Research and policy update

Reforming regulation

In July, the government published its response to its consultation on reform of professional regulation. Though we welcomed the response, we also cautioned that the proposed additional flexibility for regulators should be balanced by oversight powers to ensure that patients are protected, and the public can continue to have confidence in regulation.

The proposals are a positive step forward, if not as radical as we think is actually needed. They provide a major opportunity to modernise fitness to practise and other regulatory functions.

The response expresses support for many of the changes we have previously called for, including:

• a less adversarial fitness to practise system with greater focus on consensual disposal and remediation
• greater cooperation between regulators to tackle harm
• a consistent risk-based approach for deciding on the most appropriate form of assurance for health and care occupations.

We are particularly pleased to note the support for our role in ensuring that regulators’ fitness to practise decisions are sufficient to protect the public and a commitment to ensure that the Authority’s role in relation to consensual decisions is reviewed. In our view, public protection is best served by the Authority being able to appeal final decisions whether made consensually or by a panel.       

We note the proposals for increased flexibility for regulators to make and amend their own rules. Whilst we recognise that the current system can be unwieldy and bureaucratic, we are disappointed that Government has not proposed a role for the Authority in overseeing rule-changes. This would help to ensure a consistent approach by regulators which would make the system clearer for patients, registrants and employers and ensure overall regulatory coherence. 

We look forward to working with Government on next steps and ensuring that public protection remains the focus of reform.

Find out more about our thoughts and our other publications on reforming regulation.

Latest publications

Sexual misconduct: latest publication looking at circumstances and perpetrators’ moral mindsets

We have just published a research report analysing the circumstances of incidents of sexual misconduct by health and social care professionals. We funded the research undertaken by Professor Rosalind Searle, Chair in Human Resource Management and Organisational Psychology at the University of Glasgow. 

In the report Sexual misconduct in health and social care: understanding types of abuse and perpetrators’ moral mindsets, Professor Searle has reviewed the academic and research literature on the key theories and explanations for why this kind of misconduct occurs. Professor Searle analysed 232 fitness to practise cases involving registrants of the General Medical Council, the Nursing and Midwifery Council, and the Health and Care Professions Council.

Professor Searle’s findings include:

• perpetrators are predominantly male
• male perpetrators are more likely to repeatedly target multiple individuals, whereas female perpetrators are more likely to have a single target with multiple incidents
• patients are the predominant target group, with vulnerable individuals a significant subcategory
• workplaces are the dominant location for incidents, with perpetrators frequently working in mental health settings
• perceived disparities in regulatory sanctions can create ambiguity for perpetrators
• perpetrators deny and diffuse responsibility for their actions, distorting consequences and blaming targets.

Professor Searle recommends:

• training, supervision and awareness raising
• clearer policies and guidelines, especially in known hotspots
• further research into occurrence in mental health settings
• a clearer framework within which sanctions are applied across professions.

You can read the full report here or see a visual summary of the key findings in this infographic. You can find our other research on sexual misconduct on our website.

Right-touch assurance of sonographers

We recently published a report assessing the risk of harm arising from the practice of sonographers.

We were commissioned by Health Education England (HEE) to analyse the evidence available under the criteria we outlined in Right-touch assurance: a methodology for assessing and assuring occupational risk of harm and provide advice on the most appropriate form of assurance for the role. The role of a sonographer requires a high degree of skill and clinical knowledge across a range of areas and individuals often practise with significant autonomy. There are inherent risks arising from sonographers’ practices, including from misdiagnosis and misuse of ultrasound equipment, although we found little evidence of widespread harm. This may however be due to limitations in the data.

Having considered the evidence available, we have concluded that statutory regulation would need to be considered in future, if the changes to routes of entry to the profession and to the practice of sonography identified in our report materialise.

Currently, risks appear to be well controlled because most of those practising as sonographers are already regulated in other professional roles and they hold post-graduate qualifications. However, if greater numbers enter the role directly through the under-graduate route as planned, this combined with increased vulnerability and complexity of patients undergoing ultrasound procedures suggests further controls would be needed.

