Step 2b: decide where on the spectrum of seriousness the allegation lies
Where on the spectrum of seriousness does the allegation lie?
- Within the range of matters that are serious enough to pose a current and ongoing risk to one or more of the three parts of public protection, some matters are more serious than others. This means that allegations about a PA or AA’s fitness to practise fall on a spectrum of seriousness (the lower end, mid-range or higher end).
- The starting point for assessing the level of current and ongoing risk to public protection posed by a PA or AA (low, medium or high) is based on where on the spectrum of seriousness the allegation lies.
- The assessment of where on the spectrum of seriousness the allegation lies is based on the facts found proved at stage one of the hearing. To reach a view on where on the spectrum of seriousness an allegation lies (the lower end, mid-range or higher end), an associates tribunal (AT) will need to consider the nature of the allegation and any features of the allegation that increase seriousness.
- Where the allegation relates to a PA or AA’s behaviour, performance or how they are managing the impact of a health condition, the AT needs to consider the extent of any departure from the professional standards expected. These can be found in Good medical practice and the more detailed guidance.
- Having a health condition is not a departure from the professional standards expected of PA or AAs. But where the impact of a health condition is such that it can pose a risk to patients, PA or AAs are expected to take steps to manage that risk. Where those steps have not been taken, this can amount to a serious departure from the professional standards.
- In a health case, the primary consideration for the AT when assessing where on the spectrum of seriousness the allegation lies (the lower end, mid-range or higher end) is the impact, or likely impact, of the health condition on the PA or AA’s ability to practise safely and effectively – see the specific case types section on health in the Introduction.
- In a clinical concerns case, expert evidence will often have been presented to the AT at the facts stage where the allegation relates to the PA or AA’s performance. Where available, it can be used to inform the AT’s view on seriousness based on the extent of the departure from the professional standards.
- It is important to note that in all cases the extent of the departure from the professional standards and the consequences or outcome for an individual patient may not be directly related. A less serious departure from the professional standards can sometimes result in significant harm to, or the death of, a patient or member of the public. Alternatively, there can still be a satisfactory clinical outcome for a patient despite a significant departure from the professional standards expected having occurred.
- The risk to patients and members of the public arising from the PA or AA’s departure from the professional standards will be the primary consideration to the AT’s assessment of where on the spectrum of seriousness an allegation lies (the lower end, mid-range or higher end). This means the actual consequences or outcome for an individual patient should not be considered in isolation and the AT should attach more weight to evidence about the risk to patients and members of the public associated with the specific departure from the professional standards.
The nature of the allegation
- A view on the starting point for assessing the seriousness of a proven allegation should be reached based on the nature of the allegation by looking at the individual circumstances of the case.
- All proven allegations about a PA or AA’s behaviour or performance will amount to a serious departure from the professional standards. However, there are differences in the inherent nature of allegations, including whether they are easily remediable, which will affect where on the spectrum of seriousness they fall (the lower, mid-range or higher end).
- Certain types of behaviour or poor performance represent such a serious departure from the professional standards that they will usually fall at the higher end of the spectrum of seriousness. This is often because the departure from the professional standards amounts to an abuse of, or interference with an individual’s dignity, and/or breaches the fundamental tenets of the professions such as failing to act with honesty, integrity and uphold the law.
- The AT’s initial view on the apparent seriousness based on the nature of the allegation can then change in light of the full evidential picture, including the presence of any features which may increase seriousness.
Allegations usually falling at the lower end of the spectrum of seriousness
- Allegations that usually fall at the lower end of the spectrum of seriousness and due to their nature are more likely to be easily remediable include, but are not limited to:
- clinical failings, including where a PA or AA has acted without regard for patients’ rights or feelings provided this is not a wilful disregard of their wishes
- a departure from the professional standards relating to a health condition that is having, or likely to have, an impact on the PA or AA’s behaviour or performance
- insufficient knowledge of English language where patient safety has not been directly compromised or where the risk to patients is capable of being addressed locally
- an incident of violent or abusive behaviour which is limited in nature and had limited impact, such as where it occurred outside of the PA or AA’s professional role and did not cause any significant physical injuries or any significant physical, emotional or psychological harm
- an incident of dishonest behaviour which is limited in nature and had limited impact, such as where it occurred outside of the PA or AA’s professional role and the value of any financial or other benefit derived was low
- an incident of discriminatory behaviour which is limited in nature, had limited impact and is not unlawful
- a conviction or caution for a minor criminal offence that results in a discharge or fine.
