without any recourse on appeal.

It remains to be seen whether or not the respective healthcare regulators will take Mr Justice Kerr’s advice and warn defendant registrants about the dangers of not attending these hearings but we at Burton Copeland, the professional discipline solicitors have taken this opportunity to do so to assist you.

Our specialist healthcare defence solicitors can represent you from the very first letter you receive from your regulatory body informing you that an investigation into your conduct has begun, right up to the final fitness to practise hearing.

There is no doubt that your registration, which you have undoubtedly worked so hard to achieve, is much safer when you choose to instruct one of our specialists to assist you not only in relation to the investigation process but at the final hearing itself.

We can help no matter what stage of proceedings your case is at and we are available 24 hours per day.

We understand the worry and stress investigations and hearings of this type can bring and we will be there for you no matter what.

If you are a healthcare professional facing an investigation and potential fitness to practise hearing brought by your regulatory body, give one of our specialist team a call today on 0161 827 9500. We really can help.