The Council for Licensure, Enforcement and Regulation (CLEAR) brings together stakeholders from across the globe to discuss all things regulation for its annual educational conference. At the most recent conference, which took place virtually in September, our Director of Standards and Policy, Christine Braithwaite, and Policy Advisor, Natasha Wynne, presented on the topic of the value of consistency across the regulation of different professions in healthcare. The following blog provides an overview of the presentation.

Healthcare regulation: understanding the differences

In the UK there is a persistent concern that health and care professionals who work together in a team might be treated differently to each other by their various regulators. But it’s hard to tell if this is true because difference is hard to measure, and harder still to know what the impact of any differences might be.

Of the ten professional regulators we oversee, each was set up at a different time under different legislation, with their own rules, codes, processes, and procedures. Yet they all have the same four functions: setting standards for registrants, quality assuring their education and training, maintaining a public register, and dealing with complaints about professionals’ conduct and competence.

Why are there inconsistencies?

The different professionals all care for the public and many of them work together in teams every day. If you need to go to hospital you might be taken there in an ambulance by a paramedic. On arrival you’ll perhaps be assessed by a nurse, then seen by a doctor; possibly you’ll have anaesthetic administered by an operating department technician, be given medicine by a pharmacist, be assessed by a psychiatrist or referred to a dietician or a social worker.

If something goes badly wrong with your care, up to five regulators may be involved in considering your case. They will do so separately, assessing ‘their professional’ against their separate codes and standards, following separate processes. Now of course, the results of their consideration might quite legitimately be different. Perhaps some did their part correctly or even if they made a mistake, it was a single error and unlikely to be repeated. Or one might have taken swift action to put matters right and learn, whereas their colleague, who often made mistakes, was unconcerned and had no insight into their failings. However, in cases where the facts are less clear cut, there is no surefire way of knowing whether differences are justified or not.

What the inquiries have shown

The Francis Inquiry into failings at Mid Staffordshire Foundation Trust found that the regulatory system as a whole had failed to protect patients because it did not work together effectively. Sir Robert Francis also criticised the professional regulators (mostly of doctors and nurses) for their inconsistency and told them they should hear cases jointly to ensure their judgements were consistent. Since then, regulators have tried to collaborate more closely. But cases aren’t heard jointly and they are not assessed against common codes, meaning there remains the possibility of inconsistent outcomes.

The Professional Standards Authority: Our research

In 2018, we commissioned a research team at UCL to come up with a methodology to test consistency in complaints outcomes. This research drew out some of the controversies associated with consistency as a guiding principle. For example, though consistency typically implies fairness or justice, consistent outcomes do not necessarily equate to fairness because identical outcomes that have ignored relevant individual and legal factors are equally unjust.

Ultimately, the researchers concluded that ‘unjustifiable disparity’ probably provides a better guiding principle than consistency for research. It’s not always clear whether the differences between how the regulators operate, their processes and procedures are justified; or whether inconsistencies between the regulators affect the public, patients and professionals’ perceptions of regulation.

For example, if a doctor and an osteopath are suspended from practice, should this be noted on the register for the same amount of time? Should regulators of different professions have different policies about how they handle cases of drink-driving by registrants?

These are the sorts of questions we hoped to be able to interrogate through the research we commissioned earlier this year. This explored if, when and why the public, patients and professionals thought consistency between regulators was valuable; catalogued the reasons given for justifying sameness or difference in approach, and considered how these reasons might change when regulators are performing specific roles (you can read our previous blog on this research and its findings here).

What we learned about consistency from the research is that understanding whether things should be consistent between the regulators is a process. It’s a matter of balancing arguments for sameness against the arguments for difference. And what the research participants said again and again was that they expected to see evidence that regulators were talking to one another so they could actually justify the differences between them,or make things the same when there was a clear case to do so.

Next steps

With this in mind, we are now working on developing an approach to help regulators tell when consistency matters and where difference is justified. This involves working through a series of three questions:

• What role are regulators playing in carrying out this process or activity?
• What arguments for sameness are most relevant?
• What moderating factors might justify different approaches?

We will  discuss what we have developed so far with stakeholders to refine our approach. If you would like to know more about this work or share your views, please send us an email at policy@professionalstandards.org.uk.

This week we launched our second consultation on how we can improve our performance reviews of the regulators.

What have we done so far?

We have been looking at how we approach our performance reviews to see how we can make these more effective and efficient. We ran our first consultation earlier in the year to seek feedback on our current process and changes we could make to improve what we do. Responses to the consultation supported a more flexible, agile process that focuses on risk proportionately. There was also some support for moving away from looking at every Standard every year, in line with the support for a more risk-focused process. Alongside this, one of the key improvements we will make is to enhance our engagement with stakeholders and the regulators. You can read the full report into our first consultation here.

What are we proposing?

This time, we are seeking feedback on proposals that we have developed since our first consultation. We are proposing the biggest change to how we work since 2016.

We currently look at how every regulator is performing against all of our Standards each year. We are proposing to introduce a three-year cycle of ‘periodic’ reviews, where we look in detail at a regulator every three years. While we want to move away from our detailed annual reviews, we will continue to monitor and report on performance in the years between the new periodic reviews.

We do not expect our oversight of the regulators to be compromised by changing to this approach. In fact, it will allow us to focus more on areas of risk we have identified and concerns that arise throughout the year. Within our consultation paper we have outlined the evidence we will collect and analyse to inform our decisions on the performance of the regulators.

Alongside the change to our performance review cycle, we are consulting on the factors that we will consider when deciding in how much detail we will look at a regulator. These include where we focus our resources in the periodic reviews, and also during the years where we are monitoring performance. We are also seeking feedback on how we decide the order of regulators within a three-year cycle.  

In moving to a new process, we will spread our work across the year. Currently, we collate and analyse the vast majority of performance information at the end of a review period. Changing this will allow us to have a greater understanding of current performance of the regulators, and to raise any issues as they arise. It will ensure the regulators have greater insight into our key areas of focus throughout the year and have the opportunity to address any concerns we have as soon as possible. In addition, by spreading our work throughout the year, we will be able to produce our reports much sooner after the review year ends. This will make the reports more useful for everyone.

Why is this important?

We want to ensure that our performance review process, and the reports we produce on the regulators, are as useful as possible for both regulators and wider stakeholders. By improving our work, we can do more to encourage improvement and share learning across the regulators to ensure our work brings the maximum benefit to public protection. We also know that there are many stakeholders, both organisations and individuals, who have an interest in the performance of the regulators. By focusing on risks, being clearer about outcomes and producing reports sooner, we will be able to give stakeholders a clearer picture of how the regulators are performing.

How can you get involved?

Putting candour into practice: how is it working and what more needs to be done?

In September we co-hosted an online conference with the University of Edinburgh Law School, to explore candour in the context of health and social care in Scotland. We considered the barriers to it, and how we can help professionals to speak up when things go wrong in a way that is compassionate and protects patients.

This year, we examined the interplay between professional and organisational duties, and how to put candour into practice from three perspectives: the patient, the professional, and the NHS Board. Delegates included the professional regulators, patient bodies, Scottish Health Boards, professionals and representative bodies, and academics.

Dr Clea Harmer, Chief Executive of SANDS (The Stillbirth and Neonatal Death Charity) spoke to the central theme of our event – how is candour working for patients and what more needs to be done? She explained that from a bereaved parent’s perspective, saying sorry is ‘not a blame game’. Bereaved parents don’t want to blame, they want to understand what happened and be able to explain it to their family when they are asked, ‘so why did our grand-child/sister/niece die?’ Blame is what happens when parents are excluded.

“Blame is what happens when parents are excluded.”

Parents want something positive to come of these events – to be involved in reviews[1] and to be equal partners. What is also crucial is the way that hospitals communicate with bereaved parents. Staff need training, support and advice in this area, so that they are able to demonstrate their compassion, and that they are open and willing to learn.

How can processes change behaviour?

We learned about two approaches to embedding learning and openness on the frontline of healthcare. Team Based Quality Reviews are an approach to quality and safety which brings multi-disciplinary teams together to reflect on things that go wrong using human factors and systems thinking.

Healthcare Improvement Scotland’s (HIS) Being Open framework[2] aims to develop and test sensitive, effective and reliable ways of communicating openly with patients and families about things that go wrong. Staff training is key – communicating compassionately is a skill – and in many cases changes in behaviour are needed to make the right response second nature. It is also important to build it into operational processes to avoid it being disregarded.

Staff wellbeing must also be given priority to support them to be candid in the right way. And it is important to acknowledge that avoidable harm to a patient takes an emotional toll on professionals too.

Tackling barriers to openness for professionals, from psychological safety to the fear of litigation

We discussed the barriers to candour faced by professionals, drawing on insights from mediation and the world of litigation. Barriers to openness in this area have shifted over the years due to:

• previous scandals in the health sector, such as Mid Staffordshire and the subsequent Francis report
• the introduction of legislation like the duty of candour legislation, which divorced acts of candour from direct consequences in litigation
• and the new HIS national framework for reporting adverse events, which made clear that reports should be shared with patients/families, however critical they may be.

Fear of being involved in adversarial hearings continues to work against a true culture of learning from mistakes. Barriers are likely to be reduced when staff don’t fear being blamed or punished when they report adverse events.

We explored both personal and professional reflections on overcoming cultures of fear. In mediation, AARREE (Acknowledge, Acceptance, Recognition, Reassurance, Engagement, Explanation) is a much-used tool – but there are challenges to implementing this in an adversarial setting. Mediation provides an opportunity to explain oneself, and be heard, without fear of reprisal.

Fear cannot be the driver but so often is; it can be insidious and demoralising, and can manifest in sadness or anger. Love and compassion need to replace fear, to facilitate confidence, competence, and a culture of learning. Shame, fear and anger can all lead to moral disengagement, and should not be allowed to shape our responses to events that result in harm.

Understanding patient and service user expectations of the most difficult conversations

Our final session focused on patients’ perspectives. We heard about the seminal, tragic cases of Robbie Powell and John Moore Robinson, and how they had helped make the case for a duty of candour.  And how bullying and blaming staff can prevent them from doing what they want to do – which is to tell the truth. Contrary to people’s perceptions, lack of openness actually increases the likelihood of complaints and litigation.

Before the legal duty of candour was introduced[3], there were no rules against covering up a medical accident. Those against the organisational duty argued that it wasn’t needed because they were already being open, or because there was already a professional duty of candour which was sufficient on its own. Another argument against the duty came down to the financial cost of litigation. These arguments don’t stand up to much scrutiny however.

What is needed to make sure that the duty of candour is a success, while avoiding a tick-box approach, is training and support for staff, such as the Harmed Patient Pathway[4] - as well as robust monitoring and regulation, and allowing the public to report breaches. A positive example of this is the Scottish Public Services Ombudsman (SPSO) guidance which urges people to make apologies meaningful, using the four ‘R’s: regret, responsibility, reasons, remedy.

We also heard about the preliminary findings of a piece of research being carried out for the Joint Commission for Openness and Learning, on what ‘good’ compassionate involvement looks like when care has gone wrong. Key reflections from the research so far identify how difficult the review process is for patients, carers and relatives. It makes them feel weary, which can lead to anger, exhaustion, and poor mental health. The drawn-out nature of the reviews, and the style of communication are aggravating factors.

Preliminary findings suggest that an effective review process relies on its delivery as much as its content. Respondents would appreciate being asked what matters to them, and what method of communication would work best. Another common theme is about closing the loop – to follow through later down the line to show how organisations have progressed the actions they said they would take forward.

