QUEEN'S BENCH DIVISION
33 Bull Street, Birmingham, B4 6DS
B e f o r e :
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UNIVERSITY OF WOLVERHAMPTON
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OFFICE OF THE
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GENERAL PHARMACEUTICAL COUNCIL
Aileen McColgan (instructed by Weightmans LLP) for the Defendant
Nicola Greaney (instructed by Capsticks LLP) for the Intervenor
The Interested Party did not appear and was not represented
Hearing dates: 14 and 15 December 2017
Crown Copyright ©
Mr Justice Julian Knowles:
|The factual background||6|
|The statutory framework||31|
|Rehabilitation of offenders||31|
|Enhanced criminal record checks and DBS certificates||53|
|Statutory regulation of the pharmacy profession||65|
|The parties' submissions||74|
|Was the University entitled to require HA to disclose his spent convictions and to require him to obtain an ECRC ?||82|
|Was the question asked of HA on the application form invalid for failure to refer specifically to the Exceptions Order ?||118|
|Did the requirement on HA to disclose his spent convictions and obtain an ECRC infringe his rights under Article 8 of the Convention ?||127|
|Was the decision to exclude HA from the MPharm course in accordance with law and a disproportionate interference with his rights under Article 8(1), or otherwise unlawful ?||159|
The factual background
"This course, like the profession of pharmacy, is exempt from the Rehabilitation of Offenders Act because it might involve close working with children or vulnerable adults. You are therefore required to declare any convictions, cautions or binding overs even if they would otherwise be regarded as 'spent'.
Please note that a positive declaration will not necessarily exclude you from the course. However, a false declaration may result in your removal from the course."
"Have you ever been convicted, or received a caution, warning or final reprimand, for an offence that will be not be filtered from the Police National Computer when it is processed by the DBS ?"
"If you are unsure what filtering is, or which offences qualify for filtering, you may wish to talk to us about this or seek further guidance at http://hub.unlock.org.uk/knowledgebase/filtering-cautions-convictions"
"Firstly, I must start by, you know, declaring my previous record. This is because you know before I started college. I wanted to become, I wanted like a pharmacy or dentist, before I wanted to do. I asked my probation officer if I'm allowed to go to Uni cause my dad told me that it will affect my chances to go to Uni so before college I went to my probation officer and I asked him how long would it stay on my record. He said it's come off as in he won't show in University because it's a minimum of five years or something and it comes off. So in my mind I was thinking I had nothing on my record and so when I applied for the University, I applied through Clearing so yes they've come a bit late and I was in a rush, cause it was the only Uni that gave me an offer and I was, I obviously rushed it to be honest, I didn't really read it properly as in I thought in my mind that it's not going to come up so I just clicked no and moved on. So yes that's about it to be honest and that's concerning that part."
"Having considered all of the evidence the panel concluded that there was insufficient [(sic) Ms McColgan told me that this was a typographical error and the letter should have said 'sufficient'] evidence to conclude that your Fitness to Practice was impaired. The panel were concerned at the seriousness of the convictions and at your failure to declare these at the appropriate times.
The Panel found that your explanation of the offences, both in your written statement and in the meeting, sought to minimise their seriousness and that you failed to demonstrate that you had fully accepted responsibility for your actions or that you had fully appreciated the impact of these on others. The panel concluded that if the university had been aware of these convictions prior to you commencing the course it was more likely that you would not have been offered a place.
The panel did not accept that it was reasonable for you to assume that you did not need to declare these based on non-specific advice you were given several years prior to submitting your application for a professional programme. The panel noted that during the enrolment process you were provided with clear and unambiguous information regarding the declaration of convictions which you chose not to consider, resulting in a false declaration of no convictions.
