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.

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• 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.

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

Universities are currently educating some 100,000 future and current healthcare professionals – from nursing associates in Cornwall to midwives in the Highlands, podiatrists in Belfast to radiographers in the Welsh valleys. All these students are studying on programmes which have been robustly approved and validated by healthcare regulators and which lead to qualifications that will allow them to join a professional register.

Healthcare professional education is rightly regulated by bodies which set standards including for programmes, supervision, and proficiencies. These are all necessary functions of professional regulators. However, could the current system be improved for the benefit of the public and students? And, what is the healthcare higher education sector’s views on the future of this system? The recent publication of two key documents – the UK Government’s Regulating healthcare professionals, protecting the public consultation and the Integration and Innovation white paper - provide an opportunity for us to reflect on the need for regulatory reform. Some key themes are emerging:

1. Outcome-focused regulation.

Healthcare higher education is in danger of burdensome and duplicative regulation from both healthcare professional and education regulators.[1] In recent years this regulation has become more complex with an increasing number of regulatory and quality bodies inspecting institutions. In England, a new higher education regulator, the Office for Students, has come onto the scene. Ofsted, the Institute for Apprenticeships and Technical Education (IfATE), and the Education and Skills Funding Agency (ESFA) now all engage in regulatory and quality interventions for healthcare apprenticeships. Too often higher education regulation impinges unnecessarily on healthcare professional regulation. Instead, regulation should be risk-based and outcome-focused.

2. Opportunities for innovation.

The pandemic has accelerated changes to healthcare delivery that were only expected to take place across the course of this decade. We need to consider the learning during this time from the higher education sector and NHS for the future of healthcare education.

Universities introduced extensive use of online learning to conform with social distancing guidelines. Virtual patient consultations were a great way for vulnerable students to access practice settings. Immersive technologies have also enabled the development of simulated practice placements, which can be used to rehearse and develop skills and behaviours. We welcome the Nursing and Midwifery Council’s (NMC) new recovery standard to increase simulation by an additional 300 hours.[2] Regulation must continue to be agile as we come out of the pandemic and should not be a barrier for the future integration of technological developments into healthcare education.

We also need to consider the opportunity that Brexit provides for reform to nursing and midwifery education. Any change to the EU Directive must of course assure public protection from both a regulatory and educational perspective. However, we now have an opportunity to move to a more fully competency-based rather than hours-based requirement in nursing and midwifery education within the continued context of degree-level programmes. Flexibilities to increase the use of simulation and digital technology for both theory and practice hours should be explored further.

3. Charging for quality assurance.

The UK Government’s current consultation proposes that the higher education sector could be charged for quality assurance activity. This is something that the sector strongly opposes. Healthcare professional education is already high-cost, resource intensive and relies on public subsidy to supplement student tuition fees in England.

Universities are already charged for quality assurance by higher education regulators across their provision. Charging institutions for quality assurance activities in healthcare subjects may have unintended consequences, such as causing some institutions to rethink existing provision, including in vulnerable disciplines. This would be problematic for the Government’s ambitious workforce growth targets.

Education is not supplementary to the key regulatory functions of healthcare professional regulators, but at its core and a crucial first part in the fitness to practise (FtP) function of any healthcare regulator. Education should not be viewed as an additional activity and source of funding for other regulatory activities.

Instead, we urge Government and regulators to look at options to reduce the high costs of registrant FtP activities. For example, in 2019/20 the NMC spent £37.9 million on FtP (46% of its expenditure).[3] Not even 1% of its registrants are referred annually and only 10% of these referrals lead to a hearing. Value for money is more likely to be found through reducing the cost of FtP processes than introducing fees for educational quality assurance. 

 

The healthcare higher education sector is fortunate to benefit from positive and collaborative relationships with our regulators. The strength of these partnerships has been highlighted during the pandemic, as we have worked together to deploy thousands of students to support the NHS and continued to enable learners to progress and graduate to join the workforce. We look forward to working with regulators in future years to continue to ensure regulation is agile and meets the needs of the public, students, and educators.  

Josh Niderost is Senior Policy and Public Affairs Officer at the Council of Deans of Health. The Council of Deans of Health represents the UK’s university faculties engaged in education and research for nurses, midwives, and allied health professionals.

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

For the regulators in our sector, the pandemic has been a period of unprecedented change, disruption and evolution. Last autumn, the Authority set about a project to capture the learning that came out of the ways regulators responded during the first period to July 2020, and today we publish the report of that work. 

The regulators were implementing change with extraordinary speed. Some were establishing temporary registration. All were producing guidance to help steer registrants through the terribly difficult decisions they were having to make. All were transferring work and decision-making online. This was impressive – reducing the costs, increasing efficiency and speed, and reducing carbon footprint, to name but a few of the apparent benefits.  But we were also hearing some voices of doubt, that the patient and public voice was being lost, and that some were excluded from the world online.

We felt it was important to capture the insights of that first period before we all move on. But how could we even begin to work through the changes, how could we look at what happened and any new risks at play, before there was any opportunity for formal evaluation or assessment? How could we capture the thinking of this moment in time, while the pandemic was still going on? How could we achieve any kind of deep dive when everyone was working so hard to keep the show on the road?

Using the case-study approach

We felt that a case study approach allowed us to do this in a reasonably pragmatic way. It gave the regulators the space to set out for themselves why they had made the changes and adaptations that they did in a number of areas. We are truly grateful to the regulators for the work they put into the 28 case studies in the report.

The case studies relate to what happened in that first period up to the end of July 2020. Of course, the discussion in the report does not limit itself strictly to that time but brings in some of what has happened since. If you are after an up to date account of where the regulators are now, their websites would be your best first port of call.

I hope the report will be a ‘document of record’ and of interest to a wide readership. Those who want to use the experience of the pandemic to inform their responses to the current consultation on regulatory reform; those who in time will study and enquire into aspects of the pandemic; regulators from other countries who want to know how the UK responded, as they review their own actions; those who will be involved in planning for future crisis preparedness, to suggest a few. 

The Authority remains committed to regulatory reform during this crisis, with a focus on ensuring that regulation is more agile and puts patient protection at its centre. Greater flexibilities must be balanced with appropriate oversight, including to minimise risks arising from unjustifiable disparity of regulatory approaches, processes or practices; that the quality of decision-making is upheld; and that EDI impacts are fully considered.

What next?

It’s not our last word. The recommendations only aim to set out areas for future work, more discussion, more planning at such time as this situation stabilises. And shortly we will be publishing a further report, this time focusing on the ethical challenges for registrants of the pandemic. Many of us are gathering our thoughts towards a response to the DHSC’s current consultation on regulatory reform – how will we distil our experiences of the pandemic to make regulation more adaptable and flexible in future, but balanced with oversight and accountability? So there is much more to reflect on and discuss, as we also try to make sense of the losses that we have all endured, and work out how we will emerge from this most difficult time.

You can read the report, Learning from Covid-19, here.

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

Earlier this month, together with the Welsh Government, we held our fourth Regulatory developments and the Welsh context seminar. This event is an opportunity to review recent health and care regulatory policy developments in Wales and across the UK, and to provide an update on current issues and challenges influencing Welsh Government policy. While we did miss the opportunity to visit our colleagues in Cardiff, and to network over the course of a full day as opposed to just two and a half hours – what this remote format did offer was ease of access. This led to our highest turn-out yet, with 90 colleagues dialling in from across the UK.

The session aimed to examine the impact of the Covid-19 pandemic on different parts of the system. As noted in the opening remarks by the Minister for Health and Social Services in Wales, Vaughan Gething, professional regulation has had to be flexible and reflect that the scope of practice for many healthcare professionals has changed and extended beyond traditional boundaries. This need to change can lead to improvements, but it is vital that we don’t lose sight of patient safety.

Adapting to the pandemic

Education and training had to innovate to adapt to lockdown measures. Angela Parry from Health Education and Improvement Wales (HEIW) outlined how they had responded to the crisis, and how digital technology became central to this. Annual Reviews of Competency Progression (ARCPs), exams, interviews, GP modules, and professional support all had to be provided virtually, as did planned work to develop and approve programmes and carry out strategic reviews. At the same time, many professionals have had to move to providing care and support to patients and service users online. This presents new challenges for both the professionals and the public. Efforts to support health literacy and digital literacy therefore have and will continue to play a huge part in ensuring genuine co-production of services into the future. 

David Pritchard from Social Care Wales explained their approach to flexibility, which included making all of their work, including hearings, available online. For example, piloting an approach to fitness to practise to take context into account to reassure registered social care professionals that the unprecedented demands put on them were being considered. Other processes included: setting up temporary registers, establishing new rules for manager registration to help cope with absences, and the use of multidisciplinary teams. This demonstrated how important adaptability and the need for transferrable skills which go beyond clinical and professional abilities are to meet workforce requirements.

The seminar also looked at how mental health has been supported throughout the pandemic. Tanya Leonard and Gary Catterall from the Association of Child Psychotherapists gave their perspectives on moving therapeutic work to online forums and phone calls. Some groups of patients responded more positively to this than others – while it caused concern for some children and young people, it also made services more accessible and useful for others. It has been important to make sure face-to-face support can continue where there is an urgent need. Practitioners have been creative, taking advantage of new ways of working where possible – for example, by making new links with colleagues to ensure that service users in need are flagged quickly.

The need for effective communication

In a crisis, communication becomes paramount to responding effectively, and can be the most challenging part of the process. Speakers explained how they worked together with stakeholders and the wider workforce to react in a cohesive and timely fashion, and how this has highlighted the greater need for collaboration beyond the pandemic for the future.

For HEIW, liaising and collaborating between the four nations and the regulators was essential to ensure education standards were maintained when emergency standards were introduced. Angela also noted how they worked to support the wider workforce and the system, by providing access to resources in areas such as compassionate leadership, health and wellbeing, critical care, and remote clinical decision-making, among others. Simulation based education (SBE) and other tools have been used to facilitate experiential learning in a time where it has been impossible to do so normally.

Social Care Wales stressed the need for regulators to engage and work together, develop better relationships with employers, engage in wider legal debates, and communicate directly with workers on the front line. The regulator facilitated peer support networks and provided data and information on the workforce to Government and others. They suggested that going forward, the UK Regulators must continue to work together across the nations.