After-the-event: reflections from the Authority and the University of Edinburgh Law School

On 30 November, our assistant Director of Scrutiny and Quality Douglas Bilton will be speaking at a webinar about how silence can arise within organisations, focusing on regulation. Further details can be found here: https://www.eawopimpact.org/event-details/silence-is-golden

Last year I wrote a blog for Black History Month. In it, I reflected on the difficulties faced by black and other minority health care practitioners and the role of regulation there.  I set out how the Authority was planning to address its role here.  So what has happened since?

First, let’s look at the Authority’s work. We commissioned an audit of our work and culture from Derek Hooper. The audit identified a number of areas where the Authority needs to take action. These range from looking at our internal HR processes to much more ambitious but necessary work to look at our internal culture to ensure that it is truly inclusive and welcoming and to establish a vision for the Authority’s work. We need to do more to understand what diversity means for us and what our role is in the health and social care system.

We need help to achieve this, which is why I’m delighted that we’ve appointed Mehrunnisa Lalani to work with us as our EDI adviser. Mehrunnisa was Head of Inclusion at the Solicitors Regulation Authority and works with a number of health care and regulatory organisations. I’m confident that she will help us make sure that our culture fully supports diversity and enables us to develop work to improve the position for minority or marginalised sections in the system.

In the meantime, regulators have continued to do work to address concerns that we’ve raised about their approach to EDI: the General Chiropractic Council and the Health and Care Professions Council have begun initiatives to improve their understanding of the diversity of their registrants. These are welcome.

The General Medical Council also published research about the fairness of part of its fitness to practise process – its internal decision-making about how cases should progress. This showed that decisions were being made in accordance with their guidance. That is very reassuring as far as it goes. However, guidance often involves a range of possible outcomes open to the decision-maker. So it may be that it would be within the guidance for the case examiner either to decide that a warning can be issued or that the matter should be referred to the Medical Practitioners Tribunal Service. The research didn’t address whether there was any difference in the types of the outcomes for different groups. We need to understand more about whether different minority groups are more at risk of decisions at the more serious end of reasonable.

The Nursing and Midwifery Council referred a case to us where a nurse had made seriously racist comments and it was concerned that its recommendation for a suspension had not been sufficient to protect the public. We agreed and have referred the case to the court. We understand that the NMC is looking at its own processes to learn how the original recommendation for a sanction was reached.

For us, the case raised a question that the NMC’s and, indeed, other regulators’ sanctions guidance do not expressly deal with the inherent seriousness of racist behaviour.  They quite rightly expect that dishonesty and sexual misconduct should be treated very seriously by the fitness to practise system. Shouldn’t racist behaviour be regarded as being at the same level?

We’re in discussions with the regulators about how we can take work in this area forward and generally to get a full picture of how racism in the healthcare system affects both patients and other registrants.

One of our less known areas of work is that we advise the Privy Council that regulators’ processes appointing their Council members are robust and fair. One of the strong concerns is that these Councils are not very diverse and that, despite efforts to encourage black and minority ethnic candidates, they are not appointed, and are often not well-represented at long-listing stage. It cannot be encouraging if, having taken the trouble to apply, you do not see people from your community progressing beyond that stage.

We all need to do more to address this and we’ve been impressed by Council ‘apprenticeship’ schemes adopted by the NMC and HCPC, where individuals from under-represented groups are able to participate in Council meetings and shadow the Council’s work. We are looking at the idea ourselves because it ought to enable these candidates to gain experience and credibility for competitions in the future. It is, however, essential that this approach actually translates into more successful candidates from these groups.

Black History Month is an important reminder of the contribution black registrants have made to our health care system and that they and patients still suffer serious disadvantage which needs to be addressed. Many events in the last year have shown that there is still a mountain of work to do to address the attitudes and the discrimination they still face. We could have done more in the past. We’re going to address that now.

Back in the early 1980s when I was involved in feminist politics, the term “the personal is political” was much used, but in mainstream circles over the last 30 years, the personal – our lived experience – has been dismissed as anecdotal. Everything required an evidence-base. Then last year, George Floyd’s murder changed all that. It was once more recognised, and this time by mainstream organisations, that lived experience is valid because, when taken together with the lived experience of others, it is evidence! Collective experience is data.

Regulated health and care practitioners and researchers rightly rely on evidence, but that’s no reason to overlook the value of lived experience. There’s much that can be improved in the field of patient experience and patient safety if only lived experience is taken into account. For example, when I was marching to reclaim the streets back in the 1980s, friends and family unfortunate enough to be in hospital were starving (quite literally) because culturally appropriate food such as vegetarian, halal and kosher food just wasn’t available. If anyone in power had shown an interest in their lived experience as patients, this could have been addressed many years ago.

As a woman of Bangladeshi heritage, I have a different lived experience to my Board colleagues at the Authority which, in turn, shapes what’s important to me. A recent Public Health England report concluded that after accounting for the effect of sex, age, deprivation and region, people of Bangladeshi ethnicity faced twice the risk of death from Covid as white British people. That’s not just a statistic, it’s a fact of life for me, my brothers, my cousins and aunts.

Issues around race and inequality in healthcare have not been given sufficient time and attention at the Authority. The Black Lives Matter movement has helped change that, and we are now focusing on issues of race. So why did I not speak up before now? Why did I not force race onto our agenda? Simple. Because it’s not my job to carry the responsibility for this.

The problem is that too often Black and Asian Board members are seen as occupying token places, there so that the ‘race box’ can be ticked. When I joined my first Board more than 20 years ago, I was asked if I was there to replace Jane (not her real name). It was an odd question, and the white men who joined at the same time were not asked if they were replacements for Tom, Dick and Harry. Jane was, it transpired, an Asian woman. Her contribution presumably unrecognised, and so in turn was mine. I was seen by colleagues merely as the token non-white person. At the Authority I did not once more want to be seen as there to improve the diversity statistics, so I did not draw attention to issues that should have been of concern. But it can be difficult not to raise important issues when colleagues are not alive to what is happening across our diverse communities. If I was not to speak up, who else would? That’s why allies are so important.

When I was on the Nursing and Midwifery Council some years ago, I noticed that many of the surnames of nurses coming before fitness to practise panels were familiar to me: Ali, Ahmad, Akter, Hussein, Islam… Back then, few colleagues were that concerned. But I was, only I didn’t want to confirm my typecasting as a token appointment, there only to raise issues of race and inequality.

We know now that BAME nurses and midwives form 26% of fitness to practise cases yet make up just under 22% of the register, and that employers refer BAME doctors to the GMC at more than double the rate of their white counterparts. And BAME patients have poorer experiences of healthcare and poorer health outcomes.

If you’re from a white community, you’ll be personally unaffected by these statistics, so make time to find out about a diverse range of lived experiences. Be an ally. Make a difference.

The Association of Child Psychotherapists has been working to improve the mental health of children and families since 1949. On World Mental Health Day 2021 the world of children and young people is very different to what it was 72 years ago. This blog looks at what Child and Adolescent Psychotherapists are doing to adapt to changes in society and to best meet the mental health needs of the populations we serve.

An unequal world leads to poor mental health

The theme for World Mental Health Day 2021 is 'Mental Health in an Unequal World'. The ACP is a UK-based organisation, accredited by the Professional Standards Authority, but we do have members living and working across the world, in South Africa for example. Our Journal of Child Psychotherapy has a wide international reach. However, we know that major inequalities exist even in prosperous countries such as the UK. The Marmot Review 2020[1] showed that the social factors that lead to poor mental health, such as lower educational attainment, low-quality employment, poverty and income inequality, are persisting or getting worse.

Acting early to make a difference

Marmot also identifies the scientific consensus that giving every child the best possible start will generate the greatest societal and mental health benefits. Taking action to improve the conditions of daily life from before birth, during early childhood, at school age and during family building provides opportunities to improve population mental health and reduce the risk of mental disorders that are associated with social inequalities. There is compelling evidence[2] that the period from pregnancy and the first two years of a child's life lays the foundation for every child’s future health, wellbeing, learning and potential.

Child and Adolescent Psychotherapists bring their expertise in early social and emotional life to direct work with infants and families. They also offer training and supervision to a wide range of professionals and agencies in the early years' field. Therapeutic interventions at this early stage are often highly effective[3] and can reduce the likelihood of problems becoming chronic, and far more difficult and expensive to address.

Providing treatment when problems escalate

But we also know that, often due to the impact of our unequal world, family relationships can break down and parents can suffer from mental health problems and addictions. Children may be taken into care because they have suffered abuse or neglect. An important part of the work of Child and Adolescent Psychotherapists is with children and young people who are looked after and have suffered trauma and other adverse childhood experiences. This includes refugee children.

Where the difficulties of children are not sufficiently addressed this can result in the development of severe, complex and enduring mental health problems. These can put young people at risk of self-harm and attempted suicide. As well as the terrible effects on the individual and their families, high-risk adolescents can use a lot of healthcare resources. The availability of regular psychotherapy sessions provides depressed and self-harming children and young people with a containing structure for their very intense emotions, meaning they are less likely to lean heavily on other services.

Changing as the world changes

These are some of the areas where members of the ACP work across the health, social care, education and justice sectors. The ACP’s commitment to public service was consolidated in the 1970s when child and adolescent psychotherapy became a core profession within the NHS. Since then we have continued to develop and adapt our practice to meet the changing needs of children and young people, and the society they live in.

Over the last year, we have entered a new phase of growth and change as we align ourselves to the ambitions and priorities of public services. Mental illness in children and young people is recognised as a major public health concern with evidence of rising prevalence, exacerbated by COVID-19[4]. The NHS in all parts of the UK has committed to additional funding for child and adolescent mental health with ambitions to develop comprehensive multi-disciplinary services through an expanded and more diverse workforce.

Addressing unequal access to services

The provision of child and adolescent psychotherapy in the UK is significantly unequal with disparities across English regions and the devolved nations. The NHS long-term plan aims to create a sustainable workforce of Child and Adolescent Psychotherapists that is both equitably spread across the country and representative of the diversity of the communities it serves.

In England, support from NHS England and Health Education England has led to a 25% year-on-year increase in child and adolescent psychotherapy training places.  In Northern Ireland, Wales and Scotland we are working with colleagues to address areas that lack child and adolescent psychotherapy and increase access to training.

Improving equality and increasing diversity

As well as geographic differences, the ACP is working to address the unequal representation of Black, Asian and minority ethnic communities in the profession. Funding has been provided to the child and adolescent psychotherapy training schools to offer bursaries as part of an equality, diversity and inclusion programme. This is an opportunity to become a multi-cultural profession that meets the needs of all those who seek our services. Our work takes places within a social context where racism, anti-Semitism, or discrimination related to sexuality, gender and other aspects of identity, interact with and exacerbate socio-economic inequalities.

Looking above and below the surface

As Child and Adolescent Psychotherapists we approach all our work from a psychoanalytic perspective which seeks to look beneath the surface of difficult emotions, behaviours and relationships to help children, adolescents and their families to understand themselves and their problems. Increasingly, this must include the effects of an unequal world.

Despite the hardship and loss experienced by many during 2020/21, there has also been focus on some side-effects of the Covid-19 pandemic that have resulted in encouraging both agility and innovation in the health service in exceptionally challenging circumstances. Alongside this, the commitment of front-line health professionals working in incredibly challenging conditions during a time of national crisis has been clear for all to see.

However, it has also become apparent that the effect on many patients during this time has been more negative and that emergency action taken to protect health service capacity in the face of the pandemic has had a significant knock-on effect on many users of health and care.

The pandemic's impact on patients

A report last year from the Patients Association described the impact that emergency measures had had on patients, many of whom had difficulty accessing services. Many felt their long-term relationship with the NHS has been damaged by their experience which left them feeling unsupported and alone. The report stated: ‘There is a risk during crisis situations that the voice and experience of patients, including their relationship with staff, gets lost in the need to get things done; there is some evidence from this survey that this has happened.’

