Relevant evidence in fitness-to-practise case

Short answer

It depends on whether the material is genuinely relevant to the fitness-to-practise concern, and on what the university’s own regulations and the fairness principles allow. A university can normally draw on your academic performance and attendance records where they are relevant to the professional concern being considered, because attendance and engagement are themselves often treated as professionalism issues. What it should not do is import genuinely unrelated material simply to paint a negative picture or to bolster an otherwise weak case. The dividing line is relevance and procedural fairness.

How fitness to practise works in England and Wales

Fitness-to-practise (FtP) procedures at universities are internal disciplinary and progression processes, not statutory court proceedings. They exist because programmes leading to professional registration (for example nursing, midwifery, medicine, social work, teaching) are run under the requirements of a Professional, Statutory and Regulatory Body such as the NMC, GMC, HCPC, Social Work England or the relevant teaching body. The university has to satisfy itself, and the regulator, that a graduate is safe and suitable to enter the profession.

Because these are contractual and administrative processes rather than criminal trials, the strict rules of evidence that apply in a courtroom do not apply. The governing standards are instead:

1. The university’s own FtP regulations and procedures, which form part of your contract with the institution.

2. The public law duties of fairness that apply to universities as decision-makers, including acting rationally, following their own published procedures, giving you notice of the case and a fair opportunity to respond, and reaching a decision only on relevant considerations.

3. The Competition and Markets Authority expectations on fair treatment of students and clear, transparent procedures.

4. Ultimately, review by the Office of the Independent Adjudicator for Higher Education after internal routes are exhausted.

When academic and attendance records are legitimately relevant

In many FtP frameworks, attendance and engagement are not “unrelated” at all. They are treated as core professional behaviours. Poor attendance can be characterised as a professionalism, reliability or engagement concern, particularly on placement, because unreliability in a clinical or professional setting can raise genuine fitness questions. Several university procedures expressly list attendance, communication and academic progress among the matters that can trigger or support an FtP referral. On that basis, an attendance record directly connected to the concern is properly before the panel.

Similarly, a summary of your programme, stage of study, past results and academic background is commonly included in an investigator’s report simply to give the panel context about who you are and where you are in your studies. Providing background context is generally legitimate, provided the decision does not turn on irrelevant material.

When use of such records may be improper

The position is different if the university is relying on material that has no logical bearing on the specific fitness concern. Examples where you may have a legitimate objection include:

Using a marginal or historic academic weakness that has nothing to do with the alleged professionalism, health or conduct issue, in order to suggest you are generally a poor student.

Reviving old attendance data from an unrelated period or module that has already been dealt with, or was never a concern at the time, purely to reinforce a current allegation.

Treating an isolated academic failure as if it were evidence of a professional or ethical failing, when the two are analytically distinct.

The key public law tests are relevance and materiality. A decision-maker must take into account relevant considerations and must not take into account irrelevant ones. If the panel bases its finding on material that a reasonable panel could not regard as relevant to fitness to practise, the decision is open to challenge as procedurally unfair or irrational. It is also unfair if you are not given the material in advance and a proper chance to comment on it, whatever its relevance.

The distinction that matters

Do not assume that inclusion of your records is automatically improper. There is often an ordinary, legitimate procedural explanation: investigators routinely compile a background profile, and attendance is frequently a professionalism matter in its own right. Before concluding that the university has acted wrongly, it is worth identifying precisely how the record is being used:

As neutral background or context, which is usually acceptable.

As direct evidence of the concern, for example attendance failures said to show unprofessional conduct, which is acceptable if that is genuinely the concern and you can respond to it.

As makeweight prejudicial material dressed up to suggest bad character where it has no rational link to the actual allegation, which is the situation you can properly object to.

What you should check

1. Read your university’s FtP policy and procedure carefully. Look at what it says the panel may consider, what evidence must be disclosed to you, and the stated grounds for referral. If attendance and academic progress are listed as relevant matters, the university is on stronger ground.

2. Identify the precise concern in the referral or charge. Everything the university relies on should connect to that concern. Note any material that does not.

3. Check whether the disputed records were disclosed to you in advance with an opportunity to comment. Late or undisclosed material used against you is a fairness problem regardless of relevance.

4. Consider whether the record is accurate and whether there is context, for example authorised absence, extenuating circumstances, disability, illness or a reasonable adjustment that should have been made under the Equality Act 2010. If a disability affected attendance, using that attendance against you without considering adjustments could raise a discrimination issue.

Practical next steps

1. Ask the university, in writing, to explain the relevance of each piece of academic or attendance evidence to the specific fitness-to-practise concern, and to point to the provision in its own procedure that permits reliance on it.

2. Prepare a written response that separates the genuine professional concern from any unrelated material, and object clearly and specifically to anything you say is irrelevant, out of date, already resolved, or prejudicial. State your objection on the record before or at the hearing so it is preserved for any later appeal.

3. Put forward your own context for attendance or performance, including any medical evidence, extenuating circumstances forms, or requests for reasonable adjustments that were made or should have been made.

4. Get support from your students’ union advice service, which is independent of the academic side and experienced in these hearings, and consider taking a permitted companion to the hearing.

5. If the outcome is adverse and you believe irrelevant material tainted the decision, use the internal appeal, then request a Completion of Procedures letter, and then complain to the Office of the Independent Adjudicator, whose remit expressly covers whether the university followed its own procedures and acted fairly and reasonably.

Key missing facts

The answer would firm up considerably if you can say what the underlying concern is (health, conduct, professionalism, academic failure), which profession and regulator the course leads to, exactly how the academic or attendance records are being used, whether they were disclosed to you in advance, and whether any disability, illness or authorised absence explains the record. Those details determine whether this is legitimate contextual or professionalism evidence or genuinely irrelevant prejudicial material you can properly resist.