David added that while virtual hearings work and are popular, they do present challenges – suggesting that better support is needed for those undergoing fitness to practise investigations, with an understanding of their impact on newly qualified social workers. Attendees also discussed how lockdown has highlighted the need for more meaningful personal communication with patients, and that decisions needed to be made with rather than for them. Examples of this included seminars on the remote fitness to practise guidance.

According to the ACP, a move to virtual has made professional connection more efficient for many Child and Adult Psychotherapists, with meetings and discussions being made easier to arrange and access. As Tanya and Gary explained, the all Wales Child and Adolescent Psychoanalytic Psychotherapy (CAPPT) group has developed and continues to have more contact with organisations, who can work in partnership when resourcing the workforce for children and young people with mental health difficulties. The ACP are talking to HEIW about the development of an infant mental health diploma and a standardised training for clinicians. They are also working with colleagues in Welsh Government to discuss developing the profession to help improve access.

While bringing together services and working across the system, organisations need to also reflect on what has and has not worked. Re-deploying staff, stabilising services, and delivering robust interventions were all actions taken to meet the needs of the population and to keep young people safe and protected. With this comes a need for effective risk management, safeguarding and education.

Learning for the future

The Authority has been working on its own analysis on Covid-19’s impact by carrying out a learning review. The review is due to be published this Spring. Douglas Bilton gave an update on how regulators had responded during the first wave of the pandemic until July 2020. For the review, we asked regulators and stakeholder organisations what measures, new policies, new approaches or key decisions they considered to have been the most effective in responding to the pandemic, and where these have had a particular positive or negative impact. They were also asked whether there had been any unintended consequences of these changes, as well as if the crisis had highlighted any gaps in regulation. The report identifies various themes and sets out provisional recommendations for further review, including the value of establishing temporary registers, set against the risks and costs; the experiences of temporary registrants, and whether other regulators who did not have powers to set up temporary registers should have had this power, as well as how the pandemic had impacted collaborative working.

 

The UK is not short of healthcare scandals which in turn lead to reports that catalogue clinical failures often associated with callous and unprofessional behaviour. Jeremy Hunt speaking at the Kings Fund in 2012 put his finger on the issue when he said 'In places that should be devoted to patients, where compassion should be uppermost, we find its very opposite: a coldness, resentment, indifference, even contempt. Go deeper and look at the worst cases like Mid Staffs and Winterbourne View, and there is something even darker: a kind of normalisation of cruelty where the unacceptable is legitimised and the callous becomes mundane.' Yet most clinicians start their career with the best intentions and are often altruistic in their outlook. So how can things go so terribly wrong?

As regulators it is important to ask what culture is created by some of the actions taken with the intention of protecting patients. In 2015 we published a series of three papers* examining the impact of complaint procedures on doctors. We found high levels of moderate to severe anxiety and depression as well as suicidal ideation for all types of complaint procedure, particularly those involving referral to the General Medical Counicl (GMC). We found doctors who had been involved in complaints procedures were very likely to practise medicine defensively, meaning that they hedged (e.g. overprescribed, over referred, over investigated) or practised avoidance (e.g. abandoned procedures early, avoided difficult patients or surgery). This behaviour is clearly not in the interests of patients and adds significantly to healthcare costs. Furthermore this contributes to the blame culture and fear that permeates both the NHS and other healthcare systems. This ultimately does not help in relation to burnout.

What is burnout?

First of all we need to define what burnout is. The WHO defines it as a syndrome conceptualised as resulting from chronic workplace stress that has not been successfully managed. It has three dimensions:

• emotional exhaustion,
• depersonalisation, and
• reduced professional accomplishment.

Of the three, depersonalisation manifests as negative, callous, and cynical behaviours; or interacting with colleagues or patients in an impersonal or unprofessional manner.

Critically it is associated with an inability to express empathy or perhaps grief when a patient dies. Emotional exhaustion sounds familiar to all of us, but it is particularly prevalent when people are forced to devote excessive time and effort to tasks that are not perceived to be beneficial (examples of this might be struggling with poor hospital IT and patient records, inappropriate bureaucracy, or aspects of appraisal).

To understand the size of the problem we carried out a survey study that was sent to all obstetricians and gynaecologists in the UK. Over 3,000 clinicians (response rate of 55%) completed a validated instrument to measure burnout (the Maslach Burnout inventory), an assessment of defensive medical practice and answered questions about wellbeing. Alarmingly, we found 43% of trainees and 31% of consultants met the criteria for burnout. Clinicians with burnout were approximately four times more likely to practise defensively. Doctors with burnout were three to four times more likely to report depression, anxiety and anger/irritability. One in 16 doctors with burnout reported suicidal ideation.

Interestingly when we published this paper, it was the Sun newspaper that put two and two together: 'Researchers from Imperial College London warn one in three maternity doctors are struggling with burnout….. The findings follow the revelations last week that dozens of babies and several mums died amid major failings at a hospital trust. In the biggest maternity scandal in NHS history, blundering doctors, midwives and bosses worked unchecked in a "toxic" culture at Shrewsbury and Telford Hospital Trust for 40 years.' I think the journalists at the Sun were absolutely right to make this association.

Let’s discuss a little more about why burnout matters. I think we have seen above some of the impacts on individuals. For the individual clinician there is an increased likelihood of alcohol and substance abuse, broken relationships/divorce, depression as well as suicide. For institutions it is associated with decreased quality of care and an increase in medical errors, decreased patient satisfaction, poor professional behaviour, decreased professional effort and increased staff turnover. In a large systematic review on burnout nearly every study examined showed an association between burnout and patient safety incidents, lack of professionalism and low levels of patient satisfaction. Risk factors for burnout include unrealistic expectations, being a young adult with an idealistic worldview, lack of control, heavy workload, understaffing and a variable work schedule. These read rather like the job description and traits of a junior doctor.

What are the solutions?

What are the solutions? I think the report by Professor Michael West and Dame Denise Coia outlines many of these. Several key themes are important including introducing mechanisms for doctors to influence the culture of their healthcare organisations and decisions about how medicine is delivered, and improving working conditions including work schedules and rotas. In addition, the creation of supportive teams, ensuring organisations have a nurturing culture, and tackling workload are of paramount importance. This is hardly 'rocket science', and it is disappointing that these requirements need to be pointed out to organisations that purport to specialise in caring for people.

The UK is not an outlier by any means in terms of burnout and its effects. In the United States in 2017, the National Academy of Medicine (NAM) launched the Action Collaborative on Clinician Well-Being and Resilience, a network of more than 200 organisations committed to reversing trends in clinician burnout. The NAM was so alarmed they described burnout as a healthcare emergency. They estimated the societal costs of burnout in the USA each year amounted to $4.6 billion. It is well worth looking through some of the resources that the NAM has created by visiting their website.

Of course, everything I have written relates to what was happening before the SARS-CoV-2 pandemic. In a large survey study on UK doctors carried out by the BMA some of the qualitative answers given by doctors perhaps speak more eloquently than data:

'Seeing people dying, receiving and breaking bad news, no socialising outside work to refresh and recharge – all these factors increased the level of anxiety and depression'  

'I signed up to be a doctor. But my family didn’t choose this career path, I feel like I’ve forced the risk on them and I can’t get away from the guilt,'

'I am frequently tearful about all those who have died; continuously fearful of contracting Covid and secondarily infecting my family.'

How the experience of working through the pandemic impacts on the medium to long-term wellbeing of clinicians is a major concern.

Unfortunately institutions more often than not position burnout as a personal responsibility and mistakenly offer stress management workshops, individual training in resilience or similar initiatives as the only solutions. This fails to grasp the importance of implementing organisational strategies to deal with the problem. Some of these are usefully summarised in a review by Tate Shanafelt, who is the chief wellness officer (CWO) and associate dean at Stanford medicine. It is also worth quoting how he sees his role: 'health care CWOs must focus primarily on improving their organizations' work environment and culture, not on developing individual-level interventions, such as personal resilience, mindfulness, and self-care offerings. The goal of this work is to address what is wrong with the practice environment, not to make individuals better able to tolerate a broken system.'

Given the clear association between burnout and the quality and safety of patient care, I would argue that it should be compulsory for institutions to measure levels of burnout and other metrics of staff wellbeing down to individual department level. This should be used as a measure of quality of care alongside other outcome measures. Regulators should take a keen interest in this data when judging the behaviour and actions of individuals, who are often victims themselves of a toxic and unhealthy culture.

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Brief Biography:

Professor Tom Bourne is Chair in Gynaecology at Imperial College London, Hon Consultant Gynaecologist at Queen Charlottes and Chelsea Hospital and Visiting Professor at KU Leuven Belgium. He is director of early pregnancy research at the Tommy’s National Centre for Miscarriage Research. He is President of the International Society for Ultrasound in Obstetrics and Gynecology and the UK Association of Early Pregnancy Units.

