Throughout this Black History Month, like many people, I’ve found it sobering to read the articles, stories and documentaries that have been produced to celebrate the contributions of the black community to our history. Doing so has challenged my own ignorance of black history in the community in which I live; a history of inspirational people who have been allowed to be forgotten and of atrocious treatment that has been ignored. We should not need a special month to be aware of this and the fact that we do demonstrates that we need to change as a society.

In healthcare, the black community is strongly represented in the workforce.  For example, 6.1% of NHS England’s employees are black, which is significant given that the community makes up 3.4% of working age population. However, this representation is not evenly split: there is a disproportionately low representation of black people working in senior positions in both hospitals and community services, particularly for doctors and nurses.

In respect of doctors as a whole, over a third are from black and other ethnic minority backgrounds and the GMC has been aware for many years that doctors from such backgrounds are heavily over-represented in fitness to practise proceedings. Black nurses and midwives make up 8.4% of the NMC’s register but are the subject in almost 30% of fitness to practise cases. As part of our scrutiny of regulators’ fitness to practise cases, I have identified cases where I have wondered whether the case would have reached the stage it did if the registrant had been white. But it is difficult to know whether the problem lay with the referrer or the regulator or the fact that the registrant was not adequately represented.

The Covid-19 pandemic adds a further concerning twist. People from the black and other ethnic minority communities are disproportionately affected by the disease. Many of those will be, themselves, the healthcare professionals who care for the patients and vulnerable people and so are at a high risk of contracting Covid. This is in addition to the health inequalities that already exist.

The reasons for these disparities are complex and this blog isn’t the place to analyse them.  However, a culture in which black and other minority communities have been marginalised must play a significant part. Many will blame others: regulators refer, probably with reason, to culture in the educational system, among employers and wider society for discrepancies in attainment and in fitness to practise. I don’t think that it’s helpful to assume that we are perfect or that, somehow, inequality is not our problem. It’s also important to recognise that, while the Black Lives Matter movement rightly focuses on the black community, there are other minority groups facing similar and different challenges. They need to be part of the picture.

So where does the Authority come in? We oversee the performance of the regulators, of whom a substantial number of registrants are black or from other ethnic minorities.

Our remit is to protect the public, which includes everyone, including those who face significant inequality in the healthcare system – a system where people from minority backgrounds are under-represented at a senior level. The public needs healthcare professionals who are competent and diverse. Regulators must be aware of the diverse needs of the community and the impact of the inequalities that we have. This applies both in how they expect their registrants to work with a diverse community, but also how their processes affect people from the different communities, whether as students, registrants or patients. We have a duty to require them to take diversity seriously and to examine how they do it.   

We have come late to this problem. It’s not until this year that we have formally examined regulators’ performance in respect of equality and diversity, though we had identified the issue and consulted on it from 2017. We haven’t looked at diversity as closely as we might have done in respect of our policies and processes.

We need also to make sure that we are doing what we can to promote diversity in the organisation. We’re small, but we must be able to demonstrate that we have a diverse, non-discriminatory and welcoming culture.

That’s why we’ve set up a working group to take action to improve our performance within the Authority. I’m keen that the group looks honestly at ourselves as an organisation to see what we can do about our culture and about the assumptions that we make. Perhaps asking why we are late to this is a relevant question. I want to make sure that our work in overseeing the performance of the regulators is properly informed and stresses fairness and equality, diversity and inclusivity. We’re looking to get expert help to support us, but what will be crucial is that, once the expert leaves us, we’re braver and more expert about diversity and inclusivity and in a position to lead and hold ourselves and regulators properly to account.

The killing of George Floyd and the Black Lives Matter movement have forced us to recognise the racial inequalities that still run deep in society today. Engaging with Black History Month brings greater emphasis to this.  And it needs to be addressed by more than words. By the time it comes around next year, I’d like to be a writing a blog that sets out achievements.

During Black History Month, and spurred on by the tragic circumstances of George Floyd’s and others’ untimely deaths, we at the Authority are reflecting on our responsibilities to promote equality, and to support and celebrate diversity and inclusion.

What 2020 has made clear is that it is not enough to simply condemn racism, we must actively strive to co-create a positive and inclusive culture. At our regulatory symposium next month, we will be discussing together with the regulators we oversee, whether regulation ‘is too white’ and considering the evidence and experience of regulators, ourselves and others. The regulators we oversee have been considering this and some have already published studies, with the GMC publishing their Fair to refer report last year to understand why employers and healthcare providers are more likely to refer doctors who are from black and minority ethnic backgrounds and those who obtained their primary medical qualification outside the UK. The NMC are building on findings from their 2017 report in this area, with a new project to research how protected characteristics including ethnicity can affect access, experiences and outcomes for professionals going through their regulatory processes.

At the Authority, one of our core values is transparency. We wouldn’t be true to this value if we were not also willing to examine and challenge our own performance.

While it’s true that we do have a focus on equality, diversity and inclusion (EDI), we know we can always improve. We have therefore established an EDI project to be supported by an experienced advisor in this area to review our policies and processes, and to provide an independent, expert focus on assessing the Authority’s work and to give us advice on good practice. As part of personal learning and reflection, the project group promotes the sharing of materials and resources, and plans to engage in regular discussion groups.

Earlier this year, we also held unconscious bias training, although it is important to acknowledge that unconscious bias is not something that is quickly remedied – training is just the start of a continual process of enhancing self-awareness and unlearning prejudice. We also recently held a workshop with our staff to explore vulnerability. One of the three strategic objectives in our Stakeholder Engagement Strategy published last month is to focus regulatory attention appropriately on protection of the most vulnerable, including within standards, guidance, education and training, and fitness to practise.

In everything we do going forward, we will consider how we might contribute to improving equality and diversity, and act on it. Collectively, we all have a duty to ensure that we identify and eradicate discrimination and work together to ensure that there is positive change. We will be thinking hard about what we can do to better promote equality, diversity and inclusion for all staff; and observing what other organisations are doing in order to learn and improve. 

Our new stakeholder engagement strategy has been published today. Effective engagement plays a vital part in helping us to achieve our objectives: to protect the public, promote good professional standards and maintain public confidence in regulation.  

Our strategy has been shaped by feedback from our stakeholders, including those who contributed to our recent perceptions audit. We are pleased that many value our role in protecting the public, raising the standards of the regulators and registers we oversee and our research and policy work. We have taken heed of the proposals that we should do more to encourage greater collaboration within the health and care sectors, push harder for regulatory reform and raise the profile of our work with the Accredited Registers.

Our new strategy outlines our intention to focus our efforts on engaging with stakeholders across the four countries on three priority areas:

• Regulatory reform – ensuring that the Authority retains an influential voice in discussions on regulatory reform and is able to shape proposals to keep public protection at the heart of any changes made
• Accredited Registers – continue to raise professional and public awareness of the programme and ensure its ongoing sustainability whilst strengthening the ability of the programme to protect the public by seeking changes to the relevant safeguarding legislation. Over the next six to 12 months the majority of engagement activity is likely to be focused around the strategic review of the Accredited Registers programme
• Focus regulatory attention appropriately on protection of the most vulnerable, including within standards, guidance, education and training, and fitness to practise.

Please do get in touch with us to discuss key areas of common interest or to feedback to us on our work.

We are living in strange and deeply uncertain times, and it’s fair to say no one could have predicted the vast array of changes and challenges that would land at the NHS’s doorstep, in England and across the UK. No one would have chosen these circumstances, but it’s widely accepted that there’s no going back. Amid all the disruption and despair of the last six months, it’s also been the case that the Covid-19 crisis has proved to be a catalyst for positive change within the NHS. Some of the things we have had to do are of course temporary and must remain so; others are important for the longer term and provide an opportunity to ‘reset’ how we work.

Transformation that might have taken months or even years to be discussed, consulted, planned and implemented took place within days and weeks, as a result of the need to act quickly to protect the public, and thanks to the flexibility and adaptability of our health and care staff. Similarly, of necessity, the public have adapted, making huge changes to their way of life almost overnight, and have largely accepted the reasons and the benefits. The system pulled together in extremely short order, and working in partnership with staff and regulators, the NHS came up with the goods to solve highly complex problems in uncharted territory.

On reflection, we’d of course accept that some actions, such as bringing back staff who had left the NHS and paid student placements, could have been handled differently to improve the experience of those involved. The agencies were working at break-neck pace, faced with the very real threat that the health service would not be able to cope. Of course, we owe a great debt of gratitude to all the ex-staff who came back to the NHS to help their colleagues and care for patients, and they must be celebrated. Meanwhile, the health and care sector is still working with them to discuss how they might be able to help going forward.

Similarly, we must recognise the vital contributions of our student medics, nurses, midwives and allied health professionals, as they worked to do as much as they could to help our teams and patients. This is a true testament to their selflessness and dedication. Had there been more time, there could have been more planning and problems could have been ironed out, and we hope lessons can be learned, documented and implemented for the future, but the scale of achievement in a very short space of time is breath-taking.

The situation has also allowed staff to develop new skills, and improve relationships across multi-disciplinary teams, as demonstrated at Bedfordshire, Luton and Milton Keynes (BLMK) Integrated Care System (ICS), where the Covid-19 response propelled joint working across the NHS, social care and wider public sector teams. We have also seen a growing focus on digital healthcare, with an increase in telehealth, telecare, telemedicine and tele-coaching, which has, in turn, increased productivity, options for the patient, further options for student placements, and allowed flexibility, which supports staff work/life balance.

Above all, the circumstances of the last six months have reminded everyone of the centrality of our people to our services and success. We have been reminded forcefully of people management practices – good and bad – and their importance to our success. The 2020 People Plan reinforces the importance of the offer we must make to our people, and the need to sustain our focus on their wellbeing is recognised and accepted by employers across the NHS. The plan also reinforces how far the NHS still has to go to improve the experience of all our people.

