Today, we have published a consultation on our strategic plan for 2023-26. This is the first time that we have consulted publicly on a strategic plan. It is also the first time that we have anchored our strategic objectives to a fixed, three-year time frame.

We would like to hear from patients, service users, regulators, Accredited Registers, stakeholders and anyone else who has a view on what we do, how we work and how our strategic plan can help us to have a meaningful impact on patient and service user safety and public protection.

So, why the change?

Over the next three years, reforms to the professional regulatory system in health and care will begin to unfold. This will begin with the regulation of two groups of medical associates (MAPs) – physician associates (PAs) and anaesthesia associates (AAs) in 2024. What follows is still to be determined but gives the potential for a more flexible and cohesive regulatory framework.

The stakes for getting this right are high. As highlighted in our report Safer care for all - solutions through the lens of professional regulation and beyond accessible designed version, we think there are four important themes that need to be addressed: 

1. Tackling inequalities
2. Regulating for new risks
3. Facing up to the workforce crisis
4. Accountability, fear and public safety.

On 9 November, we convened stakeholders at our Safer care for all conference to debate some of the key questions arising from our report. Speakers from a range of organisations, including the NHS and Chairs of major healthcare inquiries, debated issues such as whether regulation needs to change to deliver the workforce of the future.

One point that struck me during these discussions was the sense of history repeating itself, and a failure to learn from the mistakes of the past. The recommendations we have made in Safer care for all are focused on having clear lines of accountability and oversight, and on organisations working together to tackle systemic, cross-cutting issues such as inequalities.

Our strategic plan sets out how we intend to achieve these goals by 2026 and how we will know if we’ve been successful. It begins by us carrying out our core role to greatest effect and using our oversight of the performance of the regulators and Accredited Registers to make sure that regulation is effective, efficient and fair. It means that we continue to provide a safety net for serious concerns about professionals. It also means using our policy and research expertise to better understand and tackle regulatory gaps and failings, and to help us champion ways to make the system fairer. Our commitment to equality, diversity and inclusion requires a system that works for all.  

We know that challenging times lie ahead. Some things will inevitably fall outside our control and we will need to work with others. But our commitment to public protection remains consistent and strong and that will not change.

How to respond to our consultation

We welcome your feedback on our proposed strategic plan. The deadline to respond is 24 February 2023.

You can find out more about the consultation here, where you can also download a response form or link to our online survey. A Welsh version is also available. 

Our Accredited Registers programme helps to protect the public by awarding our Quality Mark to organisations holding registers of health and care roles that aren’t regulated by law. They must meet our Standards for Accredited Registers to achieve the Quality Mark.

When we consulted publicly in 2020 on the future of the Accredited Registers programme, people told us that they supported us taking greater account of the effectiveness of therapies. It is now more than a year since we introduced a ‘public interest test’ to our Standards (in Standard One). This ‘test’ allows us to look at the benefits of therapies offered by registrants and decide if they outweigh the risks. It also contributes to our decision about whether to award or renew accreditation.

We have now started to make decisions under Standard One. This includes new Registers applying for accreditation, and those which we already accredit. As well as reviewing benefits and risks as part of our assessments, we’re also finding this information is useful to help raise awareness of the broader aspects of the programme. For example, the deeper knowledge we’ve gained on the work of sports rehabilitators has been used in our response to the Government’s consultation on a new mental health and wellbeing plan for England (see paragraph 3.11). We highlighted the positive relationship between physical activity and health, for all age groups, including the specific benefits of reducing risk factors for fractures in older people by enhancing strength and balance.

It seems there are benefits from the Registers’ perspectives, too. Stephen Aspinall, Chief Executive of the British Association of Sport Rehabilitators and Trainers (BASRaT), reflects on his experience as the first of the current Accredited Registers to complete a Standard One assessment.

‘Since the inception of the Accredited Register programme in 2013, two big challenges for commissioners and members of the public have been to both identify the profession that meets their needs and to decide whether research informs their professional education and practice. Members of the public can’t make informed choices if they do not have an indication of the depth, breadth and evidence base that underpins a profession. In contrast, the more traditional healthcare professions don’t need an introduction and there is an implicit understanding that there is an evidence base underpinning their practice. Until now, this has been absent in some of the newer healthcare occupations. Along with the accurate communication of standards of education and training, Accredited Registers now need to complete the new Standard One assessment, providing a clear outline of the research base that supports practice, which is a key pillar of modern evidence-based practice.

‘This is not only a fantastic step forward for confidence and public protection, it also acts as a reflective and developmental process for each of the Accredited Registers, meaning agile healthcare professions for a changing world. For BASRaT, it also allows us to provide a more in-depth understanding of exactly what the Sport Rehabilitation profession offers and the work of practitioners in the clinical environment, including the different contexts they work in, how they support exercise as part of health and wellbeing and the depth of their knowledge and training – it allows us to demonstrate that BASRaT registrants represent a valuable part of the wider workforce, ready to work alongside the more traditional statutory professions.’

Melanie Venables, Head of Accreditation, reflects on the introduction of Standard One. 

‘In the current workforce crisis, when shortages of professionals mean employers and commissioners must look for alternative ways to expand access to care, choosing practitioners on an Accredited Register can help to keep people safe. Recent applications reflect areas of high need, such as within the wider psychological workforce and non-paramedic ambulance staff. We are also able to offer a standalone Standard One assessment before a full application from a prospective Register; this is a new approach and provides more flexibility for organisations.

‘At another level, collecting information about risks and benefits in a more consistent way may help to create an overall risk profile of roles which are not regulated by law. Our approach to assessing risk in Standard One is based on the same criteria used in more in-depth reviews of a profession (as described in our Right-touch assurance methodology). This information helps to build a clearer picture of the many roles in the wider health and care system, and where risks overlap statutory, and non-statutory regulation. We can use this information to help identify where the public might most benefit from accreditation in the future.’

• Find out more about the Accredited Registers programme
• Use our check-a-practitioner tool to check and find practitioners near you who are either on an accredited register or registered with one of the 10 health or social care professional regulators
• Read through the Standards for Accredited Registers
• Find out more about the consultation on reshaping the Accredited Registers programme
•  We have also recently launched two consultations related to our Accredited Registers programme. We are asking for your views on introducing a new Standard on Equality, Diversity and Inclusion to our Standards for Accredited Registers. We are also looking for feedback on strengthening our approach to safeguarding with Accredited Registers.
  

As Antony Townsend's terms as one of our Board members comes to a close, Antony shares his thoughts and feelings about working with the Authority over the last eight years.

Twenty years ago, when I was Chief Executive of the General Dental Council (GDC), I was peripherally involved in the setting up of the Council for Healthcare Regulatory Professions. The Council was born out of a series of scandals which had undermined public confidence, but was an unwieldy body, dominated by the healthcare regulators without the necessary independence to hold the regulators to account. In the years that followed, the governance of the Council was overhauled to embed independence, and the ‘Right-Touch Regulation’ philosophy was developed.

The PSA which I joined eight years ago as a Board member rose from the ashes of that Council, and has been hugely influential in developing systems of accountability and regulatory excellence. I am very proud to have been part of the PSA for that period. Working with the regulators -who have themselves transformed their approaches – we have a much more stable and transparent system – even though we are frustrated that reforms have not gone further and faster.

What will be my abiding memories of the PSA? First, dedication and excellence. We are really lucky at the PSA to have talented staff who are genuinely committed to the organisation’s mission. I can honestly say that, of all the regulatory organisations for which I have worked (a lot), the PSA’s staff stand out for their commitment. And they are very nice to work with.

Second, development. The PSA did pioneering work in its early years – the development of Right-touch regulation and associated research, Performance Review, the Accredited Registers. But the inability of Governments to keep pace with our reform proposals inevitably led to a kind of lull in the organisation’s development. In the last two to three years, we have seized the initiative again – our reforms of Performance Review, the Accredited Registers, and now the publication of Safer Care for All have enabled us to have a new sense of mission.

Finally, partnership. All organisations have to find ways in which their governing boards can work most productively with the staff without falling over one another. In the last couple of years, I feel that the sense of partnership between the staff and the Board has developed really well.

I’m going to miss my visits to Buckingham Palace Road, and the Teams calls. Good luck to everyone with the next chapter, and in the new building. And thanks for putting up with my suggestions (some of which may have had some value).

Black History Month provides an opportunity to reflect on how black and, indeed, other people from minoritised communities are treated by the health and social care system and the regulators. The Windrush Generation provided huge support to the NHS, and it is unacceptable that the system seems to discriminate against them providing yet another challenge to Black lives.

The BMJ recently reported on a survey of Black peoples’ experience of life here. Among the findings, 65% of respondents said that they had experienced discrimination from doctors or other healthcare staff in respect of their medical care. This rose to 75% for black people aged between 18 and 34. Maternity care and diagnosis of special needs cause particular problems. Patients also said that they were simply not understood. Moreover, the King’s Fund and many others have found poorer health outcomes for members of ethnic minority communities in the UK. 

We’ve noted this ourselves in our Safer care for all chapter ‘ No more excuses’ where we talk about inequality affecting patients and service users and that affecting registrants. There, we also identified the problems faced by practitioners in the system. These have been noted by the General Medical Council (GMC) for some originally arising out of the over-representation of BAME practitioners in fitness to practise proceedings. The GMC’s Fair to Refer report identified a range of cultural issues, particularly with employers, which lead to overseas and BAME doctors receiving poorer training, less targeted feedback, fewer opportunities to learn and working in environments which do not provide support for them to develop. Those environments may be more likely to apportion blame and use those doctors as scapegoats, leading to increased reports to the GMC. 

It would be surprising if these problems were unique to the GMC. Indeed, the GMC has done a huge amount of work to understand and address the problems generally. We’re looking to see how our performance reviews of the regulators can encourage improvements.

When we introduced our original Equality, Diversity and Inclusion (EDI) Standard, we focused it on the regulator having an understanding of the make-up of its registrants and patients and looking at its own processes to ensure that they did not impose inappropriate barriers.  We were aware that this was a relatively low bar, but recognised that the regulators we oversee were at very different levels of achievement in this area. After three years we’re now looking at the Standard again.