Personal webpage: https://www.imperial.ac.uk/people/t.bourne

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Summary of links and references used in the blog:

1. https://www.gov.uk/government/speeches/28-november-2012-jeremy-hunt-kings-fund-quality-of-care last accessed 4th March 2021
2. *Bourne T, Wynants L, Peters M, et al. The impact of complaints procedures on the welfare, health and clinical practise of 7926 doctors in the UK: a cross-sectional survey. BMJ Open 2015;5:e006687. https://bmjopen.bmj.com/content/5/1/e006687
3. *Bourne T, De Cock B, Wynants L, et al. Doctors' perception of support and the processes involved in complaints investigations and how these relate to welfare and defensive practice: a cross-sectional survey of the UK physicians. BMJ Open 2017;7:e017856. https://bmjopen.bmj.com/content/7/11/e017856
4. *Bourne T, Vanderhaegen J, Vranken R, et al. Doctors' experiences and their perception of the most stressful aspects of complaints processes in the UK: an analysis of qualitative survey data. BMJ Open 2016;6:e011711. https://bmjopen.bmj.com/content/6/7/e011711
5. Burnout, well-being and defensive medical practice among obstetricians and gynaecologists in the UK: cross-sectional survey study. Bourne T, Shah H, Falconieri N, Timmerman D, Lees C, Wright A, Lumsden MA, Regan L, Van Calster B. BMJ Open. 2019 Nov 25;9(11):e030968. doi: 10.1136/bmjopen-2019-030968. https://bmjopen.bmj.com/content/9/11/e030968
6. https://www.thesun.co.uk/news/10422581/burnout-doctors-babies-at-risk/ last accessed 4th March 2021
7. Panagioti M, Geraghty K, Johnson J , et al. Association between physician burnout and patient safety, professionalism, and patient satisfaction: a systematic review and meta-analysis. JAMA Intern Med 2018;178:1317–30.doi:10.1001/jamainternmed.2018.3713
8. https://www.gmc-uk.org/about/how-we-work/corporate-strategy-plans-and-impact/supporting-a-profession-under-pressure/uk-wide-review-of-doctors-and-medical-students-wellbeing last accessed 4th March 2021
9. https://nam.edu/initiatives/clinician-resilience-and-well-being/ last accessed 6^tMarch 2021
10. https://www.bma.org.uk/bma-media-centre/personal-impact-of-the-covid-19-pandemic-on-doctors-wellbeing-revealed-in-major-bma-survey last accessed 6th March 2021
11. Executive Leadership and Physician Well-being: Nine Organizational Strategies to Promote Engagement and Reduce Burnout. Shanafelt TD, Noseworthy JH. Mayo Clin Proc. 2017 Jan;92(1):129-146. doi: 10.1016/j.mayocp.2016.10.004.
12. The Health Care Chief Wellness Officer: What the Role Is and Is Not. Ripp J, Shanafelt T. Acad Med. 2020 Sep;95(9):1354-1358

Director of Standards and Policy, Christine Braithwaite, reflects on the impact the pandemic has had on the health and social care workforce, as well as how the Authority intends to use learnings to respond to the ongoing challenges.

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A physical and emotional toll on registrants

For registrants, it has meant a myriad of difficulties. Nurses in intensive care used to caring for one patient at a time are suddenly caring for several patients. In this crisis the ethical decisions they make have taken on a new speed, intensity and significance. Who to attend to first, and in what order should normally routine tasks now be performed? When the timing of an intervention can be critical, these are hard choices to make. Then there is the anxiety of clinicians being moved to unfamiliar clinical areas, dealing with the sorts of conditions they may have covered briefly during their early training, but no longer experience within their current specialty. For many it’s managing the sheer volume of patients requiring complex Covid-related interventions, and having to speculate, in the early days at least, rather than having the comfort of knowing, what the best combination of treatments might be. And when they are tired, possibly distracted, anxious for their own safety or their colleagues, some separated from their own families or worried about family members – there there are knock-on effects for the care they provide to other patients.

Then there is the emotional toll of more patients dying than usual and having to tell their families. The role conflict which many felt when they had to deny families access to their dying family member – speaking through glass, or on the telephone, unable to touch or comfort them. And the unfamiliarity of caring for patients and not knowing if they were putting their own health, and possibly that of their family, on the line. We expect our armed forces to risk their lives. Not so much our doctors, nurses, paramedics, pharmacists, social workers and their brave colleagues. We cannot – and do not – underestimate any of this, and are in discussions with the regulators about the best way to take account of the Covid context in investigating and responding to any concerns.

How the regulators responded

Regulators too have had to tread unfamiliar ground. They responded quickly, opening emergency registration to allow retired professionals to return to practice, publishing guidance, and moving hearings to virtual platforms.

We set up a Covid risk log, tracking new risks as they emerged to help us identify whether we or the regulators we oversee might need to take action to stem them. The sectors where we identified potential risks included patient care, education of health and care professionals, safeguarding, workforce, freedom to speak up, regulators and social care. In each of these areas we checked to see what action regulators were taking; for example, making changes to placements for students or the arrangements for accelerating second and third years students’ entry to the workforce to support their qualified colleagues. Regulators also made changes to their revalidation requirements and issued guidance for registrants on speaking out during the pandemic when some raised concerns about feeling silenced.

As a result of our monitoring, we consulted, and then produced, guidance on virtual hearings for regulators on holding hearings remotely, which we issued to help them achieve a consistent approach. We tracked the issues surrounding personal protective equipment (PPE) and the impact of Covid on BAME staff, noting that regulators gave clear guidance to employers to undertake risk assessments to ensure their employees were protected – and we continue to monitor it. We tracked reports of the blanket imposition of Do Not Attempt Resuscitation Orders. Regulators responded promptly, putting out guidance to their registrants not to do so, but we were unclear whether any that had been imposed had been lifted. We subsequently wrote to the Department for Health and Social Care. We are pleased to see that the Care Quality Commission are following this matter up through their review, now they have resumed inspections.

Other aspects of regulators work have involved changes to their educational requirements, particularly practical ones, to allow for the fact that this may be difficult for hospitals to manage in the pandemic. On fitness to practise matters, they concentrated initially on the urgent cases – identifying the cases which needed interim orders or reviews.

How the Authority adapted

We too altered our activity by limiting our performance reviews and adapting our timescales to ensure that regulators had the space to undertake their urgent work. We also sought clarification from DHSC about the practising status of practitioners on Accredited Registers, resulting in clearer guidance for the second phase of lockdown, and an adjustment to our accreditation process to take account of the impact of Covid.

We all hope this pandemic will be a unique event in our history. But it may not be – and so later this month, we will publish a report on learning from the early period of the pandemic. It will include a series of case studies from the regulators, learning from their experiences of regulating during a pandemic. We hope this will be useful, not just in continuing to manage this pandemic and to sustain the gains made by the rapid way in which the regulators have responded and innovated, but also in making ready for any future challenge.

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Related material

Read our guidance on virtual hearings or find out more about how we have adapted our processes and are working through the pandemic here.

We are also publishing a series of guest blogs looking at the impact of the Coronavirus pandemic across the four nations of the UK:

• Ensuring meaningful community engagement during a pandemic: a guest blog from Lynsey Cleland of Healthcare Improvement Scotland - Community Engagement
• Covid-19 and its impact on health and care: a view from Wales: a guest blog from Dr Angela Parry from Health Education and Improvement Wales
• The Covid-19 crisis presents challenge and opportunity for health and care in England: a guest blog from Danny Mortimer, Chief Executive of NHS Confederation

Introduction

How does a regulator make sure their registrants continue to be fit to practise?

What steps do regulators take to quality-assure education and training programmes?

Has the time it takes for a regulator to deal with a complaint about a potentially risky registrant increased?

We explore questions like these (and many more) when we assess the performance of the regulators. We publish a report for each regulator every year on a rolling basis. This process helps us to protect the public by identifying issues and making sure that the regulators can act to sort them out. It helps them improve – through this process we can identify strengths and areas for improvement and recommend changes.

In this blog we are focusing more on how we assess risk as part of our performance reviews and whether there are other (better) ways to do it. This is one of the reasons why we are consulting on our approach to reviewing the regulators’ performance and asking for your feedback.

What is the performance review?

The performance review is essentially our check on how the 10 health and social care regulators are working to protect the public, but can it be improved? Are there other ways to identify risk in our performance reviews and assess how the regulators are managing risk?

How performance reviews currently assess risk

There are two main ways that the current performance review process contributes to our ability to identify and act on risks.

Our yearly check on how well each regulator is meeting our Standards of Good Regulation

Each year we pore over hundreds of pieces of information about each regulator. This includes statistics, Council papers, annual reports, fitness to practise data, their websites, feedback from stakeholders and members of the public. We analyse all this information to see what it tells us about how each regulator is performing. If it points to any problems, we will go back to a regulator to ask for more details and, when we consider it necessary, we will carry out audits before we make a final decision. We will then publish our performance review report. The Standards of Good Regulation encompass the regulators’ four core functions: setting standards and guidance; education and training; registration; and dealing with concerns and complaints about professionals on their register – the fitness to practise process.

We know that if things go wrong, it can impact people who use health and social care services. For example, if there’s an issue with a regulator’s registration process, it could mean that a professional is added to the register without the right qualifications. Or if there’s a problem with how the regulators oversee education and training, it could mean that students aren’t receiving the right education to equip them to work safely once they’ve qualified. And if there’s a problem with a fitness to practise procedure, it could mean that the regulator doesn’t take the right action at the right time when a concern is raised with them about one of their registrants.

Any one of these issues could result in harm occurring to a member of the public – so we regularly look at how the regulators’ processes are working to try to prevent this happening.

How do regulators identify risks

Secondly, we look at how the regulators identify risks themselves. The regulators consider where there are likely to be risks relating to the profession (or professions) they regulate, as well as emerging risks. These could be due to changes in the wider environment. We ask how well the regulators are monitoring and responding to these risks.

For example, sudden changes and challenges in health and social care could throw up new risks and we would expect the regulators to respond to these. The way regulators have responded to the current pandemic is an example of this – issuing additional guidance to help their registrants provide safe care in these difficult circumstances. The regulators have also had to adapt – recognising that fitness to practise hearings could no longer be held in person, they moved most of these online, setting up virtual hearings to make sure fitness to practise cases could continue to move forward.

Similarly, if there is a sudden influx of concerns about a particular issue (for example, cosmetic surgery), the regulators need to identify this and consider what action they need to take – this could be reviewing the standards and guidance they set for their registrants working in this area. Or if there is a sudden increase in concerns coming through about registrants who all work in the same location – let’s say in a hospital – we’d expect the regulators to identify this. This might also require the regulators to cooperate and collaborate with other regulators and organisations to identify patterns and emerging areas of risk.

Why are we looking at this now?

We are asking ourselves whether we are approaching our performance review work in the right way, and if there’s anything we could change to make sure that we’re identifying and acting on risks to the public.

We want to make sure we learn from things when they do go wrong. In recent years, there have been failings in health and social care, which have had significant impact on patients, services users and their families. Not only do these affect individuals and their families – they can have a wider impact on public confidence and trust. Recent public inquiries have identified failings at the regulators or in the regulatory system itself.

These include that the regulators’ processes were not effective in addressing the public protection concerns identified to them, either to prevent harm or take early action when they were discovered. There have also been concerns about regulators’ internal processes and how they communicate.

We want to make sure that our performance review process continues to develop and is working as best it can to improve patient safety. How we look at regulatory risk is key to this aim.