- The above list is not exhaustive and includes allegations that fall within different grounds for action. The examples given may also assist an AT to reach a view on the starting point for assessing the seriousness of allegations that are similar in nature.
Allegations falling in the mid-range of the spectrum of seriousness
- Seriousness is determined across a continuous spectrum. Whilst a view on where on the spectrum of seriousness an allegation lies will need to be reached based on the individual circumstances of the case, behaviour or poor performance falling between the types of examples listed above and below may fall at the mid-range level of seriousness as a starting point before features that increase seriousness are considered.
Allegations usually falling at the higher end of the spectrum of seriousness
- Allegations that are likely to fall at the higher end of the spectrum of seriousness include, but are not limited to:
- sexual assault, indecency or sexual harassment
- an improper sexual or emotional relationship with a patient or someone close to a patient
- an improper sexual or emotional relationship with a colleague, often seen where there is a close working relationship with an imbalance of power
- violence, other than where it occurred outside of the PA or AA’s professional role and was limited in nature, and did not cause any significant physical injuries or any significant physical, emotional or psychological harm
- dishonesty, other than where it occurred outside of the PA or AA’s professional role and was not persistent or repeated, and the value or other benefit derived was not significant
- unlawfully discriminating in relation to characteristics protected by law
- where a PA or AA has deliberately misled patients or others about their licensing status
- clinical failings that are not considered to be easily remediable, including those amounting to gross negligence or recklessness about a risk of serious harm to patients
- where a PA or AA’s lack of knowledge of the English language is compromising patient safety and the risk to patients has not been, or cannot be, addressed locally
- a criminal conviction or other court sanction resulting in a custodial sentence (whether immediate or suspended)
- a criminal conviction for encouraging or assisting suicide
- a criminal conviction, caution or other disposal that has resulted in a PA or AA being required to register on the sex offenders register
- a determination case where the regulatory body ordered the suspension or removal of the PA or AA from the relevant register
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The above list is not exhaustive and includes allegations that fall within different grounds for action. The examples given may also assist an AT to reach a view on the starting point for assessing the seriousness of proven allegations that are similar in nature.
- Although cases of violence and dishonesty will often fall at the higher end of the spectrum of seriousness, they can involve a range of behaviour with the circumstances giving rise to the allegation often occurring outside the PA or AA’s professional practice. In these cases, the AT will need to decide where on the spectrum of seriousness the violence or dishonesty sits.
Features which may increase the seriousness of an allegation
- In all cases, there may be specific features about the allegation and departure from the professional standards which may increase its seriousness. These features may be seen in any type of case and where present may increase where on the spectrum of seriousness the allegation lies.
- The associates tribunal (AT) should identify any relevant features and consider the extent to which they are present to decide how much weight to attach to them. This will help the AT explain what, if any, impact each relevant feature has and decide where on the spectrum of seriousness the allegation falls.
- Features of the allegation that may increase seriousness include, but are not limited to:
The behaviour or poor performance was persistent or repeated.
Behaviour or poor performance will be persistent or repeated where the same, or similar, act(s) or omission(s) occur(s) multiple times and/or where an act or omission continues over a prolonged period.
Persistent or repeated behaviour can be seen inside or outside a PA or AA’s working life, whereas persistent poor performance can only arise inside a PA or AA’s working life.
Relevant fitness to practise history.
A previous complaint, concern or finding about an individual’s fitness to practise is relevant to the seriousness of the current allegation where the circumstances are similar in nature or raise similar concerns which indicate a pattern between past and present behaviour or poor performance, meaning the current concern cannot be viewed as isolated.
Relevant fitness to practise history includes decisions made by another regulatory body.
PA and AAs are expected to regularly reflect on the standards of practice and care they provide. However, in some instances, a PA or AA may not have been made aware that a complaint or concern was previously raised (with the GMC or with another body or organisation) and will therefore not have had an opportunity to reflect on it and address any related risk of repetition.
However, where a PA or AA was aware of the previous complaint, concern or finding, or the nature of the behaviour or poor performance is such that they should have been aware of the risks arising from it and they have nevertheless gone on to repeat that type of behaviour or poor performance, this indicates the risk of repetition arising from the previous matter has not been successfully addressed.