There’ve been some achievements in those three years. The bulk of regulators now at least have data about their registrants on which they can base assessments of the impacts of their process and their decisions and we’ve seen greater use of impact assessments and some very strong efforts among regulators’ staff to encourage diversity. But more is needed.

We’re now in a very different place and have a much greater understanding of the issues. We’re still in the middle of a review exercise of the new standards, but we’re already clear that we need to widen it so that our performance reviews encourage regulators to go beyond their own processes and target the right things. We need to look at:

• How regulators ensure that practitioners are equipped to deal with the diverse needs of patients from different backgrounds and needs – it’s not acceptable, for example, that they don’t understand about how different skin colours can impact on a patient’s presentation.
• How regulators make it clear that racism is unacceptable.
• How regulators work with employers and training bodies to address the cultural issues that can exist – not just those that lead to fitness to practise referrals but also that affect career progression.
• How regulators are approaching their public sector equality duty.
• And, of course, also ensure that regulators continue the work to keep their processes fair and open to all.

We are also currently consulting on strengthening our approach to Equality, Diversity and Inclusion with Accredited Registers and plan to introduce an EDI standard to the Standards for Accreditation. The deadline for responding is 17 January 2023 and you can find out more here.

It’s good that we’re now able to go further and be more ambitious.

Neither we, nor the regulators and accredited registers, can solve all the problems faced by Black patients and professionals. There are huge environmental problems. But we can influence and take steps to address part of that environment, so that we can show that Black lives do, indeed, matter.

• Read the report of the research we commissioned on Cognitive biases in fitness to practise decision-making: from understanding to mitigation
• Read through the Standards of Good Regulation here
  
• Read through  No more excuses: tackling inequalities in health and care professional regulation or find out more about the full report – Safer care for all: solutions from professional regulation and beyond
• Find out more about our consultation on introducing an EDI standard to our Standards for Accredited Registers
• Find out more about how we review regulators’ performance or find out more about our power to appeal regulators’ final fitness to practise decisions
• Find out more about our EDI action plan

In Part 1 we looked at the power of appeal and the things which make us look closer at a regulator’s fitness to practise decision. In Part 2 we look at what the limits of our power are and how we ultimately protect the public.

What are the limits of section 29?

We have a high bar to overcome in challenging a decision. We cannot appeal a decision just because we don’t agree with the outcome or think that the Panel should have done something different. Therefore, we cannot substitute our view because we disagree. 

We must establish that the decision is unjust because something has gone wrong in the process which has affected the outcome (a serious procedural irregularity) or that the outcome is wrong. If a Court decides that the right outcome was reached even though there were errors in the process, our appeal will not succeed.

Deference

A regulator’s fitness to practise Panel is typically comprised of three people – a member of the relevant profession, a chair (who may or may not be legally qualified) and a lay person. A Panel may also be assisted by a legal advisor if the chair is not a legally qualified chair.

The Court considers the Panel to be the experts in what is required to protect, maintain public confidence, and uphold standards in the profession. This is especially so where a case involves clinical concerns where the Court has limited expertise. The Courts also acknowledge that a Panel has an advantage as they will have heard all the evidence in the case.

When we appeal a case, the Court will not hear all the evidence again. The Court will see the written evidence that the Panel considered and look at a transcript of the hearing, but witnesses will not be called. An appeal is not a re-trial. Therefore, a Panel is always going to be better placed than the Court to assess how serious the matter is and what is required to protect the public. As the Panel are considered the experts, the Courts approach such challenges with diffidence. This means that from the outset, the Courts are reluctant to intervene.

The Court will also consider whether a decision is outside of the bounds of what the Panel could reasonably decide. The Courts recognise that some decisions are based on different factors which different people may come to different conclusions about without either person being wrong.  A decision on misconduct, impairment and sanction are evaluative decisions. This is because they involve a mixture of fact and law and there is often a spectrum of what could be considered a reasonable outcome. In the case of sanction decisions, there may be a range of reasonable outcomes depending on how the Panel have evaluated the evidence.

A Court will not interfere with an evaluative judgment unless there was an error of principle in carrying out the evaluation, or for any other reason it is wrong, meaning it is outside the bounds of what the Panel could properly and reasonably decide.

If the outcome is within the bounds of what the Panel could reasonably decide and there are no errors in their approach, the Court will not intervene. Therefore, the Court will always defer or give respect to the Panel’s decision where there are no errors – this is known as the principle of deference.

For example, a case involving a serious clinical error where a patient was harmed, and a risk of repetition has been identified could result in erasure, suspension, or a conditions of practice order depending on the circumstances. If the Panel decide to impose a conditions of practice order because the risks can be managed and the registrant has insight and is committed to putting things right, it may be difficult for the Authority to challenge this if there are no errors in the Panel’s approach. It will always depend on the individual circumstances of the case. Yet, if the Panel has performed its task correctly and appear to have reached a reasonable outcome on the evidence, challenging the decision will be difficult.

So, whilst there may be some cases where we may think a different sanction was appropriate, we cannot appeal on that basis alone if there are no errors in the Panel’s approach. This is because a high level of deference will be given to the Panel’s decision.

What is a wrong outcome?

The legal test for whether a decision is wrong includes consideration of whether the decision:

• Has due regard for the safety of the public and the reputation of the profession.
• Is one that the Panel could have reasonably imposed having regard to the relevant facts and the purpose of disciplinary proceedings.
• Has regard to the Registrant’s conduct and the interests of the public.

As discussed earlier, a Court will also consider whether an evaluative decision is within the bounds of what the Panel could properly and reasonably decide. Therefore, if a Panel has failed to consider a key aspect of the case, or gone wrong in their approach, there may be grounds to argue that the decision falls outside the reasonable range of outcomes.

An example of where the Court agreed that the outcome of a case was wrong can be found here in one of our case studies involving a social worker who sexually harassed his female colleagues.

What is a serious procedural irregularity?

A serious procedural irregularity occurs where something goes seriously wrong with the process which affects the outcome, or where it may be difficult to tell if the outcome is correct because of the error. A procedural irregularity must be serious. If the outcome is still correct despite the irregularity, we will not be able to appeal. Examples of serious procedural irregularities include:

• Under charging, or under prosecution
  • i.e., where the evidence indicates that more serious charges ought to have been brought in relation to the same incident. This can arise where a regulator fails to charge motive, such as dishonesty or sexual motivation, when the evidence indicates that this is a concern
  • other types of under prosecution include:
    • failing to bring the full gravity of the situation to the Panel’s attention
    • not placing all material evidence before the Panel
    • where the Panel are not proactive in ensuring they receive all relevant evidence
• Offering no evidence or withdrawing charges
  • i.e., where the regulator offers no evidence without opening the case
• Other case management decisions
  • i.e., not amending charges, striking out charges without considering an adjournment and/or decisions on the admissibility of evidence
• Not providing adequate reasons

If the bar to appeal is so high, how does section 29 protect the public?

The number of cases we appeal is relatively low compared to how many we review. This may beg the question – how much of a difference does our scrutiny of final decisions make?

Whilst there is a high bar to successfully challenge a decision, the value of our review of final decisions extends beyond our section 29 powers and has a greater impact than any one case.  We regularly identify learning points for regulators arising from cases we review which have helped improve standards in decision-making. Sharing learning points also holds the regulators to account and drives improvements moving forwards.

We also have a unique view across all the regulators which helps us identify themes and patterns. This information is shared with our performance review and policy colleagues to be explored in more detail so our findings can be shared with the regulators and other stakeholders to improve regulation.

Over the years our appeals have also created a body of case law and principles which have helped shape the landscape of healthcare regulation. Reviewing all final decisions has also developed a rich source of data which has been used by researchers and academics.

This is all in addition to the most obvious benefit of protecting the public from those registrants who may not be fit to practise and could pose a risk to the public. 

You can find out more about our power to appeal here. Or find out  more about the value it adds to public protection. You can also see our power to appeal in practice our section 29 case studies.

Introduction

To mark World Suicide Prevention Day on 10 September, Faye Blackwell from the National Counselling Society (NCS) shares her thoughts on suicide prevention and what can be done to improve outcomes. Faye is Head of Engagement and Development at the NCS and has been a counsellor for over 20 years. She has personal and professional experience of suicide prevention and bereavement by suicide.

The NCS is one of the Authority’s Accredited Registers. We accredit a range of registers for therapies including counselling, psychotherapy and play therapy. We always recommend using a healthcare practitioner on a register we have accredited. 

What Could Suicide Prevention Really Look Like?

According to suicide prevention charity Papyrus, suicide is the biggest killer of young people under 35 in the UK. On average, over five young people take their lives each day.

World Health Organisation statistics from 2019 suggest that the UK has the ninth highest suicide rate in the world.

• Chart: Suicide Rates Around the World | Statista

While a better understanding of risk factors that contribute to suicide exists, improvements are still needed. What is missing from current suicide prevention strategy in the UK?

The solution may lie somewhere unexpected. By viewing suicide through a different lens, creating and embedding a shift in perspective and action across society, we could save more lives.

The power of shame

Normalising the dialogue around suicide helps to remove associated shame. Positive action has already been taken to modify the way we talk about suicide and move on from historic stigma. This needs to continue and filter into all areas of society, at a familial level, across education, health and mental health sectors and up to Government itself.

Professionals across the board need to model confidence and fearlessness when discussing suicide. And understanding the power of shame, the part it plays in suicidal feelings, and how our society feeds into that, is vital for suicide prevention.

Poverty and inequality

In its report The Mental Health of Children and Young People, The Children’s Alliance outlines how socio-economic factors contribute to increased poor mental health. The report describes how children from the most deprived households are four times more likely to develop serious mental health problems by the age of 11 than their more affluent peers.

The Samaritans’ report, Dying from Inequality, similarly recognises that 'People living in the most disadvantaged communities face the highest risk of dying by suicide…..financial instability and poverty can increase suicide risk. Suicide is a major inequality issue. Tackling inequality should be central to suicide prevention and support should be targeted to the poorest groups who are likely to need it most.'

