Section 29: how we protect the public - Part 1

In the past 20 years the Authority has acted as a vital safety net in scrutinising and, appealing fitness to practise decisions which do not protect the public. We look at almost every final decision made by the 10 health and social care regulators and ask ourselves one central question – is the outcome sufficient to protect the public?

Our power to appeal

Our power to appeal a ‘relevant decision’ is found in section 29 of the NHS Reform and Health Care Professions Act 2002, ‘s.29’.

We can challenge findings of fact and decisions on misconduct and impairment and sanction. We can also challenge decisions where no findings have been made – i.e., a decision not to find misconduct.

Section 29 gives us a discretion to appeal to the High Court if we consider that a decision is insufficient to protect the public. We may appeal against a sanction, a finding, or a lack of a finding, such as a decision not to find impairment.  When we consider this question, our legislation stipulates that we must consider whether the decision is sufficient:

1. To protect the health, safety, and wellbeing of the public: we ask ourselves - Does the outcome protect patients/the public from harm? Is there a risk to the public if the decision stands?
2. To maintain public confidence in the profession concerned: we ask ourselves - Does the outcome give the public confidence that the conduct has been appropriately dealt with? Will public confidence be undermined if the decision stands?
3. To maintain proper professional standards and conduct for members of that profession: we ask ourselves - Does the outcome maintain standards for members of the profession? Does it send the right message to the rest of the profession?

We review every relevant decision. Our process has four key stages which are summarised here.  

What makes us look closer?

There are several things which may concern us when looking at a decision, though every case is unique and will turn on its own facts. Some matters which make us look more closely include:

• Concerns that conduct is fundamentally incompatible with being in a caring profession (i.e., abusing a patient) and whether this has been properly considered by the Panel.

• If a risk of repetition has been identified whether the sanction protects the public.
  • We may look more closely if the Panel have imposed a non-restrictive sanction in the face of a risk of repetition.
• Whether the charges reflect the full extent of the alleged wrongdoing.
  • For example, where the evidence indicates that a Registrant may have acted dishonestly, and dishonesty was not charged.
• Where the Panel have not provided any or adequate reasons for their decision, or parts of the decision.
  • The Court have said that this is important as the public must be able to understand why certain decisions have been reached so that they can be reassured that healthcare professionals they depend on are safe to practice.
• Where the Panel’s conclusions and/or analysis appears flawed or irrational.

• When findings made at the grounds, impairment and sanction stages are inconsistent and contradictory.
  • For example, where the Panel identify a risk of repetition at the impairment stage and find no risk of repetition at the sanction stage despite no new information to change the risk.  
• Concerns about whether the conduct can be remedied going forwards if the Registrant has little or no insight.
  • Is it unsupported wishful thinking to think that the Registrant will put matters right and develop insight if they are given another chance?

In addition, some conduct will always be considered serious which may warrant further scrutiny, such as cases involving:

• Abuse and violence towards patients and members of the public.
• Intentional failings in providing care, including a lack of candour when things go wrong.
• Sexually motivated behaviour towards patients or colleagues.
• Convictions for serious offences.
• Patterns of behaviour which indicate that a Registrant may have an attitudinal problem, such as dishonesty, sexism, harassment, racism, and discriminatory views.
• Abuse of trust and/or taking advantage of someone vulnerable.
• Dishonesty:
  • For personal gain in a professional context
  • Covering up poor care
  • In the registration or retention process.
• Serious disregard for the regulatory system, such as practising whilst suspended or without a license.
• Knowingly or recklessly practising without holding indemnity insurance.

The factors which may make us look more closely are many and varied, yet as seen above there are certain things which may indicate that a case requires further scrutiny. If this is the case, one of our lawyers will undertake a Detailed Case Review where they will consider all the information before the Panel. Our lawyers will analyse the Panel’s approach and apply the law to come to a view on whether the decision is arguably insufficient to protect the public. This involves detailed consideration of the evidence, relevant case law and the principles which limit the section 29 power.

In Part 2 we will examine what these limits are and ultimately, how our power protects the public.