Step 1a: consider what has happened since the previous decision on risk

21. The previous decision maker will have decided that the PA or AA’s fitness to practise was impaired, considering the assessment of current and ongoing risk to public protection they made at that time. The associates tribunal (AT) should not reconsider or go behind those findings. Their role is to decide whether the PA or AA’s fitness to practise remains impaired at the time of the review.  
    
    
22. To understand the previous assessment of risk, the AT should note:  
• the seriousness of the allegations which resulted in the finding of impairment  
• the impact of any relevant context known about the PA or AA and/or their working environment and  
• how the PA or AA has responded to the allegations which resulted in the first finding of impairment and how they responded to, if relevant, any subsequent findings made by a previous decision maker.   

23. The AT should also be mindful of which parts of the three parts of public protection were engaged and note this along with the level of risk that the previous decision maker identified as part of their finding of impairment (low, medium or high).  

24. Once the AT has noted the previous assessment of risk and reasons for it, they should go on to consider what new evidence has been received and assess what impact this has. This will help inform their assessment of the current and ongoing risk the PA or AA poses to public protection. 
    
    
25. The AT should consider any relevant new evidence provided by the parties (the General Medical Council (GMC) and the PA or AA) about what has happened since the last impairment decision and assessment of risk was made. 
    
    
26. In many cases the GMC will have been monitoring the PA or AA’s compliance with the current final measure of conditions or suspension and/ or may have received information relevant to considering the PA or AA’s current fitness to practise from another source. The PA or AA may also provide their own evidence of what has occurred since the last impairment decision and assessment of risk was made.
    
    
27. The AT may need to consider new evidence, including evidence: 
• regarding the PA or AA’s health, performance or knowledge of English Language  
• relating to any change to relevant context known about the PA or AA and/or their working environment  
• about a material change in the PA or AA’s circumstances that needs to be considered 
• relevant to the PA or AA’s compliance with the current final measure, including the relevance of any facts found proved in relation to a new allegation. 

28. Further guidance about each of these is below. 
    
    
29. When assessing new evidence and deciding the weight to attach to it, the AT should consider its source, relevance and the extent to which they have been able to adequately test it at the hearing. 
    
    
30. If the AT is not able to reach a fair decision based on the evidence before them, they may wish to consider whether to adjourn in order to direct an assessment or for further information or reports to be provided. Before doing so, the AT should invite submissions form the parties on whether this is appropriate. For further guidance on this issue, the AT should refer to Adjourning to direct an assessment or for further information or reports to be obtained  in Part B of Section two: Procedural matters relating to tribunal hearings of the Guidance for MPTS tribunals. 

Evidence regarding the PA or AA’s health, performance or knowledge of English language 

31. Evidence provided to the AT about the PA or AA’s health, performance or knowledge of English language may include: 
• a GMC health, performance or assurance assessment or an English language assessment  
• reports provided by the PA or AA’s own treating healthcare practitioner 
• witness statements that provide an up to date position on the PA or AA’s health, performance or knowledge of English Language. 

32. The AT should consider the weight to be given to any new evidence received about the PA or AAs health, performance or knowledge of English language with reference to the source of the information and their awareness of the circumstances that led to the original findings about the PA or AA’s fitness to practise 
    
    
33. Where there is evidence that demonstrates an improvement in the PA or AA’s health, performance, or knowledge of English language, this may indicate that either (a) the PA or AA no longer continues to pose a current and ongoing risk to public protection requiring restrictive action in response, or (b) that any risk they do still pose has decreased.  
    
    
34. Evidence of improvement in a PA or AA’s health may be trigged by a full recovery. As many health conditions are remitting and relapsing in nature, it may also be triggered by a PA or AA developing insight that enables them to recognise any warning signs and/or where the impact of the PA or AA’s health condition is being appropriately managed.  
    
    
35. When deciding how much weight to attach to evidence of improvement, more weight can usually be attached to objective evidence that demonstrates improvement over a sustained period.  
    
    
36. Evidence that demonstrates a deterioration in the PA or AA’s health or performance, including knowledge of English language, is likely to suggest that the PA or AA continues to pose a current and ongoing risk to public protection requiring restrictive action in response and may indicate that the risk to one or more parts of public protection has increased.  
    