The pandemic has spelled out the facts of the discrimination experienced by generations of our Black and Minority Ethnic (BME) colleagues and their communities. It challenges all employers – national and local – to listen, to learn, and above, all to act. It also challenges the NHS to improve the healthcare experienced by BME communities, and the NHS Confederation is working with NHS England to establish the NHS Race and Health Observatory to ensure that we improve access, experience and outcomes for BME communities in England.

The biggest challenge to staff experience is of course the serious deficits we saw in workforce numbers. This is not to absolve employers of the need to support staff, but it is to stress the importance of properly staffed teams and services, and the challenges long-term vacancies pose. There are some positive signs there, with the recent investment in nursing apprenticeships, for example, welcomed by trusts.

Looking forward, we must maintain the belief that we can achieve positive change in difficult circumstances at great pace. Of course, the current levels of pressure are not sustainable, but the ability to adapt quickly and learn on the move should be encouraged to improve staff experience and patient care. In order to protect the NHS, we must demonstrate we are continually thinking and looking for areas of improvement, and we need regulators to support the new ways of working. NHS organisations must of course also maintain safety to patients and excellence in education for learners, but we await with interest the reflections from professional, service and quality regulators about what they have learned from the pandemic and how their approaches can be improved in the future to deliver ‘right-touch’ regulation for our people and services.  

In her guest blog, Sarah Seddon talks about the Duty of Candour and how it's affected her personal life.

How do you explain the Duty of Candour to three young children? Most healthcare professionals would not expect to find themselves presented with this conundrum, however it’s exactly the position in which I found myself when my children needed to understand why their parents were so distraught around six months after their baby brother had died. 

After a lot of thought, I began to realise that it’s actually a very simple concept: the Duty of Candour is about telling the truth and owning up when things go wrong (then doing everything you can to put it right). It now shapes my parenting practice as well as my pharmacy practice: everyone is human and we all make mistakes – if they are genuine mistakes, we should not be judged for them and should apologise and use the undesirable situation to implement change so that the same thing doesn’t happen again in future. This can be applied to a child breaking a picture frame or damaging someone else’s toy; it can be applied to an adolescent who forgets to include a friend on a social media post leading to upset within the friendship group…… and it can be applied to a healthcare professional who makes a mistake after which a baby is stillborn.

As a healthcare professional, I’m very aware of the principles of the Duty of Candour, however there is nothing like personal experience to bring something to the forefront of your mind. 

Integral to professionalism is the commitment to try your absolute best for every patient, to work within your limits and to speak up if something does not feel safe or right.  Occasionally despite this, something will go wrong and a professional must have the skills, knowledge, self-awareness and humanity to accept what has happened, to own their mistakes and obtain appropriate, timely support both for themselves and their patient and/or patient’s family.  The patient must be given the opportunity to understand what has occurred, to process it, to ask questions and to be supported in whatever ways are necessary. The professional should have the support of their employers and their regulators to enable them to feel safe to tell the truth and apologise in an environment which supports patient safety, working together and learning from errors rather than encouraging blame, concealment and punishment.

When things go wrong in healthcare it is horrendously distressing for the patient and their family who find themselves in an extremely vulnerable situation and experience the sudden devastating realisation that there is no safety net for them and they can no longer rely on what they had previously believed to be absolute certainty. Their trust is destroyed. It is also a horrific time for the healthcare professionals involved: they have turned up to work to do their best, yet are now questioning their ability, their skills – sometimes their entire career. Everyone is in this terrible situation together and (in my opinion), the only way out of it is to be open and honest and work together compassionately to establish what happened, how it came to happen and how it could be prevented from happening again. The healthcare professionals and their employers must take the lead on this. My healthcare professional did not. I can only attempt to guess why not: all I can imagine is that she was terrified of her employer and of her regulators and to her it felt like the best (or ‘least-worst’) option at the time. But she had a duty of candour and she contravened it. My NHS Trust instigated a ‘Serious Incident’ investigation into the death of my son but did not tell me that the investigation was happening and did not ask me for my input. They did not inform me that my care had not met their usual standards. They had a duty of candour and they contravened it.

The amount of damage that this lack of candour caused has been immense and the repercussions have snowballed to my entire family and friendship group, causing much more damage than the initial mistake. As a harmed patient, I was not initially angry at the individuals involved. All I needed was to be informed of what was happening, I needed a sensitive, accurate and timely investigation, an apology (not an admission of blame) and a commitment to making demonstrable changes so that another family would not end up in the same situation in future. I needed to be included in decisions as an equal partner so that I could start to regain some trust, some dignity and some control (all of which had been stripped from me).

Instead – I was subjected to ‘official’ documentation of what had happened which was written without my knowledge, was full of inaccuracies, insensitive, blaming language and insinuations about me as a person. The lack of apology made me begin to feel as though I deserved what had happened to me, the excessive additional investigations required me to continually re-live my son’s stillbirth and a referral to the regulator culminated in a Fitness to Practise hearing where I was cross examined as a witness on all the details of my baby’s death as though I were guilty of something. This went on for two years and could have been avoided if duty of candour had been implemented appropriately. During this time, I should have been coming to terms with the death of my baby, but instead was being made to feel more and more vulnerable and inconsequential. 

In addition to the individual registrants and their employing organisations who have a legal (and professional) Duty of Candour, each healthcare regulator has the enormous responsibility of ensuring that the people on their register (and those organisations who employ them) take this responsibility seriously. It must be embedded in initial education and training requirements for all professionals, a mandatory part of revalidation and the message should be re-enforced at all opportunities. Regulators should take an uncompromising approach in cases where Duty of Candour has not been applied but they must also commit to positively supporting candour and not penalising registrants for speaking up, telling the truth, apologising or participating in mediation with families.  These actions should be actively encouraged.  In my experience, healthcare professionals are still very much afraid of their regulators – they are afraid to tell the truth and this culture of fear needs to change so that processes can become less adversarial and less damaging. Only then can the public truly trust that the regulators are doing their job in ensuring safe, effective and compassionate care for all. Healthcare is nothing without trust and trust cannot be achieved without candour. Making an isolated mistake will not bring a profession into disrepute. Being dishonest about that mistake is another matter.

It’s simple: in the words of my four-year olds: 'we need to tell the truth when things go wrong'.

Related material

• You can find out more about all our work related to the duty of candour here
• Read all our blogs published on this topic in our compendium on candour
• Read our 2019 research Telling patients the truth when something goes wrong - how have professional regulators encouraged professionals to be candid to patients?

In her guest blog, Jennie Jones from Nockolds discusses what potential role mediation might play as part of regulatory reform - picking up on some of the themes discussed as part of her joint presentation on alternative dispute resolution at our March Academic and Research conference. You can find out more about our proposals for reforming fitness to practise processes here.

During the past quarter, Covid-19 has vastly impacted the landscape of healthcare not only by putting strain on the system, but by forcing changes to methods and practices to accommodate safety measures put in place to prevent the spread of the virus. This has put pressure on healthcare regulators by creating an additional workload to the regulatory backlog that already exists, requiring regulators to find more agile models to reduce the volume of work to a manageable level. This is where Alternative Dispute Resolution (ADR) can help.

What is Alternative Dispute Resolution?

ADR refers to methods of resolving disputes without having to go to court. One of these methods is mediation, in which an unbiased third party helps those involved in the dispute to come to a mutually acceptable outcome.

The main area in which mediation can relieve pressure is Fitness to Practise. In the Government’s response on Promoting professionalism, reforming regulation (published in July 2019) it was acknowledged that the UK’s model of professional regulation for healthcare professionals had become increasingly complex, outdated, adversarial and legalistic. The document made specific reference to the use of mediation, and set forth the Government’s commitment to enable regulatory bodies to include this form of dispute resolution in their fitness to practise processes.

This document was written well before Covid-19 became a national healthcare issue; therefore, the strain on regulators caused by the pandemic has placed even more emphasis on the need for streamlining FtP processes, so that regulators can pour their resources into managing more pressing issues. Unnecessary investigations into low-level complaints slow progress, and during these unprecedented times, progress must be made to alleviate stress on the healthcare system and future-proof it against repeated mistakes.

A mediation model acknowledges and addresses the emotive nature of complaints through a simple, proportionate and relatively high pace methodology.

This model has been proven to support the progression of FtP concerns in an efficient and timely fashion; protect the public; maintain trust in healthcare professionals; drive improvements in standards; and safeguard the health and wellbeing of professionals by reducing practitioner distress caused by inappropriate referrals into FtP.

The success of mediation in other industries

Mediation has already found favour in the optometry and veterinary fields. Nockolds began delivering complaint resolution and mediation in the optometry field as the Optical Consumer Complaint Service (OCCS) in 2014 and in the veterinary field as the Veterinary Client Mediation Service (VCMS) in 2016.

The OCCS and VCMS handle 3,900 complaints a year, either received directly from the consumer, directed to them by practices, or referred by the Regulator. Regulator referrals account for, on average, 16% of complaints, and these would otherwise be looking to escalate to FtP, legal proceedings, or social media reviews.

The model provides a cost-effective, proportionate resolution focused approach to the resolution of low-level concerns. Recent analysis of the OCCS reveals the service has successfully evolved to handle a 259% increase in volume, while delivering a 60% reduction in unit cost per complaint referral. With short- and medium-term uncertainties regarding register numbers and therefore retention fee income and available budgets, the need for value for money is an increasing priority.

Both services have prompted positive feedback from consumers and professionals in their respective industries. This feedback notes the quick and fair mediation process, the team’s ability to guide parties through delicate and challenging negotiations, and the facilitation of a learning culture (as both services are committed to delivering key insights from complaints back to the professions).

