The perils of student Fitness to Practise investigations and hearings

For most students on a regulator-approved programme, the duration of their three, four or five year University degree is full of learning, development and gaining practical experience that will impact, form and shape their competence and skill on qualification.

For a small proportion of students, however, their studies are prematurely cut short by termination, interim suspension, or hauntingly marred by the experience of being subjected to a student or University Fitness to Practise process (“student FTP”).

Whilst Student FTP is different from Fitness to Practise processes faced by qualified professionals, it naturally takes its colours from the latter – albeit with a student flavour. Therefore, instead of relying on an impairment test cemented in case law, we are met with student equivalent (ish) definitions of engaging in behaviour which falls below the expected standards or health concerns which raise concerns regarding a student’s ability to continue on the course or practice in their field after registration.

As the gatekeepers to provisional registration; all bar the General Optical Council (“GOC”) whose students become GOC registrants on or before the first day of their degree, the University is required to confirm to the relevant regulator, at the end of the programme, that the student is Fit to Practise.

This, in turn, places an onus on Universities to investigate allegations and hold FTP hearings however, and from our own experience, coupled with the recent outcomes on the Office of the Independent Adjudicator for Higher Education’s (“OIA”) website, it appears that some Universities are consistently missing the mark.

What are Universities getting wrong?

From reviewing case decisions on the OIA’s website, University omissions or failings during the Student FTP process have included:

• A University taking too long – 12 months – between finishing an investigation and scheduling the Student FTP hearing
• A University informing a student, on the day of the hearing, that an assault allegation was no longer being pursued against them, despite the University having reached this decision four months ago
• A University anonymising witness statements, without providing a key to the student, thus preventing the student from understanding who referred the information to them
• A University failing to understand that a student was not well enough to engage with the FTP process, and adjustments were required to enable them to participate.

From our own perspective, we have also seen the following:

• Inequality of arms regarding last minute disclosure of evidence
• Panel members asking inappropriate questions outside the scope of the allegations during the Student FTP hearing
• Panel members actively voicing dislike to students being legally represented at Student FTP hearings
• Panel conflicts not being raised with the panel or student.

With reference to the concerns outlined above, it would appear that some Universities are ill-equipped and most likely insufficiently trained and resourced to understand the intricacies of the legal processes which underpin student FTP and the whole FTP process.

Concepts such as transparency, parity amongst parties, and proportionality appear to be largely lost on University administration staff and panel members alike. It seems often the University’s solicitor assisting the panel is either unwilling to intervene in legal argument or appears to lack sufficient knowledge of this niche practice area.

Equally it is unlikely, given the small number of student FTP matters conducted by Universities each year, that these panel members receive rigorous training akin to the training FTP panellists sitting at healthcare regulators receive. Arguably, they should do as the stakes remain high.

The impact of these inadequacies, however, is most keenly felt by the student whose career hangs in the balance and can find themselves considering a different career trajectory in a matter of days.

Students who are not able to afford or procure legal representation at the investigation or hearings stage can find themselves in the difficult position. Should they vehemently challenge the University’s allegations or simply accept the allegations in the knowledge that the odds are stacked against them?

We would of course categorically state that allegations not admitted should always be challenged. However, this decision will ultimately rest on access to funds. Students should be aware, however, that legal advice can be obtained in connection with reviewing written submissions and documents submitted to the panel. This is with a view to closing the case at an early stage, and where this is not possible, obtaining legal representation at student FTP hearings to achieve the best outcome.

Investigation stage

Whilst the concerns regarding student FTP investigations and hearings have been highlighted above, how can a student facing a student FTP investigation protect their legal position?

• Engage with the University from the outset: Whilst this may not always be possible, depending on the student’s personal circumstances, a student should always try to engage with the University at the earliest available opportunity. By virtue of their engagement, the student is demonstrating they are committed to their programme, and career, and have the requisite insight into the concerns raised
• Process: A student should always locate and read their University’s student FTP process and understand their rights and relevant timeframes. This could include a right to be legally represented or accompanied by a member of the student union, friend or colleague at a hearing and the right to submit documents to the panel. By knowing and understanding the process, a student can quality-assure the University is following its own procedures and can challenge the University where it has failed to do so
• Written submissions: Where a student is asked to respond in writing to allegations, they should do so. A student should address each allegation, confirming whether they admit or deny the allegation, and provide any explanatory or mitigatory narrative. If a student can provide evidence which rebuts the University’s evidence, this should also be included. A student should understand that if they do not put their case in full to the University, the University will remain unaware of any personal circumstances they were facing at the time which, most likely, had a direct bearing on their actions or conduct
• Dishonesty: Where dishonesty is raised, and the student denies dishonesty, they should state why they deny being dishonest and explain what they were thinking at that moment in time. A student is not obliged nor obligated to accept that they were dishonest if they were not.