In addition, for those with severe or long-term health conditions the experience of the pandemic has been very different to that of many of their friends, relatives and neighbours, with many feeling isolated or unheard. 

Our Covid Voices, run by National Voices, came about due to a feeling that the voices of those living with ongoing health conditions, ill health or disability were not being properly taken into account. The project gathered the experiences of people in the UK during the first national lockdown and provides some powerful and moving examples of the experience of individuals during the pandemic with many struggling to access the support and information they needed.    

Patient voice in policy-making

Slightly harder to quantify is the sense that the patient voice in policy-making has also been a casualty of Covid-19. For the health and care professional regulators the first wave of the pandemic meant doing things at pace – creating emergency registers of professionals, holding fitness to practise hearings virtually, issuing guidance for registrants on whether they could continue to practise and any safeguards required.

Maintaining public confidence is a key element of the overarching objective of public protection that the regulators and the Authority share. Understanding the views of patients and the public is therefore a key constituent of regulating effectively and with legitimacy. Whilst it is inevitable that patient and public engagement has been affected by the limitations imposed by the pandemic, it is equally important that regulators strive to ensure that this short-term impact doesn’t become a longer-term gap in the information they rely on to shape their regulatory approach.

Although the vaccine has provided a path back to some kind of normality over the past few months, it is clear that we are not out of the woods yet. The uncertainty over whether further restrictions may yet be needed arguably creates an even greater challenge for organisations in seeking to hear from patients and the public.

All organisations will need to continue to employ creative thinking to ensure the patient voice can be heard during this period through use of technology, innovative research methods and a range of consultation processes. Beyond Covid (if there is ever such a time) there may be learnings for regulators about ensuring the patient voice is heard in regulation.

Research aimed at understanding experience of fitness to practise witnesses

A new research project ‘Witness to Harm’, led by Professor Louise Wallace at the Open University aims to understand the experience of people who are witnesses within the fitness to practise process. It will look at the impact of being a witness in investigations and fitness to practise hearings on the patient or service user, family and colleagues, as well as at what support they receive from the regulator and what support they would like to receive. This project should provide a valuable opportunity to hear from those most affected by regulation and use this to make improvements to the process.

Alongside this, Government proposals to reform professional regulation are likely to mean fewer public fitness to practise panel hearings and more cases concluded by agreement with the registrant in private.

There are many problems with the current system and research demonstrates that the public are broadly supportive of moves away from expensive, lengthy and confrontational panel hearings. The Authority responded to the Government consultation earlier this year and is broadly supportive of proposals. However, we have also called for the additional flexibility given to regulators to be matched with proper accountability. We are currently awaiting the Government response to the consultation before changes are rolled out with the General Medical Council first in line for the new powers.  

Capturing the patient voice post-reform

However, with a reduction in public hearings, it will become even more important to find ways to ensure the patient voice is heard. Whilst hearings can be painful and distressing, they do at least provide a defined opportunity for patients who have been on the receiving end of misconduct to have their say. Without this, and with regulators being given the flexibility to make and amend their own rules, opportunities for patients and the public to be heard may become more limited or at the very least vary widely across regulators.    

With this in mind, we will be carrying out further work alongside patient organisations, patients, service users and regulators to define how and when the patient voice should be captured within professional regulation. We are at the early stages of defining the scope of this work but intend to draw on learning from other sectors including criminal justice where the Victims’ Code seeks to uphold victims' rights and sets out the minimum standard that organisations must provide to victims of crime.

We know that much has been done within the sector already and that colleagues within the regulators recognise the importance of finding meaningful ways to get patient and public input when developing regulatory processes. We look forward to working with all of our stakeholders to ensure that this challenging period can be a catalyst for a new approach to ensuring the patient voice is heard in professional regulation. 

Over the past few years we’ve learned more about the circumstances which can lead to professionals losing sight of regulatory standards, and acting in ways which can result in them being referred to the regulators for alleged unfitness to practise. An example is the work we commissioned from Professor Rosalind Searle, Sexual Misconduct In Health And Social Care: Understanding Types Of Abuse And Perpetrators’ Moral Mindsets (2019).

Inevitably, any specific incident or series of incidents involves a unique and often complex interplay of personal and environmental factors, and takes place within the context of the mix of social and professional relationships which are part of all kinds of work, everywhere. You might question how much we can learn from any one case, when it seems so unlikely that any particular set of circumstances will ever repeat in another setting, or even the same one. And often, when crisis has occurred, the regulatory response has been to focus on how we stop that particular crisis happening again.

Aggregating complex factors

The challenge is how we ‘aggregate’ – at least that is the term used by Harvard’s Professor Malcolm Sparrow in works like The Character of Harms. How do we look one level above the specific to extract learning, without becoming so abstracted that any analysis lacks salience? How do we group together and analyse particular kinds of thing, particular kinds of hazardous factors in troublesome situations, in such a way as to be able to take informed and preventative actions in future?

Sparrow uses an example of an exercise he runs with groups of staff working in regulatory and risk management work, with a case study involving a public official charged with reducing road traffic accidents. With skilful data analysis, four different generalised scenarios in which the majority of accidents take place, emerge – each of which calls for different kinds of measure to sabotage the harm that results. That might be parents taking their car keys to bed at night to prevent their children borrowing their car to go to a party, or redesigning rural junctions which are accident hotspots. According to Sparrow, a successful harm prevention strategy requires finding the right moment to intervene; an object on which to focus (one of the contributory factors to the harm) and a method to prevent the object from playing its part in an unfolding and potentially harmful sequence of events.

Bridging the gap

Because the range of hazard contributory factors is so wide, we need to think through how different regulators with different scopes of responsibility might more effectively collaborate on their sabotage, in a timely, focused and efficient way. With this in mind, the Authority intends to initiate a project in the autumn which we are calling ‘Bridging the Gap’, to explore how this might be achieved. We are going to look at the potential contribution of data from different sources, the structures by which regulators collaborate both to strategise and to share data and information, and use the example of sexual misconduct prevention as an area of focus for ideas. As part of the work, we’ll also review our existing guidance on sexual boundaries, and republish if this is felt by stakeholders to be of use.

If you would be interested in more detail of this work, please get in touch.

2021 marks 20 years since the report of the public inquiry into children's heart surgery at the Bristol Royal Infirmary (BRI) 1984-1995, chaired by Professor Sir Ian Kennedy, was published.

As the Professional Standards Authority’s predecessor organisation (the Council for Healthcare and Regulatory Excellence) was created on the back of recommendations from the report we take a particular interest in the findings which in part focused on the regulatory failures which contributed to the issues identified at Bristol. The need for independent regulation was a key theme along with the need for greater coordination across regulatory bodies to avoid the ‘fragmentation and lack of clarity about responsibility for regulating the quality of healthcare’ which was a feature at Bristol.    

We have recently responded to the Government consultation on long awaited reforms to the powers and governance of the nine healthcare professional regulators. In our communications on the reforms, we made the point that improvements made as a result of inquiries such as Bristol should be maintained and that there should be an appropriate balance of regulatory flexibility and accountability to maintain public protection. The proposal for a ‘duty to cooperate’ appeared to be a positive development. However, in our view proposals to allow regulators to shape their own operating procedures without any formal oversight could lead to further divergence and potentially make cooperation/coordination more challenging.     

The Health and Care Bill

As we await the Government response to this consultation the Authority is turning its attention to wider developments, including the Health and Care Bill currently going through Parliament. Whilst the proposals relating to the NHS have inevitably hit the headlines, the Bill also includes powers for the Secretary of State to abolish healthcare professional regulators and to move professions out of statutory regulation if this is no longer required to protect the public.

This presents an opportunity to look more broadly at how the system of professional regulation is configured. The Authority has previously called for simplification and the current review by KPMG of the regulatory landscape will allow consideration of the key factors that could drive any change and inform any use of such powers by the Secretary of State. We will be outlining our thinking on these proposals in due course, however first and foremost we are of the view that patient safety must be the driver behind any change rather than simply considerations around cost effectiveness and efficiency.   

As with the reforms to professional regulator powers it is worth reflecting on what effect these proposals may have on the problems identified by the Bristol Inquiry and in more recent inquiries and reviews. The Cumberlege Review identified a complex and fragmented system, and the Paterson Inquiry highlighted the risk of patient safety concerns falling between organisational boundaries and the need for more effective collaboration and for the system of regulation to ‘serve patient safety as the top priority’.

One of the potential benefits of simplifying the system is that this could promote easier interaction between professional regulation and the wider systems for keeping patients safe. The Authority has called for greater alignment between system and professional regulation including shared objectives to ensure a coherent approach. Although any change arising from the Bill may help, wider rationalisation of the regulatory system doesn’t currently appear to be on the table.  

There have been many improvements since Bristol and far greater awareness of the need for effective cooperation and collaboration. Initiatives such as the Emerging Concerns protocol coordinated by the Care Quality Commission which facilitates sharing of information on emerging areas of risk are helping.

However, it remains a complex landscape with many problems still to be solved and the impact of recent policy developments yet to be felt. Plans for new powers for the Healthcare Safety Investigations Branch and proposals for a Patient Safety Commissioner for medicines and medical devices may add to this complexity depending on how they are introduced.  

Looking to the future

With this in mind the Authority will be shifting its gaze to consider how we can address some of the problems arising from the complexity of the system and the organisational barriers which continue to lead to failures in patient safety. This will include a new project Bridging the Gap to look at how to improve data and information-sharing across regulators to try to improve patient safety outcomes.

As we move forward, we continue to see value in looking back to ensure that we learn from the past as we try to find ways to promote cooperation, clarity and coherence for the benefit of everyone using and working in health and care. 

Related material

• Find out more about our thoughts on the recent consultation on reforming regulation
• Read What has been achieved in professional regulation?
• Read our timeline on key milestones in reforming regulation over the last 20 years

There are more than two million roles working within health and care in the UK that are not subject to statutory regulation. In 2013, the Accredited Registers programme was introduced to provide oversight and help ensure that the public and employers can have confidence in choosing services from practitioners who display our Quality Mark. The programme now covers 100,000 practitioners across 25 registers, in roles such as counselling, psychotherapy and health sciences. The programme helps raise standards by checking that Registers of these roles meet our requirements for complaints handling, registration and governance.

There are a wide range of treatments and services chosen by patients and service users to support their health and wellbeing. We know that, while many people find them useful, not all of these services will be backed by scientific evidence. There is a small, yet real risk that some of these may do more harm than good – for example if people choose them as alternatives to conventional treatment for serious medical conditions, or if they spend money on treatments on the basis of misleading claims.  

The introduction of Standard 1b

To address this, we are introducing a new ‘public interest test’ within our Standards for Registers. This will allow us to weigh up whether the benefits of the health and care services offered by registrants outweigh any risks. We will also check to make sure that information provided by a Register and its practitioners about the benefits and risks are clear, and accurate. We think this will help further increase confidence in our Quality Mark and help support informed patient choice. There was strong support from patient groups in our recent public consultation on the future of the programme for us to consider evidence of effectiveness in our accreditation decisions.

We hope that as part of the wider changes we are introducing to streamline our assessment process, this will put the programme in a good position to extend its coverage. Accreditation can play an important role in the assurance of the new and expanding roles within the NHS, many of which are not regulated by law. New applications for accreditation have more than doubled in the past year – this includes Registers of some of the new roles aimed at widening access to mental health services.

Safeguarding the public

It is also important that those accessing services from self-employed practitioners are protected. Later this year there will be a pilot of the introduction of enhanced criminal records checks for self-employed registrants. This is an important safeguard, especially for those who care for children and vulnerable adults.

