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Accepted outcomes with no independent oversight could create a gap in public protection

Authority first thoughts on government consultation cover

We have now published our full response to the Government's consultation. You can read it here.

The Government's consultation Regulating health professionals, protecting the public has now closed.

What are 'accepted outcomes' and why are we worried?

Future regulatory reform must add to public protection, not reduce it

We welcome the Government's consultation - Regulating healthcare professionals, protecting the public - as a positive move to improve regulation, but we are also worried that some of the proposals put forward could inadvertently reduce public protection, transparency, and accountability

Our main concern is a proposal for regulators to handle complaints (including the most serious) using a system called ‘accepted outcomes’, without a public hearing and with outcomes agreed directly between the registrant and regulator. It is not the proposed introduction of 'accepted outcomes' which is causing us concern, we support any move to make the fitness to practise process less stressful for everybody involved. What is worrying is the proposed lack of any independent check on decisions made in this way.

Currently, we can check all final fitness to practise panel decisions and take action if we consider a decision is insufficient to protect the public (this power was given to us under section 29 of the NHS Reform and Health Care Professions Act 2002). This consultation proposes no such safety net. Read our 'first look' report which goes into more detail.

Speed isn't necessarily safer

Below we set out our main concerns relating to 'accepted outcomes' and also how you can get involved. We understand the need to make regulation simpler (and support it) but it cannot be at the cost of public protection. However, we believe that with some simple changes to the Government's reform plans, we can modernise regulation without compromising public protection. Read our short report Three things to get right for public protection

Mind the gap

We currently check almost all final fitness to practise decisions made by regulators' panels. But under Government proposals to settle many of these cases using 'accepted outcomes', even in the most serious cases, our powers to check these decisions would no longer apply. 

If there is no independent oversight of these decisions, similar to our current power, and no way to appeal decisions we believe do not protect the public properly to the Courts for review, then a valuable safety net will be lost with the potential to create a gap in public protection.  

Places a burden on patients

Under Government plans for reform, there would be no automatic power for an independent body to check and challenge unsafe decisions made by a regulator. The consultation states that when a decision is agreed between the regulator and the registrant, 'anyone' can ask for a review if they believe it is unsafe.

This is a departure from the way the system works now, and from what we have recommended. It would most likely lead to patients and service users having to challenge regulators themselves.

No separation of powers

The consultation proposes that there will be no independent oversight of final decisions made through the accepted outcomes model. 

Instead, under this system, it is the regulator who will act as investigator, prosecutor, judge and appeal court, all in one. This concentration of powers means that mistakes are more likely to happen and less likely to spotted. Our power to appeal will only remain for those decisions that make it through to a final fitness to practise panel hearing, which we expect to be far fewer if the reforms are successful.

A step back on progress already made

It is essential that any reforms preserve major improvements made over the last 20 years in response to earlier high-profile failings, like Shipman, and the child deaths at Bristol Royal Infirmary.

These improvements have gone a long way to increasing independent oversight, transparency and accountability of decision-making, including separating the investigation, adjudication, and appeal stages. Our oversight of final fitness to practise decisions is an essential part of the whole and much needed for public protection.

Find out more / useful resources:

  1. Read our short report First look at Government consultation on reforming regulation
  2. Read our report on the Three things to get right for public protection
  3. Frequently asked questions explaining more about fitness to practise, section 29 and the proposals put forward in the Government's consultation Regulating healthcare professionals, protecting the public
  4. The added value of our power to appeal which goes beyond the appeal process itself and brings extra benefits including creating case law, improving decision-making and making the fitness to practise process fairer and more transparent
  5. Read through some examples of our power to appeal in practice in these case studies
  6. Read independent research/advice we have commissioned to help inform our views on regulatory reform: Does consistency between regulators matter?, Patient and public perspectives on future fitness to practise processes and Cognitive biases in fitness to practise decision-making: from understanding to mitigation
  7. Find out more about our thoughts on fitness to practise reform