Hearing stage

For a student, it may feel that that a large period of time is spent sitting at the investigation stage and that the hearing, lasting anywhere from 30 minutes to three hours, does not carry the same weight.

While the time spent at hearing pales in comparison to the investigation stage, this is likely to be a student’s only opportunity to orally present, and challenge, its case to the decision makers.

In any hearing environment, the decision maker(s) are an independent third party – or parties – who have not had any prior involvement in the matter, or knowledge of the individual concerned, but who hold foundational knowledge of the key principles.

In criminal or civil settings, this independence and knowledge is fairly easy to ensure given that a presiding judge is employed to only make decisions grounded in legal principles and the information presented. This independence, and understanding of principles underpinning the proceedings, is not as easily achieved in an institutional setting such as student FTP.

At student FTP hearings, the decision makers are a panel formed of individuals fulfilling criteria specified within the University’s guidance. A typical make up of any student FTP panel would be:

• A Dean of another school within the University
• A relevant registered professional or trainee
• A student representative from another school within the University
• An external panel member from another University.

While these individuals may hold insight into what it means to be a registered professional, they may not be equipped with the training – or sufficient training – or necessary understanding of the FTP process to ensure a fair and proportionate decision. This may mean that their decisions are ruled by preconceived ideas rather than a thorough and considered understanding of process and procedure.

Students should obtain legal advice at the earliest opportunity but we would stress the importance of legal representation at the hearing stage of the student FTP process. These are high-pressure environments in which a student can feel a lot of pressure to simply appease those who are expecting a response from them.

In these situations, the value of an individual advocating on your behalf cannot be understated.

To ensure preparation for the hearing, a student or their representative should be well versed with the contents of the University’s student FTP guidance. This guidance should include the University’s allowance for representation and its expectations on the student’s involvement at the hearing. The standard order of the hearing is:

• Chair opening address
• School statement
• Student statement
• Panel member questions.

The guidance can be fairly light on the principles governing the hearing. Therefore it is important that note be taken of the Chair panel member’s opening address. If undertaken appropriately, the opening address should highlight the principles which are of particular importance to the panel’s decision and allow for targeted oral submissions to be made.

Where reference is made to the University holding the student to the standard of a registered professional, steps should be taken to provide the panel with the legal tests or principles that would be considered by FTP panellists determining an outcome for a registered professional.

It is appreciated that financial limitations may not always allow a student to have legal representation at a hearing. In these moments, a student should have confidence in the contents of their written statement and continuously refer the panel to comments contained in this document.

This has the dual benefit of ensuring that the panel are paying close attention to the contents of the written statement and provides the student with a point of reference when presenting their position to the panel.

The pressure of a hearing environment accompanied by a feeling of your character being targeted can result in a student becoming tongue tied. By relying on a previously prepared statement, the student is in the best position to present a clear and thoughtful position to the panel.

Up until the point of ‘questions’, the student FTP hearing could be described as scripted – but caution should be exercised by all parties at the questions stage of the hearing. The University’s student FTP guidance may only allow for questions from the panel to the school or student and, while the guidance may suggest that the student is not obligated to answer the questions, there will be an ever-present expectation that the questions be greeted with a response from the student and not their representative.

Any question asked should hold direct relevance to the allegation(s). It is improper for the panel to ask questions which fall outside this scope and a student, or their representative, should be quick to raise this with the panel.

Alongside this, if the student has already taken steps to answer the questions within their written statement there should not be any need for them to repeat themselves. The panel can be directed to this response.

While the panel may endeavour to suggest an unfavourable narrative, it is important for a student to realise that they are the only person who holds the relevant information to ascertain the truth of the allegations. It is therefore vital that they remain true to themselves and ensure that an accurate record is relayed to the panel members.

Conclusion

Where a University’s student FTP guidance may provide limited information on the principles governing its process, a student should not underestimate the gravity of the proceedings given the potential impact on their studies. Unfortunately, through our experience, little proper direction from administration or panel members can be expected. As such, a student should be thoroughly prepared for each stage of the proceedings.