In the longer term, we want to work with UK Governments to strengthen the protections offered by the programme. The recent consultation on the Health and Care Bill proposes changes to the way that decisions are made about which professions should be regulated. This presents an opportunity to develop the programme so that it can support NHS workforce needs, whilst continuing to provide assurance about independent practitioners.

You can read our full report on the future shape of the Accredited Registers programme here.

Related material

Find out more:

• The revised Standards for Accredited Registers
• The report outlining the results of our public consultation, including a key stats infographic
• Read a case study demonstrating how becoming accredited leads to improved standards and public protection

We recently published a report that we had commissioned from Professor Deborah Bowman, Ethics in extraordinary times - practitioner experiences during the pandemic. We commissioned Professor Bowman to explore the ethical experiences of practitioners working in health and social care professions during the Covid-19 pandemic. She conducted a literature review, and held interviews and focus groups with practitioners from a range of professions. In this blog I have focused on just one of many issues that arise from the report, that of the role professional judgement, and suggest that ‘relational regulation’ may offer us a way to explore it further.

Why did we commission this research?

The pandemic has meant that health and care practitioners have had to make decisions under circumstances they have not experienced before. They have had to make hard choices, under pressure with long-lasting personal impacts on patients and their families and those who have had to make them. It is important to study how these circumstances have affected professionals on an individual level in order to consider how regulators may learn from their experiences, and help to support ethical capability and confidence.

Identifying and supporting the role of judgement

One of the central issues that came through Professor Bowman’s report was the role of judgement in steering professionals through the many difficulties that were faced. Both interviews and focus groups had spent time exploring what judgement means and whether it is sufficiently ‘considered, articulated and valued within professions and by regulators’.

Different perspectives were offered by interviewees on the components of judgement. Some saw the concept of judgement as useful to regulators but unhelpful to professionals, with one arguing that it ‘is a word that means nothing except when you get it wrong. It’s a way to dodge giving any help with the really hard stuff’ (p.34). Another said ‘it’s a cop out” and characterised the regulator’s position as ‘we’ve given you the guidance, it’s your job to work it all out and decide how to do it’ (p.34).

However others offered a different perspective, one saying that ‘A regulator can't, can't spoon feed your profession that's supposed to be autonomous. Set the parameters, and then it's up to the practitioners…to develop ways of coping with this situation’ (p.34).  Another surmised that ‘we aren’t great at judgement’. There was also a range of opinion and comment about the focus, content and helpfulness of the guidance produced by regulators during the pandemic, and therefore the role of judgement in interpreting and applying it.

Given the range of views expressed on this crucial element of regulators work, it was a welcome recommendation of the report that we should ‘review whether the concept of judgement is well-articulated, modelled and supported in ethical guidance and resources’ (recommendation 2, page 45 of the report).

A similar area of discussion had emerged from our Covid Learning Review earlier in the year. We recognised there the challenges posed to both registrants and regulators. Registrants were faced and continue to be faced with direction, guidance and advice from many sources, not all of which may point quite in the same direction. Regulators had to decide where were the priority areas in which guidance should be given, avoiding unnecessary duplication, pointing to the advice of others where appropriate, and avoiding pressure to be directional where it was not appropriate that they be so.

For example, the General Osteopathic Council in its case study on producing Covid-specific guidance (Covid Learning Review, case study 14 page 72) said that they ‘they found that individuals wanted a definite answer as to whether osteopathic practice could continue, but it came down to clinical judgement and responsibility. The GOsC was aware that this is a difficult message to deliver when osteopaths were deciding whether to keep a practice open’.

Bridging the gap with relational regulation

An approach to exploring the role of judgement could be offered by the idea of relational regulation. This is sometimes used to mean to those aspects of regulation concerned with stakeholder engagement and relationships and how those relationships are managed. But its original meaning was set out by Professor Ruthanne Huising and Susan Silbey for example in Governing the Gap: Forging Safe Science through Relational Regulation (2011)*, and is concerned with bridging the gap between regulatory standards and everyday practice.

The authors set out a series of four steps to explore the relationship between the two.  Below, I have quoted the four steps, together with my brief interpretation of how we might understand them here:

• ‘Narrating the gap’ – defining the scope of both guidance and the area of activity intended as its focus;
• ‘Inquiring without constraint’ – asking questions freely to understand the ways in which they relate to each other;
• ‘Integrating pluralistic accounts’ – seeking to understand different perspectives from different sources;
• ‘Crafting pragmatic accommodations’ – finding realistic ways to proceed.

This structure, the authors suggest, keeps ‘activities within an acceptable range of variation, close to compliant with regulatory specifications’.

Clearly this is not a description of the everyday processes by which judgement is applied, of which much is unconscious and intuitive. But it may provide a way to learn about and understand those processes. It appears to me that the four steps of relational regulation would provide the basis for further study of judgement, taking a number of scenarios that arise or have arisen in the pandemic, and tracing out the relationship between available guidance and how it was understood, interpreted and applied. In turn, this could offer insights into how professional judgement operates in daily working life, and the role of regulators in supporting it. 

Footnote

* Regulation & Governance (2011) 5, 14–42

The Professional Standards Authority (or its predecessor body the Council for Healthcare and Regulatory Excellence – CHRE) was set up as a result of a report highlighting the very worst events that can arise when regulation fails – the report into the standard of care provided to children receiving complex cardiac surgery at Bristol Royal Infirmary.

Regulation was a key theme of the report along with the importance of ensuring that the regulatory framework was sufficiently independent of government: ‘While it is the proper role of government to establish the regulatory framework to ensure safety and promote quality, that framework must be as independent as possible of the Department of Health.’   

The report also recommended the creation of ‘an overarching mechanism to co-ordinate and align the activities of the various bodies (the General Medical Council (GMC), the Nursing and Midwifery Council (NMC) and others) to ensure that they serve patients’ interests’ and that this should be realised by the creation of the body which has since become the Professional Standards Authority.

Since its creation the Authority has taken this role of ensuring that the regulators ‘serve patients' interests’ as its guiding principle and mission. Our independence from government, the professions and the regulators puts us in a unique position to ensure that the public interest is upheld, and the protection of patients remains at the heart of the way that regulation works.

This has very much guided our response to the recent Government consultation on far-reaching reforms to healthcare professional regulation. Whilst we have been vocal in supporting the case for reform and have welcomed much of what is in the consultation we have highlighted key changes that we believe are needed to ensure that the proposals maintain or improve the overall level of public protection provided by regulation.  

A key issue for the Authority and many stakeholders we have spoken to during this consultation including both patient and professional groups, is the balance between flexibility and accountability. As it stands, regulators will have powers to resolve complaints about professionals outside of public panel hearings if the registrant agrees. However, under current proposals, unlike decisions made by panels these cases won’t be subject to the Authority’s independent appeal powers if the outcome doesn’t protect the public.

In addition, regulators will be able to make changes to the rules that outline their operating procedures with no independent oversight. Currently most rule changes need to be approved by the Privy Council. Whilst we think that increased flexibility is good, it’s our view that there should be some independent checks to make sure that rules protect the public and don’t lead to unjustifiable inconsistencies in approach across regulators. The Law Commissions in their review of the legislation of the healthcare professional regulators in 2014 proposed this role for the Authority and we would support being given these powers now.

None of this is to suggest that the regulators we oversee do not share the objective of protecting the public – we know that they do and work tirelessly in pursuit of this collective aim. However, we know from our role as an oversight body that things do not always go to plan. Regulators are subject to a great many pressures and competing interests which may lead to mistakes being made, hence the need for appropriate safeguards.

In addition, whilst there have been many improvements in regulator performance in recent years, we know from experience that performance can deteriorate quickly and recover slowly. There are a number of regulators that had previously been high-performing where we have identified concerns in recent years. Significant regulatory change over the next few years may heighten the risk of organisational instability.

All of this has led us to the view that the regulatory system must be prepared for both good times and bad. It has been encouraging and helpful to talk to a great many stakeholders over the last few weeks and months who share this view.       

We have now submitted and published our final response to the Government consultation and this is available on our website here. We would urge any organisations or individuals yet to respond to do so by the deadline of 11.45 pm on 16 June. This is an important chance to have your say on the future of healthcare professional regulation and all voices matter.  

Whatever the outcome from this consultation we look forward to working with colleagues at the Department for Health and Social Care, patient groups, professional organisations, the regulators and all other stakeholders with an interest to ensure that the reforms work as well as they possibly can and that regulation continues to serve its primary purpose of protecting the public.  

In this blog we give two perspectives on our power of appeal - a guest blog from the Royal College of Nursing and the Witness perspective we published last week, with an introduction from our Director of Standards and Policy, Christine Braithwaite

The purpose of professional regulation is to protect the public, noting that this involves not only a public safety element, but also the upholding of professional standards and maintenance of public confidence in the profession. In the pursuit of this aim, it subjects the regulated to burdens, and for those against whom a complaint is raised, undoubtedly stress and distress. Human rights legislation guards against the worst injustices, and individual registrants’ interests are taken into account for example in fitness to practise decision-making, but ultimately there is a cost that is borne by health and care professionals – both financial, and emotional – in the interests of public protection.

The question we would have liked to be made explicit in the government consultation, in particular with the reforms to fitness to practise, is this: ‘how can we reduce the impacts on registrants without reducing public protection?’ If you can imagine two parallel axes, one for public protection, and the other for the impact on registrants, we would like to see public protection at a fixed minimum point (below which proposals should be rejected), and the impact on registrants point brought down as low as possible, before it starts to bring the public protection level down with it.

At the moment, the fitness to practise framework requires almost all cases to be heard at a hearing, and we know this is onerous and stressful for many – and in some cases unnecessary, because there is nothing in dispute, the facts are clear, and there is no other public interest in holding a hearing. We support the proposals for a less onerous means of dealing with fitness to practise cases, accepted outcomes, where this can be done fairly and safely. But there remains the question of what should happen on those rare occasions when accepted outcomes don’t protect the public.

The Authority has a power to refer to the courts fitness to practise panel decisions that are insufficient for public protection. The Royal College of Nursing blog below looks at some of the impacts on registrants of this power. We are well aware that our appeals add length to an already lengthy process, and that it is distressing for most registrants to have to go through the additional steps that come with an appeal. This is one of the reasons why we use our power judiciously, and incorporate wider public interest considerations into our decision-making process. The fact that we are referring decisions on which the High Courts (for England and Wales, and Northern Ireland) or the Court of Session (in Scotland) will make the decisions, and that the bar they set is high, is a strong disincentive to our being overzealous in our appeals. That a small number of registrants (around 20 cases a year across all regulators) are put through further distress and uncertainty is unfortunate, but it is an unavoidable consequence of having a robust, independent safety net to protect the public.

Let us consider the position of the complainant in this. A person harmed by a health or care professional is not a party to fitness to practise proceedings. Regardless of whether or not they brought the complaint, quickly the process turns them into a witness, because it is the regulator that will prosecute the case. The accepted outcomes model will marginalise them further, because the outcome will be agreed between the regulator and the registrant, behind closed doors, with no consultation with the complainant. Our recent blog with testimony from a victim of sexual misconduct – set out below – gives a sense of how anxiety-inducing it can be to play the role of witness, particularly if the outcome is unsatisfactory. ‘Mary’, who, it is worth bearing in mind, was also a registrant, was grateful that the Authority’s powers enabled a public body independently to take issue with the outcome, without her having to shoulder any further burdens. We appealed the case and won, and I have no doubt that the whole process took its toll on the registrant. But while there are ways of minimising this toll, perhaps this is ultimately the unavoidable cost of public protection.

