Developing and implementing policy: fitness to study, fitness to practice and return to study

Dr Annie Grant, Dean of StudentsUniversity of East Anglia

Sally Olohan, Head of Student Support Services Nottingham Trent University

Assessing fitness and risk, policy development, confidentiality, limits of responsibility/duty of care……

Policies, procedures and processes that relate to the assessment/mitigation of risk and our duty of care

• Fitness for study• Fitness to practice• Return to study procedures• Fit to sit• Admission of students declaring

disabilities, SpLDs and mental health difficulties

• Non-academic discipline• Under-18 policies• Student safety

• Extenuating circumstances• Reassessment regulations• Attendance, engagement

and progress• Plagiarism, collusion and

cheating• Complaints and appeals• And so on..

Confidentiality

The legal framework

The student contract: promises must be honoured.‘now generally accepted that a legally binding contact exists between the institution

and its students’.

Negligence/Duty of care‘Where a duty of care exists …. the standard of care expected is that of the ordinary

skilled man exercising and professing to have that special skill…[T]he standard of care may be enhanced where the student has a particular vulnerability’ (eg mental health difficulty, under 18, international student ….).

Statutory obligations – key legislation:Health and Safety at WorkEquality ActHuman Rights ActData Protection ActFreedom of Information

Fulfilling our duty of care: assessing risk - individual and institutional

Risk is the potential that a chosen action, choice of inaction or lack of consideration of a need for action will lead to an undesirable outcome. The notion implies that a choice that had or could have had an influence on the outcome exists, or existed.

In our context, the risk can be to the individual student or member of staff, to others who might be affected by our own or our students’ actions or inactions, or to the institution, including its reputation.

All organisations develop (to a greater or lesser extent) policies, procedures and processes to mitigate risk (anticipatory and/or remedial).

What are the key risks for students?Not achieving their academic potential, failing their course or dropping out, and/orbeing harmed as a result of undertaking a course of study. These might result from:

• being ill-prepared for the academic requirements of the course• not fully understanding professional requirements in a placement or other

professional environment• not having extenuating circumstances appropriately considered• not having reasonable adjustments put in place• being pressured by others outside the learning environment (parents, peers and

friends, external organisations or groups)• being bullied, harassed, or physically harmed by other students or staff …. • being unwell or having personal difficulties and insufficiently supported

academically, practically or emotionally.

There are individual and institutional responsibilities

What factors might increase risk to self?

being disabled or having a specific learning difficulty experiencing mental health difficulties being young (under 18) being immature and inexperienced having expectations that are different to those of their their student peers having experienced significant difficulties in the past (emotional, physical, social, political………) being without robust emotional support (eg care leavers) having insufficient funds being pressured/ bullied by others (family, friends, religious leaders etc) having low emotional resilience having to adjust to an alien culture and/or not being fully fluent in English being academically under-prepared for their course/ not working/being able to work hard enough not understanding the responsibilities that those living in a community environment have to others not fully understanding what it means to be a ‘professional’ - ethical requirements

How might students present risks to others?

Through behaviour that negatively impacts on other students’ learningThrough behaviour that negatively impacts on other students’ living

environment and social lifeCausing harm – physical or emotional - to othersDamaging the institution’s estatePosing a potential threat to future clients/ service users/pupils etc.Behaving ‘unprofessionally’ in a professional placement environmentCausing nuisance within the local communityDamaging the institution’s reputation (‘bringing the University into

disrepute’)?

Which students may present an increased risk of harm to themselves/others/the institution?

Those who abuse alcohol or drugs

Those whose mental health difficulties make them liable to challenging, disruptive or dangerous behaviour

Those who engage in criminal behaviour

Those who ignore our rules, regulations and safety procedures

Those who pressure, exploit or bully others

Those who do not engage fully in the academic process

Those who breach professional codes of practice

Those who cheat or falsify their qualifications

Those who find themselves unable, or chose not to seek help appropriately

Those who make seriously offensive comments about individuals or institutions using social media....

Developing policy to minimise risk: the role of fitness for study policies and procedures in helping to ensure that students:

can benefit from their programme of study and pursue it for the required period with a reasonable chance of successfully obtaining the award for which they are registered

do not in any way prevent, hinder or disrupt the study or assessment of other students, staff in the discharge of their duties or academic pursuits, or visitors to the university from carrying out their lawful business

as a consequence of their required or necessary presence on campus, do not constitute an unacceptable risk to the health or safety of themselves or others

are in a position to engage satisfactorily in any elements of study or assessment which take the form of placements, particularly those taking place in a professional and/or work-based setting.

