Specialist Health and Care Professions Council (HCPC) Lawyers

What is the Health and Care Professions Council (HCPC)?

The Health and Care Professions Council (HCPC) is the independent regulator for 15 health and care professions. They currently regulate:

• Arts therapists
• Biomedical scientists
• Chiropodists / podiatrists
• Clinical scientists
• Dietitians
• Hearing aid dispensers
• Occupational therapists
• Operating department practitioners
• Orthoptists
• Paramedics
• Physiotherapists
• Prosthetists / orthotists
• Radiographers
• Speech and language therapists

Like many regulators, the HCPC’s primary objectives include protecting and promoting the health and safety of the public, as well as, giving them the confidence to engage with the various professions that they regulate. In doing so, the HCPC is responsible for setting and maintaining professional standards and conduct for members of the 15 professions set out above.

Why chose Olliers for HCPC matters?

The team at Olliers provide professional, pragmatic advice and assistance to those facing investigation or proceedings brought by the HCPC.  We provide expert representation for healthcare professionals throughout the course of their dealings with the HCPC, advising at all stages of the disciplinary process from initial referral through to fitness to practise hearings before the Conduct and Competence Committee or in health related cases, a panel of the Health Committee.

As professionals we understand the anxiety that a referral to your professional regulator can cause, in terms of the potential loss or restriction of your practice and the associated financial and reputational damage that is likely to follow.

We work closely with our clients, taking a pro-active approach which has seen Olliers develop a practice which is recognised and respected for robustly defending professionals including those regulated by the HCPC.

What types of HCPC cases can Olliers assist with?

Our experts have dealt with the full spectrum of cases which may give rise to fitness to practise proceedings including allegations of misconduct; lack of competence; convictions or cautions; physical or mental health concerns and cases stemming from decisions made by other regulators in the health and social care sector.

Our team of lawyers assist healthcare professionals with not only regulatory matters, but also associated criminal proceedings and the holistic approach taken by our experts working collaboratively throughout, sets us apart from many other purely criminal or regulatory teams.

Our experience includes:

• Providing expert advice during the course of HCPC investigations
• Attendance at NHSE/ Trust meetings
• Preparation of responses to formal allegations
• Representation at Interim Orders hearings
• Representation at fitness to practise hearings before the HCPTS (Conduct & Competence Committee /Health Committee)
• Appeals to the High Court against decisions
• Criminal investigations including representation at PACE interview
• Providing advice and representation for inquest proceedings

Therefore, if you are subject to HCPC proceedings or find yourself under investigation by an NHS Trust or any other regulatory body, please get in touch and let us help you navigate the process.

What can I expect if someone raises a concern with the HCPC?

The HCPC will inevitably receive hundreds, if not thousands, of concerns or complaints every year. They may come from members of the public, employers, other professionals and in some cases from the police.

The HCPC can, however, only consider cases which raise the question of impairment in relation to the registrant’s fitness to practise. As alluded to above, this will arise in cases involving one or other of the following statutory grounds:

• misconduct – that being behaviour which falls short of what can be reasonably expected of the professional
• lack of competence- usually evidenced over a period of time through a lack of knowledge, skill and judgement
• criminal convictions or cautions- including not only offences in the UK but also abroad if the offence would be a crime if committed in England and Wales
• health issues – impacting on a doctor’s ability to practise and ordinarily untreated or unacknowledged
• a decision by another regulator in the health and social care sector

It is interesting to note that the HCPC are able to investigate concerns or events alleged to have taken place at any time including before the professional became registered, although they do not tend to investigate matters over five years old. The HCPC can also consider whether entry onto their Register was made incorrectly or fraudulently, for example someone lying on their application.

If the concern does not raise any issue with regards to potential impairment, then the complainant will be informed and the case will be closed. For those that do fall within scope, an initial investigation will commence during which further information may be gathered. The registrant will be made aware of the concern and both they and the complainant will be kept updated as to the progress of the investigation through an allocated case manager.