    
37. It may be appropriate for the AT to conclude that the deterioration demonstrates an increase in risk where:  
• the deterioration is significant  
• the deterioration or impact of the PA or AA’s health condition is not being, or cannot be, managed locally  
• patient safety has been compromised as a result  
• the PA or AA has continually not engaged with the GMC about the deterioration  
• the PA or AA does not accept that there has been a deterioration, has not demonstrated insight into the impact and potential consequences of the deterioration and has not taken steps towards recover and/or to remediate and/or  
• the deterioration occurred in conjunction with a breach of restrictions.  

38. It may be appropriate for the AT to conclude that the deterioration does not impact on the present assessment of the current and ongoing risk to public protection posed by the PA or AA where several of the following factors are seen:  
• the deterioration is not considered to be significant  
• the deterioration is being managed, or can be, managed locally  
• patient safety has not been compromised as a result  
• the PA or AA engaged with the GMC regarding the deterioration and continues to engage and/or  
• the PA or AA accepts that there has been a deterioration, demonstrates insight into the impact and potential consequences of the deterioration and has taken any relevant steps towards recovery and/or to remediate.  

Evidence relating to any change to relevant context known about the PA or AA and/or their working environment that was relevant to the previous assessment of risk 

39. When the previous AT decided the PA or AA posed a current and ongoing risk to public protection requiring restrictive action in response, they may have taken into account evidence of relevant context known about the PA or AA and/or their working environment. Where the previous AT considered that the type of relevant context identified had an impact on the PA or AA, they may have concluded that it could give rise to a risk of the matter being repeated.  
    
    
40. The AT should consider whether there has been a change to the relevant context previously identified. If there has been no change, this is unlikely to impact on the present assessment of current and ongoing risk posed by the PA or AA. However, if the likelihood of repetition has now been removed or reduced, either because the specific setting or circumstances that created the context have changed or because steps have been put in place to mitigate the impact on the PA or AA, this may decrease the level of current and ongoing risk the PA or AA poses to public protection.  
    
    
41. The AT should refer to the section What is the impact of any relevant context known about the PA or AA and/or their working environment?  in Part B of Section three: AT hearings of the Guidance for AT tribunals for further guidance on how to decide the impact any relevant context has on their assessment of risk. 

Evidence relating to a material change in the PA or AA’s circumstances that needs to be considered  

42. Where there is evidence that demonstrates a material change in the PA or AA’s circumstances, the AT should consider what impact this has on their assessment of the current and ongoing risk the PA or AA poses to public protection.  
    
    
43. In some cases, such evidence may suggest that the risk the PA or AA poses to public protection requiring restrictive action in response has not changed, but that any current conditions are no longer appropriate, workable and/or measurable in their existing format. In these circumstances, provided there are no other matters that increase risk requiring consideration of a more restrictive final measure, the AT should consider if alternative conditions are appropriate, workable and measurable, achieve the overall aim of conditions and adequately address the current and ongoing risk to public protection posed by the PA or AA. 

Evidence relevant to the PA or AA’s compliance with the current final measure, including the relevance of any facts found proved in relation to a new allegation 

44. Where the evidence demonstrates the PA or AA is complying with the current final measure of conditions or suspension this could indicate that either the level of risk has decreased or that the PA or AA no longer continues to pose a current and ongoing risk to public protection requiring restrictive action in response. However, in some cases, the fact of compliance in and of itself may not be directly relevant to the assessment of risk but may indicate that the conditions or final measure remain suitable to address the level of risk currently posed by the PA or AA.  
    
    
45. More weight can be attached to evidence of compliance where there is a range of objective evidence that demonstrates the PA or AA’s compliance over a sustained period. However, the fact of compliance alone is unlikely to be sufficient for the AT to conclude the PA or AA no longer continues to pose a risk to one of more of the three parts of public protection. The impact of compliance will need to be considered alongside other information including the PA or AA’s response to the previous decision maker’s findings.  
    
    
46. If there is evidence suggesting that a breach of the current final measure has occurred, the AT will need to decide whether they are satisfied, on the balance of probabilities, that a breach has in fact occurred.⁸ 
    
    
47. The AT should give clear and adequate reasons for its conclusion as to whether there has been a breach to enable the PA or AA, profession and members of the public to understand their decision.  
    
