Reviewing the regulators: scrutinising final fitness to practise decisions
Since our most recent newsletter in November 2020, we have lodged five Appeals where we considered the regulators' decisions were insufficient to protect the public. To appeal these decisions, we use our ‘section 29’ power which allows for our independent oversight of regulators’ final fitness to practise decisions. We check about 3,000 decisions a year, but typically appeal between 10 and 20 of those decisions. Where we decide not to appeal, but believe that the process could have been improved, we send learning points to the regulators. We do this in about 100 cases a year. Whilst the numbers of cases we appeal is low, their impact of the cases we appeal is significantly greater. (Find out more about the added value of this power – including creating case law and clarifying the process.)
Below we give an update on our current appeals, including appeals lodged and those settled. There are five appeals pending and these relate to:
- One is against a decision of the General Medical Council
- Two are against decisions of the Nursing and Midwifery Council
- One is against a decision of the General Pharmaceutical Council
- One is against a decision of the General Optical Council.
Six cases have been settled by consent.
An NMC case involving a registrant who had dishonestly obtained medication and the fitness to practise panel’s inadequate presentation of charges
We appealed this NMC decision about a nurse alleged to have stolen medication intended for patients in a care home. This is serious because honesty is an essential characteristic of nurses who are entrusted with patient’s medication. The Home had decided that the registrant was guilty of the theft because she was the only person with access to the medication who was working on all occasions when the medication went missing.
The NMC did not draft or present any charges against the nurse to the panel or adequately set out an analysis of the evidence to support the case against the registrant. Instead, it argued that, because there had been an earlier case which had suggested that simply using an elimination exercise to identify thieves would not be sufficient evidence against the registrant, the case should closed. The panel decided to allow the NMC to drop the case without looking at the evidence available to it or considering whether the previous case applied to the facts of this one.
We appealed the case because we did not believe that the NMC or the panel had looked at the evidence properly to identify whether, in fact, it was strong enough to support very serious allegations.
After we lodged our appeal, the NMC analysed the available evidence properly and shared this with us. We were satisfied, in the light of this, that the available evidence was not strong enough for it to be likely that a panel would have found that the nurse was responsible for the theft. We therefore withdrew our appeal. The NMC has made a contribution to our costs and written formally acknowledging errors in their conduct of the case.
This case illustrates the importance of a regulator properly examining and presenting evidence in cases. It is clear that the NMC accepts that it could have done better in this case.
An appeal involving a social worker who had sexual relationships with mothers of two severely disabled children who were in the care of his employer
We appealed this HCPC decision to impose a caution on a social worker who had sexual relationships with the mothers of two severely disabled child service users at a children’s hospice, where he worked. A caution is the lowest level of sanction against a registrant and does not restrict their practice.
The relationship with the first mother had been ongoing for some time and the registrant had not been open with his employer about it. The second relationship took place later (and while the first relationship continued) and after a final warning had been imposed by his employer about the first relationship. The registrant had initially contacted both mothers through Facebook.
We appealed this case because the HCPC did not bring charges alleging that the registrant had been dishonest about the nature of his relationship with the first mother when questioned by his employer. In imposing a caution, the panel placed apparent weight on their belief that neither of the mothers were particularly vulnerable, and that the registrant’s behaviour was not predatory, and there were mitigating circumstances. We disagreed with that decision because the fact that the registrant was not frank with his employer raises serious questions about his fitness to be a social worker which needed to be examined. We considered also that the mothers were vulnerable and that the registrant’s actions suggested that his approach might be predatory. We could not be satisfied that the registrant would not repeat his behaviour or that the caution adequately marked the seriousness of his actions.
The case was settled before a hearing. The caution was replaced with the registrant being suspended for 12 months and the case will be reviewed by Social Work England (which has taken over the regulation of social workers in England since our appeal). Its panel will consider the matters we raised in our appeal that were not adequately addressed by the original charges and findings.
