Research and policy update

We have just published our annual report. Find out more about our policy and research work in our highlights report.

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Gross negligence manslaughter in healthcare: response to the Williams Review

We have recently responded to the review by Professor Sir Norman Williams into the issues relating to gross negligence manslaughter (GNM) in healthcare and also provided oral evidence to the review panel. The review was triggered by the medical profession's reaction to the General Medical Council's approach to the case of Dr Bawa-Garba, but the comments and views we set out in our submission have broader relevance and application.

A key point made in our response was that decisions on cases about clinical error including GNM must consider the impact on a registrant’s actions of the environment in which they are working and highlighted that the criminal process and the fitness to practise process are separate and have different purposes. Fitness to practise proceedings are intended to protect the public, maintain public confidence, and declare and uphold professional standards rather than to punish although, they may sometimes have a punitive effect if a certain sanction is required to uphold the three limbs of public protection.

We also made the point that fitness to practise outcomes that are too harsh may protect the public in the strictest sense, but can have unintended consequences that undermine the broader aims of professional regulation and are not in the public interest. However, we suggested that there is little understanding about what sorts of behaviours and failings constitute a genuine threat to public confidence and that developing an evidence-base in this area would help to inform and bring greater consistency to decisions made by regulators, fitness to practise panels, the courts and the Authority about appropriate fitness to practise outcomes.

We also made clear that we do not think that it is necessary or appropriate for a regulator to have the right to appeal decisions of its fitness to practise panels because:

• it duplicates the established powers of the Authority and lengthens an already drawn-out process unnecessarily
• regulators lack the ability that the Authority has to appeal on grounds of under-prosecution
• regulators may be insufficiently independent of a case to exercise any appeal powers purely in the public interest
• in the case of the GMC, there is a lack of transparency in the way that these powers are exercised.

Sir Norman Williams published his report on 11 June 2018 with a number of recommendations including:

• for the GMC to lose its powers of appeal and the Authority to retain its powers in this area
• for the GMC to review its processes for deciding when to refer a decision of the Medical Practitioners Tribunal Service so that it is transparent and understood by all parties
• for regulators to be prevented from being able to require reflective statements from registrants for use in the fitness to practise process
• for the Authority to work with the regulators to consider how impact on public confidence is assessed
• for the Authority to review the differences in outcomes of fitness to practise cases relating to similar incidents and circumstances considered by different regulators.

The full Williams Review report is available to read here.  We are considering how to carry forward the recommendations directed at the Authority. You can also read the blog by our Chief Executive, Harry Cayton, who was on the Williams Review panel.

Is sexual misconduct between colleagues less serious than with patients?

We commissioned this research with professionals and patients to examine whether there is any potential impact on patient safety in cases of sexual misconduct between professionals.

We had observed that professionals subject to fitness to practise proceedings for sexual misconduct towards colleagues may receive lesser sanctions than professionals who had crossed sexual boundaries with their patients. We referred three such cases to Court under our powers to appeal regulators’ panel decisions but lost these appeals.  

We wanted to find out if our views on how seriously this behavior should be treated were out-of-step with public opinion. The research conducted for us by Dr Simon Christmas explored both the views of health professionals and patients using scenarios based on real cases. Three key questions covered in the report are:

1. When does behaviour towards/with a colleague cross a boundary?
2. How is boundary-crossing behaviour relevant to fitness to practise?
3. How should regulators respond to such behaviour?

The research highlighted participants’ views on how this type of behaviour can have a negative impact on patient safety and the quality of their care:

• it may point to deep-seated attitudinal problems and motivations – including a lack of empathy (which many of the interviewees thought was an essential quality in a health professional) which may pose a risk to patients
• there may be wider impacts of boundary-crossing behaviour, including the effect it has on the colleague subjected to it (stress, distraction, anxiety)
• it may create a culture where boundary-crossing behaviour becomes acceptable (potentially creating toxic working environments where bullying is normalised)
• it may affect public confidence and trust in health and care professionals where such behaviour is witnessed or heard about.

We think that the report will prove a valuable resource for regulatory panels thinking about cases of this nature. It highlights the importance of professional conduct in protecting patients and maintaining public confidence. The report – Sexual behaviours between health and care practitioners: where does the boundary lie? can be downloaded from our website. There is also an infographic highlighting some of the key findings.

