by
Daisy Blench, Policy Manager
| Aug 17, 2018
Our first blog in this series outlined what fitness to practise is, how it currently works and why it is in urgent need of reform to ensure it works better for all involved. In this blog, we look at what could be done to make changes without the need for substantial legislative reform.
Radical regulatory reform could be just around the corner. Or it could be a mere speck on the horizon. However, one thing that we can probably all agree on is that the regulators’ fitness to practise processes are well passed their best before date and in urgent need of reform.
Following the Department of Health and Social Care’s consultation Promoting professionalism, reforming regulation, we have been hoping to see political momentum for regulatory reform. However, with the appointment of a new Secretary of State for Health and Social Care after the recent cabinet reshuffle, the prospect of radical reform any time soon remains uncertain.
Despite this, there are practical things that can be done now. In this blog, we explore how it is possible to introduce changes to fitness to practise without the need for substantial legislative change.
We have identified two key areas where the current system could be improved and which will also benefit any future, more radical reform. These are:
- how regulators decide which cases to investigate and which to reject (known as 'thresholds')
- how regulators can deal with cases safely and transparently without taking them all the way to a hearing (also known as 'consensual disposal')
Thresholds for investigation of concerns
As explained in our first blog, regulators review all complaints received from patients, employers or registrants themselves. The regulator then decides whether these complaints meet the threshold for further investigation.
This is a hugely important part of the process because it’s the gateway to fitness to practise, so it’s crucial that cases closed down at this stage do not pose a risk to the public. However, as previously noted, fitness to practise takes up a large proportion of the regulators’ costs so they must strike a balance between properly investigating cases which raise public protection concerns whilst ensuring that resources are not wasted on cases which do not.
A lack of transparency and significant variations in approaches were two issues that leapt out at us when we looked at the systems the regulators currently use to decide which cases to investigate.
We have previously highlighted concerns about regulators seeking to make decisions at the threshold stage about whether there is a ‘real prospect’ of a panel finding that the professional’s fitness to practise is impaired. These decisions are usually made in the more formal context of the Investigating Committee or by Case Examiners. So, this behaviour by regulators could prove problematic as threshold processes fall outside of the formal fitness to practise decision-making stages and cannot be challenged other than by the use of Judicial Review.
We recognise the benefits of a formalised early screening stage of this nature. However, to ensure public protection is not undermined, greater consistency and clarity of approach is required. In Right-touch reform, we outlined our support for a model with clear threshold criteria for screening cases before they reach the Investigating Committee stage, providing certain requirements are met:
- full transparency of policy: the regulator’s policies and threshold criteria for all pre-Investigating Committee stages to be consulted on and published
- a clear demonstration of how these thresholds enable the regulator to fulfil its over-arching statutory objective relating to the three limbs of public protection
- accountability of process and decision-making: clearly documented reasoning and decisions; formal options for challenging a decision to close a case at key decision-points; option of scrutiny of such decisions by the Authority; and quality assurance of decisions through the publication of audits and regular reports to Council, and
- hierarchy of decision-making: the decisions made at these early stages should not preempt or undermine the role of the Investigating Committee/Case Examiner.
As this is a fast-evolving area of regulation, there is a lack of clarity about the different approaches being pursued. Building on the information gathered in Right-touch reform, we are proposing to carry out a cross-regulator review of thresholds and focus in particular on identifying any risks.
There is also the need for discussion about how serious an allegation has to be to warrant regulatory action. Ultimately, consistency of approach is crucial. It cannot be right for some regulators to reject cases that other regulators would accept and there should be greater harmonisation of approach. We believe this is an area where progress could be made without legislation.
Disposing of cases by consent
The second area for change is how cases are ultimately resolved. As highlighted in our first blog, the current fitness to practise process is lengthy and can be stressful and unsatisfactory for all those involved. Furthermore, the cost of taking a case all the way to a public hearing can be huge. Therefore, some regulators have sought changes to their legislation to allow greater flexibility of how cases are disposed of at the end of the investigation. Others have sought to push the boundaries of what is acceptable within their current legislation and under existing case law.
A number of the regulators are now using Case Examiners to dispose of cases at the Investigating Committee stage. Rather than a three-person committee, Case Examiners work in pairs, one lay person (non-professional) and one professional, with one drafting the decision and sharing it with their colleague for agreement. If the Case Examiners disagree on the outcome, then the case will be referred to the Investigating Committee for a decision. We have not identified any specific concerns about decisions made by Case Examiners rather than Investigating Committees and recognise that they may provide a more consistent, cost-effective alternative. However, we have highlighted the need for greater transparency about how Case Examiners reach their decisions due to the fact they are made outside of a formal meeting of the Investigating Committee.