A case involving an HCPC registrant who inappropriately touched two patients
We appealed this HCPC panel decision to impose a caution in respect of a physiotherapist who inappropriately touched the breasts of two patients when he was treating them without their consent. The panel did not find that this behaviour was sexually motivated. It also did not take into account that the registrant had not demonstrated any change in how he practised as a result of the complaints and the potential risk for him to repeat this type of behaviour. Instead, the panel considered that this could be addressed by the fact that he had undertaken an online course covering how to obtain consent from patients. While the panel found misconduct in respect of failures to preserve the patient’s dignity and gain consent, it did not consider that the inappropriate touching during the treatment amounted to misconduct.
We were concerned because the panel did not:
- address the fact that the registrant had not given proper information to the patients about their treatment;
- did not arrange for their dignity to be protected;
- showed no appreciation of the impact of his conduct on them;
- had shown no change in his practice; and
- had only provided evidence of the online course on the day of the hearing.
We considered that the panel had failed to appreciate the inherent seriousness of the conduct, whether intentional or not, the panel failed to take into account the vulnerability of the patients, the registrant’s failure to consider their dignity, that he had continued to behave in this way towards his patients after a complaint had been received; and had offered no apology to his patients. We thought that there was a real danger that the registrant might repeat these actions on other vulnerable patients.
We settled the case by agreeing that there should be findings of misconduct and impairment in respect of those charges where in the initial decision, this had not been found. The case was sent to a new panel for it to consider the appropriate sanction.
A case involving an HCPC registrant and the panel’s failure to call on expert evidence
The registrant had been working privately as a paramedic at a motor racing event. There were concerns about his treatment of one patient who had been taken ill. The registrant admitted failing to carry out an abdominal examination. He was also alleged to have administered medication which paramedics were not permitted to administer. The panel found that this was not proved because the HCPC did not provide any evidence about what paramedics were and were not permitted to administer.
We appealed because we thought that the HCPC should have offered evidence about (a) whether the failure to conduct the examination was misconduct and (b) the guidance on what medication paramedics were permitted to administer.
The HCPC and the registrant agreed with our arguments and a Consent Order was agreed whereby the registrant agreed to be struck off.
This is another case where we were concerned that the regulator had not taken sufficient action to prove its case or to ensure that the seriousness of the conduct was made clear to the panel.
A case involving an NMC registrant and the fitness to practise panel making its decision with no updated evidence
In this case, a panel had found that the nurse had made a number of clinical errors in March 2013. Her fitness to practise had been reviewed by a number of panels since then and all were concerned that she had not properly addressed the concerns from 2013. These panels had imposed either suspensions or conditions and she had not worked as a nurse since 2013.
Although there had been no change in the position since the previous hearing, the latest panel decided that she was now ready to resume practising.
We appealed this case because there was no evidence to suggest that, in fact, the registrant was safe to return to practice.
The nurse decided that she did not wish to return to practice so we agreed through a Consent Order that a finding of impairment should be imposed instead of the panel’s original decision. The nurse then lapsed from the NMC’s register. If she seeks to return to the register, the NMC will be able to take that finding into account in deciding whether she is safe to resume practice.
A case involving an HCPC registrant acting as an expert witness
In this case, a physiotherapist provided expert reports to the court, describing himself as a doctor. We were concerned that the HCPC’s charges did not reflect the potential gravity of this. First, it was possible that the registrant did not properly understand the role and duties of an expert or, more seriously, had deliberately and dishonestly included information in the report about his experience which was not accurate (e.g. using the title doctor and exaggerating the number of reports he had undertaken as an expert). This was, potentially very serious and the panel was not able to consider these matters. Because of the absence of this information, the panel decided that he was not guilty of misconduct.
Experts play an essential role in the justice system and it is crucial that the courts can rely on their honesty and expertise. We considered that this point was not properly brought before the panel. We considered this was the real mischief in the case.