What might we change?  

Below we outline some of the key areas we believe are important to take into account to identify risks, including:

• Engagement with stakeholders: we want to engage more with a wider range of stakeholders, including members of the public, the regulators, registrants and representative bodies, as well as employers. We understand that registrants and members of the public often have direct experience of how a regulator is operating, giving them a better idea about what’s working well and what isn’t. We want to make sure we’re connecting with the right people and that this information is informing our assessment of the regulators.
• Evidence base: we are looking at whether there is more evidence out there that we should be using to inform our assessments of the regulators.
• We want to develop our understanding of profession-specific risks: regulators should have a very strong understanding of the clinical risks associated with practitioners. However, these risks change over time, including with the introduction of new technologies, and it is important that we are satisfied that regulators are keeping up to date with these.
• Thematic reviews: we think thematic reviews would provide us with an additional tool to the performance reviews and would help us to see risk across the regulatory system, understand potential regulatory failings, as well as to support learning and development across the sector. Rather than looking at individual regulators, thematic reviews would draw information together from several of the regulators to help us see the bigger picture.

What can you help us with?

We are asking for views on our approach to risk through our consultation. Specifically, we are asking the following questions about our approach to risk, but we would like to hear from you if you have other comments as well.  

1. Have we identified the right areas of our approach that we need to develop in this area? Is there anything else we should be considering?
2. How could we best engage with stakeholders, to ensure that we are aware of key risks to public protection? Is there any other evidence that we should be seeking to inform our performance reviews?

The deadline for responding to the consultation is 4 March 2021. You can read the full consultation or a summary of the questions where you can input answers directly (you don’t need to answer all the questions to respond).

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Related material

Find out more about:

• How to respond to the consultation
• Read our short guide on how we carry out performance reviews
• See our latest performance review reports
• Read a case study about how our reviews can help regulators improve their processes
• Read the Standards of Good Regulation

I’m writing this from the perspective of one fortunate gay man. The perspective (and experience) of others will be different from mine. If what I write chimes with their experience, that’s great. But this is personal and I can’t presume to write for them.

The history is depressing. Take the first thoughts that came into my head: Tchaikovsky (suicide), Oscar Wilde (prison and ruin), Turing (chemical castration and suicide), pink triangles under the Nazis, prison sentences and those who were successful (Coward, Novello, Britten simply from the music industry) living with the risk of prison and never openly revealing their sexuality. And AIDS (though this, of course, does not just affect gay men).

Go back further and there’s just silence or rumour. We weren’t taught at school that over 75% of Shakespeare’s sonnets are addressed to a young man. Information about gay lifestyles in history comes from laws or reports of criminal proceedings (apparently the fashion for long pointed shoes in medieval times was associated – as so many fashions are – with gay men and was duly proscribed by the church). References in Christopher Marlowe’s writing to homosexuality were censored in the nineteenth century and the publisher imprisoned.* There’s almost nothing in literature before the 1920s. Our history is invisible, which leads to ignorance and prejudice. Until 2003, section 28 of the Local Government Act 1988 prohibited local authorities from promoting homosexuality or the ‘acceptance of homosexuality as a pretended family relationship’.

Even in countries where the state won’t throw me off a high building or flog me for the way I have sex, Messrs Putin and Erdogan describe homosexuality as a decadent western phenomenon and the Polish Chopin Institute argues that the letters which sound pretty explicit about Chopin’s attraction to a man have been ‘mistranslated’. It’s the classic approach to minorities you don’t like: you criminalise, you silence and you ignore.

It’s easy for gay men to be invisible. Unlike most other groups people can’t tell (as opposed to suspect) whether someone is gay when you first meet them. If you’re careful, you can navigate your life under the radar and, indeed, have fun. 

It’s understandable. At school, the worst accusation was of being gay, and the perception that you were led to bullying, mockery, exclusion. It still does. It was not challenged then; I think it is now. The images I saw growing up were of people I was invited to laugh at, pity or judge. Until I was in my late teens, I didn’t know anybody who was openly, let alone happily, gay. Relations’ and colleagues’ attitudes towards gay men have varied from open disgust through pity to toleration provided we kept quiet about it – sometimes when they were perfectly aware of my orientation.

When AIDS arrived, the stigma increased and was used to justify intrusive questions if you wanted insurance or a mortgage. For the record, an estimated 32 million people have died of AIDS-related illnesses since that pandemic began and the annual number of deaths is around 690,000 per year (the average number of deaths from ‘flu is between 300,000 and 650,000). Incidentally, the parallels (think facemask and condoms), differences (funding of research, restrictions on basic liberties) between the AIDS pandemic and Covid-19 are fascinating and have hardly been discussed. Funny that.

With this background, it takes an element of courage to disclose your orientation. Is there a single gay man who, when asked perfectly friendly, innocuous questions about his life outside work, has never done a swift risk assessment (What are their views likely to be? What power do they have? Will it come out anyway? Can I be bothered? Do I talk about flatmate/friend/partner/husband? Can I avoid pronouns?) before deciding what to say? We’ve all seen, if we simply mention the sex of our partner, the involuntary indication of the other person going ‘Ah, so he’s gay’. If we want to disclose, there’s that question of choosing the right moment, finding the words, waiting for the reaction. Often, it feels safer, or just easier, to change the subject.

I’ve been fortunate: I’ve navigated my career in workplaces that have mostly been tolerant (colleagues here are brilliant). I’m lucky that I had no talent for sport, desire to serve in the army or deep religious belief. I’ve avoided being beaten up for being gay. I choose the sort of hotels where the height of irritation is when the receptionist checks that we did indeed want a double bed. I’ve lived openly with my husband for 30 years. My immediate family are unreservedly supportive. My education, social background and not really caring what other people think undoubtedly helped.

Others aren’t so fortunate and this affects health in two obvious ways. Firstly, people in the LGBTQ+ community are more likely to suffer from poor mental health – the background affects self-esteem and can be exacerbated by guilt or rejection by family or friends. You can fall victim to a narrative that, in some way you are defective and fall prey to charlatans who take advantage of this and the associated stigma by offering ‘conversion therapies’. Secondly, the reluctance to disclose your orientation must have a direct effect on your health – we know from our own section 29 work, that some healthcare professionals (thankfully a small minority) share the attitudes I’ve described). How many of those deaths from AIDS-related illnesses could have been prevented if patients had been open about their orientation and sought help early? Stigma kills.

It’s only recently that living openly was seen as a human right. In a judgment in the Supreme Court in 2010 (just seven years after section 28 was repealed), Lord Rodgers dealt robustly with the argument that gay asylum seekers could take advantage of their invisibility and just be discreet in their home states:**

To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. …  In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution. 

My hero.

Visibility matters: sons, brothers, uncles, fathers and husbands over the last 50 years came out without repercussions and were seen to be happy. My nephews and nieces don’t only see me and Richard as happy gay men, but other friends of their parents too. If any of them are gay, it might help. If not, it might make them think twice before joining in the bullying. Sexual orientation ceases to be an issue.

LGBT+ History Month adds to our visibility. There are painful things there, reminding us of humanity’s viciousness towards minorities and people who don’t fit in. We shouldn’t shy away from that. But it also shows that we have existed certainly long before Leviticus did, that gay men and women, just like their straight counterparts have achieved great beauty and great discoveries for the world as well as leading fashion trends, and that lots of us were able to have fun despite the law. Perhaps one day one of us will score the winning goal at Wembley without anyone batting an eyelid.

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Related material/Notes/Useful links

Find out more about LGBT+ History Month, including the theme for this year, useful resources/toolkits and events.

The Academy for Healthcare Science (AHCS) was accredited by the Professional Standards Authority soon after the Accredited Registers programme was introduced eight years ago. Accreditation of voluntary registers addressed the clear discrepancy in public protection, between health and care occupations which were subject to statutory regulation, and those which had no form of independent assurance whatsoever. The programme has provided a system of oversight for these vital areas of the wider health and care workforce, creating a benchmark for standards of practice, and strengthening public confidence in these professions as whole.

I welcome the Authority’s Strategic Review of the Accredited Registers programme. It is an opportunity for a renewed focus on what the priorities should be going forward, thereby providing the public and those working in heath and care with the clarity they need.

Working towards and maintaining accreditation for eight years has been a big commitment for us and for those who joined our register – therefore it is crucial that we take this opportunity now to ensure that the programme is as effective as it can be, and fit for the future

Perhaps it is also a great opportunity to explore ways of how the programme can get better engagement and involvement from, Regulators such as Care Quality Commission (CQC), the NHS, employers and the public, the review provides the opportunity for this, and I hope that these groups contribute and provide advice.

Benefits of Accredited Registers

There is a need to make sure that every professional who encounters the public can demonstrate that they are working to agreed, authorised standards. Currently, a breadth of practitioners can continue to treat patients and clients without oversight from a recognised body, which is first and foremost a clear risk to public safety. It also negatively affects other regulated professionals, especially if something were to go wrong in areas of a patient’s treatment delivered by these practitioners.

 For those in private practice, being on a register lets their clients know that the practitioner is committed to high standards and has the safety and interests of the public at their heart. People must work hard to meet and maintain compliance of the register standards and undertake continuing professional development. Gaining accreditation – it is not an easy process in the first place, and it is also a commitment to maintain and continue to develop year on year.

New professions proliferate in the healthcare world, which is why an enabling and responsive system of accreditation could be an appropriate alternative to statutory regulation. While the statutory regulators have demonstrated an increased agility during the pandemic, it is not always been able to keep up with the changes needed in the fast-paced world of healthcare today.

The Accredited Registers Programme allows the development of communities of interest, development of new roles, recognition of agreed standards, and regulation of these new groups – something that I think would be of benefit when new roles are being developed and established. Respecting and recognising the new roles and added value.

The Strategic Review

With regards to the extent of its use by employers and specifically the NHS, the programme has a lot of unfulfilled potential, and therefore to really have the impact on patient safety and workforce development, it must be integrated, mainstreamed, and fully utilised by the NHS and employers. Complete support and recognition from these institutions will give the Accredited Registers the opportunity to demonstrate the added value to patients the public, the NHS, employers and of course registrants. Developing a sense of identity and of being valued, in effect making accredited registers requirement for employers using healthcare practitioners in unregulated roles. Standards and entry points to registers will be better understood if there is greater unity and could improve the level of care across the board.