The panel concluded that you had failed to meet the following principles set out in the Student Code of Conduct for Pharmacy Students, specifically in relation to the following:
6 Be honest and trustworthy
6.1 act with honesty and integrity
6.5 supply accurate information in response to lawful requests and update that information as necessary [should be here (sic)]
6.8 abide by the rules and regulations of your university and other organisations linked to your studies
7. Take responsibility for your working practices
7.1 obey the law and comply with this Code of Conduct
7.2 take responsibility for your learning and your actions
7.4 tell your university if there is anything which could impair your study
The panel agreed unanimously, based on the evidence provided and in light of the GPhC Code of Conduct for Pharmacy Students and the University Fitness to Practise Policy and Procedure, that your Fitness to Practice was impaired. Due to the seriousness of your convictions and the failure to declare these at any of the available opportunities, the panel agreed that the only appropriate sanction would be to exclude you from your course of study.
I can confirm therefore that it is the decision of the Fitness to Practice Panel that the following sanctions will be applied:
- You will be permanently excluded from your current programme of study (MPharm) at the University of Wolverhampton
- You will not be allowed to apply for any other professional programme at the University of Wolverhampton." (original emphasis)
a. Whether the University was entitled to require HA as part of the application process to declare whether he had any spent conviction, other than those that would be filtered out.
b. Whether the University was entitled to require HA to apply for an enhanced DBS check in respect of his attendance on the MPharm course and associated placements.
c. Whether, if the answer to either or both of the questions above is 'yes' as a matter of domestic law, Article 8 and/or Article 2 of Protocol 1 to the European Convention on Human Rights ('the Convention') require a different result.
d. Whether the decision to exclude HA from the MPharm course was a disproportionate infringement of his rights under Article 8 and/or Article 2 of Protocol 1, or otherwise unlawful.
The statutory framework
Rehabilitation of offenders
"(2) Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority—
(a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and
(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question …
(4) The Secretary of State may by order—
(a) make such provisions as seems to him appropriate for excluding or modifying the application of either or both of paragraphs (a) and (b) of subsection (2) above in relation to questions put in such circumstances as may be specified in the order;
(b) provide for such exceptions from the provisions of subsection (3) above as seem to him appropriate, in such cases or classes of case, and in relation to convictions of such a description, as may be specified in the order.
"(a) any question asked by or on behalf of any person, in the course of the duties of his office or employment, in order to assess the suitability—
(i) of the person to whom the question relates for admission to any of the professions specified in Part I of Schedule 1 to this Order.
(ii) of the person to whom the question relates … for any other work specified in paragraph 12A, 13 … 14A, 14AA… of Part II of the said Schedule 1…
where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed."
"… 'health care professional' means a person who is a member of a profession regulated by a body mentioned in subsection (3) of section 25 of the National Health Service Reform and Health Care Professions Act 2002 …"
"12A Any work which is regulated activity relating to vulnerable adults within the meaning of Part 2 of Schedule 4 to the 2006 Act [ie, [Safeguarding Vulnerable Groups Act 2006] including that Part as it had effect immediately before the coming into force of section 66 of the Protection of Freedoms Act 2012.
13 Any employment or other work which is concerned with the provision of health services and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to persons in receipt of such services in the course of his normal duties …
14A Any work which is regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the 2006 Act including that Part as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012.
14AA Any work done infrequently which, if done frequently, would be regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the 2006 Act including that Part as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012."
"1(1) An activity is a regulated activity relating to children if—
(a) it is mentioned in paragraph 2(1), and
(b) except in the case of activities falling within sub-paragraph (1A), it is carried out frequently by the same person or the period condition is satisfied.
(b) health care provided by, or under the direction or supervision of, a health care professional.
