Incompetence and Deficient Performance of Regulated Professionals
Poor performance or incompetence can be defined as failing to consistently meet the standards expected of a professional. Those standards are contained in regulatory codes of standards and/or practice.
Regulators of professionals each have their own processes for dealing with poor performance, and we set out some examples below.
Under the Teachers’ Standards a teacher must ‘[d]emonstrate good subject and curriculum knowledge and have a secure knowledge of the relevant subject(s) and curriculum areas.
The Nursing and Midwifery Council states that nurses and midwives should maintain the knowledge and skills needed for safe and effective practice.
Under Good Medical Practice doctors must be competent in all aspects of work, including management, research and teaching. Doctors must keep professional knowledge and skills up to date. ‘
If a doctor is considered to be under performing the GMC may request a performance assessment to get an independent opinion of the doctor’s performance. It may include a workplace-based assessment and tests of knowledge and skills. Performance will be judged against the standards in Good medical practice. The GMC may also request an assurance assessment if they consider a doctor is ready to return to unrestricted practice after being subject to undertakings to satisfy the GMC that there are no longer any concerns.
In 2008 the NMC struck off an ‘incompetent’ nurse. There was a ‘serious departure from the relevant standards as set out in the Code of Practice. Patients were placed at serious risk by the registrant’s lack of nursing skills and poor practice. The public would be at further risk if the registrant were allowed to return to practice. Therefore, the panel considers that confidence in the NMC would be undermined if the registrant were not removed from the register.’
It should be noted, as decided in the case of Okeke v NMC  EWHC 714 that any interim suspension does not count towards a two year period of suspension before striking off.
The case of Dervinder Luthra v GMC  EWHC 240 (Admin) concerned a doctor who was erased from the register because there was a lack of knowledge and skills which was likely to present a risk to patient safety. It was held that there was no possibility of retraining as the level of knowledge was too low.
In the case of R (Aston) v Nursing and Midwifery Council  EWHC 2368 (Admin), the appeal concerned the question of whether a legal represenative’s lack of competence would affect th fairness of thr process. At paragraph 66 of the judgment: a nurse complained that his representation by a union representative, defending him before the NMC, had been incompetent. The nurse sought a retrial. The court determined that the question was whether the level of incompetence rendered the trial process unfair. In the circumstances of this particular case it was decided by a High Court judge that there had not been an unfair trial in all of the circumstances, even if there had been incompetence. While this case is not specifically about a professional’s competence before their regulator, it is a good illustration of how a lack of competence might have a knock on effect on clients.
Regulated professionals can be disciplined by their employers and their regulators, where they have been incompetent in their work, leading to sigfnificant sanctions. They might be dismissed by an employer and then be referred by their employer to their regulator. The regulator will then undertake its own investigation and possibly refer the matter to a hearing, to be considered. At such a hearing a professional’s future career may be brought to an end, by way of removal from a register or list of professionals.
While the civil courts have professional negligence case law (such as the ‘Bolam‘ test), and the criminal courts may look at gross negligence or health and safety breaches, where death or injury has occurred, the regulators of professionals can treat occasions of incompetence as ‘deficient professional performance’ or misconduct’, leading to an examination of the safety of the professional continuing in their work. If they have remediated and are considered safe and have apologised the case may be closed. Where there remain concerns, on analysis, sanctions might be imposed.
Our lawyers can advise on the steps that professionals might take in these circumstances and we have had some good results over the years.
If you are a professional facing allegations a lack of competence, contact Barristers.London without obligation and in strict confidence to discuss our legal advice and representation services. Our fees are competitve.
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