Early intervention, better prevention

Research shows that with appropriate early intervention and support, suicide by young people can be prevented. In addition to amplifying the national voice as described above, we can help our children and young people (CYP) further, by providing safe spaces, both online and offline, where they can talk about their feelings freely.

Communication

Let’s go further and create a societal understanding of how children communicate, to improve our ability to support them. Verbal communication is not always easy for them, so they express feelings through behaviour. When this is punished or shut down, that child’s distress is unheard. We need to understand and explore a child’s behaviour, rather than treating it as ‘naughtiness’, and encourage and normalise the verbalising and expression of emotional narratives.

CYP are encouraged to disclose, yet worryingly, educational establishments are becoming risk averse and, in some circumstances, prefer to decline students a place, or remove them from their studies, because of declared mental health issues. This sends a detrimental message about the consequences of disclosing. If we ask children to speak up, we need to ensure a safe environment and system for them to do so.

Education

Valuing a child’s wellbeing over academic achievement is another key to suicide prevention, but is unlikely to be actualised soon. Recognising that educators are not trained mental health workers is achievable and important, for both the sake of pupils and teachers alike. Understanding mental distress in children requires specific training. Recommendations that all schools, colleges and universities have trained counsellors available need to be heard and acted upon. Counsellors in every educational establishment should be a statutory requirement, and a whole school approach (from early-years) to mental health be adopted.

Kate Day, Child Ambassador for the National Counselling Society and co-author of the Children’s Alliance report on children’s mental health, says, 'We must act now to prevent further deaths of our children and young people. Early detection of our child and adolescent suffering with their mental health is crucial to prevent further suicides. The continuing long waiting lists in child mental health services is putting our children at further risk.'

Prevention

Additional changes are achievable, include challenging the widespread belief that GDPR is more important than safeguarding, i.e. sharing information with family where appropriate.

All schools, colleges, universities and workplaces need to have clear pathways to, and availability of, crisis support.

Could we risk-assess public spaces through the lens of someone wanting to harm themselves - adding in compassionate signage and physical barriers where possible? How about training those who work in public areas? Could they ask someone, ‘Are you ok?’ or, ‘Can I help?’ rather than, ‘What are you doing here?’

Support and signposting

Despite encouragement for those at risk of suicide to disclose, what happens then?  Overstretched services make referrals difficult or create delays in accessing help.  A reliance on short-term, ‘quick fixes’, is a false economy. Long-term investment could produce longer-term benefits. There could be a case for shifting the emphasis from short-term ‘band-aid’ mental health approaches (Process-Centred), to implementing and valuing longer-term mental health strategies (Autonomy-Centred).

Support should not be time-restricted but provided according to need and for as long as necessary. Each suicide affects multiple people who are then at increased risk themselves. We need to engage with the peers of people who have died or made a serious attempt on their lives and provide trauma support.

The solution to saving lives lies in a societal shift

Perhaps the key to saving lives is in the fabric of our society, with a discourse of compassion and understanding, asking and listening, and practical measures, woven into every thread.

• Reduce shame around suicide – turn up the volume on the conversation.
• Start the conversation from early years. Give children a voice and the space to hear it.
• Better funding for state provision and/or the third sector is essential.
• Available and appropriate support for all, recognise (age/gender/cultural barriers to asking for help.
• Emergency intervention meetings when there is an emerging risk with a particular group.
• Understand that ongoing support (as opposed to a prescribed amount) may be required and should be needs-based.
• Training and advice for employers and employees - mental health and welfare being part of health and safety policies as standard - possibly as part of The Health and Safety at Work Act.
• Better communication between all groups/agencies involved. 
• Reduce poverty, invest in hard-to-reach groups.

Find out more about World Suicide Prevention Day at Samaritans UK

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. 

Healthcare is having its very own #MeToo moment, with shocking examples of sexism, sexual harassment, and sexual assault being widely shared by health and care professionals. A recent raft of ‘anecdotal’ examples are increasingly being backed up by research evidence finding that sexual harassment and other forms of abuse are widespread in the health and care sector.  As this issue rises up the agenda, it’s time for all of us with a responsibility for professional standards to sit up and listen. Action is needed now to ensure that harassment (and worse) is never tolerated in the workplace, and that when things do go wrong, victims feel safe and supported to raise a complaint. Once a complaint has been made it is vital that the complainant is treated with dignity and respect, does not have to fear adverse consequences for their career, and can have confidence that employers and regulators will deal with their complaint sensitively, seriously, and appropriately.  

What is sexual harassment?

So what do we mean by sexual harassment? Here at the Authority we have in the past referred to the importance of health and care professionals maintaining ‘sexual boundaries’ and have defined a breach of sexual boundaries as including:

• criminal sexual acts
• sexual relationships
• other sexually motivated actions such as sexual humour or inappropriate comments.

In terms of the legal position, the Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature that has the purpose or effect of violating the other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Sexual harassment is a form of unlawful discrimination and people have the legal right to be protected from it in the workplace.

Sexual assault is a crime under the Sexual Offences Act 2003 and occurs when someone intentionally touches another person in a sexual manner, without that person’s consent.

How widespread is sexual harassment in health and care?

We’ve known for a long time that sexism and sexual harassment is a problem widely encountered by the health and care workforce, but until recently much of our evidence has been piecemeal or anecdotal.

The Authority first started working to raise awareness of this issue back in 2008, when we published a raft of guidance on sexual boundaries. This included: guidance on the responsibilities of healthcare professionals, setting out their duty to maintain clear sexual boundaries with patients and the action they must take in the event of a breach; guidance for fitness to practise panels, highlighting the significant harms caused by boundary violations and factors they may wish to consider in determining a sanction, and; information for patients to help them know how professionals should behave and what to do if they experience any inappropriate behaviour. We also produced a report on education and training aimed at encouraging those involved in the training, development and regulation of healthcare professionals to ensure effective training on clear sexual boundaries.

A review of research undertaken during the development of our sexual boundaries guidance estimated that between 38 and 52% of healthcare professionals reported knowing of colleagues who had been sexually involved with a patient.

Sexual boundary violations between health professionals and patients remains an important area, but in the years since our guidance was published the focus of the debate has moved on. There is now a far greater awareness of the critical problem of sexual harassment perpetrated by a colleague. Thanks in large part to brave individuals and campaigners, particularly within the medical profession, we now have a far greater understanding of the scale and nature of this problem. The BMA’s 2021 Sexism in Medicine report included survey results which found that 91% of female respondents had experienced sexism at work within the past two years, 70% of women felt that their clinical ability had been doubted or undervalued because of their gender, and overall 84% of all respondents said there was an issue of sexism in the medical profession.

The BMA report was followed in the same year by an article published in the Royal College of Surgeons of England bulletin: Sexual assault in surgery: a painful truth which outlined how ‘surgery and surgical training have a problem with sexual harassment, sexual assault and rape’. The article described widespread sexual abuse in surgery, and the myriad problems experienced by those subjected to it, including the fact that perpetrators were often in positions of power and that reporting could result in negative consequences for the victim’s career.

This year has seen the launch of the ‘surviving in scrubs’ campaign, including a website featuring anonymous accounts of sexism, sexual harassment and sexual assault. The stories are shocking, dispiriting, and plentiful. The campaign founders, Dr Becky Cox and Dr Chelcie Jewitt, hope their campaign will lead to the creation of an official anonymous reporting system, and more broadly, help put an end to the ‘culture of misogyny’ in healthcare.

Getting the regulatory response right

As with all intractable problems, there is no one simple solution. Cracking this particularly tricky issue involves all health and care professionals, employers, royal colleges, professional bodies and regulators playing their part both individually and collectively to make clear not only that such behaviour is unacceptable, but that it will be dealt with robustly when it comes to light. Victims should never have to fear that their concerns won’t be taken seriously, or that their career will be adversely affected if they report abuse.

In terms of the role of the health and care professional regulators, we know that many are already taking commendable action to respond to the issues. The GMC’s latest draft of Good Medical Practice (on which it has recently consulted) makes clear not only that medical professionals should not demonstrate uninvited or unwelcome behaviour that could be interpreted as sexual, but also that professionals have a responsibility to act if they witness inappropriate behaviour such as bullying, harassment or unfair discrimination. Making it everyone’s professional duty to speak up when they witness wrongdoing is a key part of achieving the culture-change that is so badly needed in some workplaces.

We know from research we commissioned from the academic Dr Simon Christmas that where behaviour isn’t challenged, it can create a culture where boundary crossing becomes accepted and normalised. Research by Professor Rosaline Searle adds to this evidence base. Her analysis of fitness to practise decisions found that those with a proclivity for sexual misconduct were more likely to cross boundaries where they witnessed others doing so, and that some perpetrators were in effect ‘corrupted’ by the falling standards of their workplace. This shows the vital importance of inappropriate behaviour (including ‘low-level’ behaviour) being challenged before it is allowed to develop into more serious violations and create a toxic workplace culture where perpetrators act with impunity.

In terms of action for which regulators are directly responsible, we’re aware of concerns that some fitness to practise panels haven’t taken sexual harassment as seriously as they should have done, particularly where this was at the lower end of the scale and involved a colleague rather than a patient. Much of the problem here is likely to be a result of a lack of training, as highlighted in the article by Rebecca Vanstone featured in this Professional Discipline & Regulatory Team Bulletin. 

Here too we know that regulators, and in particular the GMC and NMC, are taking action. The GMC has been in the process of developing guidance and rolling out training, and the NMC has updated its guidance in relation to the seriousness of harassment and how to charge cases where a professional’s conduct may have been sexual in nature or sexually motivated.

Here at the Authority we’re looking at what more we can do to support regulators to respond to the challenging issue of sexual harassment and assault in the workplace. We appreciate that the hard work of raising this issue up the agenda has been led by professionals themselves, many of whom have worked tirelessly to bring these issues to light. We know we owe it to them, and to patients, to take action to ensure that the regulatory response is the right one. That’s why we’ll be reviewing a range of options for taking our work in this area forward, which could include reviewing and updating our existing guidance, developing shared principles across the regulators, facilitating cross-regulator collaboration or holding an event to explore the issues in more depth.