2(1) The activities referred to in paragraph 1(1) are—
(b) any form of care for or supervision of children, unless the care or supervision is merely incidental to care for or supervision of persons who are not children;"
"'health care' includes all forms of health care provided for children, whether relating to physical or mental health"
"7(1) Each of the following is a regulated activity relating to vulnerable adults -
(a) the provision to an adult of health care by, or under the direction or supervision of, a health care professional …"
"7(2) Health care includes all forms of health care provided for individuals, whether relating to physical or mental health …"
"2A(2) For the purposes of this Order, a person's conviction is a protected conviction if the conditions in paragraph (3) are satisfied and -
(a) where the person was under 18 years at the time of the conviction, five years and six months or more have passed since the date of the conviction ,,,
(3) The conditions referred to in paragraph (2) are that—
(a) the offence of which the person was convicted was not a listed offence;
(b) no sentence mentioned in paragraph (4) was imposed in respect of the conviction; and
(c) the person has not been convicted of any other offence at any time …"
Enhanced criminal record checks and DBS certificates
" … a question which … so far as it relates to convictions, is a question to which section 4(2)(a) or (b) of the [1974 Act] (effect of rehabilitation) been excluded by an order of the Secretary of State under section 4(4) of that Act …"
"(1) … must issue an enhanced criminal record certificate to any individual who—
(a) makes an application …, and
(aa) is aged 16 or over at the time of making the application,
(b) pays in the prescribed manner any prescribed fee.
(2) The application must—
(a) be countersigned by a registered person, and
(b) be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked for a prescribed purpose."
"(1) The purposes for which an enhanced criminal record certificate may be required in accordance with a statement made by a registered person under section 113B (2)(b) of the Act are prescribed as follows, namely the purposes of—
(a) considering the applicant's suitability in the circumstances set out in regulation 5C;
(b) considering the applicant's suitability in the circumstances set out in regulation 5B …"
"5B Work with adults
(1) The circumstances referred to in regulation 5A(b) are –
(b) the provision to an adult of regulated activity relating to vulnerable adults within the meaning of Part 2 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006;
5C Work with children
(1) The circumstances referred to in regulation 5A(a) are -
(a) considering the applicant's suitability to engage in any activity which is a regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012;
(b) considering the applicant's suitability to engage in any activity which is a regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006."
Statutory regulation of the pharmacy profession
"(a) to establish and maintain a register of pharmacists, pharmacy technicians and premises at which a retail pharmacy business is, or is to be, carried on;
(c) to set requirements by reference to which registrants must demonstrate that their fitness to practise is not impaired;
(e) to set standards and requirements in respect of the education, training, acquisition of experience and continuing professional development that it is necessary for pharmacists and pharmacy technicians to achieve in order to be entered in the Register or to receive an annotation in the Register and to maintain competence …"
"(a) to protect, promote and maintain the health, safety and well-being of the public;
(b) to promote and maintain public confidence in the professions regulated under this Order;
(c) to promote and maintain proper professional standards and conduct for members of those professions; and
(d) to promote and maintain proper standards in relation to the carrying on of retail pharmacy businesses at registered pharmacies."
"(1) In connection with its general function under article 4(3)(e), in so far as that function relates to the education, training and acquisition of experience of registrants and prospective registrants, the Council must—
(a) … set the standards of proficiency for the safe and effective practice of pharmacy which it is necessary for a person to achieve in order to be entered in Part 1 or 2 of the Register as a pharmacist or, as the case may be, a pharmacy technician; and
(i) the standards of education, training and experience that providers of education and training must meet in order to enable a person undertaking such education or training, or acquiring such experience, to achieve the standards referred to in sub-paragraph (a) having regard, in particular, to the outcomes to be achieved, and
(ii) any requirements to be satisfied for admission to, and continued participation in, education and training for prospective pharmacists or prospective pharmacy technicians, which may include requirements as to fitness to practise unimpaired by health."
"(2) An applicant for entry in Part 1 or 2 of the Register must provide to the Registrar, together with the applicant's application form—
… a self-declaration, in the form determined by the Council from time to time, of the applicant's good character or repute which states whether any of the matters set out in article 51(1)(e) to (n) of the Order [exist in relation to the applicant and which is signed and dated by the applicant."
