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  6. Part D - decide if a warning is required
Associates tribunal hearings

Part D: decide if a warning is required

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Deciding if a warning is required

  1. Where the associates tribunal (AT) has decided that the PA or AA’s fitness to practise is not impaired at stage two of the hearing, they may give the PA or AA a warning as to their future behaviour or performance where the allegation falls below the professional standards expected. This is to maintain public protection. 

  2. References made to ‘public protection’ throughout this guidance refer to the GMC and MPTS’ legal duty to protect the public which is split into three distinct parts. It means an AT must act in a way that: 
    • protects, promotes and maintains the health, safety and wellbeing of the public, 
    • promotes and maintains public confidence in the profession, and 
    • promotes and maintains proper professional standards and conduct for members of the profession. 
  1. When making their decision on whether a warning is required, the AT should always remind themselves of their earlier conclusions at the facts and impairment stages and invite submissions from the parties where they are in attendance. 

  2. The AT must also carefully record the reasons for its decision. 

What is a warning?

  1. A warning is a formal response which indicates to a PA or AA that any given behaviour or poor performance represents a significant departure from the professional standards expected21 and should not be repeated. Although a warning does not place any restrictions on a PA or AA’s registration, it should still be viewed as a serious regulatory response. 

  2. Where an AT imposes a warning, this signals to a PA or AA that repeating the same, or similar, behaviour or poor performance is likely to result in a future finding of impairment ie a conclusion that the PA or AA poses a current and ongoing risk to public protection and that restrictive action (conditions, suspension or removal) on registration is required in response. 

  3. Warnings are issued in the interests of maintaining public confidence in the profession and upholding professional standards. They highlight to the wider profession and public that certain behaviour or poor performance is not acceptable. 

A warning must be proportionate, transparent and fair

  1. The Introduction explains that a good decision about a PA or AA’s fitness to practise should protect the public, be proportionate, be transparent and be fair.  

  2. In the context of deciding whether a warning is proportionate, the AT should consider the impact on those affected by the decision, including the PA or AA, the interests of members of the public and the interests of other professionals. When doing so, the AT should have regard to how a warning highlights to the wider profession that certain behaviour or poor performance is unacceptable. This is likely to outweigh the interests of the individual PA or AA. 

  3. References and testimonials that support the PA or AA and/or provide a view on their character may be available to the AT. This type of evidence can be considered but may have limited, if any, impact on the decision on whether a warning is proportionate because the need to protect the public will outweigh any relevant evidence about the PA or AA’s character. 

  4. To be proportionate, fair and transparent, where a warning is imposed it must:  
    1. be worded in a way that clearly highlights the behaviour or poor performance that led to the warning 
    2. state how that behaviour or poor performance impacts on one or more of the three parts of public protection, and  
    3. place the PA or AA on notice about their future behaviour or performance, including explaining what the behaviour or performance is that should not be repeated, and why.  
  1. Where the AT wishes to draw the PA or AA’s attention to one or more specific professional standards, this should be done with reference to the professional standards that apply at the time the warning is being imposed. 

  2. Warnings are published on the PA or AA’s entry on the register of PAs and AAs and disclosed in line with the GMC’s Publication and Disclosure Policy. 

The test for issuing a warning

  1. A warning will be appropriate where facts have been found proved that indicate the PA or AA’s behaviour or performance has fallen below the professional standards expected, the AT has determined the PA or AA’s fitness to practise is not currently impaired, but it is necessary to signal to them that repeating the same, or similar, behaviour or poor performance is likely to result in a future finding of impairment. 

Is a warning appropriate?

  1. A warning cannot be imposed where a conclusion has been reached at stage two of the hearing that the PA or AA’s fitness to practise is impaired.  

  2. Warnings are appropriate for allegations that amount to a significant departure from the professional standards and just fall short of the AT finding that the PA or AA’s fitness to practise is impaired.  

  3. A warning will not be appropriate where: 
    • the AT has decided at stage two of the hearing that none of the grounds for action are engaged, or 
    • the allegation relates solely to the impact of a health condition, or solely to the PA or AA’s insufficient knowledge of the English language, given the nature of those types of allegations. 

Is a warning required?

  1. To decide whether a warning is required, the AT should consider the following questions and answer them based on the individual circumstances of the case: 

Has there been a clear and specific departure from the professional standards?

  1. As a warning must place the PA or AA on notice about their future behaviour or performance, it must relate to a clear and specific departure from the current professional standards. 

  2. During the AT’s assessment of the facts and decision on impairment at stages one and two of the hearing, the AT will have identified and considered evidence relating to any departures from the professional standards that applied at the relevant time. They should therefore consider how these relate to the current professional standards, if different. 

  3. In the absence of a clear and specific departure from the current professional standards expected, a warning will not be required and the AT should take no further action. However, if there has been a clear and specific departure from the current professional standards, the next question should be considered. 

Did the allegation about the PA or AA’s behaviour or poor performance just fall short of a finding that their fitness to practise is impaired? 

  1. If the AT is satisfied that the evidence clearly supported a finding that the PA or AA’s fitness to practise is not impaired, a warning will not be appropriate, and no further action should be taken. 

  2. Where the decision was finely balanced but just fell short of the AT reaching a conclusion that the PA or AA poses a current and ongoing risk to public protection requiring restrictive action in response - and therefore finding that their fitness to practise is impaired - this will usually indicate that the departure from the professional standards was significant and so a warning may be required. The next question should therefore be considered. 

If the behaviour or poor performance was repeated, would it likely result in a finding that the PA or AA’s fitness to practise is impaired? 

  1. The AT’s view on the impact of repetition should be reached having in mind the assessment of current and ongoing risk to public protection that informed their decision on impairment. In that assessment the AT will have considered the seriousness of the allegation, any relevant context known about the PA or AA and/or their working environment and how the PA or AA responded to the allegation. 

  2. If repetition of the same, or similar, behaviour or poor performance would not likely result in a conclusion that the PA or AA’s fitness to practise is impaired, a warning will not be required, and the AT should take no further action.  

  3. However, if repetition would likely result in a conclusion that the PA or AA’s fitness to practise is impaired, a warning will usually be required to formally record the allegations and indicate to the PA or AA that restrictive action may be needed if the behaviour or poor performance were to be repeated. 

  4. Whilst a range of factors will inform the AT’s view on the impact of repetition, the following may be particularly relevant:
    • whether the incident giving rise to the allegations was isolated or repeated
    • whether there was relevant fitness to practise history
    • any other indicators as to the likelihood of the allegations being repeated
    • the PA or AA's level of insight into the allegations, including whether there has been a genuine expression of regret/apology from the PA or AA, and
    • evidence of remediation
  1. When deciding if a warning is required, the AT should also refer to the specific case types section in the Introduction section of this guidance. 

The AT’s determination on whether a warning is required

  1. The AT’s determination should show that the AT has considered their earlier conclusions at the facts and impairment stages, had regard to the purpose of warnings and carefully considered the questions above. 

  2. The AT should give reasons for their decision on whether a warning is required. They must also explain how their decision relates to any submissions made by the parties. 

21 Set out in Good medical practice and the more detailed guidance.