    
48. Where a review has been directed solely on the basis that the PA or AA has breached a requirement of a final measure and the AT decides that there has not been a breach, they must allow the existing measure to continue.⁹ 
    
    
49. If the AT decides there has been a breach, they will then need to decide what impact this has on the level of current and ongoing risk the PA or AA poses to public protection. A breach of a final measure is likely to suggest that the PA or AA continues to pose a current and ongoing risk to public protection requiring restrictive action in response and may indicate that the risk to one or more parts of public protection has increased.  
    
    
50. It may be appropriate for the AT to conclude that the breach demonstrates an increase in risk where:  
• the breach was significant in nature or repeated  
• patient safety was compromised as a result  
• the circumstances of the breach, including the reasons for it, were completely within the PA or AA’s control  
• the breach demonstrates a wilful or deliberate disregard of instructions issued by the previous AT  
• recurrence of the breach is likely  
• the PA or AA does not accept the breach occurred, does not understand the reasons for it, and has not demonstrated insight into the impact and potential consequences and/or  
• the breach occurred in conjunction with a deterioration in the PA or AA’s health or performance.  

51. If this is not the first review and it has been found previously that the PA or AA has breached their final measure, then the fact of repetition will usually increase the risk they pose to public protection as they have shown disregard to the purpose and reason for the final measure being imposed.  
    
    
52. It may be appropriate for the AT to conclude that the breach does not impact on their present assessment of the current and ongoing risk to public protection posed by the PA or AA where several of the following factors are present:  
• the breach was not significant in nature or was isolated or a one off  
• patient safety was not compromised as a result  
• the circumstances of the breach, including the reasons for it, were outside of the PA or AA’s control  
• recurrence of the breach is unlikely  
• the PA or AA accepts that a breach has occurred, understands the reasons for it, has demonstrated insight into the impact and potential consequences of the breach and taken any relevant steps to remediate it.  

53. Where the AT concludes that a breach of conditions demonstrates an increase in the level of current and ongoing risk the PA or AA poses to public protection, they should be mindful that the most proportionate outcome is likely to be to impose a more restrictive measure.  
    
    
54. If any new allegations have been considered by the AT with facts found proved, these will need to be considered to inform the AT’s decision on impairment. Although an assessment of current and ongoing risk to public protection will need to be made in relation to the new allegations, any facts found proved can also be taken into consideration when assessing current risk in relation to the review matter.  
    
    
55. Where there are facts found proved that demonstrate additional similar concerns or allegations have arisen, this is likely to suggest that the PA or AA continues to pose a current and ongoing risk to public protection requiring restrictive action in response and may indicate that the risk to one or more parts of public protection has increased. This is because repeated similar concerns or allegations may suggest that the PA or AA lacks insight into their own practice and behaviour and has not taken steps that effectively or sufficiently reduce the risk of similar matters occurring again.  
    
    
56. The impact of, and weight to be given to, additional similar concerns or allegations having arisen will need to be considered alongside other factors including the PA or AA’s insight and remediation, response to the previous decision maker’s findings, the timings of the new allegations and any other information that may be relevant as to why further additional allegations have been referred to a hearing. 

57. To demonstrate insight the PA or AA will need to show they understand and accept any previous decision maker’s findings, including the original decision maker’s findings on fact and impairment. The PA or AA will also need to demonstrate they understand what happened and accept how they could have acted differently. The AT will need to consider how complete or developed the PA or AA’s insight is.  
    
    
58. When considering evidence of insight and the impact it has on the present assessment of current and ongoing risk the PA or AA poses to public protection, the AT should consider and apply the guidance in the section insight and remediation in Part B of Section three: AT hearings of the Guidance for MPTS tribunals. When doing so, the AT should remind itself that it must not revisit the decision made by the previous decision maker but should consider evidence of the insight that has developed since the previous assessment of risk.  
    
    
59. When assessing insight, the AT should consider how the PA or AA has responded to the findings made by the previous decision maker. 
    
    
60. When assessing the impact the PA or AA’s response has on the present assessment of the current and ongoing risk the PA or AA poses to public protection, the AT should examine the evidence available to them from all sources to reach a view on whether the PA or AA has shown insight into their own practice and behaviour.  
    
