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Legal view: What effect are delays having on fitness-to-practise proceedings?

Fitness-to-practise (FtP) delay statistics recently shared by the General Pharmaceutical Council (GPhC) give cause for concern, says Susan Hunneyball

Delays in dealing with FtP cases are still a cause for concern following the publication of the GPhC's June council papers. Although it noted there were improvements at earlier stages of the FtP process, the GPhC says: “The open caseload continues to increase at investigation and get older. This is because there were more new cases coming in than cases closed or referred. As a result, at the end of Q4, 56% of all cases at investigation stage are over the age of 12 months old.”

Looking at the detail, it can be seen that for the current quarter, there were no cases referred to the investigating committee (IC) stage within 52 weeks. Only 12% of cases were closed or referred at the IC stage at less than 60 weeks and only 17% of cases were closed at a FtP committee hearing within 104 weeks. All of these figures are very much lower than the GPhC's original target of closing 80-85% of cases within these times. Tellingly, it says: “We are unable to reduce delays in case progression, despite significant investment.”

Read more: FtP: GPhC takes action in six online pharmacy cases over less than a year

However, the figures don’t show the real impact on the individuals involved in these cases. Only this week while discussing an issue, a client mentioned that their case had hit its third birthday that day and they still hadn’t been referred to the IC.

There is a real human issue here, as registrants can have FtP cases hanging over them for a long time. These are cases where the allegations and the evidence behind them have not been tested. This can adversely impact their career development as well as general health and wellbeing. It is right that the GPhC is treating this as one of its highest priorities, not just because of the operational risk, but because of the human cost to its registrants as well.

It will be interesting to see the effect of these huge delays as the affected cases work through the FtP system. The GPhC’s current position is that if more than five years have elapsed, the registrar can only refer a case if necessary for the protection of the public or other public interest reason. There are proposals that this restriction is removed from the legislation.

Delays clearly have an effect on evidence-gathering. Witness recollection is less clear, documents are lost, systems change, and this can potentially prejudice an investigation. The courts ultimately may have to consider whether proceeding with an investigation or hearing would be fair. In one case, the High Court found that there had been an inordinate and unjustified delay in referring allegations against the pharmacist to the IC. However, the delay did not cause serious prejudice, so the Court refused to quash the disciplinary proceedings.

Read more: 'Dishonest' pharmacist suspended for working two jobs at the same time

Another effect may be on how cases are ultimately dealt with. If at the FtP committee stage, the facts of an allegation are proven, the FtP committee then goes on to consider whether the registrant’s FtP is impaired. They do not look at whether a registrant was impaired at the time of the misconduct, but rather whether the registrant’s FtP is impaired at the time the committee considers the case ie current impairment.

There is much case law on what is considered to be current impairment. It is generally acknowledged that healthcare professionals (HCPs) against whom very serious misconduct has been proven are unlikely to avoid a finding of current impairment whatever the length of time since the original event.

However, when more minor misconduct is proven but it is remedied and not repeated, and that has been the position for some time, we will perhaps see more decisions where current impairment is not found.

Read more: Pharmacist suspended for nine months over online supply of high-risk drugs

In the meantime, the way of calculating delays will be changing. The GPhC itself says: “From 2023/24, we will report against new interim measures and forecasted targets. This will include reporting on the timeliness of the case progression of new cases received from April 2023 to track these separately to the larger existing and aged caseload.”

It will be interesting to be able to see if the new cases are progressed in a more timely fashion, but the older cases will still remain a concern.

This is a general overview. Independent legal advice should be sought for any specific concerns.

Susan Hunneyball is a solicitor at Gordons Partnership LLP

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