The latter point was reflected in a presentation by Nockolds given earlier this year at the Authority’s Academic and Research Conference. In addition to sharing insights from five years of work by the OCCS and General Optical Council, the presentation encouraged delegates to consider how to use the information to implement Government recommendations regarding ADR. Further to this, Nockolds proposed the possibility of a significant Continuing Professional Development programme based on these insights, with the aim of improving standards through key insights from complaint mediation. This concept can easily be applied to the healthcare sector, raising the bar for what is taken on by healthcare regulators in this ‘new normal’.

In conclusion

Covid-19 has put pressure on healthcare regulators to deal with challenges such as the inevitable influx of patient complaints; administrate temporary registers for professionals for those returning to the professions and an increase in new registrants in the form of graduates drafted during the pandemic; and the implications surrounding the increasingly necessary utilisation of remote consultations. Therefore, regulatory policy must adapt quickly while ensuring that high standards are maintained, and ADR and mediation is one of the most efficient and cost-effective ways of achieving this. Mediation has proven to be an effective approach to the resolution of low-level concerns. As regulatory reform progresses, many regulators are exploring how mediation may provide the answer to remodelling the FtP process, and become an available alternative in concerns which do not require the full, traditional FtP process and investigation.

The core principles of this model can be adapted to suit a broad range of clinical disciplines. Reflecting on your regulatory practices, Nockolds continues to pose the question:

How could effective ADR help ensure regulation in healthcare professions remains relevant and sufficiently agile to meet current and future demands?

Related material

Find out more about our thoughts and proposals on fitness to practise reform:

• Read our response to Promoting professionalism - reforming regulation
• Right touch reform - a summary of our thinking on the future of fitness to practise
• Right-touch reform 2017 - fitness to practise
• Right-touch reform

You can read Jennie's joint presentation with Richard Edwards at the Academic and Research conference here.

We commissioned an independent team at Cardiff University to undertake a review of the research into health and care professional regulation since 2011. In this guest blog, Professor Alison Bullock and Julie Browne from Cardiff explain more about why we asked them to undertake the review and what it revealed.

Why we were asked to do the review

At the Professional Standards Authority’s academic and research conference in March this year, Alan Clamp, the authority’s CEO said: 'Research makes a vital contribution to providing evidence for regulatory policy.' Indeed it does; but is the academic research base reliable, relevant and rigorous enough to meet regulators’ needs for high-quality evidence?

In January 2020, the Authority commissioned our team at Cardiff University to help answer this question by undertaking a review of the research into health and care professional regulation since 2011.

The three key objectives for the research were:

1. To source research in the area of health and care professional regulation in English since 2011;
2. To evaluate the research and draw out what it has taught us; and
3. To identify any gaps in the research and areas that would benefit from deeper exploration to inform the focus of further research and continue to build the evidence base in relation to health and care professional regulation.

How we did the review

We began by asking the regulatory bodies themselves about their key research priorities, what research they conducted and how they obtained and used it. We reviewed regulators’ annual reports and other key strategic documents (‘grey literature’), supplementing this information with personal contacts and additional resources. Lastly, we conducted a review of the published peer-reviewed literature, screening over 3,000 articles for academic rigour and relevance to the regulators’ activities and research priorities. Careful sifting enabled us to settle on a final list of 81 for close analysis.

What we found

While regulators differ considerably in their size and resources, the overall picture is one of intense activity in the areas of policy development and data collection, with a mix of strategic research related to ‘core business’ and work done in response to emergent issues such as workforce concerns or high-profile cases. It wasn’t always clear how research priorities were decided and although most reported key pieces of work that had informed current or future work it was sometimes unclear how the impact of these influential projects had been evaluated. The review of the grey literature revealed regulators’ continued concern with the burden of fitness to practise processes and the related legislation, coupled with a variety of new measures to reduce workloads and support registrants through the process.

Exploration of the peer-reviewed literature revealed a variable mix of impact studies and more general publications. The impact studies rarely used experimental designs but were more clearly focused on gathering and interpreting data on the evaluation, effect, or implications of certain regulations. The general publications mostly provided overviews, snapshots of the current situation or discussions.

We identified six key themes. Papers on education and training generally called for greater standardisation and harmonisation across professions and internationally, with a focus on the challenges to education resulting from financial, workforce, clinical and political pressures at all stages of training.

A second group of papers presented analysis or comments on the functioning of guidelines and standards and the impact of changes in these, with most calling for more clarity and greater consideration of the effect of implementation.

The largest group of papers related to fitness to practise, misconduct, complaints and disciplinary procedures. Many of these were descriptive studies reporting the demographics, professions, numbers and types of complaints although a substantial number also looked at the potential causes of complaints (individual, environmental and cultural), highlighting challenges with the processes and the distressing effects on individuals.

Registration and maintenance of registration were the focus of a fourth group, which mainly addressed the potential flaws and inconsistencies in processes and systems which may lead to bureaucracy and bias affecting practitioners. 

A further group addressed relations between registrants and regulators. While most appreciated the importance and benefits of regulation to patient safety and improved practice, these papers tended to focus on evidence that some registrants perceive regulators as remote, mistrusted, punitive, unsupportive and inconsistent both within professions but also across professions and regions. These arguments were chiefly used to underpin calls for regulatory reform and greater consultation and engagement with practitioners.

Last but definitely not least, the smallest group of papers considered harm prevention and patient safety, offering advice to leaders in managing risk and calling for more person-centred approaches to regulation and particularly to inspection processes as a way of reducing conflict and enhancing patient safety. This group of papers, like most of the others, called for more harmonisation and standardisation across professions and sectors.

What we concluded from the evidence

Our disappointing conclusion was that the vast bulk of published papers in the field of health and social care regulation are of only tangential relevance to the regulators, failing to address their primary concerns.  Papers tended to be small-scale, local, and usually of low generalisability to other settings or professional groups. They often appeared to result from small-scale individual research projects or routine quality assurance processes. Of those that are relevant, most report or describe what is already happening, with few able to show effect or demonstrate how or why those effects are occurring. Regulators in health and social care are working hard to produce evidence for their own use, but they need to be able to leverage the scholarly literature more effectively to inform their research and policy agendas.

We ended our report by concluding that many of the challenges we faced in the conduct of this review reflect that the study of the regulation of professionals in health and care does not yet have a strong and well-defined identity as an academic discipline and, as a result, the published evidence is diffuse and difficult to locate, and of limited applicability to other contexts. Despite this, it is an extensive and growing field that is ripe for development.

Related material

• Read the full report or an infographic of key findings. 
• Watch delegates from our most recent academic and research conference explain why research is so important to regulation

The ‘new normal’, caused by the Covid-19 pandemic, has made ethics mainstream. Each of us is now a potential victim and vector of a potentially lethal virus. Each of us is now aware of our capacity to harm – and help – others. Each of us has had to consider the impact of our actions and omissions in a context of uncertainty, unpredictability and anxiety. Doing the right thing, during the pandemic, involves weighing a range of personal and professional considerations and reflecting on – and justifying – the decisions we make.

Dealing with competing priorities

Health and social care professionals have had to reconsider priorities and adjust their practices to minimise harm, to benefit others and to be as fair as possible in the allocation of expertise and resources. Regulators have also had to reconsider competing priorities, adjusting their practices to continue protecting the public and, at the same time, to protect their staff, those involved in fitness to practise processes and registrants who provide health and social care. Regulators’ websites have, for example, directed registrants to guidance and resources relating to mental and physical wellbeing, provided information on emergency Covid-19 temporary registers, fast-track of final year students to registration and approaches to fitness to practise referrals and hearings.

Slow ethics and the art of regulation

Governance and research-related activities at the Professional Standards Authority have continued during the pandemic with ongoing engagement with health and social care regulators (see latest research). Just prior to the UK lockdown, I had the pleasure of attending part of the 2020 Professional Standards Authority’s Academic and Research Conference in London on the theme of ‘Regulation in the Future: Will it matter?’ The conference presentations and discussions were stimulating and suggestive of regulators’ commitment to engage in, and learn, from research and from each other.

My contribution to the conference was on the theme of ‘slow ethics and the art of regulation’. I began by citing Donald Schon’s Educating the Reflective Practitioner (1987 p.3):

In the varied topography of professional practice, there is a high, hard ground overlooking a swamp. On the high ground, manageable problems lend themselves to solution through the application of research-based theory and technique. In the swampy lowland, messy, confusing problems defy technical solution. The irony of this situation is that the problems of the hard, high ground tend to be relatively unimportant to individuals or society at large […] while in the swamp lie the problems of greatest human concern.

We now find ourselves in the swampy lowlands of a pandemic with much to be gained from engagement with a ‘slow’ approach. This approach prioritises and values: stories, sensitivity, solidarity, scholarship, space and sustainability.

Inviting, and listening, to stories from registrants, care-recipients and employers enable regulators to better understand – and respond to – the ethical complexity of the pandemic. An appreciation, for example, of the experiences of registrants committed to delivering the best possible care to Covid-19 patients when personal protective equipment (PPE) was inadequate. The experiences of care-recipients, for example, who were often unable to have direct family support when critically ill and who were enabled to communicate creatively with family, thanks to the creativity of registrants. The experiences of employers, for example, who are uncertain how to proceed should a registrant decline direct patient contact due to heath concerns. Such listening inevitably increases regulatory sensitivity and is likely to lead to meaningful engagement with the reality of health and social care practices now and in the future.

Developing solidarity

Another outcome from such engagement is the development of solidarity. A review of regulators’ websites show that health and social care regulators are engaging with similar pandemic issues and have much in common as they demonstrate commitment to public protection, registrant guidance and employer support in challenging circumstances. Evidence of regulatory solidarity is evidenced also by recent online discussions, including those facilitated by the Authority.

