Bias in fitness-to-practise proceedings

Short answer

Generally no, not in the same role, and often not at all. A core requirement of a fair fitness-to-practise process is that the people who investigate a concern, the people who decide it at the hearing, and the people who decide any appeal should be different individuals who are, and appear to be, independent of the original concern. Someone who is personally the source of the concern, a witness to it, or who has already formed a view about you should not be a decision-maker on your case. The precise rules depend on whether this is a university or college fitness-to-practise process or a statutory professional regulator (for example the GMC, NMC, HCPC, GDC, GOC or similar), so the distinction matters.

The legal principle: the rule against bias

Fitness-to-practise decisions are subject to the common law duty to act fairly, and in the case of statutory regulators to public law and Article 6 fair-hearing standards. Two related rules apply.

First, actual bias, meaning a decision-maker who is in fact prejudiced or has a personal interest in the outcome, is not permitted.

Second, and more commonly relevant, apparent bias is not permitted. The test the courts apply is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. This is the test from Porter v Magill and it is regularly applied to professional disciplinary and fitness-to-practise panels. The point is that justice must not only be done but be seen to be done, so it does not matter whether the person would in fact be fair; what matters is how it reasonably looks.

A person who raised the concern, investigated it, gathered or presented the evidence, or already expressed a view on your case will normally fail that test if they then sit in judgment on the same matter or decide your appeal.

Separation of roles

Well-designed fitness-to-practise procedures build in a separation of functions precisely to avoid this problem.

The investigator establishes the facts and decides whether there is a case to answer. In many models the investigator may present the case to the panel, but should not take part in the panel’s decision-making. Presenting a case and deciding it are incompatible roles.

The panel that decides whether your fitness to practise is impaired should be made up of people who have not previously been involved in investigating or forming a view on the concern.

The appeal stage should be decided by people who were not involved at any earlier stage. The Office of the Independent Adjudicator’s Good Practice Framework, which applies to student fitness-to-practise processes at higher education providers in England and Wales, is explicit that an appeal panel should consist of members who were not involved at a previous stage, and that a person deciding whether even to convene an appeal panel should not have had previous involvement in the fitness-to-practise decision.

The realistic complication in professional and university cases

Fitness-to-practise proceedings differ from ordinary disciplinary matters because panels often need members with professional or clinical expertise, and in a small profession, a specialist department or a niche field, the pool of suitably qualified people can be small. That means panel members may know you, or know of the concern, without that automatically amounting to disqualifying bias.

Not every prior connection is fatal. A fair-minded observer would distinguish between someone who is genuinely the source of, or personally invested in, the allegation, and someone who merely happens to work in the same institution or profession and has no material involvement in the specific concern. The former should stand aside; the latter usually need not, provided they come to the case with an open mind. The key questions are the nature and closeness of the involvement, whether the person has already expressed a view on the merits, and whether they have any personal stake in the outcome.

Situations that typically do require the person to stand aside include being the complainant or the person who raised the concern, being a witness of fact, having investigated the matter, having a close personal or antagonistic relationship with you, or having already decided the matter at an earlier stage. Situations that usually do not, by themselves, disqualify a person include general professional acquaintance, working in the same organisation, or having expertise in the same field.

What facts I would need to give a firmer answer

The answer turns on several things you have not yet set out.

Whether this is a university or college student fitness-to-practise process, or a statutory regulator’s process, because the governing rules and the appeal or review routes differ.

Exactly what “involved in the original concern” means for the person in question. Did they raise the concern, witness the events, investigate, prepare or present the case, or merely have some peripheral awareness of it? The degree of involvement is decisive.

What role they are now proposed to take, that is investigating you again, sitting on the deciding panel, chairing it, or determining your appeal.

What the applicable procedure or regulations actually say about the composition of panels and appeal bodies, because most institutions and regulators have written rules that go further than the bare legal minimum.

Practical next steps

1. Read the specific fitness-to-practise procedure or the regulator’s rules that apply to you and note exactly what they say about who may investigate, who may sit on the panel, and who may hear an appeal, along with any conflict-of-interest provisions. This is usually your strongest and most immediate ground.

2. Identify precisely how the individual was involved in the original concern and write down the facts and dates, because a clear factual account of the overlap is what makes an objection persuasive.

3. Raise the objection in writing, promptly, and before the hearing or decision if at all possible. Ask that the person recuse themselves or be replaced, and ask the body to confirm in writing how panel and appeal membership has been decided. Objections raised late, after an unfavourable outcome, carry much less weight, and delay can be treated as waiver.

4. Ask the institution or regulator to identify an alternative decision-maker. Genuine difficulty in finding one does not justify using a conflicted person; it may justify going outside the usual pool or appointing an independent member.

5. Keep a record of the response. If a conflicted person is nevertheless allowed to investigate, decide or hear your appeal over your objection, that may itself be a ground of internal appeal and, in a student case, a ground for later complaint to the Office of the Independent Adjudicator, or, in a regulator case, a ground of challenge by way of statutory appeal or judicial review.

Bottom line

A person genuinely involved in the original concern should not investigate you again, sit on the panel that decides the case, or determine your appeal, and if they do, that can undermine the fairness and lawfulness of the whole process. The safest course is to check the specific rules that apply to your process, set out clearly how the person was involved, and object in writing at the earliest opportunity, asking for an untainted decision-maker to be substituted.

If you tell me whether this is a university or a statutory regulator, and exactly what the person did in relation to the original concern and what role they are now taking, I can give you a more precise view and point you to the specific rules that apply.