Information about sexual misconduct, including our research and guidance, can be found on the sexual misconduct page of our website. You can also read a case study about one of our appeals of a final fitness to practise decision. The decision involved a doctor who sexually harassed a nurse on an isolated hospital ward at 3am. Find out more about our appeal and the outcome.

Regulation has its own terminology and jargon and it isn’t always easy for the public to understand what’s involved or what’s meant.

The term 'Fitness to Practise' is a good example. It is the process the health and social care regulators use to deal with complaints or concerns about their registrants. Other sectors call it 'discipline' or 'complaints handling'. In health, calling it 'fitness to practise' is helpful because it emphasises that the key question is whether the registrant is ‘fit’ to provide health or social care to the public and, if not, what action should be taken. In this case ‘fit’ doesn’t just look at their health, but also at their competence and whether they are a ‘fit and proper’ person to be a member of a profession The system aims to:

• ensure the public receives safe care
• uphold professional standards
• maintain public confidence in the profession.

But what does this mean in practice?  Different regulators have different processes (and use different terminology) but the key points are similar.

The system looks at cases of:

• Misconduct
• Lack of competence
• Criminal convictions
• Health conditions
• Poor knowledge of English.

Let’s look at what these concepts mean and how the panels which have to decide these cases might look at them.

Misconduct

Misconduct doesn’t have a legal definition, but the courts have made clear that it means seriously bad behaviour that other professionals would think of as 'deplorable'. This can apply to conduct both in a registrant’s professional and private life. Obvious examples include:

• Dishonesty
• Breaching professional boundaries
• Sexual misconduct and abuse
• Serious clinical errors
• Racist, sexist, homophobic or other discriminatory behaviour.

And there are many others.

Equally, there are a number of things that aren’t serious enough to amount to misconduct and which don’t worry regulators. These include:

• Single, minor mistakes that don’t cause any harm
• Disputes over fees or poor service – though some regulators provide mechanisms for resolving these disputes
• Matters that are legal, part of a registrant’s private life and don’t have a link to their clinical practice – disputes over a game of Monopoly or, more seriously, around divorce or similar matters aren’t a regulator’s business
• Employment matters – some things like poor time-keeping or breaching an employer’s rules are rarely serious enough to be misconduct and, unless they involve dishonesty, harassment or other very serious conduct, should be dealt with by the employer.

Lack of competence

This covers cases where there’s a pattern of mistakes which, while not individually serious, suggests that the registrant may not be competent to provide care safely.

Criminal convictions

It’s important that regulators are aware of convictions or cautions and can decide if someone with these on their record is suitable to stay on the register, while recognising that some minor matters may not need action.

Health conditions

Many people have health conditions. Some are temporary and just need a short time off work. Others are life-long but can be managed without affecting patient safety.  Regulators shouldn’t be interested in these cases. However, they need to act if the condition does cause a risk to patients, particularly if the registrant isn’t managing it well.  Obvious examples are addictive illnesses and some mental health conditions where the registrant isn’t following medical advice.

English language

Registrants obviously need to be able to communicate properly with patients and other professionals.  Many regulators will use independent testing, such as the International English Language Test System (IELTS) to be satisfied that a registrant’s English is at the right level.

Impairment

If a panel finds that concerns in one of those categories are well founded, it has to consider whether the registrant’s fitness to practise is 'impaired'. More jargon. To decide this, the panel has to ask whether, at the time of the hearing:

• The registrant presents a risk to patient safety – the panel will look at the registrant’s insight into what went wrong, remorse and any training that they have done and consider whether there’s a risk of repetition
• Professional standards need to be upheld
• Public confidence in the profession needs to be maintained

So, a registrant may well have made a number of errors but, if they have reflected, trained and understand why it happened and can show the error is unlikely to happen again, then they may well be not impaired.  At that point, the process ends.

Equally, however, an incident may be so serious that simply being able to show that you’re not likely to repeat may not be good enough. The panel needs to consider whether the conduct is so serious that the profession needs to be sent a signal that it’s unacceptable, and the public reassured that the regulator will take action.

Sanction

If the panel decides that the registrant’s fitness to practise is impaired, it then decides the sanction. In some exceptional cases, it can decide that no sanction is appropriate.  Typically, panels can impose the following sanctions:

• A caution or warning – which is on the registrant’s record usually for up to five years. This doesn’t stop them practising but it marks the fact that something inappropriate happened.
• Conditions of practice – usually this might require the registrant to undertake further training, or be supervised. Usually conditions are used where there are clinical concerns or where the registrant has a health condition. They give the registrant time to put things right.
• Suspension – this prevents the registrant practising for up to a year and is used where conditions aren’t suitable (perhaps because the registrant hasn’t taken part in the process and there’s no evidence that they’ll comply with the conditions) or where the misconduct is very serious.
• Removal from the register (sometimes called erasure and informally known as 'striking off') – for the most serious conduct where nothing less will do to mark its seriousness or maintain confidence.

Suspensions and conditions are usually reviewed after a period of time, particularly if there are actions that a registrant needs to take to show that they will be fit to practise.  A panel can then decide whether the concerns have been addressed or if a further sanction is needed.

So, where there are concerns about a registrant, the process tries to look at the seriousness of the matter and what needs to be done to reach a proportionate outcome that protects the public. When thinking about it, it’s important to remember:

• The process is there to deal with serious problems that affect patient safety or compromise high professional standards
• It’s meant to be forward looking – its main purpose isn’t to punish the registrant but to protect the public and maintain high standards
• These decisions often aren’t easy – facts are often complex and may not point to an obvious outcome – adults can disagree about the seriousness of a matter and the right sanction.

The Government is looking to reform the system. As part of that, it would be good if it could ensure that all the regulators at least use the same language.

Over the past two years we have been continuously working on improving our performance reviews.

The feedback we received has helped shape our new process and has made our new reports more readable, accessible, and useful to regulators, and to those who show interest in their work. We have just published the first two reports under our new process. 

This week we published the first two reports under our new performance review approach which we describe here. These reports are for the General Osteopathic Council (GOsC) and the Health and Care Professions Council (HCPC). The GOsC and HCPC are the first two regulators to go through a monitoring review, and we greatly value the feedback we have received from them so far on the new approach.

Under our new approach, we review each regulator in detail every three years, and monitor their performance in-between. We will continue to report every year on the performance of each regulator, but how we report has changed. While we will continue to report in detail for periodic reviews, our monitoring reports will be more concise and focused on key areas of interest from that year.

Both of the reports published are monitoring reports. We hope you find the new format an engaging and useful summary of how the regulators performed over the past year.

One of the important changes we have made to our approach is to set ourselves the target of publishing reports within three months of the end of the review period (I’m pleased to say we have met that target for these reports; only just – but we expected to be pushing the target for these as they were the first two). This should mean our reports are more useful for both the regulators and people interested in their work, as they provide more timely and up-to-date information than our previous reports, which were sometimes published many months after the review period ended.

We’re excited by these developments – both our new approach and the new reporting structure. We want our reports to be more accessible to a wider audience and highlight our key findings more effectively.

We'll be publishing reports regularly, as regulators' performance review periods are staggered throughout the year. Keep an eye out for the next reports in the coming months.

We look forward to continuing to develop our work in this area. We would love to hear what you think of our new reports, especially any improvements that we could make. If you would like to get in touch, please contact Graham Mockler, Assistant Director of Scrutiny and Quality, at graham.mockler@professionalstandards.org.uk

During Sands Awareness month, Charlotte Bevan, provides a guest blog explaining the theme of this year's month 'Together we are Sands'.

June is Sands Awareness Month when Sands raises the profile of the impact of baby loss on families across the UK. This year our Together We Are Sands campaign highlights how every aspect of the work to save babies’ lives and improve care for parents is a collective commitment from health care professionals, researchers, policy makers, family supporters and indeed parents themselves.  

13 babies a day

Thirteen babies die every day in the UK before, during or shortly after birth; that’s a baby death every 108 minutes. Behind each statistic is an individual family, trying to make sense of how and why their lives have irrevocably changed.

‘I miss my baby every second of every day and even though the pain will ease and the hurt will fade I will always, for the rest of my life, not have my baby’ Mother

While rates of baby deaths have reduced over the past decade, rates for some groups remain inflated, with Black and Asian babies having as much as two times more risk of dying. The same is true for families living in poverty. No baby should have a higher risk of dying because of their parents’ postcode, ethnicity or income; understanding why and eradicating these unacceptable inequalities takes collaboration, research, listening and innovation.

Understanding why babies die

Sands has been funding and advising research around baby deaths for over a decade. We have supported over 100 individual researchers with a focus on everything from the function of the placenta to care for the new-born. It may work to support public health messaging so that women understand what to look out for in terms of pregnancy risks, from infection to pregnancy-specific conditions. Knowing what the risks are and therefore what care to expect can be potentially life-saving.

National reports

Countless national reports and enquiries over the past decade have highlighted that care is often not personalised to each and every woman, that units can develop unsafe cultures of practice including an unwillingness to really learn when things go wrong. The litany of reports highlighting these issues is long: the Kirkup Report, the Each Baby Counts programme of work, the confidential enquiries run by MBRRACE-UK and most recently the Ockenden review. If little is done to understand why each and every baby dies, little is learnt about how to prevent tragedy for the next family or baby.

Reviews and investigations

This is why Sands is working to improve the way stillbirth and death reviews and investigations, the mandated (in England) processes that are undertaken when a baby dies to understand why the baby died. We have supported and been instrumental in the roll out across the UK of a new standardised Perinatal Mortality Review Tool (PMRT). This promotes a robust process of review of baby deaths that can identify what happened and where care should improve for the next family.

‘The review made us feel people cared’ Mother

Crucially the PMRT puts parents’ voices at the heart of the review into why their baby died. After all they are at the centre of their care and have the most at stake in understanding what happened. Our new online Parent Engagement in Review training webinar showcases the resources available to staff to ensure parents’ views and concerns about their care leading up to the death of their baby can be meaningfully captured, should parents want to engage.