Amidst the initial fast responses to the pandemic, the focus was on operationalising processes and facilities that responded, in the best possible way, to the needs of those who succumbed to Covid-19. Now there is the opportunity for space and time to consider more the role of regulation in global emergencies and to revisit the theme of the 2020 Authority conference – What might this mean for the role of regulation in the future? And will it matter?

Year on year, the Authority’s conference showcases an increasing body of interesting and important scholarship by health and social care regulators. Year on year, I am struck by how much there is to learn from each other regarding regulatory functions. There are common themes and questions, for example, regarding the promotion and sustainability of professionalism before and after registration and also the role of professional codes and ethical guidance.

And so, I wonder….

Might the time now be right to develop further regulatory solidarity and consider more radical initiatives such as a shared code of conduct across health and social care professions? Or perhaps, a shared evidence-based approach to student selection? Or even, a shared approach to ethics education for UK health and social care professionals?

If the pandemic has taught us anything, it is that there is much common ground amongst regulators and much to be gained from focusing on interprofessional teams, and interprofessional learning. Such collaborations will start with regulatory solidarity.

Ann Gallagher, works at the International Care Ethics Observatory, University of Surrey and is the author of Slow Ethics and the Art of Care.

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• Read more of our research reports

The Authority is contacted most days by individuals who wish to raise concerns about their experience of the healthcare regulators. Many people contact us hoping we can take action about their concerns and others do so explicitly to provide us with feedback to inform us in our role as an oversight body. We encourage people to share their experience of the regulators and we consider all the feedback we receive as background to our performance review work.

Concerns from members of the public

Around two-thirds of the concerns we receive are from members of the public and most of the rest are from registrants. The majority of concerns we receive from both the public and professionals relate to the regulators’ fitness to practise processes. Other issues that are regularly raised with us include the regulators’ registration functions, their standards and guidance, their approaches to illegal practice, to equalities issues and concerns about both data security and the openness of regulators to provide information to the public.

Many of the fitness to practise concerns we receive are about decisions made during the initial and investigation stages of the fitness to practise process. Concerns with these decisions raised by the public often reflect the regulators’ high thresholds for taking action against a professional’s registration. Some members of the public also struggle to differentiate between the purpose of the fitness to practise process and that of a local complaints process. However, individuals also tell us of their concerns about how well a regulator has considered the evidence and the conclusions it has drawn. Some tell us that entering a dialogue about their concerns can be difficult.

These insights are valuable for the Authority as this area of the regulators’ decision-making is not subject to our Section 29 review powers. We do not, therefore, have the regular flow of cases to examine that we do for final decisions. The public share with us many instances of the regulators’ reasoning for their decisions and how they deal with challenges to those decisions or the emergence of new evidence. This is highly valuable to us.

We are also regularly contacted by individuals following the conclusion of a hearing of a fitness to practise committee, who believe the outcome of a case was insufficient to protect the public. Usually these are people who have been personally affected by the case being heard. Their feedback about the case is considered fully by our Section 29 Review Team during its review of a decision. This feedback often helps us identify areas where the handling of a case could have been improved. However, this may not in itself be enough for us to argue that a decision was insufficient to protect the public.

Whether we receive concerns about initial decisions or final outcomes, we also gain important insight into the public’s experience  when raising concerns with the regulators. This includes the customer service and witness support provided to individuals. We are aware from our research and reviews that a positive tone from regulators to individuals can prevent barriers to raising concerns forming.

We recognise that regulators do good work to support individuals who bring concerns to them and we would encourage regulators to continue to be as open as possible about the evidence they consider and the reasoning behind their decisions.

Feedback from registrants

The feedback we receive from registrants often involves concerns about the length of time the fitness to practise process takes and the effect this may have on their health and career. Again, we see good examples of how the regulators are sensitive to the stress a fitness to practise process creates for registrants, but we also hear of examples where communication appears to break down.

We also receive concerns from registrants who believe the final outcome they receive is unfair and their sanction was too harsh. We cannot assist registrants with these concerns as it would be likely to conflict with our duties under Section 29 to review the outcomes of the regulators’ hearings on behalf of the public. However, we will take note of any feedback we receive about the process.

We use the feedback we receive from the public and professionals to help us decide the course of our performance review work by identifying areas of the regulators’ work we should scrutinise further. This helps us target the questions we ask regulators and decide which of the regulators’ processes we will look into in more detail in the course of a review. The concerns we receive provide valuable qualitative insights into the performance and culture of the regulators.

While we use the information we receive to inform our work, we are not able to investigate individual cases on behalf of those that raise them. We therefore usually refer individuals back to the regulator’s own processes to resolve their concerns. It can be disappointing for individuals to learn that we usually cannot intervene, but we always welcome hearing from those who wish to share their experience with us.

Anyone wishing to share their experience of a regulator with us can do so  here and you can read our performance reviews of the regulators here.

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The statutory regulators have had to respond quickly to the Coronavirus pandemic. This has revealed the potential for regulation to adapt by finding alternative ways of working and new ways to communicate – but it's also created risks which have to be considered to protect the public's safety. We hear from two regulators who have had to respond to the pandemic in different ways: Katherine Timms, Head of Policy and Standards at the Health and Care Professions Council, and Marcus Dye, Director of Strategy at the General Optical Council, share how their organisations have responded to the constant challenges thrown up by Covid-19.

Health and Care Professions Council

 Agility

The legislation underpinning regulation in the UK is fairly outdated and doesn’t support an agile, flexible approach, particularly in the case of Covid-19, where we had to act quickly. That said we’ve managed to overcome most, if not all, of the challenges we’ve faced during this difficult time, and so I think one of our biggest learning points in all of this is that barriers we see can sometimes be an illusion!

 A different way of working

At the start of the Covid-19 crisis we had to adapt to an entirely new way of working, at pace; moving around 250 staff to homeworking within a matter of weeks, with various impacts to our existing regulatory processes:

• our Registration team had to alter the way we process applications, to reduce our reliance on post;
• our Tribunal service moved to hosting hearings remotely, and began looking at new ways of managing bundles (paperwork connected with hearings) electronically; and
• our Education monitoring and approval processes became virtual.

Temporary registration

Making sure we weren’t a barrier to increasing the healthcare workforce to meet demand, whilst ensuring those returning to practice didn’t pose a risk to the public, was a fine line. We relied on our existing frameworks to ensure those we facilitated to come back to practice, through the establishment of a Temporary Register, would be safe. And we tailored our fitness to practise processes to ensure they could be swiftly removed if there were any concerns raised.

Support and guidance

As the pandemic and news has evolved, these priorities have changed. Registrants initially asked us questions about Personal Protective Equipment (PPE), adapting their practice, managing risk and raising concerns, but more recently we’ve seen a shift to consideration of resuming private practice and community services. To support registrants as far as possible we developed a new Covid-19 hub on the website. This responds to FAQs across all stakeholders, but also is a source of standards-specific guidance in light of Covid-19. Our Covid-19 information sheets address each of the 10 over-arching Standards of conduct, performance and ethics.  We continue to review this content.

In acknowledging the pressures our registrants are facing, we also made the decision to pause some of our processes to avoid any additional burdens on them; for example our audits of continuing professional development profiles.

Risks

In considering the future of the Temporary Register there are many factors to take account of. There could be consequences if this register is closed too early and subsequently need to be re-opened because of further Covid-19 peaks. Impacts might be felt on temporary registrants’ willingness to work, public understanding of their role, and the speed with which the NHS is able to call on this group to support any future workforce demand. 

Nevertheless, the extended use of the Temporary Register beyond that which is necessary presents regulatory risks. There are differences in the regulatory controls we can exert on temporary registrants as compared with full registrants, and there are less formal processes to safeguard registrants, for example providing them with an opportunity to evidence their fitness to practise where concerns are raised.

Furthermore, those practising on the full Register may also be discouraged by the ongoing temporary registration of a workforce who do not pay fees, and are not subject to the usual regulatory processes; for example, obligations to provide evidence of continuing professional development.

Retaining the Temporary Register(s) too long after the Covid-19 peak presents a real risk of undermining regulatory processes.

We are working with NHS and Government colleagues across the four countries to ensure we clearly understand all the risks and take appropriate action to mitigate them.

The future

Looking to the future, there are many questions we need to answer. How has this pandemic changed the public’s expectation of our professions, and us as a regulator? What can we learn from this experience in terms of how we work? How can we harness our learning to continue to improve public protection? I think this is an exciting set of questions to work through and I believe, collectively as regulators, we can find the answers and be better regulators for it.

General Optical Council

At the General Optical Council, Covid-19 has brought many challenges for us to navigate as we’ve come to terms with regulating during a pandemic. But it’s also presented us with opportunities to implement change and growth in order to continue to fulfil our role of protecting the public.

Challenges of a pandemic

In line with Government guidance, we closed the GOC office in mid-March and made the shift to remote working. Working from home was new for many staff members and teams and required us to adjust to a new way of working in a short period of time and learn how to carry out certain functions remotely.

Supporting our registrants to protect patients and the public

We knew early on that our registrants may be required to alter their practice for extended periods of time in order to protect patients and the public and that there might be aspects of our own legislation and regulations that might prevent this. It was especially important not to have any unnecessary regulatory barriers to the remote delivery of care which was needed to ensure that patients still accessed the eyecare they needed, but the risk of infection through travelling to optical practices was reduced.

Early on, we issued a joint statement with other health and care regulators outlining how we would continue to regulate during Covid-19.

We then published a series of statements intended to clarify aspects of our legislation related to remote care delivery during the pandemic, including statements on the supply of spectacles and contact lenses, contact lens aftercare and more recently infection prevention and control. All of our guidance for registrants can be found on our Covid-19 page.

We have also increased the frequency that we communicate with our registrants to ensure they remain up to date with the latest guidance from us, professional bodies and the Government.