Accepted outcomes will provide registrants with a quicker, less onerous process than that which is in place currently – we want our power of appeal to cover these cases, as well as panel decisions. We accept that this would add time and uncertainly for a small number, but overall the benefits for registrants are likely to be significant. In contrast, although they will benefit to an extent from the quicker process, complainants are likely to feel the imbalance between theirs and the registrant’s influence on proceedings even more keenly than they do with panel decisions. And, if the Government proceeds as planned, they won’t be able to rely on the Authority to take action if an outcome doesn’t protect the public – instead responsibility will fall to them.

The Government has proposed that the Authority would be able to request a registrar review, however this would require our legislation to be changed. And we have other concerns about using the registrar review power as a mechanism for appeal – we talk about this in detail in our full response to the Government consultation (see points 61.35 to 61.45).

Registrant wellbeing should be a significant consideration in developing regulatory policy, but where it risks undermining public protection, the public protection imperative must prevail.

Unsurprisingly, we observe significant distress among those we represent during the process.  Many are financially vulnerable. They experience a referral to the NMC as a calamity both professionally and to their ability to support their families.  I thought that some of our experiences with our members who have faced PSA appeals might be of interest in this regard, as we think about the PSA role in the new landscape.

Processes that reduce the time taken to reach outcomes can only be a good thing. A significant portion of the distress we observe in our members arises from the crushing uncertainty during the lifetime of the case. Our members acknowledge, even when the outcome is disappointing, that there is a sense of relief because at last it is over.

Additionally, quicker outcomes enable those affected (patients, witnesses, families) to benefit, as all of them report how stressful and unpleasant they find the process. Perhaps even more importantly, particularly in these days of greater examination of the context in which mistakes occur, any learning can be extracted and made available to the parties concerned. There is nothing gained in drawn out proceedings for anyone involved.

For this reason, the proposal to allow registrants to consider ‘accepted outcomes’ is very welcome. The Case Examiners at the NMC have seemed to us to be careful decision-makers and would be well placed to propose a resolution to cases. An important point is that the registrant who considers that the decision is unjust can opt for a hearing. In this way, fairness is maintained.

We do have some concerns about both our members and unrepresented registrants who may accept an outcome, even though they do not actually agree with it, to avoid the risk and time spent waiting for a hearing. However, they might well be right that a shorter time in the system and certainty about when they will be able to work is of more value to them than the potential to achieve a ‘better’ outcome. Much will turn on their circumstances at the time.

A question of interest to all is how the regulators will be held accountable for the outcomes from the Case Examiner process. The DHSC consultation proposes that those decisions can be reviewed though a ‘registrar review process’, provided that certain criteria are met. I have heard a comment that this might amount to the regulators marking their own homework. The Authority would not have the same right to refer decisions made by case examiners to the High Court under Section 29, as they do with panel hearing outcomes, although they would be able to make use of the ‘registrar review’ process. PSA colleagues have indicated that they are concerned that without independent oversight, public protection, transparency and accountability may be reduced.

The NMC has indicated that it intends to support this proposal, on the basis that ‘accepted outcomes’ will tend to involve cases involving a restriction on a professional’s practice, providing a safeguard. The NMC expresses the view that a PSA right of appeal may not help realise the aim of the new process in reducing delays and tackling the perception of professional regulation being legalistic.

This is where our own experience of PSA appeals comes in. Often, although we can understand from a legal point of view why the PSA has appealed, we have been dismayed by the decision to do so. A registrant will have been through the process over a number of years and will have thought that the ordeal is over. They then find themselves, due to a potential fault of the regulator, the subject of another lengthy set of proceedings, and the considerations are even more complex.

It is difficult to persuade somebody who has recently been through days of hearing in front of a panel that it may be better to concede an appeal, when it is evident that the panel gave thought to the outcome and came to a different conclusion. It is my, admittedly anecdotal, perception that our members who achieve outcomes that attract the PSA’s attention are often impressive at their hearing. They give a good account of their reflection and learning; they arrive at the hearing armed with supportive testimonials about their recent work. It may be that the panels reward them with a lesser sanction in recognition of these qualities, but do not necessarily explain this well in their reasons.

I have reviewed five of our recent PSA appeal cases (received since 2018). On average, there were a further 17 months of process following the outcome of the substantive hearing, even though some of the cases were settled by consent. One member had 25 months of further proceedings. No registrants were subsequently struck off (although one is still waiting, 18 months later, for her case to be relisted at the NMC). The most serious increase in sanction was from seven weeks to six months of suspension.

In summary, one outcome of the regulator’s error is that the practitioner endures further process, sees further disruption to their career and in the end incurs a somewhat more serious sanction. In our experience the NMC rarely defend, so in addition the RCN or other union or the non-union registrant can bear the costs if the appeal is fought and lost.

I would hasten to add that my colleagues dealing with these cases have told me that the lawyers at the PSA are always approachable and willing to work on sensible consent orders, and do express empathy for the position of our individual members.

What happens when a regulator's panel gets a decision wrong? – the complainant perspective

Every now and then a case stands out and reminds me how valuable our power to appeal the regulators’ cases is to protecting patients and service users. One such case recently, was a case involving verbal sexual misconduct. The Authority takes all forms of sexual misconduct seriously, whether the victim is a patient, service user or a registrant. (You can read more about our work on sexual misconduct here).  

As part of our usual check on final fitness to practise panel decisions, one of our legal team reviewed an HCPC panel decision about a social worker who was said to have sexually harassed his colleagues. Our team were concerned that, despite the panel accepting the accounts put forward by the witnesses, the panel did not go on to find that his behaviour amounted to harassment or sexual misconduct. We looked at this case in more detail and decided to exercise our discretion to appeal. On 15 January 2021 our appeal was upheld.

Around the time we were carrying out our initial review of the case, one witness, we will call her ‘Mary Smith’, emailed our Concerns and Appointments Officer. Mary Smith had attended the HCPC fitness to practise tribunal and given evidence. It had been a difficult process, but she had wanted to do this because she and her colleagues felt strongly that the behaviour they had been subjected to was unacceptable. But the panel had not felt the same, and it was not clear to her why not. This is what she has told us about her experience.

Our power to appeal fitness to practise decisions – ‘Section 29’: As told by Mary Smith

"When I found out about the PSA and then looked at the website, I realised that there was a process that was all about public safety. I was able to read previous section 29 minutes which gave me some insight into the process, the expertise of those involved in these meetings, the information they relied on to inform their decision-making and their powers to access information and ultimately refer to Court if necessary.

"I recognised that it was probably our last hope. I knew how I felt about the hearing and the HCPtS decision, but I could see that the PSA would look at all of the information through an independent, public safety lens.

"I was so relieved that another party could take over the responsibility of looking into this. By the time I had contacted the PSA with my concerns I was really worn out.

"I was still dealing with the effects of a serious health issue which combined with the nature of our complaints and how I had been treated when trying to report this previously, really impacted my ability to seek a review/appeal. I just couldn’t keep going over it anymore but needed someone else to. I will never forget how I was treated by a person in authority, when I first sought help, and this gave me huge anxiety when dealing with other agencies. I am no longer an HCPC/SWE registered social worker, but I imagine that for someone else to challenge their own professional body and request an appeal would be inconceivable.

"The final HCPtS decision when published online felt like being humiliated all over again…

"When I received an email from the PSA saying they had referred it to Court I was so shocked that finally someone had seen and understood the issues. I was able to email the PSA to ask questions about processes moving forward and what the potential outcomes of the Court hearing might be. So, the referral to the PSA ensured that any errors and omissions that were part of previous processes had another opportunity to be examined and reviewed."

The PSA as a safety net

Our Section 29 process is a safety net – we look proactively at all final decisions. We don’t rely on others to raise concerns about a decision. We do this on behalf of the public.

Mary continues:

"There are so many levels at which things can and did go wrong – it is just essential that an independent body can examine everything that has led to a Panel decision and take action if needed. If any parts of the regulatory process were not open to review, I think the public and other professionals (both in the UK and those overseas) would lose confidence and respect for the profession and the regulators.

"I was not fully aware at the time, exactly what the UK law was on sexual harassment. I just knew what all women know. A grope is a grope and you know when someone’s behaviour toward you is sexually motivated. I had no idea that verbal sexual harassment was not seen as serious. I am really pleased that this case will help other people who may have to report misconduct to a regulator to have their case heard with clearer parameters about this now. It brings the law more in line with society’s values.

"When I read the High Court decision it felt as if many of the injustices along the way had been rectified. The way the judgment was written was amazing – it was logical, sensible, explained the law and spoke about the women complainants as if we were adults. The decision outcome was huge of course in what it meant in terms of protecting the public, clarifying the law. But it was the way it was worded that gave us our dignity back that I am so grateful for.

"I wonder if there is an over emphasis on what processes are best for regulation but perhaps the problem is with the people within the processes. When I look at what went wrong in our case, it wasn’t that there weren’t processes or guidelines, it’s that they weren’t followed. The lack of transparency about what parts of people’s complaints had actually been investigated, meant that it was way down the track before that was evident. What are the guidelines for sanctions and why are these not transparent to the public? What training do Panel members have? This should also be transparent especially when hearing sensitive cases. Who was the Social Worker on the panel – was her background Adult Social Care? What background did the Panel Chair have? When giving evidence, I felt I was sitting in a room full of people who came from a different planet. I knew after I finished giving evidence that they didn’t really understand."

An inadvertent gap in public protection - reform proposals

Under the proposals for regulatory reform, this is potentially a case that could have been disposed of using the new approach put forward in the Government’s consultation on reforming regulation – accepted outcomes – where the regulator and registrant will agree the outcome with no need to go to a panel. However, what the current proposals do not allow for is any independent oversight of the sanction agreed between the regulator and the registrant. These decisions would not come to us for our double-check.

We are concerned about the possible impact on public protection that reducing our oversight will have on members of the public as well as patients who will have concerns about the outcome of a case. The government has proposed a registrar review process, but what would this mean in reality? In this case, Mary Smith would have had to write a document setting out what she considered to be the material flaws in the decision and how the decision may not be sufficient for public protection. We are concerned about the burden that this would place on complainants and actually whether they have the expertise to identify the problems in a decision.

Mary continues:

"When I was emailed a copy of the HCPtS decision a week after it had appeared online, somewhere, it stated that the registrant could appeal. There was no information provided to us as witnesses/complainants as to whether we could appeal or challenge the outcome. There was so much about the decision that was upsetting and I wasn’t sure who to go to with my concerns.

"I emailed the law firm the regulator had used, to ask them if I could have copies of all of the information held, as I wanted to get an independent legal opinion. I was annoyed with myself for trusting all the parties involved in the process. I was very confused about who had what powers and I was worried about offending the law firm or the Panel. I suspected I would not be allowed all of the information on which the Panel relied, which made me wonder how on earth I could get an accurate legal opinion. I made a request to the law firm who passed this on to HCPC. In the end, I didn’t end up reading it because I couldn’t face it. After giving evidence, for a number of weeks I couldn’t think about the whole saga without feeling as if I would be sick. Re-reading the decision or my statements would not have been helpful. Neither the law firm, nor HCPC told me about the PSA. I’d never heard of the PSA either. I knew there would be a short time frame in which to seek an appeal, I just had to find out who could tell me what the process was. I think I flailed around a bit.

"I tried to find a law firm that could help. I had no idea how I would pay for it, but I was prepared to take out a loan if necessary. I tried a number of firms who either never responded or I couldn’t get through to. One firm told me about the PSA."

This is of course just the story of one person, but it is a useful reminder of the value of our power to check and appeal decisions. It hopefully illustrates why what we do, and the way we scrutinise all decisions, is important. The burden placed on members of the public to raise concerns, having sometimes been involved in a lengthy emotional process, cannot be underestimated.