Saying sorry

Much of the training  we do for health care professionals is about communication. Empowering staff to have the confidence to speak with and support parents and ensuring parents know what to expect. One of the greatest barriers to communication between parents and hospital staff is the unwillingness of staff to say the words ‘I’m sorry..’ in those moments when a death is diagnosed. This is often for fear of litigation. Sands’ ‘Saying Sorry is Not a Blame Game’ statement in our training module, illustrates that nowhere does ‘saying sorry’ imply legal liability for the death of a baby. It is simply an expression of human empathy at a tragic time in a parent’s life. Importantly parents value this expression of compassion, not just from family and friends but from hospital staff as well.

Duty of Candour

Of course, if there has been harm to parents or their baby that lead to a death or injury, there is a Duty of Candour to be transparent about aspects of poor or unsafe care that may have contributed to the outcome and an apology is therefore necessary. Sands is supporting the DISCERN study, research looking at how to improve open disclosure in these challenging situations when both health professionals fear litigation and professional isolation, and parents often feel the NHS acts defensively. But if being defensive means failure to learn and save a future life then not being open compounds tragedy upon tragedy. And for parents whose baby has died, not knowing why has the potential to cause further psychosocial harm.

‘Parents need the truth to move on through their grief. Without it, grieving is 100 times harder.’ Father

Bereavement care training

The DISCERN study will publish in the autumn and this fresh evidence on how to improve open disclosure and review processes in the UK will be embedded in our updated webinars. These will be available from our new training microsite alongside our Bereavement Care training, a space of expertise Sands has occupied for almost four decades, and which is now being embraced nationally the form of the National Bereavement Care Pathway. The NBCP covers not only stillbirths and neonatal deaths but care for families who experiences other types of loss. It’s estimated that one in four pregnancies ends in miscarriage and that 5,000 pregnancies are terminated for medical reasons every year.

There is a traditional African saying that ‘it takes a village to raise a child’. We believe it takes a whole community to save a child. That’s why our June awareness month is called Together We Are Sands.

We have carried out research into the professional duty of candour. You can find all our research here, as well as links on to guest blogs on candour.

It’s Mental Health Awareness Week, but the importance of good mental health is a key issue for the Royal College of Nursing year round as we support our half a million members – nurses, midwives, nursing support workers, nursing students and retired members – working in the UK and abroad.

The COVID-19 pandemic has had a lasting impact on the mental and physical health of many nursing staff. Stress is one of the key reasons nursing staff give when they leave the Nursing and Midwifery Council (NMC) register. Supporting the mental health and wellbeing of nursing staff is key to an effective workforce, especially when dealing with referral to the NMC in relation to a work issue.

Health and wellbeing of nursing staff

Sadly, the Royal College of Nursing is increasingly concerned about the health and wellbeing of nurses, which impacts on the service safely and sustainably.

With a workforce that is dangerously understaffed[1], there is an increasing prevalence of burnout across the nursing profession[2]. The debate on the timing and process for returning to ‘normal’ must have patient-need at its centre – but that cannot come at the expense of nurses’ wellbeing[3]. Stress and fatigue can cause nurses to make unintended errors, impacting patient safety[4] and leading to issues of professional misconduct.

The role of the regulator

As the biggest healthcare regulator, the NMC has a vital role to play. The NMC Code sets out the standards required to ensure that nurses and midwives in the UK and registered nursing associates in England have the skills, knowledge, education and standards of behaviour that allow for safe, effective and kind care.

It is these standards which allow the public to have complete trust in the profession. It is perhaps not surprising that nursing is often voted the most trusted profession by the UK public[5].

An important distinction is that the NMC’s role is not to punish people for things that might have happened in the past, but to make sure that nurses, midwives, and nursing associates learn from the past and meet certain standards to practise safely. Despite this, nurses can feel very much under scrutiny and that the process itself is punitive.

Moral distress

Being at the receiving end of a Fitness to Practise (FTP) referral can be devastating, and the long process that follows, overwhelming.  Even some experienced nurses, who have enjoyed an unblemished career, and have the support of an employer, report heightened anxiety and fear when their fitness to practise is in question and often refer to a life and career ‘in limbo’.  

Nurses also hold themselves, and their colleagues, to very high standards. Any nurse who makes an error, is likely to carry it with them for the remainder of their career.  Referral to the NMC can impact on many other areas of your professional and personal life, including issues relating to finance, career development, relationship breakdowns and maintaining professional registration[6].

All nurses go to work to do a good job, but mistakes can happen. The trauma of any error can be enormous. One way we understand this trauma is through the idea of ‘moral distress’, which “occurs when you know the ethically correct action to take but you are constrained from taking it.”[7]

In the context of Fitness for Practice, moral distress can occur when the error made infringes on the nurse’s ethical and moral values. Moral distress is not a mental illness, but prolonged moral distress can lead to moral injury and increased risk of developing mental health problems.

They may struggle to move on from mistakes, however big or small. Nurses must never be afraid or ashamed to access formal and informal services that support their mental health and wellbeing, including our members accessing the RCN counselling service[8].

Working while under investigation

Unless put under an interim restriction during this time, registrants are allowed and encouraged to continue to work while the investigation is ‘ongoing’. Of course, this is one of the best ways to demonstrate safe and effective and strengthened practice. 

On a practical level, while waiting for the outcome of a case, nurses sometimes put off holidays, weddings, starting a family, seeking a promotion, and even working at all. Many start the FTP journey, which can take years, saying ‘I will wait and see what happens before applying for a new job’.

In gathering evidence of safe and effective and strengthened practice, nurses will be expected to provide testimonials, which also requires them to disclose the investigation to existing and prospective employers and colleagues. This, and providing evidence of reflection, can be a soul-searching exercise. Access to career coaching can be helpful in this situation[9].

Positive process changes

There have been various changes over the years to the FTP process seeking to ensure a consistent and transparent way of working and a more person-centred approach, which is welcome.  There is also a commitment to looking at the context in which something may have gone wrong. Early and proactive engagement is therefore crucial and means that nurses that have representation or support in place are likely to achieve a better outcome.

The FTP process provides a number of opportunities for the NMC to close a case.  In 2020-2021, the NMC made the decision not to investigate 2788 cases after an initial assessment.

The NMC Annual Fitness to Practise report indicates that 48% of queries to the Employer Link Service (ELS) resulted in advice that a referral to the NMC was not necessary and the matter should initially be managed locally[10]. This might be through employment procedures or further training.  There will of course always be cases where a case needs to be dealt with at a public hearing (private if health related) where a panel will hear the evidence and make a decision as to the facts, misconduct, impairment and sanction.  Although it is ultimately for the NMC to prove any misconduct, the burden of proof is only on the balance of probabilities.  

Health cases

One of the types of concerns that the NMC investigate includes ‘serious ill health’. Ironically, pre-existing conditions can be exacerbated by the stress and intrusion of these proceedings.  Albeit there are privacy safeguards in these cases, nurses report feeling unable to move forward with their health often because of the stress and anxiety the process causes.

Cases directly involving a registrant’s health are usually dealt with by the regulator with sensitivity and focus on ensuring that registrants are able to safely manage any health condition in the workplace. However, these cases often take a long time which can impede recovery.

Of course, there are also those cases where health is a mitigating factor and/or the stress and anxiety of the proceedings themselves have been a factor in a decline in mental health and wellbeing.

Changes to healthcare regulation

Healthcare regulation reform is around the corner, and it is hoped that more cases can be dealt with expeditiously, thus allowing nurses to move forward with their lives and careers, swiftly learning from any mistakes and allowing the regulatory process to be a positive experience of strengthening practice.

Equality disparities

Our concern is that nurses on the register who have protected characteristics may be more likely to be referred, unrepresented, and more likely to have a case go to a final hearing. 

In 2015, at a local level, a Freedom of Information request alerted the RCN West Midlands team to over-representation of BAME staff in the employee relation process. The RCN Cultural Ambassador Programme was developed from then, which enables trained RCN Cultural Ambassadors to identify and explore issues of culture, behaviour, potential discrimination and unconscious or conscious bias in the employment relations process. It is likely that further work can be done in respect of the FTP process following receipt of more detailed data from the NMC.  

We are pleased to see the commitment from the NMC it wishes to continue to review the data and work with stakeholders to maximise fairness and consistency[11] .

Case closure

It is worth remembering that many of the nurses referred to the NMC have their cases closed with no finding against them.  Unfortunately, this outcome can take a long time which takes its toll on a nurse’s mental health and wellbeing, career progression, reputation and have financial implications. It is our experience that the pandemic has certainly played a part in a backlog of cases at the NMC and inevitable delays in resolving cases and listing hearings.

It is reassuring that only 56 nurses were struck off the register in 2020-2021. In the same year 3821 registrants were referred to the NMC[12].

Role of the employer

We have found that the support of employers differs enormously. Those working in the independent sector, or agency nurses often report having little to no support during any ongoing investigation. This might be in terms of ongoing training, supervision,  PDP support,  occupational health reviews, or even continuing employment.

The support of an employer who is fully aware of these proceedings is vital in ensuring both a good outcome, and continued support for registrant’s mental health and wellbeing. Not only is maintaining the welfare of employees a recommendation, but a legal expectation under health and safety legislation[13].

The right support

Our members often reflect on how isolated they felt during the investigation. Nurses may be prohibited from speaking to colleagues or just lose touch. Some members turn to family and friends for support, but they may not always understand what they are going through[14].

We always encourage nurses to join a union so that they have the help they need through the fitness to practise process. The RCN also offers wider support packages to help nurses manage their mental wellbeing. Our RCN counselling team support thousands of nurses every year. In 2021, there were 5848 counselling sessions undertaken to support nurses through challenging times, many of whom are going through NMC proceedings. The NMC also acknowledge that registrant’s will find the process distressing and launched Careline in 2019.