Key changes to how we deliver regulatory functions

In addition to supporting our registrants, we have had to consider different ways to deliver our own regulatory functions. Covid-19 has forced us to embrace modern technology in ways we’ve never had to before. Remote hearings have become the norm, and we have been able to progress many cases that would have otherwise been postponed.

We also held our first ever remote Council meeting which was a success and allowed us to make progress on various projects across the organisation.

Even in these difficult times, it is important for registrants to maintain and develop their knowledge and skills so we have retained our overall requirements for registrants during our current three-year Continuing Education and Training (CET) cycle. We have however waived our annual expectation in 2020 to complete part of this CET to recognise current difficulties in accessing learning and have produced additional guidance to encourage more remote delivery of CET.

Correspondingly, we have also sought to encourage and support more remote delivery of undergraduate education and have quality assured revised proposals from our education providers.

Managing risks

In March we set up a Covid-19 taskforce made up of our CEO, senior management team and relevant managers to keep on top of any risks arising. The taskforce met daily at the start of the pandemic due to rapidly changing circumstances, then moved to three times a week and now meets weekly. The taskforce considers impacts on our staff, the organisation and our registrants and agrees any actions to be taken.

We will continue to monitor how Covid-19 impacts the optical sector and our regulatory work and make adjustments as needed, particularly as we enter a new phase of the pandemic which may see local lockdowns across the UK. Our overarching objective is to protect the public and maintain their health and safety and we remain committed to supporting our registrants to provide safe and high-quality eye care.

Related material

Find out more:

• Read more about how the HCPC is responding to Covid-19 from their dedicated website pages
• Read more about how the GOC is repsonding to Covid-19 from their website hub
• Read the joint statement issued by the regulators in March
• Read our blog on how the Accredited Registers have responded to Covid-19
• Find out  more about the approach we are taking to our work during the pandemic
• Find links to all the regulators' Covid-19 website hubs here.

It’s been a challenging time for regulators and our Accredited Registers to assume the most effective and proportionate response to the current pandemic. Registers have needed to act quickly but thoughtfully to the changes caused by lockdown to ensure that registrants are supported, but also that the integrity of public protection is maintained. We spoke to three Registers to get their feedback and, in this blog, we discuss the challenges they have faced over the past three months and the insights they have gained during this period. 

How did the registers respond?

David Kidney, Chief Executive of the UK Public Health Register (UKPHR), describes the confusion experienced in the initial lockdown phase. ‘Our registrants were immediately drawn into the fray, addressing the huge and diverse public health challenges arising from this deadly outbreak of coronavirus in the UK. From strategic leadership of community responses (Directors of Public Health and their Public Health Consultants) to front-line delivery of preventive services (public health practitioners) – even test, trace and isolate in the beginning until the Government judged that our country lacked the necessary capacity to continue this role.’

Registers have had to pioneer inventive responses to the pandemic, adopting unique approaches depending on the nature of their individual practice. For registers like UKPHR, whose registrants provide vital support to essential areas of healthcare, this has included making alterations to the registration and review process in order to maximise their ability to support the public. ‘We released specialists from the need for professional appraisal’, explains David Kidney, ‘all the appraisals due in the emergency are being treated as approved missed appraisals’. We also extended the registration cycle for specialists due for revalidation from five years to six years and postponed their revalidation for a year – we made the same extension for practitioners due their five-yearly re-registration. We also announced a temporary lifting of our CPD requirements for specialists and practitioners during the emergency, made temporary changes to annual renewal of registration during the summer, and set up a temporary register for public health professionals who had recently retired and wanted to return to help their colleagues get the pandemic under control.’

Non-essential services which consist of face-to-face consultations have now had to consider how they may continue to support members of the public remotely, as has been the case for the British Association of Sport Rehabilitators and Trainers (BASRaT). Oliver Coburn, their Reistrar, explains that ‘BASRaT acted quickly to issue guidance that face-to-face appointments should not take place, instead they should be replaced by virtual consultations. To support this challenging transition, BASRaT funded access to telehealth and exercise rehabilitation software for all its registrants. This quickly provided a practical solution and enabled registrants to continue practising safely; protecting both themselves and the public. Alongside this, BASRaT also produced guidance on the implementation of virtual consultations and hosted two webinars with experts in telehealth to provide registrants with the vital skills and knowledge needed to make use of this new way of working.’

To ensure that these services remain available to support public health in the future, registers have had to find ways of resuming training and assessment to a high standard. Coburn describes their response to this challenge: ‘To resolve the educational challenges and ensure the continuity and quality of teaching and assessment for students on BASRaT accredited courses, we’ve worked closely with programme teams at higher education institutions, providing them with the flexibility and guidance to make changes whilst still maintaining the standards needed for a practising healthcare professional. This was facilitated via a Microsoft Teams workspace that allowed programme teams from across the country to work together on effective solutions.’

Assuming alternative means of effective communication has been a huge area of development in 2020. This is important not only for boosting morale among teams, but also for essential planning toward the recovery phase and remaining connected with service users. The ARs detail the importance of collaboration during this time.

‘With public protection our foremost consideration, we worked closely with our partners in the public health system, including the relevant statutory regulator, the General Medical Council’, explains David Kidney. ‘We consulted the public health agencies in the four nations about proposed changes. We ran our proposed changes past the Professional Standards Authority.

‘We were making these changes in real time when everything was fast-moving and hectic, the pressure on everyone was immense and time was of the essence. We ramped up our communications with registrants, partner organisations and other stakeholders and we created a Covid-19 hub on our website where we brought together all the necessary information about these changes.’

Oliver Coburn also notes of the positive impact of successful communications between the Accredited Registers Collaborative. ‘It has been refreshing to see unprecedented collaboration between organisations. The 26 Registers making up the Accredited Registers Collaborative group have worked together on specific issues and BASRaT has been thankful to engage with other healthcare professional bodies and regulators on shared challenges throughout the COVID-19 outbreak.’

Accredited Registers have in some cases also demonstrated continued support to members of the public as well as registrants, even when the extent of their ability to practise is hindered. ‘We have kept our support line open to encourage registrants to find creative, non-therapeutic ways of interacting online with their clients’ notes Jeffrey Hugh Thomas, Chief Executive of Play Therapy UK (PTUK). ‘PTUK’s Facebook page has been a useful way of disseminating news and encouraging the registrants to come together, support each other and pool ideas.’

Challenges

As the UK moves into the next phase of its response to Covid-19, there remains some confusion about the status of the 88,000 practitioners on Accredited Registers, which has limited their ability to contribute to the Covid-19 response and in some cases led to financial hardship. Regulations and guidance on restrictions to practice vary across the four UK countries.  

One of the main challenges due to the varying nature of occupations is how individuals were to interpret the guidance. One such organisation was the British BASRaT, as their registrar Oliver Coburn writes, ‘Many were excluded from Government support, largely due to healthcare practices not being on the list of businesses required to close, this meant they could not access the business grant scheme. Other registrants are small company directors who pay themselves little or no salary and rely on dividends, meaning they could not furlough themselves. This financial pressure left many registrants with a choice between losing their income and protecting the public; or remaining open and introducing a risk of harm to themselves and others. This placed even greater emphasis on the need for BASRaT to provide guidance and support.’

Jeffrey Hugh Thomas explains that there was also ‘extra costs of additional time for [their] registrants’ support line to service a higher level of enquiries because of confusion caused by government announcements.’

The Professional Standards Authority has written to the four UK governments to highlight the experience of AR practitioners, and to ask that consideration is given to recognising accredited registers within future guidance on Covid-19. We will continue to emphasise the role that practitioners can play within the Covid-19 recovery phase, as part of an integrated health system.

Insights and potential for the future

As the UK transitions into the recovery phase, Accredited Registers will begin to assume more responsibilities and feel a return to some extent of their original roles. There are some key learning points to be taken from the past four months as we plan for the next steps in this pandemic and beyond.

‘The speed at which organisations have had to adapt and react during Covid-19 has been unprecedented’, notes Coburn. ‘Thankfully, with robust processes in place and by utilising modern technology, BASRaT has been able to keep pace with the change. Overall it demonstrates the agility of Accredited Registers and shows that high regulatory standards can continue to be met during periods of rapid adaptation.

‘There are positives to be taken from recent events and hopefully, the collaboration and adaptability demonstrated by organisations will continue moving forwards.’

David Kidney describes what this experience has taught him, as well as his hopes for the future of regulation. ‘There will be much talk of transitions as we all try to resume ways of working (some potentially changed forever) without the ever-present threat of pandemic and increased risk of premature death. Regulation is but one cog in this transition, but we will be planning to reapply the regulatory standards that we adjusted during the emergency. We will enthusiastically consider where we can lock in any new ways of working that were forced on us during this time, but which can endure afterwards.

‘Our approach to right-touch regulation demands no less of us than that we examine whether there are more effective, more proportionate ways to perform our regulatory functions and keep the public protected from harm.

‘I am impressed with the ways in which our registrants have risen to the deadly challenge of the coronavirus. They certainly have my thanks.

‘Going forward, it would make sense for public health leaders to be involved in planning for future public health emergencies. I feel certain that registrants will want to be involved and I am sure they will contribute to better quality decision-making. It would also make sense to do more work on developing a bigger public health workforce with the necessary range of skills and capabilities. As one of the significant regulators in this space, UKPHR stands ready to contribute to, and support, this developmental challenge.’

We at the Authority believe the Accredited Registers programme can play a role in easing pressures on the NHS and the public during the recovery phase, and beyond. The ability for GPs to refer directly to Accredited Register practitioners, for example, enables assured access for services such as counselling. While guidance has differed across the four UK health administrations, and in some cases, there has been confusion – this time has also taught us that meaningful change is possible. We will use this experience to inform our thinking as part of the strategic review of the accredited registers programme, which launched last month. The Terms of Reference for the review can be found here.