In healthcare regulation, concerns about the behaviour or practice of professionals could be dealt with differently in the future. Not by computers – we’re not there yet – but by one or two employees of the regulator, in an entirely paper-based exercise, reaching an agreement with the professional. This new process is known as accepted outcomes. It is different from what happens now, where the vast majority of cases are decided by a panel in a set-up resembling a court room, with the professional and witnesses being questioned, and a decision being reached by a panel following private deliberations. This model will continue to exist for cases that are disputed by the professional, or if it isn’t possible to make a decision on the papers alone.

These are two fundamentally different methods for reaching a decision in what is called ‘fitness to practise’, and we believe that in order for the new approach to succeed, we need to understand more about how it will work in practice.

Building on a literature review that gave us a general understanding of decision-making, we asked an expert to look at cognitive bias specifically in fitness to practise. Leslie Cuthbert, a lawyer with experience of chairing fitness to practice panels, looked at the two models, panel hearings and accepted outcomes, to identify the biases most likely to affect each. In his report, Leslie explains that ‘cognitive biases are mental shortcuts which reduce the cognitive load on an individual but bias the way attention is then allocated in processing data the individual receives.’ They play a huge part in how we, humans, make decisions, and that is why we’re interested in them in this context.

Specifically, we asked Leslie to think about what biases might come into play when decisions are made:

• consensually with the professional
• on the paperwork alone
• without deliberating as a group
• behind closed doors.

I won’t attempt to summarise the biases he identified – they are numerous and varied. What is clear however, is that each method of decision-making has its own set of weaknesses, that we, and the regulators, need to be alive to. This is so that we can attempt to address them – and Leslie suggests some helpful, practical strategies for this. But it is also to ensure that regulators in the future know which of the two models, accepted outcomes or panel decisions, works best for different cases. Concerns about healthcare professionals come in all shapes and sizes – from a simple drink-driving conviction, to complex failings in care. In some, the paperwork will be less than a hundred pages; in others, it may be hundreds of different documents amounting to, literally, thousands of pages.

It’s about using the right tools for the job.

Leslie suggests that paper-heavy cases, those with more ambiguity or missing information, and those where more interaction with the registrant is required, would be better dealt with by panels. This echoes our own findings from our review of accepted outcome decisions made by Social Work England in its first year.* He also sees panels as better placed to deal with cases where there are cultural considerations, provided the panels themselves are sufficiently diverse.

What is eminently clear from the advice is that human decision-making is flawed and complex. It is nonetheless the best and only method we have to reach decisions in fitness to practice, where each case must be viewed on its own merits, and the decisions affect lives and livelihoods.

The practical advice that Leslie has provided is mitigation for the biases identified – and we must make as much use of these sorts of strategies as we can. But some expectation management is needed. Even with these mitigations in place, there will be mistakes, because we are all human. And because of the sector we work in, mistakes can put patients and the public in harm’s way.

The Professional Standards Authority was set up to play a dual role of (a) helping to prevent mistakes, by reviewing the performance of the regulators and identifying good practice in regulation, and (b) catching those mistakes that put the public at risk, through its section 29 powers to challenge poor final fitness to practice decisions. With accepted outcomes, as you can see, we are already making headway with our preventative work. Unfortunately, we may not be empowered to catch mistakes, because the Government doesn’t want to change the law to allow us to challenge accepted outcomes that don’t protect the public. If you agree that we should have these powers, we urge you to respond to the consultation, which closes on 16 June.

You can read more in Leslie Cuthbert's report.

*Social Work England has been running a similar process to what is proposed in the Government consultation, though with a few differences.

Find out more

1. Cognitive biases in fitness to practise decision-making: from understanding to mitigation
2. Read our guide to responding to the consultation: Three things to get right for public protection
3. Read our initial thoughts about the consultation proposals: Our First Look at the consultation or read through our FAQs on the consultation
4. Read our Review of Social Work England’s process for accepted outcomes in fitness to practise cases or a summary of key findings
5. Read From public hearings to consensual disposal - insights from the decision-making literature

This blog explores the views of one person who was sexually harassed and was a witness to a case we appealed and Kisha Punchihewa, our Senior Solicitor explains more about our power to appeal.

What happens when a regulator's panel gets a decision wrong?

Every now and then a case stands out and reminds me how valuable our power to appeal the regulators’ cases is to protecting patients and service users. One such case recently, was a case involving verbal sexual misconduct. The Authority takes all forms of sexual misconduct seriously, whether the victim is a patient, service user or a registrant. (You can read more about our work on sexual misconduct here).  

As part of our usual check on final fitness to practise panel decisions, one of our legal team reviewed an HCPC panel decision about a social worker who was said to have sexually harassed his colleagues. Our team were concerned that, despite the panel accepting the accounts put forward by the witnesses, the panel did not go on to find that his behaviour amounted to harassment or sexual misconduct. We looked at this case in more detail and decided to exercise our discretion to appeal. On 15 January 2021 our appeal was upheld.

Around the time we were carrying out our initial review of the case, one witness, we will call her ‘Mary Smith’, emailed our Concerns and Appointments Officer. Mary Smith had attended the HCPC fitness to practise tribunal and given evidence. It had been a difficult process, but she had wanted to do this because she and her colleagues felt strongly that the behaviour they had been subjected to was unacceptable. But the panel had not felt the same, and it was not clear to her why not. This is what she has told us about her experience.

Our power to appeal fitness to practise decisions – ‘Section 29’: As told by Mary Smith

"When I found out about the PSA and then looked at the website, I realised that there was a process that was all about public safety. I was able to read previous section 29 minutes which gave me some insight into the process, the expertise of those involved in these meetings, the information they relied on to inform their decision-making and their powers to access information and ultimately refer to Court if necessary.

"I recognised that it was probably our last hope. I knew how I felt about the hearing and the HCPtS decision, but I could see that the PSA would look at all of the information through an independent, public safety lens.

"I was so relieved that another party could take over the responsibility of looking into this. By the time I had contacted the PSA with my concerns I was really worn out.

"I was still dealing with the effects of a serious health issue which combined with the nature of our complaints and how I had been treated when trying to report this previously, really impacted my ability to seek a review/appeal. I just couldn’t keep going over it anymore but needed someone else to. I will never forget how I was treated by a person in authority, when I first sought help, and this gave me huge anxiety when dealing with other agencies. I am no longer an HCPC/SWE registered social worker, but I imagine that for someone else to challenge their own professional body and request an appeal would be inconceivable.

"The final HCPtS decision when published online felt like being humiliated all over again…

"When I received an email from the PSA saying they had referred it to Court I was so shocked that finally someone had seen and understood the issues. I was able to email the PSA to ask questions about processes moving forward and what the potential outcomes of the Court hearing might be. So, the referral to the PSA ensured that any errors and omissions that were part of previous processes had another opportunity to be examined and reviewed."

The PSA as a safety net

Our Section 29 process is a safety net – we look proactively at all final decisions. We don’t rely on others to raise concerns about a decision. We do this on behalf of the public.

Mary continues:

"There are so many levels at which things can and did go wrong – it is just essential that an independent body can examine everything that has led to a Panel decision and take action if needed. If any parts of the regulatory process were not open to review, I think the public and other professionals (both in the UK and those overseas) would lose confidence and respect for the profession and the regulators.

"I was not fully aware at the time, exactly what the UK law was on sexual harassment. I just knew what all women know. A grope is a grope and you know when someone’s behaviour toward you is sexually motivated. I had no idea that verbal sexual harassment was not seen as serious. I am really pleased that this case will help other people who may have to report misconduct to a regulator to have their case heard with clearer parameters about this now. It brings the law more in line with society’s values.

"When I read the High Court decision it felt as if many of the injustices along the way had been rectified. The way the judgment was written was amazing – it was logical, sensible, explained the law and spoke about the women complainants as if we were adults. The decision outcome was huge of course in what it meant in terms of protecting the public, clarifying the law. But it was the way it was worded that gave us our dignity back that I am so grateful for.

"I wonder if there is an over emphasis on what processes are best for regulation but perhaps the problem is with the people within the processes. When I look at what went wrong in our case, it wasn’t that there weren’t processes or guidelines, it’s that they weren’t followed. The lack of transparency about what parts of people’s complaints had actually been investigated, meant that it was way down the track before that was evident. What are the guidelines for sanctions and why are these not transparent to the public? What training do Panel members have? This should also be transparent especially when hearing sensitive cases. Who was the Social Worker on the panel – was her background Adult Social Care? What background did the Panel Chair have? When giving evidence, I felt I was sitting in a room full of people who came from a different planet. I knew after I finished giving evidence that they didn’t really understand."

An inadvertent gap in public protection - reform proposals

Under the proposals for regulatory reform, this is potentially a case that could have been disposed of using the new approach put forward in the Government’s consultation on reforming regulation – accepted outcomes – where the regulator and registrant will agree the outcome with no need to go to a panel. However, what the current proposals do not allow for is any independent oversight of the sanction agreed between the regulator and the registrant. These decisions would not come to us for our double-check.

We are concerned about the possible impact on public protection that reducing our oversight will have on members of the public as well as patients who will have concerns about the outcome of a case. The government has proposed a registrar review process, but what would this mean in reality? In this case, Mary Smith would have had to write a document setting out what she considered to be the material flaws in the decision and how the decision may not be sufficient for public protection. We are concerned about the burden that this would place on complainants and actually whether they have the expertise to identify the problems in a decision.

Mary continues:

"When I was emailed a copy of the HCPtS decision a week after it had appeared online, somewhere, it stated that the registrant could appeal. There was no information provided to us as witnesses/complainants as to whether we could appeal or challenge the outcome. There was so much about the decision that was upsetting and I wasn’t sure who to go to with my concerns.

"I emailed the law firm the regulator had used, to ask them if I could have copies of all of the information held, as I wanted to get an independent legal opinion. I was annoyed with myself for trusting all the parties involved in the process. I was very confused about who had what powers and I was worried about offending the law firm or the Panel. I suspected I would not be allowed all of the information on which the Panel relied, which made me wonder how on earth I could get an accurate legal opinion. I made a request to the law firm who passed this on to HCPC. In the end, I didn’t end up reading it because I couldn’t face it. After giving evidence, for a number of weeks I couldn’t think about the whole saga without feeling as if I would be sick. Re-reading the decision or my statements would not have been helpful. Neither the law firm, nor HCPC told me about the PSA. I’d never heard of the PSA either. I knew there would be a short time frame in which to seek an appeal, I just had to find out who could tell me what the process was. I think I flailed around a bit.

"I tried to find a law firm that could help. I had no idea how I would pay for it, but I was prepared to take out a loan if necessary. I tried a number of firms who either never responded or I couldn’t get through to. One firm told me about the PSA."

This is of course just the story of one person, but it is a useful reminder of the value of our power to check and appeal decisions. It hopefully illustrates why what we do, and the way we scrutinise all decisions, is important. The burden placed on members of the public to raise concerns, having sometimes been involved in a lengthy emotional process, cannot be underestimated.

Related material

1. Find out more about our power to check and appeal final fitness to practise decisions and the added value this can bring to the process itself. Or read this case study where we appealed a decision about  a doctor who sexually assaulted a nurse
2. Read our research Sexual behaviours between health and care practitioners: where does the boundary lie?
3. Find out more about our concerns around the proposed introduction of accepted outcomes to settle some fitness to practise cases but without independent oversight in our short report: 
4. We have also recently published Three things to get right for public protection - government consultation on reforming regulation
5. Find out more about our thoughts on the consultation's proposals from our dedicated web page or from our FAQs.

In this blog, our Director of Scrutiny and Quality, Mark Stobbs explains more about why we carried out our review of Social Work England's use of accepted outcomes and some of our key findings.