Summary

The nursing workforce is dangerously understaffed and there is an increasing prevalence of burnout across the nursing profession. The NMC’s role is not to punish people for things that might have happened in the past, but to make sure that nurses, midwives, and nursing associates meet certain standards to practise safely. Whilst public protection is paramount, we must remember that there is an individual nurse at the centre of any referral.  Moral distress can occur when the error made infringes on the nurse’s ethical and moral values. Moral distress is not a mental illness, but prolonged moral distress can lead to moral injury and increased risk of developing mental health problems. We encourage nurses to join a union so that they have the help they need through the fitness to practise process. Nurses must never be afraid or ashamed to access formal and informal services that support their mental health and wellbeing.

Background

Over the past two years, we’ve been busy working on improvements to our performance review process.

We carried out two consultations, and the stakeholder feedback we received helped shape our new process.

We’ve now started rolling out the new process with the first reviews well underway.

What is the performance review?

The performance review is essentially our check on how the health and social care regulators are working to protect the public – we assess the regulators against our Standards of Good Regulation. We have specific periods of review for each regulator, so we look at how they’ve performed within that set timeframe.  

What have we changed?

Up until now, we have followed an annual cycle, with a similar process for each regulator every year. The main change we’ve made is that we now follow a three-year cycle. Although we will examine each regulator every year, the new process means that this will be a detailed ‘periodic review’ every three years, with ‘monitoring reviews’ in between.   

The periodic review

The periodic review will be a comprehensive check of the regulator’s performance. We’ll look at any areas of risk – including where any Standards were not met the year before. We might also look at areas where we need to develop our knowledge of processes and explore any changes the regulator has made. A periodic review is likely to be more intensive than a monitoring review, but it’ll still be risk-based – we won’t do detailed work unless we think we need to.

The monitoring review

In a monitoring year, we’ll examine the same evidence that we look at in a periodic review, but when deciding whether to do more detailed work, we’ll focus on areas of risk – this will likely mean that monitoring reviews will be less intensive than periodic reviews. We might consider carrying out more detailed work:

• where Standards were not met in the previous year
• where we become aware of new risks, or
• where a regulator has made a change and we need to understand the impact of this on public protection.

The benefits of a three-year cycle

This move to a three-year cycle allows us to focus our resources more sharply on areas of risk. When we followed an annual cycle, we found that in some areas, performance did not significantly change year-on-year. We also know that when regulators have failed standards, it can take them several years to improve their performance.

We know that some stakeholders were concerned that a move to a three-year cycle might mean we took longer to identify and act on risks. Because we’ll be monitoring the same evidence in both monitoring and periodic reviews, we don’t think that this will be the case. It is important to emphasise that we can - and will - do detailed work in a monitoring year, if we think we need to. We’ve also built in an option to undertake a periodic review sooner than planned if we need to.

Along with this, we’ve improved our evidence base, and we’ll be engaging much more with stakeholders – this will also help us identify risks in a timely way. 

We will still report on each of the regulators every year – so stakeholders will have an annual update on how the regulators are performing. As you might expect, the reports on periodic reviews will usually be more detailed than reports on monitoring reviews.

We’ve also changed our process so that we do the work – gathering and analysing evidence – during the period under review. We’ve made this change because we knew it was taking us too long to report on the regulators’ performance. We’ll decide whether the Standards have been met or not shortly after the end of the period under review, and let the regulator know what our decision is. This means that if we do have any concerns, the regulator can start to work on addressing those.  We then expect to publish our report within three months of the end of the review period, giving a more up-to-date picture of a regulator’s performance. 

What next?

We’ll be publishing our first reports from the new process by the end of June 2022 – these will be on the HCPC and the GOsC. The HCPC and GOsC reviews were monitoring reviews this year; the first periodic reviews published will be on the GDC (expected by the end of December) and GOC (expected by the end of March 2023). Our reports will look different under the new process – we wanted to make them more accessible, clearer and concise.

We will continue to develop and improve our processes, and particularly welcome feedback to help us do this. If you would like to get in touch, please contact Graham Mockler, Assistant Director of Scrutiny and Quality at graham.mockler@professionalstandards.org.uk.

I’ve blogged before on the work that the Authority’s doing on EDI and it’s time for an update.

Since we first started work on our approach to EDI, we’ve had an audit from Derek Hooper. He provided an invaluable analysis of the culture at the Authority and the actions that we could undertake to bring us to the level we want to be in this field. We then appointed Mehrunnisa Lalani to help us turn the ideas in his audit into a reality.

Since then, Mehrunnisa has been working with us to develop a programme of tangible actions that we can undertake and I’m delighted that we’ve now published our first action plan 2022/23.

There are three elements.

First, we need to gain a deeper understanding of EDI issues and how people with minority protected characteristics are actually impacted by the health and social care system. We’ve already had outstanding sessions on Trans and Disability issues and will be organising more. We’re also committing to developing a group of advisors from the various communities to talk to us and provide advice on the impact of regulation on them. Equality Impact Assessments can often be dry documents based on someone’s well-intentioned but uninformed view of likely impacts. We need to be informed by people who are themselves affected.

Then, we need to make sure that our own internal processes actively promote diversity within the organisation. This can be a challenging for a small, niche body, but we want to be a diverse place and one that welcomes and supports everyone.  We’ll be doing a lot of work this year on our processes but also on making sure that the actual experience of people applying to work for us and who work with us is improved and promotes diversity. 

We’re looking forward to welcoming an Associate Board Member from an under-represented demographic background to participate in our Board discussions. We hope this will have two benefits: we will benefit from their insights; and we hope that the experience will provide them with experience to go forward to further Board posts to make the governance of regulators more diverse generally.

We’ll also be working with the regulators to get information so that we can analyse our own decision-making around referring regulators’ decisions that are insufficient to protect the public to the courts. I’m delighted that the regulators have been so supportive so far in helping us achieve this.

Which brings me to the regulators and accredited registers themselves. We’re now in the third year of our EDI standard and we’ve learned a lot from assessing regulators against it. It’s time to refine our approach and to make our expectations clearer. We will be working on this during this year. These are some of the questions we expect to answer:

• What is the minimum information that regulators need in order to claim credibly that they have an understanding of the diversity of their registrants and the communities they serve?
• Can a regulator that has a significant disproportion of minority registrants in its fitness to practise process be regarded as meeting our standards? Is it enough that they’re doing work to address it?
• What do we expect regulators to do to ensure that their registrants are providing proper care to a diverse population?

We need to answer these questions this year. But the third point has become more urgent.

The NHS Race and Health Observatory has drawn attention to the fact of overwhelming health inequality experienced by BAME patients. What is shocking is that much of this can be down to ignorance among practitioners that different ethnic groups may not display symptoms in the same way, exacerbated by stereotypes.

I was also particularly struck by the experience of a Trans woman who spoke to Authority about her experience. She was asked about her experience of the health care system. She described particularly the sheer ignorance of many GPs about them – to the extent that support groups have to provide lists of ‘sympathetic’ GPs.  This is unacceptable and we will be challenging the regulators about how they ensure that their registrants are trained to understand the needs and characters of their patients.

So there’s a big agenda. We’ve done the thinking and the planning. I’m looking forward to getting stuck into the work and making a difference.

At our seminar last month, hosted jointly with the Welsh Government, we looked at the pressures facing professionals and the system in keeping patients safe throughout the pandemic and beyond. We heard from speakers at the Royal College of Nursing, the Health and Care Professions Council, the Board of Community Health Councils and Healthcare Inspectorate Wales as well as the Chief Medical Officer for Wales.      

Attendees considered how best to support professionals in Wales to better protect patients, clients and the public. Amongst the overarching themes of the day was the need for a consistent, flexible and agile approach to regulation alongside the need for a Welsh ‘voice’ in regulation and how to get the balance between these.

Speakers and attendees reflected on how system pressures have affected professionals, and the implications that this has on practice. Currently there is a 1,709 shortage of nurses in Wales. The astonishing response by nurses and other professionals throughout the pandemic was recognised, yet 70% of nurses who responded to the RCN survey said they feel undervalued, both by the rate of pay, and the pressure on the profession.

There was discussion on some of the actions taken by regulators to support registrants and the health system during the pandemic, including establishing temporary registers of students and returners to boost the workforce and supporting people to return to work safely. This included empowering registrants to expand their scope of practise and to deliver roles remotely.

The pandemic also brought about an increased focus by regulators on registrant wellbeing and reducing the regulatory burden, in some cases suspending revalidation and Continuing Professional Development requirements. There was also reassurance provided to registrants that context would be considered in any fitness to practise proceedings. We reported on a number of the these actions taken by the regulators during the first wave of the pandemic in our Learning from Covid-19 review published last year.

However, regulators highlighted that there was a challenge now in how to return to business as usual. Registrants are tired and there has been a huge impact on mental and physical health. A key aim is to reduce the risk of harm occurring, and a key factor in this is the working environment, regulators are seeking to work with stakeholders to improve the working environment for registrants and provide more support including working with employers to improve workplace culture and developing new resources around reflective practise. These ‘upstream’ actions, colleagues discussed, should help to prevent problems occurring and avoid an increase in fitness to practise cases relating to health and conduct.

The seminar moved on to look at the effects of system pressures on the patient experience, with a video portraying the different patient experiences of the healthcare system during the pandemic first-hand – from a father of a young boy who had broken his arm, to a woman’s experience of pre/post-natal care. These personal accounts were largely positive, and at times, emotional broadly showing how thankful service users have been for the care they have received during the pandemic.

The theme of patient and public experience and views about the care they receive was discussed. It was also noted that the public are very aware of the pressures on professionals during the pandemic and there may be a culture appearing where some patients feel they should not be complaining about the NHS.

The view was expressed that the special tolerance by the public during the Covid-19 pandemic may eventually fall away. The British Social Attitudes survey results, published by the Kings Fund and the Nuffield Trust at the end of March, appear to support this view with public satisfaction with the NHS at its lowest level in 25 years, despite strong support for NHS principles.

Research carried out by the Patients Association also demonstrates that patient access to care, experience and confidence in services has been impacted badly by the pandemic. The need to encourage people to come forward in the wake of the pandemic and learn from their experience was discussed by those present at the seminar.