Related material

• Find out more about the Accredited Registers programme
• Find out more about the approach we are taking to our work during the pandemic

In 2016 we asked whether our Standards of Good Regulation were still fit for purpose? The answer was both yes and no. We have just published our first performance review using the new Standards. In this blog, Graham Mockler, our Assistant Director of Scrutiny and Quality, explains more about why and how they were revised and the introduction of a set of General Standards.

Our new Standards of Good Regulation were published at the end of 2018 following a detailed review process that began in 2016 and included two consultations (one on approach and one on content). We had been using the same Standards since 2010 with minimal changes, and it was time to review these to ensure they remained up to date and took account of regulatory developments in the years that had passed. The new Standards became ‘active’ from January 2019 for all regulators that we oversee. This means that our first assessment against their use began in January 2020, as our reviews, which are staggered throughout the calendar year, cover the previous 12 months.

With the updated Standards, we have maintained the focus on the key regulatory functions of education and training, registration, fitness to practise and setting standards for registrants. We reduced the number of Standards across these areas from 24 to 13, bringing some Standards together to reduce duplication, and ensuring these are focused on outcomes rather than processes. To sit alongside these 13 Standards, we have introduced a set of five General Standards, which go across the regulatory functions. The General Standards represent the biggest change to the Standards. They are:

1. The regulator provides accurate, fully accessible information about its registrants, regulatory requirements, guidance, processes and decisions.
2. The regulator is clear about its purpose and ensures that its policies are applied appropriately across all its functions and that relevant learning from one area is applied to others.
3. The regulator understands the diversity of its registrants and their patients and service users and of others who interact with the regulator and ensures that its processes do not impose inappropriate barriers or otherwise disadvantage people with protected characteristics.
4. The regulator reports on its performance and addresses concerns identified about it and considers the implications for it of findings of public inquiries and other relevant reports about healthcare regulatory issues.
5. The regulator consults and works with all relevant stakeholders across all its functions to identify and manage risks to the public in respect of its registrants.

These are areas that we have either not assessed at all (Standards 2, 3 and 4), or have assessed as part of wider Standards in the past (Standards 1 and 5). We believe the addition of these General Standards will enable us to gain a greater understanding of the overall effectiveness of a regulator, and how it is working to protect the public. A key addition is Standard 3 on equality, diversity and inclusion. The importance of including this Standard has been highlighted by recent events providing even greater emphasis on the disparities faced by BAME individuals. Through applying this Standard, we expect regulators to be active in identifying and addressing issues in relation to their work where individuals with protected characteristics are, or are at risk of being, disadvantaged.

The Standards that we set for regulators are designed to be challenging in order to drive improvement in the regulation of healthcare professionals and, as a consequence, enhance public protection. We anticipate that some regulators may find it difficult to meet all of the Standards, but expect where Standards are not met (and even where they are) that regulators will act to improve.

In light of introducing new Standards, we have updated our report format to put less emphasis on the number of Standards met and not met. This may seem a strange approach, as it is the overall outcome of our work and remains crucial for both us and the regulators. However, we recognise and want to emphasise that focusing solely on this does not tell the full story of how a regulator is performing. Often, where a regulator has not met a Standard, they will be undertaking work that, if effective, will lead them towards meeting this in the future. Conversely, where a regulator has met a Standard, there may be room for improvement in some aspects of its work relevant to that Standard. We expect that we will see both positive and negative aspects of performance across, and even within Standards, especially where these Standards cover a wider range of areas than before.

If you would like to have a look at our updated reports and how we have assessed the new Standards, the first of these to be published is for the General Osteopathic Council, which can be found here.

Related material

• Find out more about the new Standards, including the consultations and the evidence framework that sits behind the Standards.
• Find out more about the performance review process.
• Watch our short video which explains more about the new Standards of Good Regulation.

There is no blueprint for how a regulatory system should respond to a pandemic. However, the six principles of right-touch regulation – proportionate, consistent, targeted, transparent, accountable and agile – can provide a useful framework for thinking through an appropriate approach. This blog focuses on the principle of agility, exploring what it means and how it might be applied in the context of the current crisis.

Being agile

If we imagine an agile athlete, we might think about their ability to move quickly, to nimbly change direction while maintaining control, and to keep moving throughout. Agility therefore describes a state of readiness to respond to change, but it doesn’t mean simply responding to everything. It also requires balance, coordination and good reflexes.

What does this mean in the context of regulation? An agile regulator would not only be able to respond; it would also be engaged in horizon-scanning, anticipating risks and taking timely action to mitigate these risks, recalibrating as necessary. In addition, an agile regulator would have a discerning perspective, identifying which issues require a regulatory response and which do not need to be the focus of attention. (For more discussion of agility and the other principles of good regulation, see Right-touch regulation.)

Learning from The Regulatory Craft

Malcolm Sparrow’s discussion of responsive regulation in The Regulatory Craft (pp. 38-39) can help us pin down what agility might look like in practice when there are complex choices to be made about the right course of action. In Sparrow’s view, regulators should be able to change their stance depending on the circumstances. In some areas it will be appropriate to have formal legal processes and rigorous enforcement. In others, a more flexible interpretation and application of rules will be beneficial. Having a repertoire of stances available between these ‘hard’ and ‘soft’ approaches to regulation, as well as the ability to choose the right approach, should be more constructive than having to pick one or the other. Sparrow calls this ‘regulatory versatility’.    

This isn’t easy. It requires a good knowledge base and a system for examining different situations, evaluating available options, and selecting the appropriate response, as well as the means for successful implementation. It also poses some tricky questions, such as: Who should be authorised to make this selection? Can these choices be made at the operational level, or do they require legislative approval? And, if a regulator does have this varied toolkit of regulatory approaches at their disposal, what do they need to do to ensure each is used and managed appropriately, effectively, and in a coherent way? On this point, Sparrow reminds us of the need to be both inventive and integrated, and the importance of appearing organised as well as innovative. 

Agility in the context of Covid-19

Regulatory arrangements should be agile so that they can meet the challenges of system disruption. We are quite used to thinking about this in terms of disruptive innovation and how we might ‘future-proof’ regulation so that it can effectively adapt and respond to things like online services, new workforce roles, or artificial intelligence as they come down the line. But the coronavirus pandemic has presented a very immediate test of regulatory agility under extremely difficult circumstances.  

Over recent months, regulatory bodies have responded by developing policies and adapting processes at unprecedented pace and scale. Temporary registers were set up in weeks to facilitate thousands of health and social care professionals re-joining the workforce. Many professionals are working in areas outside their scope of practice to ensure the UK has the workforce it needs throughout the crisis, while students have entered the health service earlier than planned at a time of intense pressure. 

Even as we descend from the peak of the crisis, the level of need for health and social care will remain very high. This will include rehabilitative care for those who have recovered from Covid, as well as a significant backlog that has built up during the lockdown. Agility will continue to be critical to the regulatory system’s response going forward; for example, in decisions about ending temporary registration. It is possible that some regulators could use their discretionary powers to ‘switch off’ their temporary registers for different professions or by geography to meet changing patterns of need. In the event of future peaks, it may be attractive to have the flexibility of turning temporary registers on and off as required. But these actions have an administrative burden and risks attached. This ongoing flexibility would therefore need to be coupled with additional safeguards, as well as clear information and ongoing dialogue with all registrants, patients, the public and other stakeholders. Agility does not just mean responding quickly, it means utilising the information and resources available to anticipate and mitigate risks, and to effectively navigate a way through.

Lessons for the future

The coronavirus pandemic has put a huge strain on health and care professionals and the system itself. Hindsight will allow us a better understanding of how our regulatory framework responded, its level of preparedness, and whether things could have been done differently or better. These are important lessons that will help us to manage any new waves of Covid, and to prepare for pandemics in the future.

You can find out more about right-touch regulation here.

The Coronavirus pandemic has touched upon every aspect of our daily lives, but its impact on the health and care sector will have long-lasting effects and it’s also likely to shape regulatory policy well into the future. At the end of April, we held our first (virtual) meeting with regulatory colleagues to discuss how to frame our current and future policy work in this context. The meeting gave us all a chance to communicate and more importantly collaborate – helping us to identify common concerns – and to work together to address and manage them. In this blog our Director of Standards and Policy, Christine Braithwaite, describes what was discussed in more detail.

Why meet now?

On 30 April we met virtually with fellow regulatory colleagues to talk about Covid-19 and the implications this will have on current and future policy work. After an initial month of upheaval, our colleagues were able to share an update on their response to the pandemic in terms of policy activity. It was, most importantly, an opportunity to identify points of shared concern and interest, so that we may work collaboratively to address and manage them, in a time where collaboration may appear to be most challenging.

Since March, the operation of health and social care has seen transformation at an unprecedented pace. These new procedures have meant that regulation too must function in an entirely unique way, the demands of which no one could have anticipated. There has been the establishment of temporary registers allowing professionals to re-join the workforce; there is a quickening of registration for final year students; and professionals are now being deployed beyond their usual boundaries in order to meet the needs of the public.

Evolution of standards and guidance

The evolution and impact of standards and guidance for infection control is an immediate priority. What implications will this have on public confidence, for example? What types of changes can be expected in professional practice? It is also clear that points surrounding workforce changes must be considered, including the practical issue of transitioning from the critical care to the rehabilitation phase and how professionals will grapple with balancing needs alongside additional demand. The redeployment of professionals will significantly affect the extent to which traditional regulatory practice can still be of use. This, alongside other challenges such as remote hearings and decision-making, will all require regulatory policy to adapt quickly, whilst ensuring that high standards are maintained.

Current and future challenges

Understanding and managing the effect that these changes will have on the public is paramount. The emergence of remote consultations in new sectors demands a new approach to how such professions are regulated. We must observe the impact on patient voices when the health service is being stretched beyond its usual capacity, and how regulation can function in a way that ensures they feel heard.