Includes individual as well as institutional rights, responsibilities and obligations

Additionally, the role of fitness to practise procedures are:

to protect present or future patients, service users, clients or pupils from risk of incompetence or malpractice

to protect institutions from legal suits from those claiming to have suffered loss as a result of students on placement or after qualifying being shown to be unfit to practice

to ensure that students do not waste time and money seeking a qualification for which they are not suited: success in academic examinations may not necessarily mean that a student will become professionally qualified

to comply with the requirements of the professional bodies that validate the courses.

Obligations and responsibilities to others may be more important than individual rights

Some examples of bodies implementing fitness to practise regulations

The General Medical Council Nursing and Midwifery Council Health and Care Professions Council Solicitors Regulation Authority Department for Education( Teachers’ Standards/ Teacher

Misconduct Regulations)

Features of fitness to practise rules 1 - NMC

Misconduct - behaviour which falls short of what can reasonably be expected of the professional role

lack of competence -lack of knowledge, skill or judgement which means that the individual is unfit to practise

character issues – often criminal behaviour poor health - long-term, untreated or unacknowledged physical or

mental health conditions

Features of fitness to practise rules 2- HCPC

A registrant’s fitness to practise is likely to be impaired if the evidence shows that they:

– were dishonest, committed fraud or abused someone’s trust;

– exploited a vulnerable person;

– failed to respect service users’ rights to make choices about their own care;

– have health problems which they have not dealt with, and which may affect the safety of service users;

– hid mistakes or tried to block an investigation;

– had an improper relationship with a service user;

– carried out reckless or deliberately harmful acts;

– seriously or persistently failed to meet standards;

– were involved in sexual misconduct or indecency (including any involvement in child pornography);

– have a substance abuse or misuse problem;

– have been violent or displayed threatening behaviour; or

– carried out other, equally serious, activities which affect public confidence in their profession.

Features of fitness to practise rules 3 - SRA

SRA Suitability Test includes consideration of - Criminal offences Behaviour not compatible with that expected of a prospective solicitor

or authorised role holder Assessment offences Financial issues – finance management, debts Regulatory history – compliance with regulatory bodies

Features of fitness to practise rules 4 - DfE

Teachers uphold public trust in the profession and maintain high standards of ethics and behaviour, within and outside school, by:

• treating pupils with dignity, building relationships rooted in mutual respect, and at all times observing proper boundaries appropriate to a teacher’s professional position

• having regard for the need to safeguard pupils’ well-being, in accordance with statutory provisions• showing tolerance of and respect for the rights of others• not undermining fundamental British values, including democracy, the rule of law, individual liberty and mutual

respect, and tolerance of those with different faiths and beliefs• ensuring that personal beliefs are not expressed in ways which exploit pupils’ vulnerability or might lead them to

break the law. Teachers must have proper and professional regard for the ethos, policies and practices of

the school in which they teach, and maintain high standards in their own attendance and punctuality.

Teachers must have an understanding of, and always act within, the statutory frameworks which set out their professional duties and responsibilities.

Fit to Sit?

Policies to allow the deferral of deadlines for assessed work /examinations, including ill health reasons

Often include an assumption that by sitting an examination or submitting assessed work, student indicating to the institution that they are ‘fit to sit’

May not be able to accurately assess own fitness, especially if emerging mental health issues

Mitigating circumstances/academic appeals processes therefore need to be sensitive to these circumstances

Individual cases to be considered on own merits Clear guidance needed for students and their advisers

Fulfilling our duty of care: assessing fitness

What does ‘fitness’ mean?

• Fit in respect of the abilities of the student to meet the requirements of the course and achieve the relevant academic and professional goals: academic and personal suitability?

• Fit in respect of the behaviours expected in an academic learning residential and social environment?

• Fit in respect of the ability to be more or less self-sustaining within the HE environment, with the only support provided of the scale and scope that an HEI can reasonably be expected to provide?

What part do student services staff and others play? What is our duty to our students and our institutions?

How do we judge ‘fitness’ and who should be involved?Whose opinions should have the greatest weight?