The parties' submissions
Was the University entitled to require HA to disclose his spent convictions and to require him to obtain an ECRC ?
a. of the person to whom the question relates for admission to any of the professions specified in Part I of Sch 1 to the Exceptions Order;
b. of the person to whom the question relates for any other work specified in paragraph 12A, 13, 14A, or 14AA of Part II of Sch 1.
"the standard of proficiency for the safe and effective practice of pharmacy which it is necessary for a person to achieve in order to be entered in … the Register."
and Article 42(1)(b)(ii) provides that the Council must set:
"any requirements to be satisfied for admission to, and continued participation in, education and training for prospective pharmacists … which may include requirements as to fitness to practice unimpaired by health."
"- must not be awarded an accredited degree or pass preregistration training if they might pose a risk to patients or the public. Where an accredited degree cannot be awarded, it may be possible to award another, unaccredited qualification such as a certificate, diploma or BSc.
- undergo required health and good character checks …"
"By awarding an accredited degree a university is confirming that a pharmacy graduate is fit to enter pre-registration training".
"should include … taking account of good character checks, such as Criminal Records Bureau (CRB) [now DBS] … checks".
"There must be effective systems in place to ensure that students and trainees ... Undergo required health and good character checks."
"The admissions process must include appropriate health and good character checks, such as the self-certification of good health, enhanced Criminal Records Bureau and/or Disclosure Scotland checks and the self-declaration of adverse determinations by other regulators, in particular healthcare regulators."
"During the application process [prospective students] must make online declarations regarding their health and character and anything that may raise concerns in this regard … In addition to their declaration, all year 1 students must undertake an enhanced Disclosure and Barring Service (DBS) check and a full occupational health (OH) check with a local hospital trust. Students are cleared to the same level as a pharmacist employed by the trust …
Students who have satisfactorily passed these checks in year 1 are required to make an annual online declaration to confirm their on-going fitness to practice (good health and character) as part of the enrolment process. This declaration reflects that used by [the Council] for pharmacists renewing their registration and it is impossible for a student to enrol without making a declaration. Declarations are incorporated in to the Fitness to Practice Documentation assessments at each of Pharmacy Stages 1 – 4. A database was introduced in 2011 to record all health and character information. This streamlined the process significantly and reduced any potential for errors and omissions.
Any matters which arise from these checks and declarations are considered by the Faculty Suitability Panel in accordance with the SFtP policy.
Our MPharm Service Practice and Interprofessional Experience Strategy outlines our policy on the safety of patients, carers and clients whom students encounter in the course of their studies. It stipulates that students will not be permitted to engage in patient-facing activities where there is evidence that their health and/or character may jeopardise patient safety; where the students fail to follow the procedures required for health and character assessment and declaration; or who or who is being given a sanction from a fitness to practice panel which excludes him or her from patient contact. Patients encountered on practice placements are protected by way of exclusion of students from placement visits if they have not satisfactorily completed and passed their occupational health screening and DBS checks. To ensure this, staff who allocate placements are allowed access to the DBS/OH check database. In line with current practice on the programme a number of assessments which must be passed are dependent upon information gathered whilst placements including pharmaceutical care plans and case discussions. Students also submit placement attendance sheets as pass/fail elements of the annual portfolios."
"The MPharm degree curriculum must include practical experience of working with patients, carers and other healthcare professionals. Practical experience should increase year-on-year. We are not suggesting that off-site placement visits are the only way to achieve this. Schools should articulate their strategy for meeting this criterion, which may include off-site placement visits, using patients, carers and other healthcare professionals in-class, and simulations."
"The programme itself is highly clinical and patient-focussed, benefitting from our extensive use of lecturers and practitioners who have experience of working in the various sectors of the profession."