The risks in care environments were another key area of discussion at the seminar and how these affect both patients and professionals. It was emphasised that safety in health and care settings is paramount – you can’t expect to keep patients safe if you can’t keep staff safe. Pressures on professionals which might make it more difficult for them to provide safe care included understaffing and perceptions of that regulation is punitive.   

Key suggestions from speakers for opportunities we should not miss to improve patient safety included:

• supporting providers to manage concerns locally
• collaborating over data on concerns with other bodies and the NHS
• learning from complaints and clearly communicating with patients and the public about what has changed as a result
• a great role for professional bodies in standard setting
• more support for professionals through the curriculum
• clarity on the role of nursing supervision
• the extension of safe staffing duties in Wales.

The session highlighted the scope for system and professional regulators and other stakeholders to work together to address these issues to make both staff and patients safer and solidified the mutual interest that we all have in ensuring patient safety during such challenging times. We look forward to continuing to engage with stakeholders in Wales and elsewhere on these issues over the next year and at next year’s seminar. 

As we announce our decision to accredit the register held by the Rehabilitation Workers Professional Network, their Chair, Simon Labbett, shares his thoughts on the importance of accreditation. 

Here’s a small thought experiment. I would like you to imagine that a close family member lives alone and has just lost their sight. They can no longer get to the shops safely, they’re scalding themselves when cooking their tea, and they’re socially isolated -- dialling out on their phone is largely a matter of guess work. Maybe they also have a hearing impairment. They are also probably feeling pretty low.   

What kind of safeguards would you want from the person coming to visit them professionally? Bear in mind that this professional is the person who will call at their door but be unrecognisable; walk into their home, sit down with them and ask them lots of questions. This person is likely to be the same person who will be going on to teach them how to get down their local streets, find a crossing point and then cross the busy road to the post office and the shop. They might also be supporting your loved one to set up accessible banking, read their private mail and teach them how to manage cooking on the hob. The job has “risk” written all over it. There are risks with technical aspects of practice (getting run over) and risk of malpractice (having access to a blind person’s property and possessions without their knowledge). 

This is the professional life of a Vision Rehabilitation Worker. You may not have heard of the role, but we sit alongside Social Workers and Occupational Therapists in adult social services. We are often on similar pay scales, do remarkably similar jobs, and have a clearly defined qualification route. 

Yet, unlike them, we are not registered by statute. It is only this year that we have gained any formal recognition for our professional register by gaining Accredited Register status with the Professional Standards Authority.

I am chair of the professional body for Vision Rehabilitation Workers, the Rehabilitation Workers Professional Network (RWPN). We are absolutely delighted to have gained this recognition: it has required us to strengthen our policies, reflect upon our responsibilities to our clients and how we communicate with our membership. We are all the better for having gone through the process. On the one hand, applying for accreditation was both necessary and an obvious step. 

But for RWPN it comes with a huge risk. The register of Vision Rehabilitation Workers sits within the social care environment in a much clearer way than many of the Authority’s other Accredited Registers. In social care you are either one of a small handful of statutory registered professions or you are not – and most are not. The assured voluntary register does not appear to be on the horizon of managers or workforce planners. It really needs to be.

We are putting a lot of store by accreditation. We are hoping that registration will bring a recognition of the risks involved in our work – risks that very few local authority managers fully grasp. We are hoping that accreditation will mean that our registrants’ technical supervision needs are understood and met. We are hoping that the requirement for specialist CPD is recognised.    

The risk for us is that employers ignore whatever is non-statutory. The risk of us is that our registrants see no ultimate compunction to stay on the register (notwithstanding the obvious need to be on one). Reading the Professional Standards Authority blog by Janet Monkman (from the Academy of Healthcare Science) last February, I could see her voicing similar concerns – this time within the NHS (where some of our registrants also work).

We welcome the oversight that accreditation brings on our shoulders – it’s high time! But will this be balanced by recognition by employers and within social care structures? This feels particularly needed in the devolved nations where regulation of the generic social care workforce is on the table. 

It’s that time of year when I look forward with a mixture of hope, slight anxiety, and a touch of superstition. A dear friend, now deceased, believed fervently that ‘even years are good years’. And if past behaviour is any sort of predictor of future, I’m certain it will be.

Despite a past year full of global difficulties, many people have behaved in the most positive and extraordinary ways. They have modelled courage, selflessness, compassion, kindness, patience, and skill.

I’m sure we can all call to mind people who have impressed us. For me, it’s Eugene Goodman, Txai Surui, Marcus Rashford, and my carer friend who has spent her working life supporting, and championing people with learning disabilities so that they might have better lives. Like hundreds of thousands of health and care professionals who have cared for us this past year, these are people who have standards and who believe in living by them.

If Omicron predictions prove right, health and care professionals will have a demanding start to their year and may find themselves having to improvise and be creative. Last year, the regulators we oversee put out a message of reassurance to their registrants that they would remember and take account of the hard circumstances in which they were working (and reiterated that message in December 2021). We support that message. We will take these hard times into account.

The year ahead promises to bring long awaited reforms to professional regulation.  Reforms to the General Medical Council’s legislation (hopefully to be followed swiftly by reforms to that of the other eight) gives us a real opportunity to reshape regulation in a better, more agile way.

Our own work will focus on tackling other areas where improvement is still needed: bridging regulatory gaps, managing risks around new, emerging and changing roles as the future workforce is forged. And carrying on with our everyday work to protect the public.

We wish you all a safe, happy, and productive year as we strive to make it the best of times.

On 18 November 2021 we held a virtual seminar for our Accredited Registers. The theme was ‘Good governance during times of change’, to allow reflection on how Registers are adapting to changes such as those brought by the pandemic.

The pandemic has further highlighted inequalities within our health and care systems and population. We have launched an Authority-wide EDI programme to review our internal practices, and as an oversight body we are actively working with our stakeholders to ensure that systems and processes in health and care regulation address these issues.

Can good governance and inequalities co-exist?

The event began with a session led by Kami Nuttall, Chief Executive of Culture Lab Consultancy, who talked about how EDI principles feed into good governance. The discussion began by considering the current inequalities within UK workforces which have been reflected clearly in the context of COVID-19. EDI is integral to good governance, and the session explored how culture is the key ingredient needed to achieve this. Diversity, colleagues noted, is not inclusion. There are also differences between equality and equity. Because equality does not take into account an individual’s starting point in life, providing equitable opportunity is needed to achieve equality.

The session also touched on bias and privilege. A comprehensive understanding of these biases and the privilege we hold can help us make better decisions, and how we make decisions is shaped or influenced by culture. Culture can be defined as unwritten rules, and shaped by shared learnings. EDI is about creating a culture in an organisation where everyone feels they have a right to be there – an inclusive culture that provides the foundation for delivering organisational strategy.

The session was useful in identifying opportunities for further collaborative work to reduce inequalities.

“EDI is good governance and good governance is powered by difference”

Confidence and fairness: introducing virtual hearings

In the second session we looked at what groups can learn about the process of developing virtual hearings during the pandemic, with a presentation from Tamarind Ashcroft, Head of Tribunal Development at the Medical Practitioners Tribunal Service. Colleagues identified the various considerations for their organisations during this process, as well as the benefits they experienced.

Identifying and testing IT platforms were seen by colleagues as a challenge. The move to virtual hearings also raised additional EDI needs for certain groups, so it was important to look at how to adjust processes for accessibility. Another important consideration was around information security when carrying out proceedings.

While moving virtual can pose additional challenges in some areas, colleagues also recognised their potential to offer improvements in others – dialling in remotely, for example, can provide a way to engage when personal circumstances e.g. health/ caring responsibilities may have previously prevented that. It was also recognised that having some services virtually might improve resources both in time and cost.

Are patient and public expectations changing?

Our Board member Marcus Longley spoke in the final session about our work on patient and public expectations of the Accredited Registers programme. He talked about key findings from our research on efficacy in early 2020, which sought to understand how the public interpret the programme, particularly in relation to the kinds of claims they consider it to be making about the efficacy of particular treatments.

This research had been the first time we had formally sought patient and public views since the programme’s introduction, and they were successful. We decided to look at this area again in the Strategic Review, so we could have a more in depth look at areas where there wasn’t a clear consensus. This showed broad general support for us taking greater account of effectiveness of the activities of registrants in our accreditation decisions, which we achieved through our revised Standards and ‘public interest test’ in July.

The session continued with a discussion about advertising, led by Ian Appleyard, Research Manager at the British Acupuncture Council (BAcC). Registers talked about their objectives in this space, which are to ensure the public is reasonably and appropriately informed about a particular treatment or therapy, and to ensure that a registrant’s advertising is in line with the Advertising Standards Authority (ASA) guidelines. Colleagues talked about the challenges of communicating evidence in advertising – and while moving forward within this area will be complex, the session made clear just how necessary it is to find solutions.

It is clear that Registers have adapted to the challenges of the past two years, and that they will need to continue to do so whilst the pandemic continues. We will seek to work collaboratively with the Registers, who together register over 100,000 practitioners, on areas that affect all such as fairness and equality.

Read more about our Accredited Registers programme here.

Patients are better protected when systems are joined up. As Charles Vincent set out in a paper published in the BMJ, healthcare regulation is bewildering in its complexity and contains significant gaps. Addressing these gaps is vital to prevent harm.

Multiple inquiries have highlighted gaps between regulatory systems, including cases where gaps between organisations or jurisdictions result in risks to patients. Conversely, duplication of work or systems can also result in a gap, as it is assumed others will take responsibility. At our symposium this month, we explored some of the gaps and considered some of the ways in which regulators are trying to close them.   

Bridging the gaps: listening to patients and service users  

With the Covid 19 pandemic, rapid changes have been made to services largely without patient involvement. Failing to listen to or involve patients and service users results in missed opportunities to make people safer and maintain public confidence in regulators and regulation. We discussed initiatives to improve involvement, including working with patient representatives and patient safety forums.  we considered how to best use and act on patient/service user feedback and complaints, which can be an early warning system for wider or more serious systemic issues.