When all of the information has been gathered a decision will be taken about whether the case meets the threshold for fitness to practise investigations. Put simply this means it needs to be established whether the concern received, and any further information gathered, amounts to an allegation that the registrant’s fitness to practise may be impaired on one or more of the statutory grounds as detailed above.

In reaching a decision the HCPC will consider, amongst other things, the seriousness of the concern; the real or potential risk to public safety; whether the matter may undermine public confidence in the profession; previous similar concerns; any remedial action taken by the registrant and any other public interest considerations.

What happens if a case is referred to the HCPC Investigating Committee?

If the case meets the threshold test, then it will be referred to an Investigating Committee. If not, then the case will be closed and the parties informed of the reasons why.

Some concerns received are so serious that they will meet the threshold criteria at the point the HCPC decide that it is within their remit, for example, serious violence, sexual offences or serious / sustained dishonesty. These cases will be referred automatically to the investigating committee from the triage stage without going through an initial investigation. This is because, if proven, they are likely to result in the HCPC taking action against a registrant’s.

When a case is referred to the Investigating Committee, formal allegations will be drafted and sent to the registrant along with any documents collated in respect of the same. A professional will be invited to, but is not obliged to comment on the allegations at this stage. The deadline for providing submissions is usually 28 days but an extension can be requested, if needed.

It is important to seek legal advice before providing any response to the allegations and it is worth highlighting that well-crafted submissions can result in matters being closed down sooner rather than later and avoid any formal hearing.

Once the HCPC have collated all of the information including any written representations from the professional, the case will be passed to a panel of the Investigating Committee for a decision. The panel is made up of at least three people with one individual being from the same profession as the registrant under investigation and one lay person.

The panel will review all of the material available to them and ordinarily reach one of the following decisions:

(i)            require more information or decide that the allegations ought to be amended

(ii)           refer the matter to a final hearing as there is a case to answer

(iii)          conclude there is no case to answer

Allegations will only be referred to a final hearing if the panel considers that there is a realistic prospect that a Conduct and Competence Committee / Health Committee would find the allegations proved.

What is the Health and Care Professions Tribunal Service (HCPTS)?

The Health and Care Professions Tribunal Service (HCPTS) run the hearings at which a Conduct and Competence Committee or Health Committee will decide if a registrant’s fitness to practise is impaired and what action, if any, is needed.

Hearings are generally held in public although they may be held in private where they are considering confidential information, or information about a professional’s health.

Panel members make the decisions and the HCPTS have been keen to stress that members are independent from the HCPC.

The hearing panel will be made up of a Chair, a lay member and a registrant member from the same profession as the person facing the allegations. Cases will also have a legal assessor who advises the tribunal on points of law, but plays no part in decision making. A Hearings Officer will also usually be present in order to facilitate the smooth running of the process and provide support to the parties.

What happens when a case is referred to the HCPTS?

When a case is referred to the HCPTS, the HCPC tend to instruct solicitors to prepare the case for hearing. The parties will be expected to engage so that appropriate arrangements can be made in relation to matters such as the timetable for disclosure of evidence, witnesses and an indicative listing window for the final hearing.

So far as the actual hearing is concerned, it is normal for the panel to hear evidence and submissions on the facts, statutory ground(s) for the allegations and on the issue of impairment together, although this may vary depending on the nature and complexity of the case.

The hearing will generally begin with the Chair introducing themselves and their fellow panel members. The hearing will then deal with any preliminary issues, for example, special measures applications or applications to amend the allegations or adjourn matters. The panel will receive legal advice on the issues from the legal assessor before retiring to reach its decision which will then be handed down in public and made available to the parties.

Having resolved any preliminary matters, the Hearings Officer will read out the allegations and the Chair will ask the registrant whether or not there are any admissions to the alleged facts.

The HCPC Presenting Officer will outline the factual background and present the evidence they rely upon to prove their case which may involve calling witnesses who your representative will have the opportunity to question on your behalf.