"You will attend a series of placement visits in different sectors of the profession throughout the MPharm program, these placement visits form an integral part of your studies …
You have been asked to undertake an OH check run by New Cross Hospital, Wolverhampton and a DBS check as organised by the Faculty of Science and Engineering administration team.
If you have not satisfactorily passed both of these checks and made your annual declaration of fitness to practice then you will not be allowed to attend any placement at any of opposite participating hospital venues, nor will you be allocated to a placement group. This will make it impossible for you to pass the linked assessments."
"...a) establish the standards of proficiency necessary to be admitted to the different parts of the register being the standards it considers necessary for safe and effective practice under that part of the register; and
(b) prescribe the requirements to be met as to the evidence of good health and good character in order to satisfy the Education and Training Committee that an applicant is capable of safe and effective practice under that part of the register."
"26. The HCPC accordingly operates a system of approval or accreditation of certain social work courses as capable of leading to registration on successful completion. That has direct implications, both academic and procedural, for the obligations of education providers (including universities) holding out their courses as capable of leading to registration. The HCPC's published Standards of Education and Training (SET) Guidance is directed at providers of such courses to help them ensure that the relevant standards are maintained."
"35. The University's MA Social Work programme is an HCPC approved course leading to a qualification approved for the purpose of professional registration. As the provider of a degree programme leading to registration with the HCPC, the University has a requirement not only to teach and examine the course in compliance with the SETs, it also has a requirement to act as a gatekeeper to the social work profession, to raise any FTP concerns and, if necessary, investigate and determine through its internal procedures whether a student is fit to practise."
"Education providers are not standing in the shoes of the HCPC, rather the relationship is better characterised as education providers acting as gatekeepers for the HCPC. That gateway is completion of an HCPC-approved programme. Students who do so satisfy one of a number of preconditions to registration with the HCPC. … [T]he education providers perform a crucial role in providing a safeguard against students who are not fit to practise being admitted to the register."
"A person who is part of a group in relation to which another (P) engages in regulated activity relating to children does not engage in regulated activity only because he assists P or does anything on behalf of or under the direction of P which, but for this sub-paragraph, would amount to engaging in regulated activity relating to children."
Was the question asked of HA on the application form invalid for failure to refer specifically to the Exceptions Order ?
"… where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed."
"This course, like the profession of pharmacy, is exempt from the Rehabilitation of Offenders Act because it might involve close working with children or vulnerable adults. You are therefore required to declare any convictions, cautions or binding overs even if they would otherwise be regarded as 'spent'.
Please note that a positive declaration will not necessarily exclude you from the course. However, a false declaration may result in your removal from the course.
Have you ever been convicted, or received a caution, warning or final reprimand, for an offence that will be not be filtered from the Police National Computer when it is processed by the DBS ?"
"You are informed that by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, you must disclose all convictions, cautions, warnings or final reprimands, for any offence that will be not be filtered from the Police National Computer when it is processed by the DBS."
"Regulation 3 of the Regulations of 1991 [ie, the Foster Placement (Children) Regulations 1991] governed the approval of foster parents. Under the regulation a child, save for emergency provision, is not to be placed unless the foster parent is approved under the terms of the regulation. By regulation 3(4), a local authority or voluntary organisation are not to give any approval under this regulation unless not only they have required two references, but they have, by regulation 3(4)(b), obtained, so far as practicable, the information specified in Schedule 1 to the Regulations of 1991 relating to him and other members of his household and family. Schedule 1 sets out the uniform standards, therefore, of information to be supplied by a prospective foster parent as to himself and other members of household and family. Much of it, of course, is 1688what may be expected: age, health, particulars of the accommodation, religion and so on, and by paragraph 9, previous criminal convictions and those of other members in his household. Paragraph 9 is introduced by the bracketed words: "(If any, and subject to the Rehabilitation of Offenders Act 1974 )."