Making sure that professionals are adequately prepared for their practice is a huge challenge when new processes of fast-tracking, redeployment, and volunteering have become necessary factors – but these changes can also unveil potential, including a wider understanding of the future capability of our health services. The health and care sector is now required to embrace new operational procedures that previously wouldn’t have been thought possible. With threats, there also lies opportunity.

As we transition out of lockdown and find ourselves in a ‘new normal’, some challenges will be here to stay. How will the public perceive clinical services beyond this culture of fear, and how will the patient-professional relationship change as a result of remote consultations or inevitable errors in care due to backlogs and overcapacity? These long-term changes are the questions we must be proactive about, even as the landscape continues to shift in ways we can’t quite anticipate.

Douglas Bilton explains how the Authority's academic and research conference provides an opportunity for a global dialogue, bringing together speakers and delegates from near and far to share their findings, identify common issues and look at how regulation can adapt to meet the challenges of the future.

Our 2020 academic and research conference was another enriching and thought-provoking event, as contributors from a variety of backgrounds in the regulatory landscape were invited to share research, reflect and assess their findings, and talk about what lies in store for regulation in the future. We were joined by our academic partner Robert Jago, Senior Lecturer in Law at Royal Holloway University of London, to discuss the potential opportunities and challenges for regulation in a rapidly changing environment.

The overarching question ‘Will regulation matter?’ led us to ask how regulation would adapt to change in the future. The best way to do so – and this conference demonstrated this – is to be engaged in a global dialogue; to work together across disciplines, backgrounds and geographies, in order to effect meaningful change. The range of international perspectives proved to be a key success of this year’s conference, with speakers from Australia, Belgium, Canada, Colombia and the USA, among others coming to the Royal Society of Arts in London to provide their unique perspectives and insight (whilst taking great care to adhere to pre-lockdown Covid-19 guidelines). It is apparent that for regulation to be as effective as it can be in the future, regulators must be agile, willing to collaborate, and to continually assess, learn, and adapt – as more recent events have also shown.

I’d like to thank all of the contributors for the thoughtfulness, depth and care that went into their presentations and discussions. We received a lot of positive feedback, all of which we will carry through to the planning for next year’s conference, which is already underway.

Watch some of our conference delegates explain how research has played an important part in making regulation more effective - identifying issues, understanding the context and leading to improvements in processes and policies.

Related material

• You can read through this year's conference presentations here or watch the highlights.
• Read a guest blog from Mark Platt - policy manager at the GDC - who writes about the conference from his three perspectives as attendee, presenter and co-chair of a breakout session.
• Find out more about some of the key topics we have focused our research on in the last three years, including dishonesty, sexual misconduct, duty of candour, professional identity and fitness to practise reform. You can also find all our research reports here.

Mark Platt – Policy Manager at the GDC – reflects on our recent Academic and Research conference from three perspectives: attending, presenting and chairing a break-out session.

As a relatively newbie to the world of professional regulation, but a longer-term actor in the field, I love any opportunity to mix with colleagues to consider, contrast and compare what we do and how we do it. And of course, how we can do it all better.

My first Authority academic and research conference was last year (incidentally while I was interning at the Authority, on projects designed to help with Section 60 reforms; long promised, but at that stage, still not progressed). I managed to squeeze in a presentation, but it all happened rather quickly and I only managed to attend for the first half-day. This time, I grabbed every opportunity offered, which meant that not only did I get to attend, but I also presented at a session, and chaired another. That triple participation, from three different angles, garnered me with perspectives I think are worth sharing.

We are all joining the dots

Nowhere, certainly not in any of the sessions I attended, was there any sense that what we do would stop ‘mattering’, for patients, registrants, or government. While there were differences in perspectives, there was an accord on the need for professional regulation to continue across health and care.

But there was divergence about how to progress what we do and what we need to do to meet the challenges of the new landscapes emerging before us. And this was before COVID-19 had fully raised its head. My big ‘take-away’ was that digital and technical innovation is likely to dominate the future of our work, necessitating more use and better handling of data. Added to that is that context remains king, with national political settlements being important propellants or constrainers for how data is used, and more generally, how we will be expected meet our objectives.

Convergence is coming but divergence still happens

Across all the presentations there was a recognition of different professions working in similar spaces expecting similar treatment. As health and care become more patient-centred, and patients become savvier, regulators need to be increasingly willing and able to collaborate, not least on how they view fitness to practise.

I was stuck by the plenary discussion between Harry Cayton and Deanna Williams, where I agreed with them both, even though they, at times, appeared to be disagreeing with each other. Deanna’s exhortation, that everything must change, is very much in line with my personal view that regulation does need to reform, especially in relation to multidisciplinary working arrangements. But Harry’s perspective, that the challenge for regulators is to do the ‘bread and butter’ work better, is obvious to anyone who has asked patients about their understanding of what we do. Not least, in relation to concerns that span more than one profession and implicate delivery systems, as well as professionals.

The scale of the divergence between regulators, was forcefully demonstrated in a presentation from Dr Asta Medisauskaite and Dr Rowena Viney of University College London. They showed the vastly different range of actions and consequent sanctions made by UK regulators for what appeared to be similar breaches. While some variances can be the result of case specificities and individual regulators’ powers, the fact of similar offences resulting in different outcomes is a concern shared by all of the regulators, and something that has been picked up in developing research and policy work, badged under the gnomish title of ‘seriousness’. As we move towards greater team-working, and it becoming the rule rather than the exception, regulators must work together and in collaboration with the professions and patients to resolve unnecessary divergencies.

We (still) need to communicate better

Lots of presentations highlighted how regulators, irrespective of jurisdiction, can improve how they communicate their missions and action. Our current regulatory system is complex, the legislation is complex, and at the heart of our existence is a complex concept that defies easy explanation, ‘fitness to practise’. Throw into the mix, innovations such as accredited registers (AR) and regulators keen to retain control of their own space, and the recipe for public confusion is clear.

That potential for confusion was brought into stark relief by a presentation from an AR regulator, about an investigation they began which ended fruitlessly (for them) with a struggle for control in the ‘powers matrix’ occupied by numerous other regulators, both professions and systems.

To close on that point, when we undertake positive actions, we can often make them overly complicated, for instance with requirements and terminology around continuous professional development (CPD) and revalidation. This point was made to me quite eloquently in a conversation with a ‘regulatee’ representative during one of the tea breaks that enabled de-pressurisation between sessions.

It’s not over until it’s over…

Two days are a sizeable chunk from a working week, but as ever, good things always seem to go quickly. I thoroughly enjoyed the conference sessions that I attended, and the change of location made it visibly a much bigger and more diverse event than its predecessor.

The programme provided plenty of chances for regulators to consider the range of challenges and opportunities ahead of us. It also provided a great opportunity to stop and really think about what we do, and how we could improve it.

COVID-19 has the potential to radically change how our health and care systems work. I’m not sure whether the time between this conference and next year’s will seem longer or shorter, but I’m fairly sure it will feature lots of 2020 case-studies proving that regulation does matter, as well as identifying how things might be further improved, for patients and professionals alike.

Related material

You can read through Mark's presentation on Working with professionals and patients to develop values-based practice in dentistry. Other presentations from the conference can be found here. You can also watch highlights of the conference.

With the Coronavirus pandemic placing unprecedented pressures on those working in health and care and those who regulate and register them – our Chief Executive discusses how to balance the need for flexibility with accountability and ensure that professional regulation is acting in the best interests of patient and public safety.

The Authority recognises that the Coronavirus emergency is placing unprecedented pressures on health and care professionals, regulators and accredited registers. The priority of all should be to act in the best interests of patient and public safety.

It is important that the regulatory system provides as much flexibility and support for professionals as possible during this time, whilst still safeguarding patients and the public and ensuring that the regulators and registers remain accountable. We are committed to working collaboratively with the government, professional and system regulators, registers, employers, patient groups and the public in order to meet the challenges posed by this pandemic.

Most immediately, the Government has passed emergency legislation that allows several regulators to provide temporary registration for professionals whose registration has lapsed, and all are adapting their policies and processes to respond effectively to these circumstances. We are supportive of the regulators making temporary changes that respond to the challenges raised by Covid-19 but that do not introduce additional significant risks for patient and public safety. Our initial review of the arrangements for temporary registration suggest that these are proportionate and pragmatic and should be successful at bolstering the workforce at a time of significant demand.

We recognise that as a result of the emergency, some processes may be significantly delayed; and in some circumstances, it may be appropriate for certain restrictions to be relaxed if the interests of the patients or public safety require this. Regulators and registers may also need to prioritise aspects of their work over less urgent work to meet the emergency. We will be especially mindful of the current resource implications for regulators when undertaking our assessments and will take account of the current circumstances in our performance reviews.

The 10 statutory regulators we oversee refer to Government guidance in their response to the pandemic and have provided individual advice for registrants on exercising professional judgement, undertaking and recording appropriate risk assessments, and considering using remote consultation in line with relevant guidance. Each regulator has also provided separate guidance specific to their professions, relating to how registrants may need to limit or cease any non-urgent, face-to-face treatments.

Furthermore, we recognise that as a result of the emergency, the accredited registers we oversee will face significant challenges and have to work in different ways, meaning that there may also be an impact on timeliness for submission of annual renewal applications and responses to requests from the Authority. There are 88,000 professionals covered by our Accredited Registers Programme, and many of those that use hands-on approaches to care have made separate statements calling for practitioners to cease face-to-face consultations and treatments. There are, however, around 55,000 mostly self-employed counsellors and psychotherapists – this could prove an invaluable resource to support those affected by Covid-19, including frontline health and care professionals.