It creates opportunities for all staff to be developed and respected.

The public could have more information than they do currently about the people who look after them – this is evident in the fact that there is always lots of talk and recognition and media interest about doctors and nurses, and not much about other groups of the workforce. This must be better in the longer term for overall recruitment into the NHS and other areas of health and social care.

The Accredited Registers programme is also an enabler through accountability and encouraging through standards in registration an ongoing approach to improvements in the quality of care.

It would be helpful to see greater use of umbrella systems for professions which have multiple registers. A proliferation of registers is confusing for the public and employers – leaving them with the burden of choice when the Accredited Registers is supposed to make this process straightforward and self-explanatory. It also suggests greater divergence – if these professions are all meeting common standards, and assessed through the same process, then there is no need for duplication. This is also a means by which the sustainability of the registers and the cost to registrants can be addressed. Reducing the duplication of governance systems.

I welcome the proposal for a tiered system within the Accredited Registers programme in the future. The current approach does not consider the varying degree of risk between different professions, and how these risks must be managed and mitigated with entirely different mechanisms. It is not as simple as statutory versus non-statutory regulation. Some registers require measures such as licensing, while for others this would not be appropriate.

 This change could enable a right-touch approach that is appropriate to the level and nature of risk. Healthcare scientists, for example, can pose a level of risk even without direct contact with patients, such as if a practitioner gave inaccurate test results leading to a misdiagnosis. It is important to ensure that any changes to the programme, such as a tiered system, are embraced by employers and other stakeholders to avoid failing at the first hurdle.

The strategic review should give insight into the way forward, as going backwards is not an option, there is too much at risk for the public, for patients, the workforce and for healthcare ,were we to lose the system of oversight that accreditation brings.

 There is a breadth of unfulfilled potential if it were seen to be something that works for all and is recognised by all – the public, the NHS, employers, and the Government. The Review is a good place to start in achieving this.

I would urge everyone to make sure their voice is heard.

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Related material

You still have time to give us your views – as part of the Strategic Review of the Accredited Registers, the Authority launched a consultation, but the deadline for giving feedback is fast-approaching - 18 February 2021. Read through the consultation, including a summary of the questions and details of how to submit your response.

Find out more about the Strategic Review as well as an update we published in November.

 

As we continue to welcome responses to our consultation, our Head of Accreditation Melanie Venables explains why it's important and what this means for the future of Accredited Registers.

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If the person treating you or your family doesn’t have to be registered by law in the UK, how do you know they are safe?

Or, if you are employing a healthcare practitioner to work in your organisation, how do you check their suitability for the role?

There are over two million people working in unregulated health and care roles across the UK. This includes providers of mental health services, sonographers, health scientists and complementary therapists. These people often work alongside professionals regulated by statute, such as doctors and nurses.

Many of us look to recommendations from family or friends when choosing a healthcare provider. We may not give much thought to the checks in place to make sure that roles which are less visible but play an essential part of the system – such as clinical technologists – are safe to practice.

In 2012, the Authority was given new powers to accredit voluntary registers of roles within health and social care that are not subject to statutory legislation. This was envisaged by Government as a proportionate way of ensuring that bodies registering these roles operate effectively and adhere to good standards, as well as giving assurance to employers and the public. There are now 100,000 practitioners on Accredited Registers. This ensures that those choosing their services can have confidence that they meet our high standards of governance, registration and complaints processes.

Our strategic review: what and why? 

Last year we launched a strategic review to evaluate the scope of the programme and identify how it can become more embedded within the wider system. As a voluntary system, unless it is recognised and used by the system as a whole, its benefits will remain largely hidden.

We see the future of the Accredited Registers programme as a robust system which supports efficient delivery of NHS healthcare and social care workforce plans across the four nations. We envision the programme as offering a greater contribution to personalised care for patients, and to support recovery in health and social care from the pandemic. The crisis has highlighted the need for greater integration of health and social care, as well as demonstrating the value of unregulated roles in supporting mental health needs. We would like to see employers ensuring that their healthcare practitioners in unregulated roles belong to Accredited Registers.

Our public consultation seeks views on how the programme can best achieve this. It tackles issues that run deep through our society - such as treatments which patients say they value, but for which there is no recognised evidence base. It sets out proposals for greater consistency of standards and a simpler system for all patients and employers to navigate. It asks whether there should be additional controls outside of statutory regulation, such as licensing, for higher risk professions in the future.

Why we need to hear from you 

Currently, Accredited Registers is the only form of independent assurance for those working in non—statutory health and social care roles. We need to hear from you, whether you’re a user of these services, an employer or anyone with an interest in health and social care to ensure that it offers the levels of protection that people expect.

If you’re an employer – we’d like to know what assurances will give you confidence in the workforce that aren’t already in place?

If you’re a patient or service user – we’d like to know what protection you expect from a healthcare practitioner who is treating you, who isn’t regulated by law?

If you’re a decision maker in the health and social care system – we’d like to know what you think about our proposals for a simpler, risk-based system in the future?

The consultation closes on 18 February 2021 (28 February 2021 to respond in Welsh). To submit your consultation response, or if you have any questions, please contact us at ARconsultation@professionalstandards.org.uk

 

In the third of our series of guest blogs looking at the impact of the Coronavirus pandemic across the four nations of the UK – a guest blog from Lynsey Cleland explaining that when even the best-laid plans go awry – how Healthcare Improvement Scotland - Community Engagement was able to adapt to continue to make sure that the people and communities of Scotland continue to have the opportunity to have a say in the care they receive.

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As William Shakespeare is England's national bard, so Robert Burns is Scotland's, and with Burns night - which is celebrated on 25 January - just yesterday evening, one of his poems resonates more than ever. In To a Mouse Burns states:

"The best laid schemes o' Mice an' Men
Gang aft agley,"

Burns is saying that no matter how much we plan, things can and will go off course. We planned to launch Healthcare Improvement Scotland - Community Engagement on 1 April 2020. What we didn't plan for was a global pandemic. So of course we adapted.

We believe people and communities should be able to use their skills and experience to design and improve the health and care services that matter to them and it is our job to help NHS boards, Health and Social Care Partnerships and other organisations to achieve this.

Healthcare Improvement Scotland - Community Engagement is set up with staff in our central office based in the central belt of Scotland, and with Engagement Offices in each of the 14 territorial NHS boards, including the islands. Having staff spread across the country enables us to work in communities and support engagement at a local and national level.

The pandemic has required services to rapidly reconfigure and provide care in new and different ways. During this time the statutory duty to involve people is as important as ever, but, with social distancing and other restrictions being in place for the last nine months we had to change the way we worked. While we always encourage our colleagues in health and care services to consider a range of approaches to involve different people, we were conscious that in ‘normal’ times much community engagement activity is carried out face-to-face. We quickly realised that our colleagues across health and care services would need support to plan for engagement with people and communities in ways that they may be unfamiliar with.

While online engagement became normalised, not everyone is digitally enabled and we also wanted to show people that there was still a place for more traditional methods, such as surveys and telephone interviews. Crucially, we wanted to hear what organisations were learning from carrying out engagement during this time, so it could be shared to help others tackling these issues. 

Through our Engagement Offices we have been able to reach out to organisations to find examples of good practice when you can’t meet people in close proximity. We had our own examples too. The result has been the creation of the ‘Engaging Differently’ hub, a go-to-place for advice and case studies to ensure meaningful engagement can still take place even if we can’t meet face to face.

While we are in the middle of the most terrible storm, even the darkest of clouds have silver linings and for me that has to be the implementation of Person-centred Virtual Visiting in all in-patient facilities across NHS Scotland. Healthcare Improvement Scotland - Community Engagement has been supporting the Scottish Government and NHS boards to ensure there is fair and equitable access to Virtual Visiting for all. We have been working with NHS boards to find out how they’ve implemented it, what good looks like and what equipment they need.

For some inpatient areas it is difficult to implement Virtual Visiting, but not impossible. We recently worked with colleagues in Healthcare Improvement Scotland’s Focus on Dementia team and Alzheimer Scotland nurses to share their experiences of how best to support people with dementia to have virtual visits. It was acknowledged by one of the Alzheimer Scotland nurses ‘that if we get it right for people with dementia it will be right for everyone else’. With a few tweaks we can make sure everyone can stay in touch with their loved ones while in hospital and I’ve heard stories of families being able to connect with one another from as far afield as Australia, as well as seeing their pets.

Looking back at Burns’ quote I don’t think anyone had the 2020 they had planned for, but I’m proud of what we have achieved in Healthcare Improvement Scotland - Community Engagement. With restrictions lasting into 2021 there can be a lot to feel gloomy about, but I know the adaptations we have made to the way we work will see us through even the darkest of days. We will continue to make sure the people and communities of Scotland will always have the opportunity to have a say in the care they receive.

For more information about Healthcare Improvement Scotland - Community Engagement and the work we do please visit our website: https://hisengage.scot/

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Read our previous guest blogs from Wales and England. You can find all our blogs here.

Find out  more about our ways of working through the pandemic here.

 

 

A guest blog from Joanna Jervis, a Senior Lawyer and Practice Development Manager for the Medical and Dental Defence Union of Scotland (www.mddus.com) looking at fitness to practise from the registrant’s perspective. Joanna also explains how the Authority’s current power to appeal regulators’ final fitness to practise decisions provides a failsafe mechanism that adds to public protection.

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All those involved in administering the regulatory process, including the consideration of appeals, need to be mindful of the impact of these proceedings on the health and wellbeing of the registrant. 

By the time the registrant reaches a hearing before a fitness to practise  panel, they will already have been through a protracted and stressful process. The latest available data for the General Medical Council (GMC) suggests that it takes an average of 80 weeks from receipt of a complaint to a final hearing. The registrant therefore lives with the stress and anxiety associated with fitness to practise proceedings for a prolonged period, all the while aware that the outcome could be both career-ending and life-changing.

The principle of the right of appeal is recognised as a vital component of the checks and balances in any fair and civilised system of justice. It is a point of principle MDDUS embraces in its role as the medical defence organisation for more than 50,000 doctors and dentists across the UK.