This report is intended to be an addition to the evidence base when considering the most appropriate form of assurance for the role and it remains the responsibility of Government to make decisions on which roles should be regulated.

The full report is available here.

Literature review on decision-making

Another report we recently published is a literature review commissioned from Dr Paul Sanderson to contribute to our ongoing work on the reform of regulation, particularly fitness to practise proceedings. 

We asked Dr Sanderson to look at what the academic literature on decision-making tells us about the consequences of decisions generally being taken in a more private context. We asked him to identify from the wider literature potential risks or benefits to the public, from a shift to greater use of consensual disposal of fitness to practise cases and other agreed outcomes. (Consensual disposal means that the registrant consents to the regulator's decision about the facts of a case and the outcome without a full hearing in public.)

Dr Sanderson’s review yields fascinating insights and highlights areas for further consideration. These include that:

• while private hearings may allow decision-makers to consider a broader range of options
• in a public context decision-makers may strive to perform better in their role.

He highlights of course the importance of context in understanding his findings and points to the need for empirical research to understand the application of the academic literature to actual processes and outcomes in fitness to practise.

The report is available on our website.

Williams Review: consistency and confidence in fitness to practise cases

In June we published two reports resulting from the Williams Review into gross negligence manslaughter in healthcare. The Williams Review was set up in the wake of the case of Dr Bawa-Garba and recommended that we looked at:

• the extent and reasons for different fitness to practise outcomes in similar cases; and
• how the impact on public confidence is assessed in reaching fitness to practise decisions about individual healthcare professionals.

The Department for Health and Social Care subsequently commissioned our advice – resulting in these two reports:

Developing a methodology to assess the consistency of fitness to practise outcomes sets out a structured approach to understanding the factors influencing consistency and proposes a methodology that could take this work forward. We contracted UCL Research Department of Medical Education to undertake this study. Assessing consistency would be a major piece of work because the nine professional regulators work under different legislation with varying rules and guidance which are each applied to the particular circumstances of an individual case.

How is public confidence maintained when fitness to practise decisions are made? This report highlights the fact that:

• there is no agreed definition amongst the regulators of what public confidence is; or
• what types of behaviour or regulatory action may impact upon it in the context of health professional regulation; and
• the public have different views in relation to different professions.

We conclude that there are differences in approach across the regulators which are shaped by a range of factors. However, it is unclear what impact this has on the decisions made and whether this impacts markedly on fitness to practise outcomes. A large-scale case analysis would be needed to assess this.

Both reports underline that this is a complex area of healthcare regulation – rife with inconsistencies in language, differing definitions and outdated terminology.

Presenting on duty of candour

Safetember at the Belfast NHS Trust

We presented on the professional Duty of Candour to the staff and Board at Belfast NHS Trust as part of their ‘Safetember’ patient safety initiative. Our Director of Standards and Policy, Christine Braithwaite and Annie Sorbie, Lecturer in Law at the University of Edinburgh, discussed the duty and research that helps to explain why it can be difficult without the right support to implement it. Annie presented her research into the work being done by professional regulators to help to embed it and introduced her follow-on project, with the Royal College of Surgeons in Edinburgh. 

Read our latest research on the duty of candour Telling patients the truth when something goes wrong - how have professional regulators encouraged professionals to be candid to patients? You can find all our work on duty of candour here.

CLEAR on candour

Our next presentation on Candour will be at the Council for Licensure, Enforcement and Regulation (CLEAR) in Minneapolis, 19-21 September where our senior lawyer Kisha Punchihewa will also be discussing a set of fitness to practise cases we have reviewed, in which a lack of candour has featured. Christine Braithwaite will be co-presenting a workshop with Lara Kinkartz and David Benton on Rare Events with Catastrophic Impacts: Lessons from Cases Involving Intentional Harm to Patients – discussing cases involving health professionals who have intentionally harmed patients, including serial killers. You can listen to our podcast trailer here. 

Research and Policy – highlights and key stats for 2018/19

We published our annual report in early July. You can find out more about our research and policy work throughout 2018/19 in the full report or read a summary in our highlights report. Key stats are also available in this infographic.