Acting to stop harm: the FCA and Appointed Representatives
Regulated professionals - doctors, nurses, accountants, social workers (amongst others) - should think twice before assuming that an allegation of misconduct stems only from poor clinical practice. As a professional, you are expected to conduct yourself appropriately in your personal life as well as in your professional life. How you behave outside of work is becoming as important as maintaining your clinical skills. This principle was re-affirmed in R (on the application of Pitt and another) v General Pharmaceutical Council  EWHC 809 (Admin) at paragraph 38, in which it was held by Mr Justice Singh that fitness to practise may be impaired as a result of matters arising outside of a practitioners professional work or working hours. Please see our blog on this here.
There is no formal definition of ‘misconduct’ provided in the legislation of any of the regulators in the United Kingdom (UK), and therefore it is not possible to define precisely what types of behaviour will fall squarely within its ambit. However, it has been commonly described in Roylance v. GMC (No.2)  AC 311 at p330 as:
‘a falling short by omission or commission of the standards of conduct expected among…practitioners, and such falling short must be serious.’
But does this definition extend to conduct outside of the workplace and/or in respect of matters which do not directly relate to the performance of one’s job?
The short answer is ‘yes’. Increasing numbers of professionals are finding themselves brought before the attention of their regulator to answer allegations of misconduct which are wholly unrelated to their competence. It may come as a surprise for professionals to learn that serious rudeness, convictions for criminal offences and inappropriate ‘tweets’ or ‘posts’ on social media can lead to an investigation into their fitness to practice.
One such example recently arose before a health regulator where a practitioner was suspended for nine months after telling a patient that her baby ‘looked like a golliwog’, informing another that their pain was ‘psychosomatic’, and using racist terminology in front of other members of staff.
Similarly, conduct capable of being referred to your regulator extends beyond the workplace. In March 2017 an Operating Department Practitioner came to the attention of his regulator for sending a number of threatening and inappropriate tweets to Jeremy Hunt about the state of the NHS. One such tweet read: ‘Dear Santa, please could you inflict some health problem on the HUNT family, just so that they could wait MORE THAN 4 HOURS ON A TROLLEY.’ Although the practitioner in question was described as ‘clinically excellent’ and had an otherwise unblemished career, the regulator suspended him from practice for 12 months as the messages were found to be threatening, inappropriate and undermined confidence in both the regulator and the profession.
Finally, in the event you are convicted of a criminal offence, you should bear in mind that: (1) you are very likely to have a duty to advise your regulator, at the earliest possible juncture, that you have been charged and/or convicted and (2) your regulator may decide to take action against you irrespective of the sentence received in the criminal courts. This also applies to the acceptance of a police caution or a fixed penalty notice.
Practitioners should be aware convictions for offences which are wholly unrelated to your professional role, (such as drink-driving or common assault) can land you before your regulator facing a potential sanction restricting your return to work.
Of course, there is no substitute for performing your professional role with courtesy, respect and staying within the parameters of the law, but for regulated professionals, the need for caution comes long before that line is crossed. Think twice before venting your frustrations on Twitter, ensure your attitude towards patients and colleagues matches your clinical competence and bear in mind that the consequences behind a criminal conviction extend far beyond the doors of the courts.
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