These considerations may be relevant to deciding how much weight, if any, to attach to evidence of fitness to practise history.
Where previous regulatory action (a warning or restrictive action) has been taken in response to a concern or finding that is similar in nature to the current allegation, repetition indicates the PA or AA has shown disregard for the regulatory framework which exists to protect the public and/or has failed to adequately address the risk that led to the prior action being taken. The amount of weight to attach to this factor will be informed by the type of previous regulatory action put in place and whether the circumstances surrounding the allegation amount to a breach of current restrictions.
The behaviour was directed towards, or the poor performance involved interaction with, a person with impaired capacity or a person with a particular vulnerability.
Most individuals interacting with health services are likely to feel vulnerable to some extent and PA and AAs should not act in a way that exploits patients’ vulnerability or lack of medical knowledge.
It is important that the person’s full personal circumstances are considered in forming a picture of capacity or vulnerability. A person may have impaired capacity or be vulnerable for other reasons because of certain characteristics or their specific circumstances.
Certain characteristics indicating vulnerability include the presence of mental health issues, being a child or young person aged under 18, disability or frailty, or a history of abuse or neglect. Specific circumstances indicating vulnerability may include having learning differences or needs, recent bereavement, being unemployed, lonely and/or isolated and whether they otherwise present as being emotionally vulnerable.
Where a patient has impaired capacity or a particular vulnerability, or where the PA or AA perceives them to be vulnerable, there is an even greater duty on the PA or AA to consider their needs and welfare and not act in a way that amounts to abuse or neglect, or otherwise exploits them. This applies equally to all PA and AAs, regardless of whether they are working in an area of practice that means they regularly treat or interact with individuals with impaired capacity or are otherwise considered vulnerable.
Behaviour directed towards a person with impaired capacity or a person with a particular vulnerability may arise inside or outside a PA or AA’s working life. Poor performance involving interaction with a person with impaired capacity or a person with a particular vulnerability can only arise in a PA or AA’s working life.
Premeditated behaviour.
Premeditated behaviour is characterised by the PA or AA having acted intentionally and with planning. It usually arises where a PA or AA looks for, or identifies, an opportunity to take advantage of a person or situation and takes steps towards doing so.
A PA or AA may behave in a premeditated way inside or outside their working life.
Predatory behaviour.
Predatory behaviour is characterised by the PA or AA taking, or attempting to take, advantage of an opportunity to exploit a person or situation. It can involve premeditation or be opportunistic.
A PA or AA may behave in a predatory way inside or outside their working life.
Abuse of professional position.
Abuse of professional position is where a PA or AA misuses their position of power. It arises because the relationship between the PA or AA and the individual is not equal.
The forms it can take include taking advantage of someone, improperly gaining access to information or opportunities, manipulating an individual or a situation, using their title or status to try to take advantage of opportunities to achieve financial or other personal gain or benefit.
Abuse of professional position can occur both inside and outside a PA or AA’s working life.
A reckless disregard for patient safety or professional standards.
A reckless disregard for patient safety is where a PA or AA knew, or ought to have known, that their behaviour, poor performance or the impact of a health condition was causing harm, or risked causing harm, to patients and should have taken steps to prevent this, or where they deliberately closed their mind to the existence of such a risk.
A reckless disregard for professional standards is where a PA or AA knew, or ought to have known, they should have followed professional guidance and chose not to do so without having first considered any associated risks and taking reasonable steps to mitigate them. This may include failing to take reasonable steps to check that information provided to others, or written in documents, is correct and that relevant information has not been left out.
A reckless disregard for patient safety or professional standards is most frequently seen in a PA or AA’s working life but can also be seen outside of it.
Undermining a system designed to protect the public.
PA and AAs can play an integral part in maintaining the integrity of systems designed to protect the public. They may do this by providing information about the health status of individuals to organisations carrying out specific statutory functions, or by providing an assessment about an individual’s ability to participate in certain activities.
Where a PA or AA does not provide accurate information to one of these organisations, their regulator or another body who they’re employed by, or registered with, to provide healthcare services, the ability of those organisations to protect the public or deliver safe care to patients can be undermined. This also applies where a PA or AA is seeking employment or registration.
Behaviour or poor performance that undermines the integrity of a system designed to protect the public can only arise in a PA or AA’s working life.
Undermining collaborative working.