You as the registrant, often through your legal representative, will then call evidence in support of your own case which may involve giving evidence yourself and calling witnesses.

As noted the HCPC Presenting Officer will also refer to which standards of conduct, performance and ethics and standards of proficiency you are alleged to have breached. On the issue of impairment, the Panel will also consider what has happened since the event giving rise to the proceedings. They will consider personal issues such as remediation and insight but also matters such as the need to protect service users and maintain the highest standards in the profession.

Both sides will have the opportunity to make closing submissions before the panel retires to consider each step, specifically facts, grounds and impairment. It is for the HCPC to prove their case and they must do so to the civil standard of proof, specifically that it is more likely than not to have happened.

If the panel considers your fitness to practise to be impaired they will go on to hear submissions on sanction; put briefly the HCPC will set out their position, after which your representative will make submissions on your behalf before the panel take legal advice and retire to consider what, if any, sanction to impose.

The decision on sanction will be handed down in public along with the reasons for it. The panel must impose an appropriate sanction to ensure that the public is protected and the options available to them include:

• take no further action or order mediation
• issue a caution- this includes putting a warning marker against your name on the Register for up to five years
• suspending your registration for up to 12 months or
• imposing conditions on your practice
• striking you from the HCPC register

How long does an HCPC case take?

Each case will turn on its own facts and will be largely dependent on the nature and complexity of the allegations, as well as, resourcing issues within the HCPC. However, the HCPC does aim to have cases considered by the Investigating Committee within eight months of receipt of a concern which has been deemed to meet their threshold.  They also aim to hold any final hearing within nine months of the Investigating Committee panel’s decision of there being a case to answer.

Interim Orders Hearings in HCPC cases

It should also be remembered that the HCPC can and indeed will consider whether the allegations raised are so serious as to necessitate immediate action in the form of an interim suspension or an interim conditions of practice order. If necessary, you will be referred to the HCPTS for an interim orders tribunal hearing which is likely to be organised at relatively short notice.

It is important to note that an interim orders panel does NOT make findings of fact or determine any allegations which may be made against a registrant. Their function is to consider whether or not it is necessary to make an order on an interim basis in order to protect the public or the professional, or where it is the public interest.

An interim orders panel can impose the following orders:

(i)            No order

(ii)           Interim conditions

(iii)          Interim suspension

An interim order may be imposed for a maximum of 18 months and will be reviewed by a different panel after six months and then again at three monthly intervals. In deciding whether or not to impose an interim order the panel will generally consider issue such as the seriousness of the risk to the public if the professional were to continue without restrictions on their practice; the likely impact on public confidence, as well as, the best interests of the professional themselves. It really is a balancing act and any decision must be both reasonable and proportionate.

If you have been notified that the HCPC intend to seek an interim order, then it is important to seek legal advice as soon as possible because robust submissions at a hearing could mean the difference between suspension and conditions or no order at all.

Olliers’ HCPC experience

Our team have many years’ experience providing advice and assistance to professionals with significant involvement with those working in the health and social care sectors. We regularly deal with the full range of fitness to practise issues, including:

• Clinical incidents
• Surgical, prescribing, and diagnostic errors
• Poor performance
• Criminal convictions/allegations
• Misconduct
• Dishonesty allegations
• Misuse of drugs or alcohol
• Fitness to practise concerns based on physical or mental health

Funding for HCPC cases

Olliers can assist our clients on either an hourly rate basis or we can offer a fixed fee service to provide peace of mind that costs will not escalate beyond what is agreed. We are always happy to provide a bespoke quotation for your individual needs and we have experience dealing with many of the leading insurance providers, therefore are happy to discuss your case with them to ensure that you get the best representation from your legal team of choice.

Should you require assistance with any matter before the HCPC, please contact our specialist professional disciplinary team for an initial confidential discussion as to how Olliers can assist.

Please contact us by telephone on 0161 834 1515, by email to info@olliers.com.