The value of the Authority's power to appeal final fitness to practise decisions - a legal perspective

A guest blog from Sarah Ellson talking about the Authority's power to appeal final fitness to practise decisions - from a legal perspective. Sarah co-heads Fieldfisher's Regulatory team where she has worked for nearly 21 years, specialising in professional regulation. She trains, audits and advises many regulatory bodies as well as being instructed by the Professional Standards Authority for section 29 cases and other matters. 

I have had the privilege of legal involvement in section 29 cases since they first began in 2004. The judge in one of the first cases, Mr Justice Leveson, noted: ‘Historically, it has been the responsibility of healthcare professionals to regulate their own discipline and, to that end, detailed statutory frameworks are in place for a number of the professions, each slightly different one from the other and each providing for a determination of disciplinary allegations by a panel or committee largely comprising its own members.’ 

He explained that the only person who could appeal a decision by a regulator's disciplinary committee had, until then, been the Registrant, who in limited circumstances could appeal against the severity of the sanction. Leveson set out in his judgment how, following recommendations made in the Report of the Public Inquiry into children's heart surgery at the Bristol Royal Infirmary, the predecessor to the Professional Standards Authority (the Council for the Regulation of Health Care Professionals) had been established, to provide a degree of oversight of existing self-regulatory bodies under Part 2 of the National Health Service Reform and Health Care Professions Act 2002. For the first time ever from 2002 there was someone else who could, after the conclusion of the disciplinary process, refer cases to the Court for being too lenient.

Dr Rucillo's case in 2004 focused on the fact that the General Medical Council Panel had not found him guilty of serious professional misconduct even though he had had a sexual and emotional relationship with a patient. Because of the way the case was presented the Panel had not received evidence as to the circumstances or context of the relationship with Mrs A, nor of any treatment provided to her.   

As the new legislation had been viewed as a counterbalance to the registrant's right to appeal sanction, it was not immediately clear whether the Authority (or its predecessor) had the right to appeal in cases of effectively acquittal. The case went to the Court of Appeal who set out clearly that this could happen, and paved the way for cases being referred to Court where there was a wider concern for the Authority; that the case may have been under-prosecuted, or where facts or impairment were not found proved that would have impacted on the sanction.

The following year this concept was further explored. In 2005 three eminent QCs argued about what may have been in the mind of the draftswoman (who had been me!) when allegations that Dr Ruscillo's inappropriate breast examination were prepared and failed to include an allegation that the conduct may have been sexually motivated, rather than simply clinically incompetent. The resulting judgment required the case to be sent back to a fresh disciplinary tribunal with this specific allegation being included.

The early cases also helped to establish when the Court might be able to able to impose a new and appropriate sanction when it upheld an appeal, and when, instead, the only fair option was for a case to be sent back for the Regulator's committee to make a fresh decision, often with the benefit of differently worded allegations or additional evidence.

This evolution has shown the Authority's powers to be wide-ranging and, in my experience, Panellists and case presenters have been eager to observe the cases brought and the lessons to be learned. Initially I know some Panellists were quite defensive about their decisions being referred but few would argue that it has certainly heightened their awareness that they need to explain, and provide adequate reasons for, decisions that might otherwise appear relatively lenient. Panel and tribunal members now have the Authority's scrutiny in mind, as well as accountability to the parties, as they consider how they justify often difficult decisions. Legal Advisers must be aware of the decisions which have often served to clarify how their legal advice to decision makers is to be given.

I have also seen that the Regulatory bodies have had cases in which they are grateful for the powers of the Authority. Panels and Tribunals are of course independent and sometimes they make decisions which the Regulators also find difficult to understand, and which may appear not to adequately address the public interest in a case. In such cases the Authority's decision to refer, or even to simply provide lessons learned, can be a valuable step supported by the Regulator, who is often seen by the public as directly accountable for these decisions. Whilst it has been controversial, the fact that the General Medical Council has made quite significant use of a recent power which allowed it to appeal Tribunal decisions, shows that Regulators do sometimes wish to challenge Panel outcomes.

Those preparing cases for presentation have also been influenced by case law generated from Authority appeals and in turn Panels may have been grateful for this where it has led to more clear and careful case preparation.

After the Rajeshwar case no-one, myself included, would have failed to consider the need to reference explicitly the potential for conduct to be described as sexual or sexually motivated. Those who prepare cases at or on behalf of regulators have borne their own degree of scrutiny in Authority appeals, reflecting on whether all the available evidence has been adduced, submissions made and allegations drafted. 

In my view the section 29 powers have added a new dimension to the way regulatory disciplinary cases are prepared and decided. I do think the ability to refer cases, alongside other changes in the last 20 years, have dramatically altered the perception of self-regulation by the profession and brought to front of mind the concept of public interest and the true role of such proceedings. The Authority’s cases, alongside the appeals of registrants, have involved the Administrative Court in numerous difficult cases and the resulting judgments form a very valuable body of case law for all involved in regulatory law. 

Find out more

• See our visual explainer about our power to scrutinise, and then appeal final fitness to practise decisions if we consider them insufficient to protect the public, and the added value it brings to both public protection and improving regulation.
• Watch this video where our Director of Scrutiny and Quality explains more about our role in the fitness to practise to process.
• Read our timeline about the key milestones and events that have shaped reform of regulation over the last 20 years.