Background to our review

We have just published our report on Social Work England’s (SWE) ‘accepted outcome’ process. This is a new process for dealing with fitness to practise cases which aims to avoid the delay and expense of panel hearings by allowing the regulator to accept an outcome proposed by SWE’s case examiners.

Under the current process applying to most regulators, a fitness to practise matter is dealt with by a panel that considers charges, decides whether they are proved and, if so, whether they are serious enough to be considered misconduct and, if so, whether the registrant’s fitness to practise is impaired either because they pose a risk to public protection or because a finding is required to uphold standards or maintain public confidence. The panel then decides what sanction is appropriate – these can range from no action to a removing the registrant from the register.

The process is lengthy, costly and stressful.

SWE and use of accepted outcomes

Under SWE’s process, their case examiners (one social worker, one lay person) look at the case on the paperwork provided. The case examiners decide whether there is a reasonable prospect of the facts being proved and of misconduct and then impairment being found. They can then propose a sanction (short of removal from the register) which they consider addresses the concerns and, if the social worker accepts this, the case is resolved.

In a consultation currently underway, the Government is proposing to extend the use of ‘accepted outcomes’ to all the health and social care regulators. We thought it was important to look at how the process has worked for SWE and to see if there was any learning to take away from it. We examined all 41 cases decided by SWE’s case examiners in 2020.

The first point I’d like to make is that SWE showed itself to be a responsive and thoughtful regulator. We relayed a large number of comments about the cases to SWE and these were considered carefully, thoughtfully and taken on board in later cases. SWE had a clear appetite to learn and get things right, which we found hugely encouraging.

It’s also important to bear in mind that this was a new process. There were likely to be teething troubles. In these matters there is also room for debate about exactly what sanction is appropriate for what conduct. Most cases presented an opportunity for learning, but this didn’t suggest that the decision did not protect the public. 

We also saw a number of cases where the system worked well: the decisions were clear, the outcome obviously suitable to protect the public and considerable time had been saved. 

A solution for simple cases

We found that this applied particularly to cases involving the social worker’s health or where a criminal offence had been committed, but the system is plainly suitable for cases where there is clarity about what happened and the matters are accepted by the social worker.

Points of concern

We did, however, have concerns about some of the agreed outcomes and believed some might not have been sufficient to protect the public. These arose from the limitations of the process: Case Examiners only have access to paperwork and cannot resolve disputes of fact, nor can the see the social worker or take judgements about insight directly from what the registrant tells them (though we agree that it is often possible to do so from the papers).

In some cases, it wasn’t clear that the social worker did agree with the facts (and we recognise that it will not be necessary for every detail to be agreed all the time and that some will make little difference). However, if there’s ambiguity about the facts, it will be difficult for a reviewing panel to assess whether the concerns have been remediated. It also leads to doubts about how far the social worker has insight and, therefore, the basis on which it was sufficient to impose, say, a Warning for a very serious piece of misconduct. We also saw cases where we doubted whether the registrant had in fact demonstrated the insight that the Case Examiners thought justified a minor sanction.

One of these cases was potentially serious. It appeared to us to be insufficient to protect the public. We thought that a panel should have made a decision on what had happened and, in the light of that, assessed the registrant’s insight and the right sanction. This was a case where the social worker had every incentive to agree to a relatively minor sanction.

In other cases, we considered that social workers might have agreed to sanctions that were quite serious where, had they gone before a panel, they might have received no sanction at all. In fact, this did happen in one case we examined:  one registrant took their case to a panel and received no sanction. It will obviously cause problems for the system if social workers perceive Case Examiners’ decisions as likely to be harsher than a panel’s.

Addressing our concerns

Many of our concerns can be addressed by improved training and guidance. We also think it would be useful to provide extra guidance for registrants. We know that SWE will be following up on this. However, guidance and training cannot always prevent Case Examiners (or panels) reaching wrong decisions in some cases – they are after all human.

Many of these cases were serious and the decisions need to be as robust as those of panels for credibility both with the public and the profession. This is particularly important since there is no current mechanism for decisions made using ‘accepted outcomes’ to be challenged or overturned.

You can read the full report  or a summary of our findings.

Where is the patient voice in the reform proposals?

The Department of Health and Social Care’s new proposals for regulating healthcare professionals share certain characteristics with its white paper for reorganising the NHS. Both offer promising solutions for problems that have been identified within the system, and should ultimately make the operation of the system much smoother for those who work in it. There is also a case for saying that these process improvements will also bring benefits for patients. But in both cases, the question has fundamentally not been considered from the perspective of patients, and patients themselves are largely absent from the proposals: neither set of plans offers a meaningful role for patients, and in different ways this threatens to undermine the effectiveness of both.

Throughout the proposed new regulatory structures, opportunities have been missed to guarantee a role for patients in setting the standards that registrants will have to be able to meet. Regulation is supposed to be done in the interests of patients, but there are no fixed systems or structures to ensure that regulators get patients’ views on-board when setting standards for education and training, for instance.

More serious still, however, is the absence of patients from the proposed new processes around fitness to practise. This deficit is so serious that we worry whether the new proposals are truly fit for purpose: it is possible to imagine ways in which the new system will be ineffective in ensuring patients’ safety.

Patient perspective on proposals to reform fitness to practise

Under the new three-step fitness to practise process proposed for all regulators, the aim is for as many cases as possible to be dealt with by case examiners, through agreed outcomes with registrants. While this process may well be effective in reaching outcomes more quickly for practitioners, it shuts patients out almost entirely: beyond their initial raising of a concern, the patient could play no role in the process at all. In our consultation response, we will be calling for an obligation for regulators to engage with patients meaningfully at this stage, and making clear that the proposed requirement to keep patients informed will not suffice.

The lack of an effective appeal process at this and the other stages is also troubling. The proposed Registrar review power will allow some decisions to be challenged but it is unclear how effective this will be or easy it will be for patients to challenge wrong outcomes. In addition, the process places a significant burden on patients to request a review at an already potentially difficult time for them. Patients could well be left helpless while regulator and registrant agree what might seem to the patient to be an unduly lenient arrangement that does not address their concern – in other words, the process risks looking like it pays no regard to patients’ views. Indeed, things might not even get this far if the initial assessment leads to a case not being forwarded to a case examiner at all. It is hard to see how patients will feel confident in this process.

Is it a step backwards?

The lack of any remit for an independent organisation to review and if necessary challenge decisions is also a concern, and a key reason why any unease felt by patients may well be justified: without such a safeguard, which was previously introduced following the Bristol Royal Infirmary Inquiry, the system is entirely reliant on regulators remaining ultra-vigilant in maintaining rigorous standards. The power for Registrars to review the decisions of case examiners puts the regulator in complete control, with no checks or balances on its performance. Isolated slips, or the development of an unhealthy culture where due rigour is not applied, could simply go undetected. This leaves the door open for future patient safety scandals.

Standing back, it can be observed that the role of regulators is not well known. For patients and the public, regulation is not open and transparent, although information is there to be found if people do some digging. More therefore needs to be done to engage with patients and promote the role of public protection. In this context, it is concerning that the changes proposed here are likely to result in less engagement and involvement of patients in the regulatory system.

Patients need to be heard for these reforms to inspire confidence in regulation

While there may be many sensible provisions here to enable the regulatory system to adapt to changing circumstances without having to alter primary legislation every time, at crucial points the proposed processes exclude patients and silence the patient voice – the exact opposite of what a process to protect the public and patients should be doing. With so few rights and so little say, it’s impossible to believe that this system will enjoy patients’ confidence, or meaningfully protect them. Without changes to give patients a voice, we will be unable to support these proposals.

Related material

• You can find all our guest blogs on regulatory reform here
• Read our 'First look' report explaining some of our concerns around proposals in the consultation to reform the fitness to practise process
• Find out out  more about our power to check and appeal final fitness to practise panel decisions and the value it adds to regulation
• Read some case studies which show our power to appeal in practice

Mental Health Awareness Week is an important reminder that poor mental health affects a large proportion of the population every year. Just take the headline statistics from MIND’s website: one in four of us (that’s approaching 14 million adults) will experience poor mental in any one year and one in 15 of us attempt suicide (between three and four million people). 

MIND’s website makes it clear that these are likely to be under-estimates and that traumatic experiences are likely to trigger depression, anxiety and stress. I suspect that the figures for 2020 and 2021 must be worse as we have all had to cope with the challenges of the disruption to our daily lives caused by the pandemic.

The Authority sees a lot of cases where there are concerns about the way in which health professionals deal with people who have poor mental health. Many of these are serious, where major action is needed to address the professional’s behaviour to protect the public. We also accredit registers of practitioners who may be able to help people suffering from poor mental health.

The mental health fall-out for health professionals from the pandemic is likely to be significant

In this blog, however, I wanted to think about the health professionals who suffer from poor mental health themselves. This is particularly relevant now when many doctors, nurses and paramedics have been on the front line of dealing with a deadly new disease which stretched the resources available to the limit and beyond. They had the distress of watching formerly healthy people succumb, of making agonising decisions about treatment, together with the knowledge that they were at hugely increased risk of contracting it themselves. There have been reports of professionals suffering PTSD-like symptoms and this isn’t surprising.

This is likely to cause real problems for our healthcare system. First there will be the fact that professionals with these difficulties are likely, quite rightly, to be off work which means that resources will be stretched. Even more seriously, those who try to soldier on may well be at risk of providing less safe care for patients. We frequently see cases of medication errors or other poor practice from otherwise good, caring professionals who were suffering from stressful life events which affected their mental health and, therefore, their performance at work. Sadly, in a very few cases, it is a feature of the condition that the professional does not recognise that they are likely to put patients at risk.

How regulators deal with registrants suffering with their mental health

In our experience, regulators are usually sympathetic to these cases and take the view that the important thing is to ensure that the registrant is able to cope with their condition in a way that protects patients. We regularly see fitness to practise panels take the health condition appropriately into account when looking at the right outcome for the case before them. Most healthcare professionals, with advice from their doctors, can recognise what they need to do to manage the condition and find ways of working safely. In the light of this, regulators may rightly feel that they need to take no action or that undertakings agreed with the registrant will ensure public protection and, as importantly, support the registrant in their recovery. We hope that the Government’s proposed reforms will ensure that all regulators will have the flexibility to deal with these cases sensitively and in a way that assists recovery, while ensuring also that, in the rare cases where the registrant is not able to manage their condition, action can be taken for public protection.

Can regulators do more?

More recently, however, we’ve been thinking about how far regulators should take a more pro-active role in addressing mental health problems among their registrants.  This is a difficult question. The regulator cannot control the life events that trigger many cases of stress, anxiety and depression, let alone the neurological causes of the most serious conditions. However, a number of those events are undoubtedly linked to the environments in which registrants work, whether it is simply the stress of a very busy workplace, not recognising that a professional may be suffering from mental difficulties or more serious problems around bullying or inappropriate behaviours. In many cases, the employer will be best placed to recognise a problem and take the right action to support the registrant and protect patients. 

One of the principles of right-touch regulation is that problems should be addressed at the closest possible level. In many cases it will be possible for employers to provide the support that is needed without adding to registrant’s stress and exacerbating the condition that will happen if a regulator has to be involved. Doing so will save the regulator’s time and resources as well.

It’s easy to say “this is the employer’s problem” and point out that the regulator usually has no effective control over what an employer does and can pick up the pieces at a later stage. I don’t think that’s a good enough answer. We’ve seen some great examples of regulators working with employers to address individual cases and educate them about the sorts of cases that they need to refer to their fitness to practise processes: the Nursing and Midwifery Council and the General Medical Council (and possibly others) are developing these relationships. But there may well be scope to build on this.

For example, should regulators provide greater guidance for employers about their expectations around the treatment of registrants and, particularly, practices they should adopt? Should there be greater guidance or rules for registrants who have managerial roles around the wellbeing of their colleagues? Is the current liaison enough?