It was submitted to me at one stage from different perspectives, both by Mr Jubb on behalf of the local authority and Mr Garnham on behalf of the Department of Health, that the reference to the Act of 1974 at paragraph 9 of Schedule 1 to the Foster Placement (Children) Regulations 1991 was superfluous, a reminder that the Act existed or otherwise of minimal effect. I inclined in argument and remain of the view that this is not so. The structure, it seems to me, of the Regulations of 1991 takes into account the Rehabilitation of Offenders Act 1974 and its exemption order made the following year and works by empowering the local authority, or indeed the voluntary organisation who also has power to approve foster parents, with a two-fold discretion. They can, or rather they could, on the basis of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 , ask about previous criminal convictions, providing, of course, they make it clear that they do so by reference to the Act of 1974. If they do not ask or do not ask in the requisite form, the Act of 1974 cover, it seems to me, applied. But if they asked specifically, but directly and appropriately, there is no such cover."
Did the requirement on HA to disclose his spent convictions and obtain an ECRC infringe his rights under Article 8 of the Convention ?
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"Right to education
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
"It is not that the concept of the revised scheme necessarily offends Article 8, but it may be that in its operation in individual cases, it does so".
"The conclusion about T in the present case is, however, of an entirely different character. It is that, in the light of the circumstances surrounding his receipt of the warnings, the requirement in the 1975 Order that he should disclose them to the college and its entitlement to act in reliance on them violated his rights under article 8. It cannot possibly be said that the operation of the order will always be such as to violate the rights of those required to make disclosure of spent convictions and cautions under it: for in some, perhaps many, cases the circumstances of the conviction or caution will not render its disclosure disproportionate to the objective behind the order."
"Even if the ROA 1975 did apply to the Defendant's request for disclosure of spent convictions, the 1975 Order is not in accordance with the law, for the very same reasons expounded in R (R) v The National Police Chief's Council & Anor at §§ 84-88, and in R (T) v SSHD §§ 114 and 119."
"15. … The criminal record in issue reflects the very lowest level of seriousness. It is a reprimand for group theft of a low value consumer item. The reprimand is now historical relating to conduct committed many years ago. The Claimant has, otherwise, an unblemished record and is of good character. She has a degree in criminology. Prima face, she is a serious candidate for employment within the Police. No one has sought to suggest, by reference to the particular facts of this case, that a serious link can be drawn between the Claimant herself, and any risk caused by employing her to public confidence or to the integrity of the work that she might be asked to undertake as an employee or as an officer. For our own part we can see no sensible or rational basis upon which the reprimand could be relevant to the Claimant's preferred employment. Yet the Police still used that reprimand peremptorily to refuse the Claimant's job application."
"We would add, though we trust it is in any event evident, that our conclusion applies only to low level historical reprimands. We express no views about other cases. It should also be evident that we do not question the broad policy considerations said to apply. Our concern lies with their application to cases such as the present."
"51 … into violation in the individual case before the court. When it concludes that the legislation of a state is incompatible with the Convention, the ECtHR is understood to mean not that the legislation will always operate incompatibly but that it operated incompatibly in its application to the individual case …
52 … a declaration of incompatibility is not a declaration that the legislation always operates incompatibly with Convention rights. It is a declaration only that it is capable of operating incompatibly and, almost always, that it has operated incompatibly in the case before the court … In making a declaration of incompatibility of the 1997 Act with article 8, the Court of Appeal was therefore not suggesting that disclosure of spent convictions and cautions in certificates would always violate rights under article 8. Its order in T's case was appropriately qualified, namely that the provisions of the Act were incompatible only 'in so far as they require the disclosure of all convictions and cautions … recorded on central records'" (emphasis supplied).
Was the decision to exclude HA from the MPharm course in accordance with law and a disproportionate interference with his rights under Article 8(1), or otherwise unlawful ?
"Students enrolled on courses leading to a professional qualification may have responsibilities over and above those of other students at the University. This particularly applies to any professional Codes of Conduct that students are required to comply with whilst undertaking their training.