For healthcare professionals in the UK, the outcome of fitness to practise tribunals can be appealed not only by the registrant, but also by the Professional Standards Authority (PSA) under section 29 of the National Health Service Reform and Health Care Professions Act 2002.  Under these ‘section 29 powers’, in the case of the 10 healthcare regulators it oversees, the PSA has the discretion to refer any final fitness to practise decision made by a panel that is considered insufficient for public protection to the High Court, or Court of Session in Scotland.

It’s our view that the evidence suggests the PSA applies this discretion proportionately. We also applaud its recognition that exercising this power is not the only way to address concerns about fitness to practise outcomes. We do, however, take issue with the ongoing anomaly of the GMC retaining a right of appeal, introduced in 2015, over fitness to practise decisions taken by the Medical Practitioners Tribunal (MPT). The GMC is the only one of the healthcare regulators with an independent right of appeal, in addition to the PSA.

It is unclear why doctors should be subject to two potential avenues of appeal when all other healthcare professionals are only subject to one.

The Williams Review into gross negligence manslaughter in healthcare which reported in June 2018 recommended its removal. The Williams Review referenced the ‘unwelcome and unintended consequences’ of the powers and suggested its removal would mitigate the distrust felt by doctors towards their professional regulator in the aftermath of the highly publicised case against Dr Bawa-Garba. The Review considered that effective public protection could be maintained through the PSA’s right of appeal. 

A year later, in June 2019, the Hamilton Report (on the independent review of gross negligence manslaughter and culpable homicide) supported the findings of the Williams Review, noting the importance of perceptions in this area and making the case that the current state of mistrust was hampering the GMC’s ability to regulate effectively.

We were and remain fully supportive of the conclusions of both reports.

With oversight of the fitness to practise decisions of all of the healthcare regulators, the PSA is uniquely placed to take an approach that is fair and consistent in determining whether to exercise its right of appeal. 

MDDUS’ opinion remains that the GMC’s right to appeal MPT decisions was ill-conceived and Government should follow through on their stated commitment to remove it as part of the planned reforms to the health professional regulators. Stripping the GMC of this power carries no issue that would compromise natural justice, nor would it make the fitness to practise tribunal process favour doctors, because a failsafe mechanism is in place in the shape of the PSA. The PSA’s Annual Report for 2019/20 reveals detailed case reviews were undertaken in 147 cases, following which the PSA’s right of appeal was exercised 21 times in the context of a total of 2,783 fitness to practise determinations notified – i.e. in 0.75% of all possible cases. This demonstrates a proportionate use of the PSA’s powers, which in our view is adequate to ensure protection of the public. 

It is important to remember the timeframe for the PSA’s right of appeal does not start running until after the deadline for the registrant’s right of appeal has expired. Having arrived at the apparent end of the fitness to practise process, the registrant therefore has a further 68 days (or, in the case of decisions which the registrant does not have the right to appeal, a further 56 days) to wait to learn whether their professional fate is to be challenged further. If an appeal is marked by the PSA (and/or the GMC, in the context of decisions made by the MPT), then the uncertainty prevails until such time as the relevant court can hear the appeal and issue its judgment.  

It is therefore clear the right of appeal should be exercised judiciously and in a proportionate manner to meet the PSA’s overriding objective of ensuring protection of the public. The PSA fairly recognises that exercising its section 29 powers is not the only way to address concerns about fitness to practise outcomes, aiming to help the regulators to improve the quality of their fitness to practise process outcomes by disseminating learning identified throughout the review process. 

Looking forward, drawing on the theme of proportionality, it will be vital for the PSA to take account of the unique pressures placed upon healthcare professionals during the Covid-19 pandemic, when making any decision as to whether or not to exercise its right of appeal.

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Related material

Read some Key statistics - between 2003 to 2020, we have appealed just over 160 final fitness to practise decisions from a potential of more than 45,000, but our 'section 29' power has wider benefits - find out  more in in this infographic or on our website here.

Peter Walsh, Chief Executive of Action against Medical Accidents (AvMa), guest blogs - setting out the key priorities AvMa would like to see as part of regulatory reform to ensure patients have a voice.

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It sounds as if legislation to make health professional regulation fit for the twenty-first century may finally be on its way this year, but it remains to be seen whether it will be a radical change which really benefits both patients and the professions. As a patients’ charity focused on patient safety, Action against Medical Accidents (AvMA) has long called for reforms, as have the regulators themselves. However, what we hear again and again from the regulators in this context is their desire to see reform that makes their systems more flexible rather than what would make them better and safer. Even more rarely in discussions about health professional regulation, do we hear any reflections on what would give patients and the public more confidence in the system. Now, as we get nearer the long-awaited legislation, it is a great chance to put that right.

Here are some of the things we are arguing for from a patient perspective which in my opinion would really make the system better and safer.

1. The regulators should no longer be judge and jury over their own decisions

The role of the Professional Standards Authority (PSA) in challenging fitness to practise adjudications at the end of the process is important and must remain. However, in reality, the risk to patients and the public from poor decisions by regulators is much greater at the other end of the process. People who raise concerns about the fitness to practise of a health professional should have a statutory right of appeal to the registrar over decisions not even to investigate, or refer to a panel. If they are unhappy with the registrar’s decision there should be a right of appeal to the PSA about that decision and the PSA should have the power (and the required extra resources to apply it), to challenge these decisions in the same way they do adjudication decisions. This is probably the most serious gap in the system which could allow dangerous and unfit health professionals to slip through the net.

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2. Independent advice should be funded to help people make decisions

Independent advice should be funded to assist people make decisions and submit concerns to regulators. This was a unanimous recommendation from the Tackling Concern Locally report (Department of Health, 2009 - see recommendations 8.12 and 8.13) which has never been actioned. Fitness to Practise procedures are incredibly complex and intimidating processes for members of the public to try to navigate when they have concerns about a health professional. Yet, there is no provision in the system for independent advice to be provided to people who are considering raising concerns. Ironically, the Government recognises the need for independent advice and advocacy for people who want to make any complaints about the NHS (including car parking, rudeness, waiting times etc) and pays for this, but absolutely nothing is funded to help people with the most serious concerns about health professionals. Independent advice would help ensure people are not put off raising concerns (thereby allowing a dangerous or unfit professional to evade attention), and reduce the number of cases that regulators have to deal with which are not appropriate for fitness to practise procedures.

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3 The GMC's five-year rule should be removed

The ‘five year rule’ currently used by the General Medical Council is a dangerous anomaly and should be scrapped. Every fitness to practise case should be assessed objectively, just as most regulators currently do. There have already been some egregious failures of the system whereby doctors whose fitness to practise was still very much in question, have managed to evade even investigation due to this rule.

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4 Regulators should have the flexibility to deal with fitness to practise issues more quickly

Regulators should have the flexibility to deal with fitness to practise issues more quickly and efficiently, without referring to a formal hearing if appropriate, but only within adequate safeguards. (What some regulators inappropriately, but perhaps tellingly describe as consensual ‘disposal’ of cases). There must be full transparency and no possibility of ‘plea bargaining’. Health professionals should be advised that they have to take full part in an investigation and provide any relevant information including mitigating circumstances at that stage. The person raising concerns should be able to see and comment on information provided where it is in contradiction to their own. The health professional should be advised of the recommended sanction (if any) and be able to either accept it or continue to a full hearing. There should be no meetings behind closed doors which could alter the proposed sanction.

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5 Regulators should be required to do more to ensure right of redress for injured patients

Regulators should be required to do more to ensure injured patients are not deprived of redress because health professionals are not properly indemnified. Sadly there have been quite a few cases where this has happened. It should be a requirement for registration with any regulator for health professionals to have adequate and appropriate indemnity cover in place and the regulators need to take responsibility for doing as much as reasonably possible to ensure this is the case. Each registrant should be required to provide details of their indemnity cover at registration and update this each year. It should be made clearer by regulators what is appropriate and adequate cover and also that a failure to have this in place is a serious breach of standards likely to lead to fitness to practise action.

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6 Register of doctors interests

Baroness Cumberlege’s recommendation from her Independent Review of Medicines and Medical Devices Safety (2020) for a register of interests of doctors be kept by the GMC (and by other regulators for other professions) should be put accepted and put into place.

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7 Safeguards to protect patients/families from inappropriate cross examinations during hearings

Last but not least, there need to be safeguards to protect patients or families from being inappropriately cross examined/attacked at fitness to practise hearings by defence lawyers seeking to call their integrity into question. This is a major inhibitor of people raising concerns and participating in the process. There are better and less confrontational ways of challenging evidence.

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If we saw these measures put in place, I think regulation of health professionals would be much more fit for the twenty-first century and patients would be safer.

Find out more about the Authority's views on reforming fitness to practise:

• Right-touch reform - fitness to practise
• Right touch reform - a summary of our thinking on the future of fitness to practise

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

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

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

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

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

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

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

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

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

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

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

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

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Find out more

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

When a patient or service user feels the need to complain or report a concern about a healthcare professional, they are suddenly immersed in a complex and potentially stressful process – the ‘fitness to practise’ process. (You can find out more about fitness to practise and our current role as part of that process here.)

When they receive a complaint, the regulator will investigate and the patient or ‘complainant’ – as they will become known throughout the process – will have to provide information to the regulator on what happened. They may ultimately have to attend a public hearing where an independent Panel will make a decision on what, if any, sanction the professional should face.

We (the Professional Standards Authority) currently have a key role scrutinising all final fitness to practise decisions which go to a Panel hearing and can appeal to the Court if a decision is insufficient to protect the public.

However, under Government proposals (outlined in general terms here but due to be consulted upon in 2021), the majority of cases could now be decided outside of Panel hearings through a process known as ‘consensual disposal’. In cases where the professional agrees with the facts of the case and the proposed outcome, the case can be agreed between them and members of the regulator’s staff called ‘Case Examiners’.

Whilst there are many benefits to the shift away from public hearings, there is the risk of the patient voice getting lost in a process which is by its very nature less transparent and does not include the complainant having their say in a public forum. There is also as yet no clarity from Government on what, if any, role the Authority would have in challenging cases settled outside of Panel hearings.      