We settled the case with a Consent Order which sent the case back to the HCPC for a new panel to look at the additional concerns we had identified.
Two cases have been heard by the courts and you can find more details below.
A doctor who over-prescribed drugs to a patient in spite of receiving warnings from the GMC
This was a case that was brought by the General Medical Council (GMC) to the Medical Practitioners Tribunal (MPT) and alleged that the doctor had:
- prescribed excessively a number of different addictive drugs to a patient;
- failed adequately to assess or appropriately refer her to mental health services;
- kept inadequate records;
- failed to inform her GP that he had issued the patient with prescriptions;
- lacked adequate expertise to treat her.
Essentially, the panel found that the doctor had been prescribing significant quantities of addictive drugs to an addict without proper consideration of her health and had done so over a six-year period, despite receiving advice in 2011 and a warning in 2016 about similar matters. Even though the doctor had blamed his patient, had not apologised to her, nor shown any insight into his behaviour, and the panel itself stated that ‘there is a material risk of repetition’ – the panel did not consider that this conduct was fundamentally incompatible with registration and imposed a suspension for 12 months.
We decided to appeal this decision on the basis that the panel was wrong to say that this conduct was not fundamentally incompatible with registration and that the registrant ought to have been struck off.
A few weeks after we lodged our appeal, the registrant applied for and was granted voluntary erasure from the GMC register. A few days later the GMC notified the parties that this decision would be stayed pending the outcome of our appeal.
At the hearing, we argued that a suspension order and a voluntary erasure order would be insufficient for the protection of the public. This was a particularly serious case where the correct outcome was for the doctor to be struck off the register and any other outcome would undermine the importance of upholding confidence in the medical profession and the importance of maintaining standards.
The Court allowed the appeal, quashed the suspension order and substituted its own order for erasure. The judgment includes mention of:
- the registrant’s attempt to avoid the scrutiny of an appeal by deciding to opt for voluntary erasure
- the MPT not taking into account the guidance on the relevant sanction and by not doing so had handed down a sanction that was insufficient to protect the public
- the registrant’s decision to give up what he should not have been doing in the first place
- his conduct was deliberate
- the Court also pointed to the fact that the MPT had found the registrant had no insight into his misconduct, blamed his patient, had not apologised, and therefore the MPT’s decision to suspend was unreasonable and inconsistent.
The Court also stated that statutory regulation of the medical profession is designed to prevent the sort of risks this doctor had caused his patient and his lack of insight means that he cannot be trusted to practise as a doctor again.
You can find a more detailed write-up of this appeal here.
An appeal against an HCPC panel decision to impose a three-year caution on a social worker alleged to have behaved inappropriately
In this case, a social worker was alleged to have behaved inappropriately towards six female, junior, colleagues. The complainants claimed that he had repeatedly made comments to them with a sexual content or overtone; he also invited them individually to meet with him outside working hours and in circumstances from which it could be inferred that he wished to initiate sexual relations. The panel heard evidence from each of the six complainants. The majority of the factual allegations against the registrant were proved and found to be inappropriate. The HCPC panel did not find however that his behaviour had been harassing or sexually motivated. The panel found that there was a risk of repetition but imposed a caution order. This did not restrict the registrant’s practice.
We appealed this case because the thought that the panel was wrong to say that the conduct did not amount to harassment and was not sexually motivated. We were very concerned that the registrant might repeat such behaviour and that this could have a very serious effect on other junior colleagues. The sanction also did not address how serious the behaviour was.
The court agreed with us and substituted findings that the conduct did amount to harassment and was sexually motivated. It remitted the case to a panel of Social Work England to consider a new sanction.
The human stories behind these statistics
This is just a snapshot of the types of cases we appeal. As we mentioned above, we check around 3,000 decisions every year, but actually go on to appeal very few of these – around 0.5%. However, no matter how small this statistic is, it is important to remember that all these cases involve real people: both patients and professionals. If the regulators’ panels make a decision which is insufficient to protect the public, this could mean that a professional can go back into practice when they might not be ready to do so and continue to pose a risk to their patients and their colleagues.