• When is a GP or occupational health assessment appropriate? What is the value of a GP’s or other health professional’s assessment of a student’s fitness to study?

• What weight should student support professional’s or personal tutor’s views have?

Should student support staff/ personal tutors be acting as advocate for the student or supporting the institutional view or both?

How can we ensure that a student is not just being a nuisance to/ unpopular with staff rather than really unfit?

Is exclusion on the grounds of fitness for study ever justified when there is no risk to others involved and only risk to self?

Should the onus be to prove that the student is unfit, or on the student to prove that they are fit?

Can we force withdrawal or a break in studies?

How can we ensure that we are not just setting up a student to fail again?

Some challenges in providing effective support that mitigates risk for students and the institution

Student reluctance to disclose and/or seek help

Difficulties experienced in seeking support – eg for students and those with caring and

financial responsibilities

Access to services while on placement, work experience or fieldwork

Prejudice or perceived prejudice amongst staff and/or poor referral

Ensuring that the right policy/procedure is used to address the concern: fitness to practice;

fitness for study; academic progress; disciplinary policies.…

Understanding the whole picture - confidentiality boundaries within (eg counsellors,

chaplains) and without (NHS staff) the institution

Difficulties in ensuring appropriate collaboration and rapid response

Helping to ensuring that our policies are robust

Thinking through all possible outcomes, including possible appeals against review decisions

Playing an active role in ‘Fitness’ reviews to help ensure consistency and fairness

Making sure that policies are clear and well understood by all involved, and particularly by students, and that the right policies are used

Playing a role in developing and/or implementing Return to Study processes that ensure that students are ready to return and well supported on return – closing the loop

Return to study – developing a robust processEnsuring that all students who take or are asked to take a break are contacted in advance of their expected return.

Being clear about who makes the judgement – the student, a GP or Occupational Health physician, student services: defining the relevant expertise and roles.

Putting relevant support in place for the return.

Monitoring those who still may still be at risk or present a risk on return.

Some words of advice – what mistakes did we make in developing the UEA policy?

Not anticipating that some students would refuse to accept the decision of a Fitness to Study process - our appeal procedures needs to be thought through again and changed.

Not anticipating the potential for inappropriate use of a policy: escalating to the wrong stage, or formal process invoked when a less formal intervention could be more effective.

Not ensuring that there is a clear understanding of the differences between fitness to study and fitness to practice.

Not anticipating the need for clear guidance on how to conduct a Fitness to Study meeting.

Not clarifying when, or even if, it might be appropriate to conduct a hearing without the student being present.

Not clarifying who else can be present in a hearing and what their role should be. Is ‘Fitness to Study’ the right terminology? Is the meaning and purpose transparent to students and staff?

What has worked well

Having several (3) stages/ levels of action/intervention

Partnership working between academic, administrative and student services staff

Keeping the welfare of the student firmly on the radar

Having a robust Return to Study process when a break in study is agreed

Using our influence

Being clear about what universities are for in the context of our own institutions (see Collini 2011) and not accepting duties that we shouldn’t really have and do not have the authority, expertise or resources to exercise

Keeping the principles of natural justice clearly on the radar:the common law of natural justice and fairness requires those making decisions affecting

others’ rights to do so without bias, giving the persons concerned a fair chance to express their views.

Ensuring an appropriate balance between risk management and risk avoidance – standing back and looking at policy and practice from all perspectives

Some further dilemmas and discussion points

Has fear of the law, complaints and litigation driven us to take too much upon ourselves and raised expectations of others unrealistically?

Is confidentiality sometimes used as an excuse for secrecy or a way of making ourselves special?

For those of us with disciplinary responsibilities, should we report what we perceive as minor breaches by students on professional courses?

How do we show respect for our students as adults and fulfill society’s expectations of HE?

Might a focus on individual ‘vulnerable’ students divert our attention from those who with just a little more advice and support could gain very much more from their HE experiences?

How ‘adult’ are some of our students, and should we explicitly acknowledge the immaturity of some of our students in our processes and procedures?

References

Collini, S. 2012: What Are Universities For? Penguin Books

Hunt, C., Jukes, K., McKenzie, K. and Saunders, N. 2002: Student discipline and fitness to practice, in ARMED - Active Risk Management in Education.

HEOPS Guidance on Fitness Standards:

www.heops.org.uk/HEOPS_guidance-and-fitness-standards.php