How PA and AAs treat their colleagues, and how they work together in the interests of patients, is essential for good healthcare. Behaviour that undermines colleagues or is otherwise obstructive to effective team working, can directly or indirectly have a negative impact on patient safety. However, a PA or AA who raises a concern to comply with their professional duty to raise concerns in the public interest should not be regarded as having behaved in a way that undermines collaborative working, even where their doing so has had a negative impact on colleagues or team working.
Behaviour that undermines collaborative working can only arise in a PA or AA’s working life.
Putting their own interests before those of patients.
This occurs when a PA or AA puts their personal interests above those of a patient in a way that could compromise their judgment, decisions or actions. It includes where a PA or AA has asked for, accepted, or offered inducements or gifts, that may be seen to affect their behaviour at work, including clinical decision making. It also arises where they are not honest in their financial or commercial dealings, do not declare conflicts of interests and/or allow any interests to affect the way they prescribe, treat, refer or commission services for patients. Where a PA or AA puts their personal beliefs above the delivery of safe care to patients without making other suitable arrangements for treatment, this also amounts to putting their own interests above those of patients.
This type of behaviour can only arise inside a PA or AA’s working life.
An attempt to hide and/or avoid taking responsibility for behaviour or poor performance.
A PA or AA must be open and honest if things go wrong. Where, at the time of the circumstances giving rise to the allegation, they attempt to hide unacceptable behaviour or poor performance or avoid taking responsibility for their behaviour or poor performance by blaming others for their own acts or omissions, this can have a negative impact on patient safety and/or workplace culture.
This type of behaviour can only arise in a PA or AA’s working life.
Decision on where on the spectrum of seriousness the allegation lies
- The AT's decision on where on the spectrum of seriousness the allegation lies must reflect (a) the starting point for assessing seriousness based on the nature of the allegation and (b) the impact of specific features about the allegation which may increase seriousness.
Lower end
- Where the nature of the allegation means it usually falls at the lower end of the spectrum of seriousness, the absence of features that may increase seriousness will mean the allegation is likely to stay at the lower end. This means the starting point for assessing current and ongoing risk to public protection is low. Evidence of relevant context known about the PA or AA and/or their working environment and evidence of how the PA or AA has responded to the concern that decrease risk, will usually have more impact and carry greater weight. This is because the risk to public protection arising from allegations falling at the lower end of the spectrum of seriousness are generally easier to mitigate and address.
Mid-range
- Where the nature of the allegation means it usually falls at the lower end of the spectrum of seriousness, the impact of one or more features that may increase seriousness could result in the overall seriousness of the allegation increasing. However, this must be determined on a case-by-case basis, taking into account how remediable the nature of the allegation is.
- To decide where on the spectrum of seriousness the allegation lies, the AT should consider the impact the number of features that increase seriousness has, and the extent to which they are present, to decide how much weight to attach to each of them. Where the impact is that the seriousness of the allegation moves up the spectrum to mid-range, the starting point the AT uses for assessing current and ongoing risk to public protection will need to be medium to reflect this.
- Where the AT considers that the nature of an allegation falls at the mid-range of the spectrum of seriousness, the absence of features that may increase seriousness will mean the allegation stays at the mid-range. This means the starting point for assessing current and ongoing risk to public protection is medium.
Higher end
- Where an allegation falls at the mid-range of the spectrum of seriousness, the impact of one or more features that may increase seriousness could result in the overall seriousness of the allegation increasing. However, this must be determined on a case by cases basis. To decide where on the spectrum of seriousness the allegation lies, the AT should therefore consider the impact the number of features that increase seriousness has, and the extent to which they are present, to decide how much weight to attach to each of them. Where the impact is that the seriousness of the allegation moves up the spectrum so that it now falls at the higher end, the starting point for assessing current and ongoing risk to public protection will be high.
- Where an allegation falls at the higher end of the spectrum of seriousness, the presence and impact of one or more factors that may increase seriousness could make the allegation more serious. Either way, it will stay at the higher end of the spectrum.
- In all cases where the allegation falls at the higher end of the spectrum of seriousness, the starting point for assessing current and ongoing risk to public protection will be high. Evidence of relevant context known about the PA or AA and/or their working environment and evidence of how the PA or AA has responded to the concern that decrease risk, will usually have less impact and carry less weight. This is because the risk to public protection arising from allegations at the higher end of the spectrum of seriousness are generally more difficult to mitigate and address.
Starting point for assessing risk to public protection