Read a guest blog from Sarah Ellson, Partner at Fieldfisher who discusses the value of our section 29 power from a legal perspective and her experience of being involved with these types of appeals since 2004. You can also see some of the key statistics for our appeals in this infographic.
Appointments seminar: diversity on Councils
Why is it so important for regulators to have diverse councils? The answer is easy – a diverse Council is more representative of the population of the UK. It means members have a variety of backgrounds and can bring a wealth of experience to their roles as council members. That is the principle, but the practice of attracting Council members from diverse backgrounds can be more complicated. Our virtual seminar in December on the Appointments Process looked at ways to achieve this as well as sharing good practice amongst attendees.
There is renewed focus on equality and diversity, but renewed focus needs to translate into results. Recent news reports are still telling the story that women, people from minority ethnic backgrounds and people with disabilities are still under-represented on Boards and Councils. Just last month it was reported that the Chair of a major accounting firm had told staff during an online meeting that he did not believe unconscious bias existed (that is putting what he actually said a bit more politely).
The seminar focused on what actions the regulators could take to increase the diversity of their councils. We heard from the NMC and HCPC who shared their experience of developing associate member/council member apprentice schemes that provide opportunities for potential future members to gain knowledge of the work of the council. These schemes will, it is hoped, contribute to increasing the diversity of regulator councils in the future.
We also discussed whether the profile of lay council members is broad enough to represent the patient voice. Lay Council members are often themselves from a health and care background. We also discussed how to manage the potential for conflicts of interest arising where individuals wish to serve on more than one council.
We were very pleased with the positive approach from regulator colleagues to the seminar and their excellent contributions to the debate.
Reviewing the regulators: performance reviews
Since our last newsletter, we have published reviews for:
The General Dental Council
The GDC met 16 out of the 18 Standards of Good Regulation. This was the GDC’s first assessment against the new Standards of Good Regulation. Last year, the GDC met 22 of 24 of the previous Standards. You can read the full review or see a summary in our two-page snapshot.
The Health and Care Professions Council
The HCPC met 13 out of the 18 Standards of Good Regulation, and further information on the HCPC’s performance in fitness to practice can be found below. You can read the full report to find out more or see a summary in our our two-page snapshot.
Implementing an improvement plan for HCPC’s fitness to practise function
The HCPC has only met one of the five Standards for fitness to practise. We have had concerns about the HCPC’s performance in fitness to practise since we audited this function in 2017, after which the HCPC implemented an improvement plan. We audited the process again in 2020, and while we are satisfied that the HCPC’s initial triage stage is now working appropriately, we remain concerned about a number of other areas of the HCPC’s work in fitness to practise. We have written to the Secretary of State for Health and Social Care, the Ministers in the devolved administrations and the Chair of the Health and Social Care Select Committee outlining our concerns and will keep them informed of progress. We have also implemented closer monitoring of the HCPC’s improvement work, with regular meetings to review progress.
Share your experience of the regulators
We welcome feedback – whether positive or negative – on the experience you have had with the regulators at any time during the year. However, the performance review cycles for each regulator are staggered throughout the year, and we need to receive this information by certain points to include it in our initial assessments. The schedule for the year can be found on our website here, and a form to submit your feedback can be found here. Alternatively, you can email us at email@example.com. Particular dates coming up to note are:
- 19 March 2021: General Chiropractic Council
- 16 April: Nursing and Midwifery Council
- 28 May: General Dental Council
Watch our short animation which explains more about why we need your feedback and how we take it into account as part of our regulator reviews.
You can read all our performance reviews here. Keep an eye on our website as we will be publishing reviews for the GMC, NMC and GOC in the next couple of weeks.