The Health Protection (Coronavirus, Restrictions) Regulations (England) 2020 sets out the statutory basis requiring the closure of certain businesses and identified exemptions. At paragraph 37 of Part 3 the following businesses are identified as not required to close: pharmacies, dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health. Many of our registers have collaborated to develop a campaign to raise awareness of the role of counselling and psychotherapy during this crisis. Separate registers have also issued individual guidance for practitioners on their register to practise in the safest possible way during this time; this often means that, where possible, counsellors do not see clients face-to-face if other options are available.

As an Authority, we will use this opportunity to also think about the longer-term – about how the current crisis might change the regulatory landscape – and learn lessons for the future. We can seize opportunities to better meet stakeholder needs, particularly those of patients, service users and the public. And, as always, we will continue to act in line with our values – integrity, respect, transparency, fairness and teamwork – reinforcing the strong, compassionate and positive culture of health and care in the UK.

Current circumstances have meant that we could not say goodbye in person to our Chair, George Jenkins, who is stepping down today – so we say goodbye and wish him good luck online through our blog.

After a memorable four years of courteous leadership, today marks the end of George Jenkins’ term as Chair of the Authority. While current circumstances have prevented us from doing so in person, we take this opportunity to thank George for his work in achieving the cusp of our progress in regulatory reform, and his unwavering enthusiasm for what we do and our role in protecting the public.

George has done a magnificent job of leading the Authority and keeping us focused on our strategic objectives – and the benefits of this for protecting patients and service users. Since George took on the position in 2016, the Authority has published 18 regulator performance reviews, 22 reports, and has scrutinised 12,000 final fitness to practise decisions. Much of the Authority’s progress in regulatory reform can also be attributed to George’s contributions over the past four years.

The publication Right-touch reform has helped to influence the debate and put forward proposals for future development and improvement. It provides context of the current regulatory landscape as well as an in-depth analysis of what needs to change to make healthcare regulation fit for purpose. Alongside many others in the health and social care sector, we called for reform of regulation, building upon our principles of right-touch regulation and highlighting that the regulators’ piecemeal legislation hinders the effective regulation of a modern workforce. The long-awaited government consultation on reforming regulation in 2018 provided the first opportunity to look at how regulation could be improved so that it properly protects patients and supports professionals to do the right thing. This vital work has enabled us to have an international dialogue about regulation and its role in patient safety.

And this is just the beginning – the work that the Authority has undertaken during George’s time as Chair has succeeded in opening the conversation, providing ample opportunity for big changes in regulatory reform in the years to come.

We would like to thank George for all he has done for the Authority, and wish him all the best in his future endeavours.

On World Social Work Day, Colum Conway, Chief Executive of Social Work England, explains why professional regulation needs to be in a better position to provide a more responsive and proportionate approach, work collaboratively and re-focus on ‘up stream’ working.

For those of us who have been in or around professional regulation for the past seven years conversations about reform in practice and legislation are familiar ground. There is a genuine desire in the sector for change. Professional regulation needs to be in a better position to provide a more responsive and proportionate approach and to introduce practice methods that are more collaborative and preventative in nature. The focus must be on investment in ‘up stream’ working.

For me, the policy decision by government to establish Social Work England provides a specific focus on social workers and the social work profession. It is underpinned by the desire for change, to do things differently in the regulation of social workers and to have a different more dynamic impact on social work practice through a whole new approach. Our challenge is to fully embrace this desire for change within a robust regulatory framework.

Throughout the set up phase of the organisation it has been important for us to develop our standards, rules and processes within this context of change and innovation. Most importantly, through involving those who will be impacted by that change and innovation. Supporting people coming into the organisation to focus on the ways in which we will do things differently has been fundamental to our approach.

It has helped greatly that we been established under new legislation that contains many of the key elements that are proposed as part of the reform of professional regulation. This is one of the most interesting challenges, to be at the front edge of innovation in this area, developing new ways of working to implement new approaches and leading and enabling change.

Related material

• Find out more about Social Work England.
• Find out more about all our work around regulatory reform and right-touch regulation.

Public confidence and public trust in the healthcare regulators are interlinked: without one, you probably wouldn’t have the other but how do the regulators interpret and apply ‘public confidence’ especially in relation to their fitness to practise processes? Policy Manager Daisy Blench looks in more detail where the concept of ‘public confidence’ came from and why it is such a challenge for the health/care regulators to pin down its exact meaning.

Maintaining public confidence in the professional regulators

The 10 healthcare professional regulators have an overarching duty of public protection. This encompasses three main elements:

• protecting patients
• upholding professional standards
• maintaining public confidence.

This duty guides how the regulators carry out all their functions but particularly how they operate their fitness to practise processes. This process is how regulators investigate complaints or concerns about the professionals on their registers and reach a decision about whether the registrant is fit to practise. They will also decide on whether a sanction is required to protect the public. (A sanction can be anything from a warning, several months’ suspension from practising, or for the most serious cases, the registrant may be removed from (struck off) the register.)

Of the three elements mentioned above, maintaining public confidence is arguably the most challenging for the regulators to interpret and apply. It’s an amorphous concept – forever changing and shifting. For some, public confidence is entangled with outdated concepts arising from previous systems of self-regulation – related to defending and upholding the reputation of the profession rather than protecting the public. The former risks being seen as a self-interested approach. A more nuanced understanding of what is meant by maintaining and upholding public confidence is that the way in which the profession as a whole is viewed is an important facet of public confidence, an integral part of a patient trusting the health professional treating them.

Two major inquiries have shaped the current regulatory system, and these can help us understand where the concept of public confidence came from; how it became part of the regulators’ overarching duty; and why it remains an important consideration for them. The inquiry into failures in paediatric heart surgery at the Bristol Royal Infirmary; and  the Shipman Inquiry marked crucial steps in the shift from a system of self-regulation to independent regulation to ensure that the ‘public interest’ is at the heart of the way the regulators operate and decisions made about professionals and their fitness to practise.  

More broadly, research has demonstrated the importance of trust in healthcare providers and professionals and the potential loss of legitimacy if the public lose trust and confidence in those they are relying on to provide care for them.

Recent events impacting on public confidence and how the regulators approach it

The issue of public confidence – what it is or is not – was brought into sharp relief by the case of Dr Bawa-Garba. It highlighted the different ways in which public confidence may be perceived. A fitness to practise panel took the view that her actions should be seen in the context of the other pressures she faced within the hospital on that day, she had demonstrated insight and retrained. The panel suspended Dr Bawa-Garba from the medical register. However, the General Medical Council (GMC) took the view that public confidence would not be sufficiently maintained by this outcome and appealed the case, leading to Dr Bawa-Garba’s removal from the medical register. The case provoked an outcry from the medical community and a further appeal against the removal led to Dr Bawa-Garba being reinstated to the register.

This case and the reports produced on the back of it, notably the Williams Review into Gross Negligence Manslaughter, commissioned by Government and the Hamilton Review commissioned by the GMC, examined the issue of public confidence in healthcare professionals. The Williams Review in particular highlighted the subjectivity associated with decisions about how public confidence should be maintained and the lack of guidance or consistency in approach across the professional regulators.

The Williams review found: ‘that there [is] little understanding about the type of behaviours and failings that might lead to the public losing confidence in the profession and which therefore constitute grounds for regulatory action. This needs to be better understood in order for the professional regulators to give proper consideration to their duty to protect the public.’

Following on from the Williams Review, we were commissioned to look at how public confidence is applied across the regulators’ fitness to practise processes. Our report found that there is no agreed definition of what public confidence is or which behaviours or regulatory action may impact on it in the context of health professional regulation. Though the regulators may share an overarching duty of public protection, the legislation that governs them is different, as is the language they use: phrases such as ‘reputation of the profession’ and ‘bringing the profession into disrepute’ are still used in guidance and standards and suggest an outdated perception of what public confidence is and why it is important.

There is evidence of some alignment in the approach fitness to practise panelists take when considering public confidence in their decision-making. This is in a large part due to the case law which has established certain key principles for how the public interest should be interpreted, which are also reflected in guidance for panelists. It could also be because panelists often sit on more than one regulator’s panel and therefore develop a set of shared norms.

What is less clear is whether these shared norms are based on a balanced understanding of who the public is and what kinds of behaviours are really of concern, particularly if there is no direct risk to patients or if misconduct occurs within a registrant’s private life. The panel chairs we spoke to referred to drawing on their knowledge of public perceptions gained from interactions with friends and family as well as the guidance they are provided with by the regulator. This approach, however, is inevitably shaped by factors including their socio-economic group, age and background.

In reference to the case law, though it does provide a helpful broad framework for considering the application of public confidence as part of the wider public interest in decision-making, it is also steeped in the legalistic language mentioned above – referring to ‘reputation’ and ‘bringing the profession into disrepute’. These terms may appear outdated and out of step with a modern system of regulation which places the public’s confidence in health professionals at its heart.

Whilst the Williams review suggested developing guidance to support a more consistent approach to public confidence, we took that view that this would be premature. A number of regulators have carried out relevant research,  including the GMC and the Health and Care Professions Council and there is further work ongoing. The General Dental Council is coordinating work examining the concept of seriousness in fitness to practise. This is likely to be relevant when considering this question further.

Further research is needed. However, there may already be some actions for regulators. They could:

• review the language used when describing public confidence in guidance and standards; and
• consider the make-up and diversity of their fitness to practise panels.

Ultimately, this remains a complex and challenging area but an essential one given the importance of public confidence both in individual fitness to practise decisions and in professional regulation as a whole.

Related material:

• How is public confidence maintained when fitness to practise decisions are made?
• Williams Review into Gross Negligence Manslaughter
• Hamilton Review 
• From public hearings to consensual disposal - insights from the decision-making literature
• Developing a methodology to assess the consistency of fitness to practise outcomes 2019
• Bristol Royal Infirmary Inquiry 
• Shipman Inquiry