Exploring what the public and patients think

We wanted to explore the views of patients and the public in the light of this new emerging fitness to practise model proposed by government for health professional regulators. We therefore  commissioned a piece of research into the patient and public perspective on future fitness to practise processes. This research was carried out by Community Research and the report was finalised in May 2020. The research objectives were to explore:

• the potential impact of the emerging future approach to fitness to practise on public confidence
• how complainants would wish to be involved in the emerging future fitness to practise model
• views on oversight of the new arrangements.

The research made use of both group discussions and in-depth interviews. The group discussions were held with members of the public who had no previous interaction with the current fitness to practise process or those who had considered making a complaint. There were also in-depth interviews with 13 individuals who had been directly involved in raising a complaint about a professional in the last two to four years.

What the report revealed

The report found that broadly members of the public were supportive of moves to reduce the number of public hearings and move to a more consensual model citing the benefits of reducing the stress and length of cases for all involved. However, there was some scepticism about the motivation for the proposed changes and about the plans for oversight of the new arrangements. Some participants were concerned that the primary intention was to cut costs or reduce the backlog of cases. There was also queries raised about the plans for monitoring and evaluation of the changes and the need to avoid any unintended consequences.

Some participants expressed concern that a reduction in public hearings could lead to less rigorous interrogation of the evidence. There were a range of views expressed about the kinds of serious cases which should go to a public hearing but little consensus on this point. There was a general view that for the changes to work, the whole regulatory system ahead of the final stages of fitness to practise needed to be robust.

Views were mixed about how patients and service users should have a voice in the process, with some citing the benefits of avoiding the stress for complainants of having to give evidence at a hearing. The majority of participants felt there were inherent risks in the move to a reduction in hearings and a corresponding reduction in scrutiny along with potential incentive for regulators to agree more cases with registrants.

The need for ‘checks and balances’

There was a general view that independent oversight should be retained and there was a clear need for ‘checks and balances’ within the system. Some participants viewed the Authority’s current role as a safety net and struggled to understand the thinking behind the changes which could remove this in some circumstances:

‘If you want to make it a more efficient process, by all means do that, have that panel, make some of the decisions and stop sending everything to hearing. Fine, but why does that come with removing the role of the PSA being able to challenge it?  Why can’t they have the best of both worlds, why can’t they cut the process down, send less to hearings and still have the PSA challenge things?’ (General public/patients, Leicester)

Concerns were also expressed about the potential for professional interests to override public protection if there is no one checking the decisions made by the regulators:

 ’I think there still should be oversight. It should not be seen as a closed cartel, a gentleman’s club for dentists and by the way, “we’ll hush this up and sweep it under the carpet.”’ (Complainant 2, England)

Participants also expressed concern about trust in and safety of the system if the PSA wasn’t scrutinising final decisions:

‘I think that all decisions should be open to challenge. Especially when a hearing is not held, they need to be absolutely sure that all sides have be covered. And if not, the process should allow this to be challenged.’ (Patient/service user who has considered complaining)

 ‘If you start taking people out the picture, I feel as if the whole system’s just going to become very unsafe. It’s like when you have an extension, you get a qualified person to check it. Now that qualified person is also checked by a more qualified person for that reason, and that’s where I feel like the PSA is there as a double check.’ (General public/patients, Leicester)

‘If there is no Authority, like what we’ve just discussed, having the Authority scrutinising all the really severe cases, if that was completely abolished, they only get involved in the ones that do go to trial, I think that would lose public confidence.’ (Complainant 5, England)

Overall, the research demonstrated that the public recognise the issues with the current system and are supportive of change. Government has recently re-affirmed its commitment to reform in the recent announcement by Secretary of State Matt Hancock on the outcome of the Busting Bureaucracy call for evidence and a consultation on legislative change starting with reforms the General Medical Council is expected in the new year,  

However, it will be important for Government to consider ways to maintain oversight of the new powers and ensure that public trust and confidence can be maintained.

You can read the full report can be found here or you can see a visual summary of key findings in this infographic.

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Related material

• You can find all our research here 
• Find out more about our thoughts on fitness to practise reforms 
• Read From public hearings to consensual disposal - insights from the decision-making literature - we commissioned Dr Paul Sanderson to produce this report for us as part of our ongoing work on regulatory reform, particularly of fitness to practise proceedings. We wanted to find out what the available literature on decision-making tells us about the potential risks/benefits to the public of decisions generally being taken in a more private context.

The Government plans for reforming professional regulation of healthcare workers are at a crucial stage. The draft legislation is starting to take shape, and there are plans to consult in the new year on the policy proposals. The most recent Government consultation on reform took place at the end of 2017, and it is over a year since the Government published its response. Much has changed since.

We believe that the framework we have now is disjointed, expensive, and inflexible, and we support the drive for reform. We have identified some key considerations for the Government to take into account in the remaining phases of policy development, to help make the reforms a success.

Learning from Covid-19

It is vital that the Government takes the opportunity to incorporate any learning from the pandemic response into the reforms.

Covid-19 has shone a light both on the ingenuity that can result in times of severe pressure, and areas of the healthcare system that need to change to ensure the system is better prepared for the challenges of the future.

In the light of this, the Secretary of State  announced a call for evidence on reducing bureaucracy in the health service, with a particular mention of the Government’s intention to reform health and care professional regulation. The Government has recently published the outcome of this. We have ourselves called for a more streamlined, coherent regulatory system that reduces the burden on all involved, and is agile enough to support and adapt to changes needed within the health service.

We have also proposed a less adversarial, quicker means of dealing with professionals who fall short of their professional standards – provided this can be done safely and transparently. The increased pressures on professionals and the health and care system as a result of Covid-19 only strengthen the case for such a streamlined approach.

We do not want to miss this opportunity to design a system that works for all stakeholders both in normal times, and in times of stress such as a pandemic.

Learning from the mistakes of the past

The current reforms should address the failings identified in the Paterson and Cumberlege inquiries

Since the Government published its response in July last year, two significant public inquiries have brought to light worrying gaps in the regulatory frameworks designed to protect patients.

The Paterson Inquiry made the arguments for greater coherence of the regulatory system in stark, compelling terms. It also called for greater powers for the Authority to hold the professional regulators to account, stating that it was ‘not assured through the evidence [it] heard, that the PSA has the mandate or power fully to grip the system.’

The Cumberlege Review, First Do No Harm, was equally damning in its assessment of the failure of the multiple regulatory bodies to take responsibility for protecting patients.

Some of the failings they point to are historical failings that have long been addressed, but many have not. We cannot afford to be complacent – there is much that needs improving in professional regulation to ensure that harm is not repeated.

These reforms will have failed if they undermine improvements to professional regulation made through earlier reforms

The Authority has consistently called for reform and is supportive of the intention behind the reforms and many of the changes Government has proposed.

It seems now that it is also necessary to state explicitly that reform of professional regulation must preserve the significant improvements made over the last 20 years in response to earlier high-profile failings.

In particular, these improvements have increased independence, transparency and accountability of decision-making, produced fairer and more just decisions that can be challenged in the appropriate fora, and provided for the necessary degree of separation between investigation, adjudication, and appeal. The Authority’s powers have made a significant contribution to this.

These improvements have made it possible for regulators to protect the public more effectively, garner greater levels of public confidence, and do more to declare and uphold professional standards. Any moves to streamline fitness to practise processes must maintain the above elements of progress.

We encourage the Government to reflect on how these reforms could improve patient safety and support the delivery of high quality care in good times and bad, alongside reductions in bureaucracy, costs, and burdens on systems and individuals.

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Related material

• Find out more about the key developments that have contributed to regulatory reform over the last 20 years
• See a visual summary of the key milestones in regulatory reform
• Find out more about reforming regulation
• Read Right-touch reform - published to coincide with the government's consultation on Promoting professionalism, reforming regulation
• Find out more about how our work contributes to public protection in these case studies

At our symposium earlier this month, Lucy provided a powerful account of the Patient Association’s survey work to understand the patient experience during the pandemic. In this guest blog, Lucy discusses the importance of effective patient partnership as the health and care system transforms and eventually recovers.

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The ‘first wave’ was difficult and disruptive for patients

We know that the period since March has made enormous demands on everyone who works in the health and care system, and that the winter period we are now entering will be more challenging still. This mirrors the experiences of patients, for whom recent months have been hugely disruptive, and in many cases harmful. This does not apply only to those who have suffered the direct consequences of Coronavirus, from the short-lived to the terminal, although that toll has been terrible enough.

The disruption to services since March has been keenly felt by all patients. Access to regular care was heavily curtailed in the early stages of the pandemic, and planned treatments suspended. Fewer people accessed care for new health problems, and we know from our own survey work and independent polling that it was more common for people to try to access services and struggle than it was for people to stay away voluntarily, although both happened. Patients report highly mixed experiences of remote consultations: for all the attention on digital methods, phone was by far the most common means, and while patients’ reports on balance lean towards the positive, many have found remote methods difficult and even unsatisfactory. By the end of the summer, patients were clearly telling us that in many cases they felt abandoned, and troubled by continuing uncertainty about when they would be able to get care again, if at all.

To a large extent, patients have understood the reasons why accessing care as they normally would was not possible. Often they have been keen to find out how to manage their health and minimise the asks they need to make of the NHS – although again, we know this information has often been hard to come by. There were some good experiences too. People told us about ways in which mutual aid groups, neighbours, faith groups and friends helped them with essential tasks like shopping, or just to stay in touch with other people.

The ’second wave’ will be tough but can be done better with effective patient partnership

With a second wave of coronavirus already gripping the NHS, it is a hard environment in which to be thinking about the finer points of good practice. However, patients’ experiences during the first wave make clear that if learning can be applied, and better approaches found, it is critical that they should be. The NHS’s determination not to shut down services across the board for a second time, despite the pressures of winter, is hugely welcome in that respect.

We advocate for working in partnership with patients, and in the setting of a pandemic this offers ways to maintain patients’ health and wellbeing to a large degree, while enabling the system to prioritise the emergency situation. This can be achieved by patients having care plans that are developed jointly with them, and that they fully understand and support. A patient with an effective care plan and good information about how to care for themselves as much as possible will not be so adversely affected by emergency measures that might temporarily reduce the direct support available to them.

