Some medical professionals will be fortunate enough to deal with their professional regulatory body in a purely administrative capacity, but others may find themselves subject to an investigation by their regulator. This can be an extremely stressful and lengthy process with various interim phases which may culminate in a substantive hearing where livelihoods and professional integrity are at stake.
It is not widely known, however, that the medical regulators - including the General Dental Council (GDC), General Medical Council (GMC) and the General Pharmaceutical Council (GPhC) - are themselves regulated by another body called the Professional Standards Authority (PSA).
One of the roles of the PSA is to review the decisions of a regulator’s fitness to practice panel. It has the power to appeal the decisions of the regulators if the decision is considered to have been affected by a procedural irregularity or if the interests of the public have not been adequately protected.
The PSA has proposed a number of reforms to address managing Fitness to Practice cases which will affect professional body regulators including those referred to above. These reforms are currently at the consultation phase and have yet to be finalised. Crucially, under the new proposed process for a Fitness to Practice investigation, it may be that more cases will be dealt with on paper via a process called ‘accepted outcomes’ as opposed to proceeding to a formal hearing.
Furthermore, the aim of the reforms is to provide the professional regulators (through their case examiners) with an increased level of autonomy in deciding how they develop their specific regulatory processes and how they reach decisions. As part of these proposed reforms, the PSA has been seeking feedback on their draft guidance documents.
The PSA has advised that various factors should be considered by case examiners to decide whether a case should be reviewed through the accepted outcomes route, i.e. as the substantive decision decided on paper as opposed to a formal hearing.
These factors include:
This accepted outcomes process on paper may be welcomed by some as the hearings process can be extremely stressful for the medical professional and can take a significant amount of time to be scheduled and for a decision to be reached.
As practitioners, we have some concerns about a streamlined process as we are aware of the emphasis professional regulators place on a registrant’s ability to show remorse or learning and demonstrate how a particular factor may have impaired their practice and how this can be determinative of the conclusion of an investigation. Therefore, it is also important to keep in mind that there may be situations where a registrant has not been able to convey their insight and remorse in writing and a hearing/cross-examination may serve as a more beneficial forum for them to explain this, which of course influences the outcome of the matter. This may arise in cases where, for example, English is not someone’s first language or health problems associated with reading and writing interfere with the preparation of a response to the investigation. The PSA’s proposals as drafted do not include any guidance for such circumstances and what approach a regulator should take in this regard.
As such, we consider that the current factors listed above require amendment and explanation to ensure that those registrants under investigation are not disadvantaged by being deprived of a robust and thorough oral process to avoid the impact of a hasty and inaccurate decision. A greater shift to a paper process arguably permits a risk to expedite proceedings being prioritised over and above affording the professional a fair and balanced process where evidence is questioned and put to the test.
It also appears that the proposed guidance as currently drafted affords case examiners too much flexibility in making unilateral decisions as to whether a case is to be resolved using the accepted outcomes route.
Given the devastating impact a professional body investigation can have on a registrant, arguably the proposed guidance needs to go further to protect those being investigated from these consequences and balance the need to deal with complaints expeditiously and fairly, and ensure confidence in the system for the complainant, while balancing the interests and wellbeing of practitioners.
Undoubtedly, there will be cases where the accepted outcomes approach could be suitable; however, the proposed guidance circulated by the PSA to date appears to prioritise the interests of complainants over professionals and further work through the consultation process will be required to try to restore the balance.
The PSA consultation process closed on 15 April 2024 and further guidance is awaited.
For more information, please contact:
Chloe Hopkins- Solicitor
Email: chopkins@keoghs.co.uk
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