In addition to referring a case to a fitness to practise committee or closing a case, some of the regulators have powers to issue warnings and some have powers for their Investigating Committee or Case Examiners to agree to what are known as ‘undertakings’ with registrants at this stage. The General Pharmaceutical Council and the Pharmaceutical Society of Northern Ireland currently have this in place for their Investigating Committees. At the General Medical Council, the General Dental Council, and the Nursing and Midwifery Council, Case Examiners have these powers.
Previously, at the end of an investigation, the Investigating Committee or Case Examiners would make a binary decision about whether to refer the case to a fitness to practise panel. This was based on what is known as the ‘real prospect test’. If there was a real prospect of a panel finding that the registrant’s fitness to practise was impaired then the case would be referred to a panel; if not, the case would be closed.
In certain cases, undertakings are now used as a way of disposing of cases that meet the real prospect test. Undertakings are essentially a set of conditions agreed with a registrant (if they are willing to comply with them). Compliance is monitored, and any breaches may be referred to a fitness to practise panel. All the regulators using this model specify that undertakings cannot be offered in cases where there is a likelihood of the registrant being struck off the professional register.
We have always been supportive of consensual disposal in principle. We know that fitness to practise proceedings can take their toll on professionals subject to them, as evidence collected by the GMC and others demonstrates. Our own research also shows that public hearings can be stressful for both complainants and witnesses. It would seem to make sense, therefore, to look at a process that moves away from this adversarial, courtroom style setting.
Behind closed doors
Though in principle we think consensual disposal is a good idea, we have some concerns about how it has been implemented in practice, especially regarding ‘undertakings’. One of our main concerns is that disposal of cases outside of a public hearing, and by Case Examiners in particular, means that decisions involving potentially serious misconduct are outside the scope of our scrutiny powers. It also pushes decision-making from a public forum into a private one. Under our Section 29 powers, we can appeal to the courts decisions made by a fitness to practise panel which are not sufficient to protect the public, but have no such power for decisions made by consensual disposal.
Furthermore, there is a lack of transparency and accountability with decisions currently made in this way, leading to a risk of inconsistent or poorer quality decision-making. Decisions about whether to refer a case to a tribunal or dispose of it consensually should also be clearer. Currently, regulators refer to proportionality when deciding whether to refer a case to a hearing.
We believe that, under the current system, regulators should consider whether a hearing is necessary to fulfil the threefold purpose of fitness to practise (protection of the public, maintaining public confidence and upholding professional standards). We have also highlighted how important it is that the registrant admits the facts and accepts impairment for cases to be disposed of consensually.
In Right-touch reform we outlined a series of measures which, if implemented, should provide some assurance that consensual disposal decisions are transparent, accountable, and protecting the public. These are:
- a clear demonstration of how the decision-making framework for consensual disposal enables the regulator to fulfil its over-arching statutory objective relating to the three limbs of public protection
- full transparency of policy: the regulator’s policy and decision-making framework to be consulted on and published
- accountability of process and decision-making: clearly documented reasoning and decisions; formal options for challenging a decision to close a case; scrutiny of all decisions by the Authority; and quality assurance of decisions through the publication of audits and regular reports to council
- hierarchy of decision-making: the decisions of the Case Examiners/Investigating Committee should not preempt or undermine the role of the panel at a hearing, for example where there is a dispute about material facts
- independence of decision-making: those making decisions about how to dispose of a case on completion of the investigation should not have been involved in the investigation.
There is currently no clear picture of how undertakings are being used. We have proposed a cross-regulator review of current practices to look at the kinds of cases being disposed of in this way and identify any risks associated with this approach as well as further research into what constitutes effective remediation and the psychology of decision-making behind closed doors.
We also want to see wider discussions on the factors that need to be taken into account when considering whether cases should be referred to a hearing, including the public interest, remediation, insight, and severity of cases. This could feed into guidance for decision makers at this stage in the process, possibly supported by a set of guideline cases, reflecting Dame Janet Smith’s recommendation from the Shipman Inquiry.
What would more radical reform look like?
This blog lays out some of the ways in which the current system could be improved with minimal legislative change. But what if we were starting with a blank sheet of paper? What would fitness to practise look like? Would it even have the same name?
In the final blog in this series, we'll be outlining our proposals for radical reform of fitness to practise, moving away from the legalistic, adversarial system to create a system which protects the public and works better for all involved.
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