Equally, patients need clinicians and professionals to advocate for them when they need it. Many decisions are being taken, and will be taken over the coming months, about how to prioritise resources: these are invidious choices, and it is important that clinicians and professionals advocate for their patients during these processes, albeit that we know not all needs will be met. In supporting and regulating the professions, regulators should consider whether this advocacy has taken place.

Beyond the immediate crisis, patient partnership will continue to be essential

Hard though it may seem to be considering it now, we will hopefully soon have to consider what services for patients should be like in a post-pandemic world.

We won’t be returning to life as before, for multiple reasons. The pandemic is already guaranteed to have produced long-term shifts in patterns of working and living, which will have implications for demands on health and care services. But more immediately, the health and care system will have to meet both challenges arising directly from the pandemic, and newly acute forms of long-term challenge that were already present: there will be a backlog of treatment; many patients will present with illnesses worsened by lack of treatment during the pandemic, and this will include high levels of mental health need; funding and staffing levels were both plainly inadequate even before the crisis; the NHS’s period of reconfiguration will continue; a solution to the long-running social care crisis is still yet to be found; changing the NHS’s culture on safety and learning remains a wicked problem; the worsening of health inequalities must be reversed; and we are suffering the consequences of long-term under-investment in public health.

Although this is a bleak and daunting list, we can at least point confidently to an approach that will be helpful with all of these challenges: whatever new world is developed for health and care, it must be done in partnership with patients. This applies both on a system level and for patients’ individual care. The challenges are too great, and resources too scarce, for us to produce systems and services that do not meet patients’ needs. Regulators have a meaningful role to play here: through their work on professional standards, they can promote true partnership working between professionals and patients, in which patients are active participants in their care. Patient partnership is the focus of our new strategy from 2021, and we hope to work with as many organisations as possible to ensure that it is embedded as a central way of working, to maximise the benefit to patients from health and care services.

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Read our related blogs from the Authority's Chief Executive, Alan Clamp, who gives an overview of the three days of discussions around Resetting regulation and Chris Kenny, Chief Executive, MDDUS. Chris also presented at the symposium and in his guest blog picks up on some of the themes of his presentation - looking at some of the key changes that regulators have made in response to the pandemic and identifying those changes the MDDUS would like to keep and those they would like the regulators to lose.

Earlier this month, we held our 2020 Symposium virtually across three days for the first time. Our theme was Regulation Reset – prompted by the NHS Confederation’s campaign, NHS Reset, which seeks to reshape the way in which health and care services are delivered for the better while learning from experience in dealing with the Covid-19 pandemic. The NHS Confederation suggests that regulation also needs to adapt – and indeed all regulators have had to make fundamental changes.

Another significant issue this year has been the global reaction to the tragic killing of George Floyd and the spotlight now being shone on BAME inequalities. As evidence has shown, these inequalities are also pertinent in the context of the Covid-19 pandemic. We thought it was necessary to invoke a discussion between us all at the Symposium, to consider regulation’s role in promoting equality, diversity and inclusion (EDI).

Day 1 of Regulation Reset focused on regulating and supporting the current workforce, to consider what we have learnt from Covid-19 about regulating effectively, and whether there have been changes made that we would want to keep or lose. Speakers asked regulators to consider what role they can play, working with employers, to address workforce issues; for example, through using the data the regulators hold. They outlined some of the key changes that regulators had made in response to the pandemic and identified those which they would like to keep and those they would like to lose. The need for a common understanding of context was emphasised, as was the need for future judgements on fitness to practise to balance public protection with context and compassion. The need to reflect on how the pandemic and burnout has affected professionals, and to capture context going forward, was expressed. The session also considered the patient experience during the pandemic, as colleagues discussed the importance of co-production and patient voice to the regulatory approach.

On Day 2 we had a three-country perspective on how regulation should evolve to support the future workforce, with viewpoints from England, Wales and Northern Ireland. The panel considered how healthcare regulation and training could be improved based on the experience of the pandemic, and that the first wave of Covid-19 has demonstrated the need for an agile, flexible legislative and regulatory framework to provide a responsive healthcare education and training system. Speakers also discussed the need for adequate support services that adapt to current working conditions, including a ‘digital first’ approach to regulation with bespoke services for registrants and employers. Plans for the regulation of additional roles, particularly in social care in Wales, were covered, as well as the part that regulation may play in improvement. The session also went into detail about patient advocacy, and how the risk of discrimination against vulnerable people is heightened when guidance on ethical decision-making is compromised during an emergency. Issues caused by short-term thinking and groupthink mentality can be combatted by focusing on influence, negotiation and collaborative working. Some further suggestions for improvement involved going beyond individualism to look at greater consistency across regulators in their approach to advocacy, using evidence to back up principles and demonstrate their impact.

We chose to base the third day of Regulation Reset around the question: ‘Is regulation too white?’ as the panel discussed equality, diversity and inclusion (EDI) issues in the context of healthcare regulation and beyond. The panel identified reasons why some research has shown that Black and Minority Ethnic (BAME) individuals are twice as likely to be referred to their regulator by employers than their white peers – including lack of support, poor training, and poor induction processes for overseas practitioners. They also discussed how these issues manifest in other institutions, as attendees were reminded of the Stephen Lawrence case, demonstrating how service users are let down by those whose role it is to protect them. Attendees agreed that uncomfortable truths must be accepted and listened to, pointing to the power of mentoring, including reverse mentoring between senior members and colleagues. Speakers also noted that regulators need to encourage a culture of open learning and discussion – the ability to share experiences, ask questions, and be frank in a supportive space. BAME networks can allow staff to share their own perspectives, which can then be used to more effectively inform policy. A hesitancy of white colleagues in speaking up about race was identified as a barrier, which needs to be overcome so that colleagues can be effective allies to support EDI issues. Speakers also posed the question of whether regulatory approaches are culturally competent. Perhaps, the content of standards is too white, and we must reconceptualise standards in a way that better reflects and serves the community. In order to ensure that this is meaningful, it involves considering the experiences of registrants and service users themselves.

This is clearly a topic with a continued importance for regulation, and therefore the conversation must continue. Plans are underway to hold a follow-up event next year to act as a benchmark for which we will look to see tangible changes and assess results.

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Read our guest blog from one of the speakers at the symposium – Chris Kenny, Chief Executive  of MDDUS (Medical and Dental Defence Union of Scotland) who picks up on the theme of his symposium presentation outlining some of the key changes that regulators have made in response to the pandemic and identifying changes MDDUS would like to keep and those they would like the regulators to lose.

Chris Kenny presented at our recent symposium and outlined some of the key changes that regulators have made in response to the pandemic and identified the changes the MDDUS would like to keep and those they would like the regulators to lose – he picks up on this theme in his guest blog.

Chris is Chief Executive of MDDUS (Medical and Dental Defence Union of Scotland)

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Cutting corners is sometimes necessary and sometimes dangerous. On holiday in Corsica many years ago, I was given a fine example. Talking to a local about the number of cars that were seen wrecked having fallen off mountain roads, the local explained that this was only logical: narrow un-fenced mountain roads with hairpin bends were the most dangerous conditions possible. Therefore, the faster one drove, the faster you are out of the danger!

Covid-19 has caused some regulatory corners to be cut. But how many of those have been a necessary pragmatic response to problems? How many actually are genuinely a creative and new way forward? And how many have mimicked the result of the apparently logical Corsican driver?

On the whole, I’d say the balance is very positive. We have seen genuinely agile and inclusive policy-making. In particular, I’d single out how well the GMC dealt with the reregistration of those retirees who wanted to re-join the workforce to do their bit in the early days of the pandemic. There was a clear, objective and genuine engagement around the details and therefore rapid and effective delivery.

There has been genuine care for registrants going through the fitness to practise process. The importance of recognising the stress of these events for the registrant has grown in recent years. However there is no doubt that the experience of Covid-19 had brought it front and centre of regulatory attention.

Finally there have been rapid and pragmatic changes to operations and protocols to recognise the unprecedented times in which we have found ourselves.

Many of these are changes we would like to embed. The quality and agility of policy-making by regulators in the last seven months is in stark contrast to the inexcusable delay in tackling the many agreed flaws in statutory professional regulation that have been well documented for the best part of a decade. Yes, due process in policy-making is important. But that value is lost when it gets in the way of agility, genuine engagement and practical problem-solving.

Procedural flexibility matters as well. From our perspective remote Interim Orders Committees run by the General Dental Council have worked very well and could be continued. Likewise, some procedural review matters can be handled without the cost and stress of full hearings.

But we do pause at the idea that substantive hearings should be run remotely. As a general rule, we would start from the proposition that the greater the jeopardy to the registrant, the stronger the presumption that the hearing should be in person.

This is not, as perhaps might have been argued a decade or so ago, so that the panel can ‘see the cut of a fellow’s jib.’ There is little or no evidential value to be given to conclusions drawn simply from somebody's demeanour, whether that person is the complainant, expert or registrant. But the nature of the conversation on examination is different when body language can be seen, and are judged and therefore different lines of questioning pursued as a result.

In other words, demeanour is not evidence, but it can help in the generation of a wider and more nuanced set of evidence which a tribunal needs, to ensure that it has the full picture available to it. The loss of that is one too many corners being cut – and one that not only brings potentially appalling consequences for the registrant, but also a potential loss of faith in the process as a whole.

To end on a positive note, I heartily applaud the General Medical Council's recent guidance on matters to be taken into account in considering cases raised in relation to Covid-19, which seems to us to absolutely capture the importance of a fully nuanced understanding of context as part of the rich evidence needed to inform fitness to practise decisions.

It really is vital that professionals and public alike do not simply have a realistic understanding now of the constraints and difficulties and management of the pandemic presents to professionals – but that this collective memory is retained now, so that it can be reflected in hearings taking place perhaps four or five years’ time.

The work that the GMC has started in beginning to categorise Covid-19-related issues that would not normally trigger action; those that might cause reflection rather than formal action, and the narrower consequences where, making every allowance for context, firm sanctions are needed is enormously helpful. It will, I hope, be replicated by other regulators.

That seems a fine example of a corner taken with due care and attention, which will help get to an outcome that commands wide professional, patient and public credibility.