Key areas of focus moving forward include recognising the value of feedback, strengthening intelligence sharing, standardising learning from complaints, making connections between complainants, employers and regulators, and continuing to share learning from casework.

Looking at maternity services as an example, we learnt how bringing together information from across the regulators of professionals and services can provide greater insight into when and why things go wrong.

Bridging the gap between the independent and public sectors

On the second day of the symposium attendees considered how to bridge the gap between professional regulation and regulation of businesses. Business regulation is considered increasingly important going forward, as regulators work to develop new protocols to address issues such as illegal practice and new forms of trading, especially online.  This involves working with others, such as trading and advertising standards, as well as companies such as Amazon and Google to crackdown on illegal sales and poor practice.

The session then moved on to discuss social work, within which one of the biggest gaps is a lack of comprehensive social work data for England. Where organisations or structural boundaries do not line up, there becomes a mismatch between what service users need and what processes can do, which has implications for the care provided. There is confusion about who is responsible for what, as people feel alienated by the system, leading to stress and sometimes harm. As social workers work with people at points of transition in their lives, they are well-placed agents for identifying and bridging these gaps.

The session also considered the gaps between regulators and employers, particularly in members’ understanding of the relationships between regulators and the workforce, and why certain groups are, and aren’t, regulated. Colleagues also noted that the pandemic has demonstrated the positive impact that regulators can have in this space, for example in the experience of temporary registers for students and those returning to practise. Joint interventions with professional leads across the UK sent an important message, providing reassurance of the recognition of regulators and the extraordinary context in which professionals were working. There lies an important role for regulators around consistency, particularly within new roles.

Bridging the gaps in Equality, Diversity and Inclusion

On Day 3 of the symposium, colleagues talked about how the pandemic has affected gaps in EDI. In health and social care, this affected the experience of low paid staff, particularly those from black, Asian and ethnic minority backgrounds. Unsurprisingly, people have had a difficult experience – often because they have contracted roles and there isn’t a central database. The pandemic has also had effects on the education of young people, the gender pay gap, and the challenges in employment for disabled people, to name just a few. The session identified areas where regulators can help, which includes: data gathering, looking at guidance, building links and a community of interest, engaging staff and listening to different perspectives, and reviewing each of their own policies. Organisations can also do more to look at reasonable adjustments for disabled colleagues. The new Institute of Regulation (IoR) will be a platform for sharing good practice on areas such as equalities, and for regulators to work together.

The NHS is a vast collection of individuals and processes – and it has perhaps been too easy in the past for groups to lose focus, either because it is not prioritised by national leaders, or because it falls between the gaps of the structures. The establishment of Integrated Care Systems is an opportunity for organisations to bridge these gaps. Racial inequality and the level of stratification we have in the UK is also a global issue, that requires a system-wide response. Although the system itself is not the only enabler for equity, it has a significant role to play.

We heard about practical ways to address these issues, which emphasised the need to be accountable for progress, over time, and to ensure meaningful engagement. Progress also requires strong leadership - this is about actions, rather than words, and involves focusing on the right things, at the right time. It has been made clear through the pandemic that doing more of the same will not be good enough.

We collectively agreed that this marks a step change in our approach, and that tackling racism and health inequality requires us to collaborate, set bold ambitions, challenge each other, and hold ourselves to account. With this final session, the symposium had drawn to a close with an important focus, which is that regulation must remain a force for good.

The Authority has been a keen advocate of reforms to health professional regulation. Our thinking outlined in Right touch regulation built on the principles of better regulation and laid the basis for a simpler, more proportionate risk-based approach within health and care professional regulation.

In 2015 we published Rethinking regulation which called for radical change for professional regulation, underpinned by right-touch regulation principles, to better the support the significant changes proposed for the health service.

Regulation rethought, published the following year (2016) expanded on our thinking about what needed to change within the system highlighting the complexity and the challenges faced by patients, professionals, employers, educators, and those involved in workforce development. In Right-touch reform published in 2017 we laid out a detailed set of proposals for reform covering both short-medium term improvements and a longer-term vision for change built around proposals for a single regulator common code of practice for all professionals and overall a more coherent regulatory system.

Simplifying regulation is long overdue in the UK but what are the benefits in practice?The Authority has been a keen advocate of reforms to health professional regulation. Our thinking outlined in Right touch regulation built on the principles of better regulation and laid the basis for a simpler, more proportionate risk-based approach within health and care professional regulation. 

We were delighted to see the Government echo many of the Authority’s proposals for change in its 2017/18 consultation on reform Promoting professionalism, reforming regulation and to see reforms to regulator powers and governance progressed through a further consultation earlier in 2021 with the intention to take forward changes to each regulator in turn starting with the  General Medical Council next year.

However, the Health and Care Bill presents a new opportunity to look at significant structural change to what is generally considered a complex and confusing system. We have commented on the proposed powers for the Secretary of State to merge or abolish regulators and the ongoing review by KPMG looking at options for reconfiguration in our recently published report Reshaping regulation. In this report we reaffirm our view that a single regulator would be the best way to address many of the outstanding problems in the current system and make the whole system work better for all but particularly for patients and the public.

But what are some of the benefits where a similar model has been introduced in practice? In Australia, the National Registration and Accreditation Scheme was introduced in 2010 bringing in a new system for regulation of health and care professionals. This included the creation of the Australian Health Practitioner Regulation Agency (Ahpra) which took on a number of the functions of professional regulators and which works in partnership with the 15 national professional boards. In our guest blog, Chris Robertson, Executive Director of Strategy and Policy and Chloe Moss, National business Coordinator of Strategy and Policy at Ahpra outline some of the benefits that they have found from introducing such a model in Australia. At the end of the article, they do note briefly some of the drawbacks of the single regulation scheme, and we should recognise that what works in Australia will not necessarily work in the UK – but it is definitely worth bearing in mind as we look at opportunities to reshape regulation.

Key benefits of the Ahpra style model

Establishment of the National Registration and Accreditation Scheme

The National Registration and Accreditation Scheme (the Scheme), encompassing the Australian Health Practitioner Regulation Agency (Ahpra) and 15 National Boards, began in seven of Australia’s eight states and Territories in on 1 July 2010, with the eighth jurisdiction joining the scheme in October of that year. The Scheme came about after the Australian Government asked the Productivity Commission to examine health workforce pressures and propose solutions that would guarantee the continued delivery of quality healthcare over the next decade.

The report raised a number of issues with regulatory arrangements (duplicated registration and accreditation bodies in each jurisdiction, for each profession) including limited workforce mobility (eg a doctor in Victoria couldn’t assist in response to floods in Queensland without first becoming registered in Queensland) and a need to improve public safety by addressing identified failures in professional practice (eg instances of practitioner neglect, repeated misconduct or negligence and the subsequent media attention).

There are a number of features that make this single regulation system Scheme unique in an international context:

1. The National Law focuses on public safety, health workforce and access to service objectives due to the Scheme’s inception as an examination into the health workforce and recognition that regulation occurs within the health workforce context.
2. The National Law regulates titles rather than scope of practice, with a very limited number of specifically restricted acts.
3. The governance of the national scheme includes profession specific National Boards working in partnership with Ahpra, Accreditation Authorities and governments.
4. We regulate the only profession I know of internationally that is defined by race in the registration of Aboriginal and Torres Strait Islander Health Practitioners.

Practitioner mobility

The Scheme allows Australian health practitioners to be registered once with Ahpra and be eligible to practice in any location in the country. We have over 800,000 registered practitioners across 16 professions. This approach allows the health workforce to be far more flexible and responsive to changing needs and reduces the cost and red tape burden for practitioners who would otherwise have to pay for and maintain registration in multiple jurisdictions if, for example, they wished to provide country-wide telehealth services or assist in another jurisdiction. While the pre-2010 arrangement included mutual recognition in many cases, the costs and professional standards required for registration varied and made mobility across jurisdictions difficult.

Scope of practice and title protections

The pre-2010 health practitioner registration and regulation approaches in Australia tended to rely on profession specific regulation by statute and restrictions on practices and titles. This approach did not lend itself to being responsive to the changing needs of the community or health practitioners.

Under the Scheme, National Boards focus on title protection rather than the scope of practice of registered health practitioners. There are broad guidelines about scope of practice provided by practice standards and codes of conduct, but the more flexible approach better allows health practitioners to respond to changing models of care.

Getting everyone involved

While the Scheme provides a single place for practitioner registration, it also involves 15 National Boards, one regulatory agency (Ahpra) and a suite of independently exercised accreditation functions.

This single regulation system allows for a much higher level of cross-professional collaboration than is often seen in other countries. The National Law requires National Boards to consult each other, but the Australian model also allows National Boards and Ahpra to work together across a range of topics, with a focus on consistent regulatory standards both geographically and from profession to profession.

It also means that means that community members and stakeholders have a single point of initial contact – Ahpra - when they need information or wish to provide feedback about the services being provided and ensures more efficient pathways for Ahpra to ensure that they are hearing from interested groups in the community.

There are several groups set up to formally provide feedback to the Scheme from stakeholders and community members including the Community Advisory Council, Professions Reference Group and Education Provider Reference Group.

How we were able to respond to the COVID-19 pandemic

In addition to flexibility provided to registrants, students and accredited course providers we contributed directly to the surge workforce needs. During 2020 and 2021, Ahpra was able to rapidly stand up a pandemic response sub-register that had health practitioners who were in good standing and had stopped being registered in the last two years. This allowed jurisdictions to access staff with proven competency to provide health care more generally as existing systems were under strain, as well as COVID vaccinations and contact tracing.

Having a single register of 16 professions allowed this to be done in a careful, central way and reduced the risk of poor-quality information or lack of communication between regulators causing problems in an already stressed system.

While there are drawbacks to a single regulation scheme in Australia – the size and complexity can be unwieldly and make responding promptly to changing environments a challenge – after ten years of regulation in Australia, the public and the health workforce are clearly reaping the benefits that are unique to this model of regulation.