A student's alleged misconduct may be considered to be contrary to behavioural expectations required by the courses professional code. In such circumstances consideration must be given to the possibility that they could put patients/clients/the public or other students at risk. A student's Fitness to Practise is called into question when their conduct, health or competence raises a serious or persistent cause for concern about their ability or suitability to continue on a course.
The purpose of the panel is to consider formally whether a student is fit to practice, and what sanctions, if any, should be imposed on a student.
Panels must act in a proportionate way by weighing the interests of patients/clients and the public against those of the student.
The panel must ensure that any warning or sanction is proportionate to the behaviour found proved, and that it will be dealt with effectively with the fitness to practise concerns."
"Any mitigating factors must be considered by the panel when it is deciding on the appropriate outcome. The civil standard of proof should be applied, ie, the facts must be found proven on the balance of probabilities."
"When a panel decides to impose a sanction, it should make it clear in its determination that is has considered all the options. The panel should also give clear reasons, including any mitigating or aggravating factors that influenced its decision, for imposing a particular sanction. In addition, the determination should include a separate explanation as to why a particular length of sanction was considered necessary."
"It is important to bear in mind any factors that may diminish the culpability of a child or young person. Children and young people are not fully developed and they have not attained full maturity. As such, this can impact on their decision making and risk taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer pressure and other external influences and changes taking place during adolescence can lead to experimentation, resulting in criminal behaviour. When considering a child or young person's age their emotional and developmental age is of at least equal importance to their chronological age (if not greater)."
"I know what I did was wrong but I know I was acting like a child and I was immature and at the time, here at the moment, you just, you don't think of what you're doing and now it's been how many years since that I learn from it and I know going through all the process of all that, I don't want to do it again. You understand and then it's not worth it.
When I was 14 I didn't really like think about these things as in how it could affect my life in future. It was just at the moment and concerning the robbery, yes, that's what I was charged for, I didn't walk away but I'm not. You're right that I stood there but if you're with your group of friends you're not going to walk away from them."
"The panel should consider the options available starting with the least severe and moving to the next outcome only if satisfied that a warning or lesser sanction is not appropriate."
"In deciding what sanction, if any, to impose the tribunal should consider the sanctions available, starting with the least restrictive. It should also have regard to the principle of proportionality, weighing the interests of the public against those of the doctor (this will usually be an impact on the doctor's career, eg a short suspension for a doctor in training may significantly disrupt the progression of their career due to the nature of training contracts)."
"Mr Gay (DG): … [H] approached me shortly after the end of that lecture and mentioned one conviction. We didn't discuss it in detail because I don't like to in that situation. I would rather wait until we've got the DBS certificate at that point. In due course, in October the DBS certificate came through and you have a copy of it with 2 convictions on …
HA: You know the first thing when I came to my
DG: In Welcome Week, do you mean ?
HA: Yes, you told me about Fitness to Practice, I didn't get a chance to explain fully like what are my convictions.
HA: And that's why I didn't tell you about all of them.
HA: If that's
DG: I agree we didn't discuss them at that time because it was not appropriate. You did tell me you had a conviction but we didn't discuss any detail at all.
Andrew Cooper (Panel Member): Just to ask you David to clarify the circumstances, there was an attempt to tell you about these offences before the DBS check
DG: Before the DBS check came through. Yes.
AC: And you knew about the one offence.
AC: There wasn't sufficient time to have a full conversation, I guess.
DG: If I recall correctly [H] approached me and indicated that something would come up on his DBS certificate. He mentioned that one offence.
AC: So this was immediately after.
DG: It was immediately after the lecture.
AC: Thank you.
DG: Or very soon after the lecture. Might not be but it was very soon after.
AC: Thanks for that.
DG: I declined an opportunity to discuss it at that point because the DBS certificate would be through within a matter of weeks and it seemed more appropriate to wait until we'd got the full information."