As I’ve suggested, all the information that we have about the impact of the pandemic suggests that we will face more registrants suffering from poor mental health. The involvement of the regulator adds further stress, even where it’s necessary. There must be scope to change things so that regulators, working with employers, can create the conditions where their involvement is minimised.  That must assist registrants and it will lead to better outcomes for patients too.

Related material

• Read our guest blog from Professor Tom Bourne, Chair Chair in Gynaecology at Imperial College London: Why burnout should be a critical issue for regulators
• Find out more about our thoughts on the current Government consultation on reforming regulation as well as the added value of our power to check and appeal regulators' final fitness to practise decisions
• Find out more about Mental Health Awareness Week 2021
• Find out more from Acas on supporting good mental health in the workplace
• Use our check a practitioner tool to search for talking therapists/counsellors registered with one of the Registers we have accredited

Health professional regulation in the UK is on the cusp of change. The legal framework underpinning the current system is fragmented and inconsistent. This reflects its piecemeal development, and has resulted in regulators sharing similar objectives, but not having equal powers to achieve these.

The latest government consultation (here – accepting responses until 16 June) seeks to address this by giving regulators broadly equivalent powers, which is intended to ensure a level of consistency. At the same time, the proposals would allow regulators to set and change many of their own processes and procedures by making rules. A consequence of this might be that, while regulators would have largely similar powers, the way they do things could vary significantly. This could enable each regulator to be more agile and flexible in their approach, but in certain instances it might lead to undesirable inconsistencies.

It is worth noting that these proposals are not the first attempt to introduce greater consistency across regulators. In 2012, the Law Commissions took a different approach and produced draft legislation that aimed to ensure consistency in key areas of public interest (here). As well as using legislation to impose consistency where it mattered most (for example, in fitness to practise adjudication), the Law Commissions envisioned that the Professional Standards Authority’s oversight would play a key role in encouraging consistency. This is not included in government’s current proposals.

Consistency as a principle of regulation

Consistency is a long-established principle of good regulation. Back in 1997, the Better Regulation Task Force (here) argued that for regulation to be consistent:

• rules and standards must be joined up and implemented fairly,
• regulators should be consistent with one another and work together in a joined-up way, and
• regulation should be predictable, to give stability and certainty to registrants.

But this still leaves unanswered questions: In which aspects of their work should regulators be consistent with one another? Are there good reasons why divergence might be desirable, and if so, what are they?

With this in mind, we commissioned Simon Christmas Ltd. to explore with patients, carers, the public and registrants to what extent, when and why they think consistency in health and care professional regulation is valuable. We also wanted to understand whether their views about consistency between regulators differ according to regulatory function, such as registration or fitness to practise.

This blog outlines some of the research findings. You can read the full research report here.

Methodological challenges

Consistency is not a straightforward topic to research. As explained in the research report, ‘consistent’ and ‘inconsistent’ are not just descriptive terms; they are often value-laden. Being consistent typically has positive connotations of reliability and stability. By contrast, it feels odd to say that we would like regulation to be more inconsistent. For this reason, the researchers avoided talk of consistency as much as possible, with the discussion focused around the less ambiguous and evaluative concepts of sameness and difference. Rather than asking participants if they thought consistency was valuable or not, they catalogued participants’ arguments about whether sameness or difference was appropriate with respect to various aspects of regulation.

Another methodological challenge related to exploring a complex and relatively abstract topic with participants whose level of awareness of professional practice and regulation was generally low. To address this, the researchers used illustrative case study examples of current differences in the regulation of different health and care professionals. Participants were then asked to consider what should be the same, what should be different, and their reasons for similarity or difference. Due to the restrictions of lockdown, the research was conducted through online focus groups with patients, carers and members of the public, as well as one-to-one interviews with registrants of different regulators.

Arguments for sameness

The research identified five kinds of argument made by participants for making regulation the same across different groups. These were typically based on ideas about underpinning similarities between professions. Which argument was relevant depended not on regulatory function, but on the perceived role of the regulator in that instance.

For example, where participants saw a regulator performing the role of an arbiter (for example, when making decisions about fitness to practise cases), arguments for sameness would rest on beliefs about fairness or what the correct decision should be. By contrast, where participants saw a regulator performing a service provider role (for example, when responding to concerns and providing updates to complainants), arguments for sameness related to adequacy or simplicity of the process.

These relationships between the regulators’ perceived roles and arguments for sameness are helpfully laid out diagrammatically with illustrative quotes in the main report.

The research also explored participants’ views about justifiable differences in the way that different professions are regulated. Five arguments for difference were identified, reflecting ways in which professions are different in some important respect, with many of these related to differences in the interactions between professionals and patients (such as the level of risk associated with practice; the involvement – or not - of a team, and so on).

Balancing sameness and difference in dialogue

Ultimately, the research found that for patients, the public, carers, and registrants, advocating for consistency between regulators rarely means asserting that regulators should operate identically. It instead involves balancing the value of different kinds of sameness – reflecting assumptions about regulators’ roles – with arguments for justifiable difference.

One theme that comes through from a number of the quotes in the report is that, as part of this balancing process, participants expect regulators to be in dialogue with one another. They expect regulators to work collaboratively to ensure that processes are aligned where this ensures fairness, or where this would make things simpler for patients or registrants (or for another of the reasons for sameness identified above). Returning to the government’s current consultation, the proposed duty to cooperate could go some way to cementing the ways of working that the public clearly deem valuable for achieving consistency. As our regulatory system changes – as it adapts to the reality of health and care professionals working in increasingly multi-disciplinary teams while the boundaries between professions blur – this seems an important finding to reflect further upon.

• Find out more in the full report
• Find out more about our thoughts on the government's consultation on reform here
• Find all our research reports here

Understanding the context for regulatory reform

Healthcare work is as rewarding as it is challenging. Young people embark on their journeys into healthcare professions with that sense of commitment and vocation to make a difference to people’s lives. It’s not just a job.

The overwhelming majority of healthcare professionals work tirelessly to serve their patients and communities to their best. This was graphically illustrated during the Covid-19 pandemic and we are all familiar with the scenes of multidisciplinary teams of professionals caring for patients tirelessly despite substandard PPE and being overwhelmed with wave after wave of new patients. Many healthcare professionals (including a disproportionate number of BAME professionals) succumbed to Covid-19 which may have been acquired whilst tending to their sick patients.

This is the context in which I believe regulatory reform for healthcare professionals should be understood.

Regulation as a support mechanism

Regulation, in this context should always be seen as a mechanism to create the right support structures from point of entry to training, during training, throughout a working life in healthcare and all the way to retirement to enable that sense of commitment and vocation to thrive and prosper. This would be balanced by mechanisms that enable practitioners who have made an error or stumbled to learn from their errors to be helped to stay in practice safely and, when this is absolutely not possible, to ensure that they cannot put patients in harm’s way.

The role of regulators and appropriate regulation is key to facilitating this process and many of the reforms are thus welcome. The current Government proposals are wide ranging but in summary they seek to:

“… devolve many of the decisions about day to day procedures to the regulators themselves, whilst ensuring that they continue to meet their overarching objective to protect the public”

The reforms are centred around four key areas:

• Education and Training
• Registration
• Fitness to practise
• Governance and Operating Framework

Indeed, the Law commission report in 2014 envisaged and proposed many of these as part of a range of interconnected reforms building in appropriate checks and balances. The risk with the current proposals is that whilst Government has accepted some of the Law Commission recommendations it has rejected others.

Picking and choosing from Law Commission recommendations

The rejection of a number of recommendations surrounding the role and powers of the Professional Standards Authority (PSA) is the biggest concern as these provided the requisite oversight to counterbalance the new proposed regulatory powers.

The Law Commission in its 2014 report specifically noted:

“.. such is the importance of the Authority’s role in the new legal framework, that the Government must ensure that sufficient resources are available to fund the Authority’s expanded role.”

Resources of course cannot mean mere monetary resources. In this context resources also mean legal power to ensure that regulatory performance, just as registrant performance, does not harm the public or undermine confidence in the healthcare professions.

The checks and balances proposed by the Law Commission recommendations are thus lost when you accept some changes whilst rejecting others that are integral to act as that counterbalance.

The Law Commission specifically recommended an enhanced oversight role for the Professional Standards Authority to ensure that the powers regulators had were used proportionately, fairly and consistently in their overarching responsibility to protect the public. In its response to the Law Commission report the Government stated:

“..the Government intends to consider further the balance between primary legislation and rules, regulations and accompanying safeguards and oversight arrangements, and within this it will need to consider the PSA’s role further.”

Some regulators themselves recognise the importance of balance and an effective oversight for the powers they hope to receive. In their 2017 submission to the Government consultation Promoting professionalism, reforming regulation the GMC commented:

“However, the increased autonomy we seek in policy and operations must be accompanied by other checks and balances to ensure that regulators’ powers are exercised appropriately. That should include (but not be limited to) strengthened measures of accountability.”

We can illustrate the benefits of an extended oversight role for the PSA using two specific examples.

The value of independent oversight

Firstly, The Law Commission recommended that the PSA be given a specific power to investigate complaints about the ways in which a regulator has exercised its functions. The Government confirmed in its 2015 response to this Law Commission recommendation that it:

“… would make a provision for similar powers”

This power may have been especially relevant in the following example. The PSA was recently inundated with concerns about problems around the process of the registration exam set by the GPhC (the pharmacy regulator) for pharmacists. The Covid-19 pandemic had led to a series of delays and modifications to the exam process and caused an immense amount of stress to young students about to enter the register of their chosen profession. Whilst understanding that the pandemic posed an exceptional challenge to regulators as it did to students the handling of the exam by the GPhC which oversees the exam in GB was markedly different to the handling by the Pharmaceutical Society of Northern Ireland which oversees the exam in Northern Ireland.

The PSA issued the following statement in March 2021 following the receipt of a substantial number of complaints:

“We should be clear that we have no power to intervene or require any changes to be made to the registration assessment taking place later this month. Nor can we investigate or take action on individual cases.”

If we contextualise this situation to members of the public contacting the PSA about concerns they made to a regulator or regulators about the care they or a relative had received what impact would this have?

The report following the Morecombe Bay Inquiry (MBI) made recommendations for  both the NMC and the GMC. There were, of course, wider systemic problems identified by the MBI including warnings issued by both the system regulators the CQC and Monitor. Reforms around system regulation (especially in the evolving NHS landscape) are outside the scope of this consultation as are concerns expressed in the Francis and other reports also about the role and accountability of non-registrant managers and senior staff.

Secondly, the PSA currently has a power to refer any decisions of fitness to practise panels to the higher courts. At present Section 29 powers are used when challenging a panel adjudication which is “insufficient to protect the public”. Any investigation is a cause for stress not only for healthcare professionals but also for complainants. The accepted outcomes proposed by the reforms are welcome because they have the potential to ensure proportionality and fairness for all parties without the need for panel hearings.

Extending the PSA’s Section 29 power to accepted outcomes

However, as a check to the system there also needs to be some straightforward mechanism for any outcome to be appealed including ‘accepted outcomes’. This is where an extension of the PSA Section 29 power to include cases closed by case examiners may be appropriate.

There are a number of issues around appeals against adjudications. The Bawa-Garba case highlighted the complex balance that needs to be struck and how both public and professional confidence can be undermined with an inappropriate challenge to an independent adjudication.

In summary, we welcome many of the suggested reforms. However, we need to ask whether the omission of certain recommendations of the Law Commission for the oversight of regulators may reduce both public and professional confidence in a reformed regulatory system.

Our first look at Government proposals to reform professional regulation, Let's get it right for public protection, can be read here.