31 August 2023

The Clinical Defence and Professional Discipline team at BTO specialise in the representation and defence of professionals in negligence claims and in fitness to practise (FTP) hearings before their professional regulators. We are often instructed to represent medical and dental students at University FTP hearings. Universities monitor these students’ FTP throughout their studies and can take action to prevent them finishing their course, which ultimately prevents them from entering their chosen profession.

This was the outcome under consideration in a recent Judicial Review brought by a student, SM, of a decision of the FTP Appeal Committee of a Scottish University. The written Opinion was delivered by Lord Sandison on 15 August 2023.

SM was a final year dental student at a Scottish University. He was subject to a University FTP Panel which was convened to consider absences, failure to report absences, lack of data to assess his performance and his failure to engage with a mentoring programme. The Panel found that SM’s FTP was impaired on several counts, including lack of insight into professionalism and the impact of absence on clinical care. The Panel concluded that there had been an ongoing pattern of behaviour since early in his course and a lack of progress demonstrated by him in both professionalism and insight. This resulted in a decision to exclude him from his course.

He appealed to the University’s FTP Appeal Committee which concluded that the Panel’s decision did not involve defective or unfair procedure and was not manifestly unreasonable, and the decision to terminate his studies was therefore upheld.

Before Lord Sandison, SM submitted that the FTP process was so fundamentally unfair that the decision should be reduced. SM contended that the original proceedings were procedurally unfair due to a lack of proper notice of the allegations he was facing, no evidence having been led against him, no findings of fact having been made and inadequate reasons given in the final decision. He claimed that the Appeal Committee had erred in law by misapplying the procedures; and that the decision was irrational. The University denied these grounds, highlighting that the review was of the procedures and decision of the Appeal Committee, not the original Panel decision, and the proceedings of the Appeal Committee had been conducted fairly. They also argued that there was nothing to suggest that, even if the grounds of review were well-founded and a different procedural approach had been adopted, the Appeal Committee might have reached a different decision.

Lord Sandison noted that SM’s case had been conducted in accordance with the University rules and did not uphold that there were procedural failings. He concluded:

“Most if not all of the ways available to divert [SM] from the path he was treading had already been tried, and had failed.  The Panel decided that his exclusion from his course was the appropriate way to deal with the situation which thus presented itself…Given the lengthy history of the petitioner’s unsuccessful attempts to make satisfactory progress on the final year of his course, despite opportunities and assistance being afforded  to him, the decision that was made, far from being at the irrational or unreasonable end of the spectrum, appears when matters are viewed objectively to have been very much an option available to the Panel to choose and for the Committee to endorse.” The Petition was therefore refused.

Please contact the Clinical Defence and Professional Discipline Team for more information. Given the serious and career affecting implications the FTP processes can have, it is always advisable to take advice at the earliest opportunity.

Jennifer King, Associate: jki@bto.co.uk / 0141 221 8012