    
61. To be relevant to the current assessment of risk, evidence of insight shown from the PA or AA participating in training or professional development, requires the training or professional development to be relevant to the decision maker’s findings. Where it is, this should assist in demonstrating to the AT that the PA or AA has accepted the previous decision maker’s findings. 
    
    
62. Where the PA or AA has made statements about how they’ve responded to the findings made by the previous AT, the AT will need to consider the objectivity of the statements. If the only source of the information is the PA or AA themselves, it will usually be appropriate for the AT to test the evidence during the hearing before deciding the impact it has on the present assessment of current and ongoing risk to public protection.  

63. Where a PA or AA has shown insight and taken steps to avoid the risk of similar concerns occurring again, this can have a significant impact on the present assessment of the current and ongoing risk the PA or AA poses to public protection. However, the actual impact that evidence of the PA or AA’s response to the allegation and previous decision maker’s findings has on the assessment of risk, will depend on the individual circumstances of the case.  
    
    
64. To demonstrate remediation the PA or AA will need to show that they have taken, or are taking, steps aimed at reducing the risk of similar concerns occurring again. The AT will therefore need to consider the quality of the steps taken, or put in place, by the PA or AA since the previous assessment of risk.   
    
    
65. When assessing the impact of remediation, the AT should examine the evidence available to them to reach a view on whether the PA or AA has remediated i.e. taken steps to reduce the risk of similar concerns occurring again, such as participating in training, supervision, coaching or mentoring relevant to the concern raised.   
    
    
66. When considering evidence of remediation and the impact it has on the present assessment of the current and ongoing risk the PA or AA poses to public protection, the AT should consider and apply the guidance in the section insight and remediation in Part B of Section three: AT hearings of the Guidance for MPTS tribunals.  When doing so, the AT should remind itself that it is not to revisit the decision made by the previous decision maker but should consider evidence of the remediation that has taken place since the previous assessment of risk.  
    
    
67. The AT should be mindful that if the original decision maker considered the allegation was remediable, it is not for them to review that decision. Their role on review is to assess whether the allegation has now been sufficiently remedied or could still be remedied if there is further insight to be developed and additional remediation to undertake. 

68. While a final measure of conditions or suspension are in place, a PA or AA must keep their knowledge and skills up to date and be aware of relevant guidelines and developments that affect their work. This is to ensure they are competent in all aspects of their work, including, where applicable, formal leadership or management roles, research and teaching.   
    
    
69. Where a PA or AA has not been working for a significant period of time, the AT may consider that this creates a risk that the PA or AA’s knowledge and skills may have deteriorated. It is therefore important that the PA or AA can evidence they have taken steps to mitigate this.   
    
    
70. When considering evidence of the PA or AA’s knowledge and skills and the impact it has on the present assessment of the current and ongoing risk the PA or AA poses to public protection, the AT should consider and apply the guidance in the section consider how the PA or AA has responded to the allegation(s) in Part B of Section three: AT hearings of the Guidance for MPTS tribunals. 
    
    
71. Where the PA or AA has been suspended from practising in the UK, at the review the AT may be provided with a certificate of good standing ‘CGS’ from another regulatory body.¹⁰ A CGS confirms that a PA or AA is in good standing with that organisation at the time of issuing and says whether there are any restrictions on their practice. This may therefore support any assertion by the PA or AA that they have kept their knowledge and skills up to date through practising in a different country. However, when deciding what weight to attach to such evidence, the AT should give careful consideration to the date of issue and the nature of the restrictions, if any, on the CGS. 
    
    
72. The PA or AA may also provide the AT with testimonials from any workplace attachments or other work that has been carried out that has not required GMC registration. Where the content relates to the PA or AA’s knowledge and skills, the weight to be applied is a matter for the AT. Otherwise, references and testimonials relating to the PA or AA’s character should only be considered when deciding what action is a proportionate response to the AT’s decision on impairment. 

73. When considering whether the previous assessment of risk to public protection requiring restrictive action in response has changed, the AT should refer to the conclusions they reached on questions (i) – (v) above. 
    
    
74. The AT may reach a view that the present assessment of current and ongoing risk to one or more of the three parts of public protection indicates the risk posed by the PA or AA has:  
• decreased 
• not materially changed 
• increased.