2023-08-23 20:05:36
A recent decision of the Outer House of the Court of Session deals with student fitness to practise procedures and the question of whether procedures should follow the same lines as those applicable to registered healthcare professionals.
In Judicial Review of a decision of the Senate Fitness to Practise Appeal Committee of a Scottish university [2023] CSOH 52, the petitioner, SM, was in his final year as a dental student. He was initially subject to informal fitness to practise proceedings by the university authorities where the key concerns were high recorded levels of current and historic absences by SM from his course. An investigating officer reported: (i) poor motivation and attendance in his fifth year of study, (ii) low quality and quantity of clinical activity by him recorded on the university’s online platform, amongst other things.
The matter was resolved at the time by SM agreeing to repeat his fifth year of study, and being required to achieve 100% attendance until graduation, to engage fully with his course programme, and to write a reflective essay. The advent of the COVID-19 pandemic resulted in all dental students being required to repeat the year of study they were in when teaching was suspended. When in-person classes returned in March 2021, SM was advised by the university that he was being referred for formal fitness to practise proceedings, alleging a failure to satisfy the attendance and engagement conditions which had previously been identified to him. Concerns had been formed about his continuing absences, failure to report illnesses and absences, lack of data to assess his performance, and his failure to engage with a mentoring programme. It was acknowledged that SM had been suffering from certain health conditions which had materially contributed to his perceived failings. The formal fitness to practise proceedings concluded with a decision to exclude SM from his course. SM applied for judicial review of this decision.
SM’s barrister argued that the university’s fitness to practise procedures were unfair and did not bear comparison with the procedures that would have been followed by the General Dental Council if SM had been on the GDC register.
The judge, Lord Sandison, rejected SM’s petition for judicial review, saying:
“[The court] requires to consider whether there is any reason why the law ought to require student fitness to practise proceedings to conform or at least approximate to such proceedings in the context of registered members of a profession which the student aspires to enter. It is difficult as a matter of principle to see why that should be the case. Fitness to practise proceedings against an established member of a profession will generally turn on his or her ability or willingness to behave in a way acceptable to the requirements of the profession in question. In many though not all cases, the lack of such ability or willingness is likely to be demonstrated by misconduct of some kind. In that context it makes sense to proceed in the familiar structured way of fact-finding followed by a determination of whether misconduct has occurred before passing to the question of whether impairment has in consequence been established and then determining sanction. In the context of student fitness to practise procedures, the question in issue is whether the student is meeting various requirements in the course of his or her training which are deemed necessary in order to satisfy the criteria for entering into the relevant profession in the first place. The answer to that question need not, as it did not in the present case, involve any issue of misconduct at all, but rather requires an overall consideration of both matters of fact (for example, how many absences from classes or clinics actually occurred) and matters of impression or opinion (for example, the degree to which the student is engaging with his course of study or demonstrating insight into his position), all feeding together into a rather more wide-ranging and holistic determination of fitness of practise than might typically be the case in fitness to practise proceedings against an established professional. A rigid requirement to proceed in set stages of procedure in that specific context might well hinder or even prevent an appropriate decision being made, and cannot be said to be a legal requirement in the student context. It follows that criticisms made of the [university’s] fitness to practise procedures or their outcomes which are based simply on their claimed deviation from what would have been the GDC’s procedures or outcomes in the case of fitness to practise proceedings against registered dentists cannot be sustained.”
The judgment may prompt consideration of what the position would be in the case of a student accused of misconduct of the same kind that might be committed by a registrant rather than misconduct that is related to the course of study. After all, in the case of student pharmacists, the GPhC’s Standards for Pharmacy Professionals applies to them as well as to registrants. The Standards say:
“The standards for pharmacy professionals are relevant to all pharmacy students and trainees while they are on their journey towards registration and practice. The standards explain the knowledge, attitudes and behaviours that will be expected of students and trainees if they apply to join the register.
They should be interpreted in the context of education and training and used as a tool to prepare students and trainees for registration as a pharmacy professional.
Pharmacy students and trainees should consider the standards as they move closer to registration and professional practice, and should read them alongside other relevant documents that are provided by initial education and training providers.”