Social Work England

The Children and Social Work Act 2017 will lead to the creation of a new regulatory body, Social Work England (SWE) which will take over regulation of social workers from the Health and Care Professions Council (HCPC). The Authority responded to the Government consultation on the draft regulations for Social Work England welcoming the Government’s ambition to create a modern, innovative regulatory body, with reference to the Authority’s thinking in a number of key areas such as education and continuing fitness to practise, as well as to the work of the Law Commissions.

We did however raise concerns that proposals to exclude cases dealt with by consent from the Authority’s Section 29 powers could create a significant public protection gap. Currently we have the power to scrutinise cases that go to final hearing and we can appeal to the courts if we decide that a decision is insufficient to protect the public. See the case study about we use our Section 29 powers in Regulatory news.

The intention is for SWE to deal with a much higher proportion of cases by consent, outside of Panel hearings through a mechanism that will be known as ‘accepted outcome’. This would include all cases where the registrant has consented and where it would not be in the public interest for the case to proceed to a hearing. A similar model is operated by the Scottish Social Services Council where 70 per cent of cases are disposed of in this way. We are supportive of this approach but believe it is essential for such cases to be independently scrutinised to ensure that decisions which fail to protect the public do not go unchallenged.

We are therefore pleased that the Government has committed in its response to the consultation to seek to amend the Authority’s primary legislation (the National Health Service Reform and Health Care Professions Act 2002) at the earliest opportunity to give the Authority powers to review accepted outcome decisions made by Social Work England. Government has also committed to explore extending this power to other regulators that utilise consensual disposals which we welcome. However, we have highlighted that we believe that our power of oversight should be in place from day one of SWE’s operation of the fitness to practise function, due to the volume of cases that may be dealt with in this way and the risks associated with the early operation of this function.

The draft regulations have just completed their passage through both Houses of Parliament and the next stage is for Social Work England to start developing its rules later in the year. SWE is currently due to take over regulation over social workers from HCPC in Spring 2019.   

What are the implications of regulating an occupation in fewer than all four UK countries?

This was the question we sought to answer in a commission from the Scottish Government. The report published at the end of June looks at the implications of such a scenario for policy-makers, the public and practitioners.

The work was commissioned in the context of ongoing change in the health and care professional workforce, and specifically in relation to the challenges presented by the decision to regulate nursing associates in England.

Taking into account a range of evidence, including from international sources, the report recommends that UK-wide regulation should remain the norm, but that there might be circumstances where risk assessment justifies a different approach. A decision to regulate in fewer than all four countries might be appropriate where:

• different approaches between UK countries are justified by the outcome of an objective and robust assessment of occupational risk, and
• the impact of taking different approaches has been assessed as having a minimal impact on workforce supply across the UK, or
• measures can be taken that mitigate the impact on supply by facilitating the movement of workers around the UK.

The report argues that this approach will allow governments to strike a balance between regulating where necessary to address an identified risk of harm and maintaining a unified approach to regulation UK-wide, to minimise the long-term impacts on the health and care workforce.

You can download a copy of the report from our website.

Engineers and Geoscientists of British Columbia: review published

We have published our review of the Engineers and Geoscientists of British Columbia. Our principles of right-touch regulation are applicable to other regulatory bodies, so we  were particularly pleased to have the opportunity to work outside health and care, to help build learning and understanding across professional regulators internationally.

In her letter thanking us for our work, their CEO and registrar explains: ‘As the pre-eminent experts in the field of regulatory audit and consulting, our Council felt you and your team would be best placed to advise us on how we could further strengthen our approach to regulation of the professions’.

The EGBC commissioned the Authority to review its legislation, bylaws and the policies and procedures it has in place to support its governance, with an assessment of how these are supported or hindered by its legislation. It also commissioned an assessment of its governance against our governance standards, adapted to reflect its legislation and structure. EGBC wanted to understand whether there were any gaps or issues in its legislation that affected its ability to regulate effectively in the public interest.

In the report, we present our analysis of the evidence we have reviewed against our standards, and 20 recommendations to EGBC to help it regulate more effectively. We found that EGBC met seven of the nine governance standards, with the two not met relating to risk management and the extent to which its legal framework enables it to make decisions transparently and with a public interest focus. We are convinced that EGBC is committed to regulating the engineering and geoscience professions in the public interest; however, in our view there is still some way to go before its legal framework fully supports it in doing so.

You can read the review on our website.

Consultation responses

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Improving regulation – key stats for 2017/18

We have just published our annual report. You can read through our highlights report and key statistics for our research and policy team in this infographic.