Professor Louise Wallace, one of the researchers behind the Witness to Harm study into the experience of witnesses in the fitness to practise process, shares principles of a trauma informed approach which regulators could adopt in their fitness to practise processes.
“….No one was taking responsibility for what happened…it was just kind of like everyone was just ticking a box, that they’d gone through the process of, and this is just my interpretation, ….it was just everyone was going through a motion of doing something about it, because they had to, but ultimately no one was taking responsibility or was held to account.”
This quote, from one of the participants in the Witness to Harm study, illustrates the experience of being a witness in the fitness to practise process of a healthcare regulator. It also reminds us that although the regulator works through these processes every day and gets used to them, many of these concerns involve someone who has experienced harm.
We hear a good deal these days about how witnesses in criminal trials can feel that they are the ones on trial. They can feel disbelieved and undermined as they try to give their evidence. Often, they've told their story numerous times before being cross examined. Each time for them can be not only distressing but bring back feelings, emotions and images that feel as real and in the moment as the original trauma. We know that this undermines the way in which they give their evidence. We also know this is an example of re-traumatisation by the criminal justice system.
In professional regulation, those who make a complaint and go on to be a witness in a hearing against the healthcare professional who harmed them, may feel there are marked similarities in their experience. Research conducted by five universities into the experience of the public in the fitness to practise process (FtP), is globally the first study conducted independently to evidence their expectations and experiences.
Professional regulators are aware that they need to encourage and support the public to make complaints and to give their evidence, precisely because that evidence may be crucial to a case and therefore to keeping the public safe and upholding the standards of the professions. They also know that the FtP process is distressing and arduous for healthcare professionals, confirmed by independent research, for example on suicides in doctors related to the FtP process. The Witness to Harm research involved engagement with regulators, professional bodies, the lawyers and unions that defend the healthcare professionals and who cross-examine witnesses in FtP. Most importantly, people who have experienced the process as witnesses have contributed as advisers immensely and selflessly, throughout. And while the regulators seek to support the public through the process, we found that the witnesses’ experiences shared with us did not reflect a compassionate, respectful or dignified approach.
We found that regulators describe on their websites the processes and reasons for the stages of the FtP process. But they seldom describe how long this is expected to take. So, it’s not made clear what will be involved for a member of the public if they have the courage and tenacity to stick with the process over what is often many years since they raised a concern. Nor do they set out that through this time witnesses may be passed along a conveyor belt of contacts within a regulator, and have to repeatedly re-tell their story to different people. Professional regulators describe their approach to the public in various ways, including phrases such as “customer care” and “person centred care”, although how these are demonstrated in practice is often unclear to the public.
“No, there was no human contact. It's all emails. It's not actually talking to somebody. So, I don't think it's reasonable to respond that way. I think it needs more human contact beforehand, maybe. And more, better advice. They didn't want to talk to you. I don't know why. {..} If I mentioned anything to them, they would say 'we're not allowed to discuss that. No. No. No. No'.”
“... Nobody had explained that to me and I had nobody really to speak to about it. I researched it and worked out why it was happening, but nobody came to me and explained this is why it’s happening.”
The examples above were from the public. Notably, employer witnesses in FtP also reported finding the process unexpectedly harrowing:
“It was awful. And I have a number of colleagues who have been through the same. So much so that now if we have someone going to the [regulator] we send someone with them. We make sure that they’ve got a senior member of staff going with them because it’s, the way they were made to feel was appalling. And the way I was made to feel was really really awful, really awful.”
Trauma Informed Approach
In our research we came across an approach imported from the criminal justice systems in Scotland that had been adopted by the Scottish Social Services Council and part of a Scottish government-wide commitment to delivering trauma informed public services (Initially called the National Trauma Training Programme, established in 2018). The trauma informed justice framework is based on heavy-weight research in the experience of sexual trauma victims and victims of other traumatic crimes going through the criminal justice process.
According to NHS Education for Scotland being ‘Trauma Informed’ means being able to recognise when someone may be affected by trauma, collaboratively adjusting how public service providers (such as regulators) take this into account and responding in a way that supports recovery, does no harm and recognises and supports people’s resilience.
Further, it can be argued that doing so enables people to give their best evidence, which is in everyone’s interests. Witnesses should be protected as far as possible from further harm that might be induced by the FtP process, and particularly from adversarial cross examination. This can include misinterpretation or misrepresenting the impact of the original trauma on the witness or how they give their evidence in the case.
Our research has evidenced the multiple touch points in the FtP journey that can be not only distressing for most people, but potentially re-traumatising for some people who have experienced harm and who may be experiencing lifelong impact from post-traumatic stress.
The trauma informed approach also recognises the importance of supporting the wellbeing of those who provide public services at the front line. In regulators, these are often administrative rather than legally qualified staff who interact with those who have experienced harm previously. This repeated experience is potentially distressing. If repeated and unsupported, it could lead to burnout and to compassion fatigue. Their wellbeing and how they cope with what may be challenging conversations, is an important part of the trauma informed approach. It necessarily depends on trauma informed (and compassionate) leadership and the culture of the regulator.
Principles
From our findings, and the trauma informed approach, there are some principles that we recommend regulators should consider putting into place not just for those people who have been harmed by the original events but as a compassionate approach for all members of the public who engage with the FtP process:
- Do what you said you would do when you said you would do it.
- How can I make the FtP process safe and predictable as possible for this person?
- How can I help them understand, in plain English and avoiding jargon, what is happening and why, and who in the process will be making what decisions?
- How can people be prepared for what to expect in cross examination, and enabled to have a sense of agency in this process?
As a lay adjudicator member myself for two regulators under the PSA, I can also see the potential for more focused training and guidance to panel members in preparation for hearings involving the public as witnesses.
We are refining our recommendations from this unique research. We are building resources for all stakeholders – professionals, and their employers, the regulators and the public. They will be publicised in the next few months on our website and beyond.
https://wels.open.ac.uk/research/witness-harm-holding-account
Louise Wallace, Professor of Psychology & Health, The Open University.
This project is funded by the NIHR HS&DR programme, NIHR131322. The views expressed are those of the author and not necessarily those of the NIHR or the Department of Health and Social Care.