In this blog we give two perspectives on our power of appeal - a guest blog from the Royal College of Nursing and the Witness perspective we published last week, with an introduction from our Director of Standards and Policy, Christine Braithwaite
The purpose of professional regulation is to protect the public, noting that this involves not only a public safety element, but also the upholding of professional standards and maintenance of public confidence in the profession. In the pursuit of this aim, it subjects the regulated to burdens, and for those against whom a complaint is raised, undoubtedly stress and distress. Human rights legislation guards against the worst injustices, and individual registrants’ interests are taken into account for example in fitness to practise decision-making, but ultimately there is a cost that is borne by health and care professionals – both financial, and emotional – in the interests of public protection.
The question we would have liked to be made explicit in the government consultation, in particular with the reforms to fitness to practise, is this: ‘how can we reduce the impacts on registrants without reducing public protection?’ If you can imagine two parallel axes, one for public protection, and the other for the impact on registrants, we would like to see public protection at a fixed minimum point (below which proposals should be rejected), and the impact on registrants point brought down as low as possible, before it starts to bring the public protection level down with it.
At the moment, the fitness to practise framework requires almost all cases to be heard at a hearing, and we know this is onerous and stressful for many – and in some cases unnecessary, because there is nothing in dispute, the facts are clear, and there is no other public interest in holding a hearing. We support the proposals for a less onerous means of dealing with fitness to practise cases, accepted outcomes, where this can be done fairly and safely. But there remains the question of what should happen on those rare occasions when accepted outcomes don’t protect the public.
The Authority has a power to refer to the courts fitness to practise panel decisions that are insufficient for public protection. The Royal College of Nursing blog below looks at some of the impacts on registrants of this power. We are well aware that our appeals add length to an already lengthy process, and that it is distressing for most registrants to have to go through the additional steps that come with an appeal. This is one of the reasons why we use our power judiciously, and incorporate wider public interest considerations into our decision-making process. The fact that we are referring decisions on which the High Courts (for England and Wales, and Northern Ireland) or the Court of Session (in Scotland) will make the decisions, and that the bar they set is high, is a strong disincentive to our being overzealous in our appeals. That a small number of registrants (around 20 cases a year across all regulators) are put through further distress and uncertainty is unfortunate, but it is an unavoidable consequence of having a robust, independent safety net to protect the public.
Let us consider the position of the complainant in this. A person harmed by a health or care professional is not a party to fitness to practise proceedings. Regardless of whether or not they brought the complaint, quickly the process turns them into a witness, because it is the regulator that will prosecute the case. The accepted outcomes model will marginalise them further, because the outcome will be agreed between the regulator and the registrant, behind closed doors, with no consultation with the complainant. Our recent blog with testimony from a victim of sexual misconduct – set out below – gives a sense of how anxiety-inducing it can be to play the role of witness, particularly if the outcome is unsatisfactory. ‘Mary’, who, it is worth bearing in mind, was also a registrant, was grateful that the Authority’s powers enabled a public body independently to take issue with the outcome, without her having to shoulder any further burdens. We appealed the case and won, and I have no doubt that the whole process took its toll on the registrant. But while there are ways of minimising this toll, perhaps this is ultimately the unavoidable cost of public protection.
Accepted outcomes will provide registrants with a quicker, less onerous process than that which is in place currently – we want our power of appeal to cover these cases, as well as panel decisions. We accept that this would add time and uncertainly for a small number, but overall the benefits for registrants are likely to be significant. In contrast, although they will benefit to an extent from the quicker process, complainants are likely to feel the imbalance between theirs and the registrant’s influence on proceedings even more keenly than they do with panel decisions. And, if the Government proceeds as planned, they won’t be able to rely on the Authority to take action if an outcome doesn’t protect the public – instead responsibility will fall to them.
The Government has proposed that the Authority would be able to request a registrar review, however this would require our legislation to be changed. And we have other concerns about using the registrar review power as a mechanism for appeal – we talk about this in detail in our full response to the Government consultation (see points 61.35 to 61.45).
Registrant wellbeing should be a significant consideration in developing regulatory policy, but where it risks undermining public protection, the public protection imperative must prevail.
The Authority's power to appeal: a view from the registrants’ representatives
Rosalind Hooper, Royal College of Nursing, Head of Legal (Regulatory)
At the RCN we are, like our colleagues at the Professional Standards Authority, pondering the potential impact of the proposals being made for Healthcare regulatory reform in the DHSC consultation. In our Legal Services department, we represent members referred to the NMC from the point of referral to conclusion of their case, and very occasionally through an Authority appeal as well.
Unsurprisingly, we observe significant distress among those we represent during the process. Many are financially vulnerable. They experience a referral to the NMC as a calamity both professionally and to their ability to support their families. I thought that some of our experiences with our members who have faced PSA appeals might be of interest in this regard, as we think about the PSA role in the new landscape.
Processes that reduce the time taken to reach outcomes can only be a good thing. A significant portion of the distress we observe in our members arises from the crushing uncertainty during the lifetime of the case. Our members acknowledge, even when the outcome is disappointing, that there is a sense of relief because at last it is over.
Additionally, quicker outcomes enable those affected (patients, witnesses, families) to benefit, as all of them report how stressful and unpleasant they find the process. Perhaps even more importantly, particularly in these days of greater examination of the context in which mistakes occur, any learning can be extracted and made available to the parties concerned. There is nothing gained in drawn out proceedings for anyone involved.
For this reason, the proposal to allow registrants to consider ‘accepted outcomes’ is very welcome. The Case Examiners at the NMC have seemed to us to be careful decision-makers and would be well placed to propose a resolution to cases. An important point is that the registrant who considers that the decision is unjust can opt for a hearing. In this way, fairness is maintained.
We do have some concerns about both our members and unrepresented registrants who may accept an outcome, even though they do not actually agree with it, to avoid the risk and time spent waiting for a hearing. However, they might well be right that a shorter time in the system and certainty about when they will be able to work is of more value to them than the potential to achieve a ‘better’ outcome. Much will turn on their circumstances at the time.
A question of interest to all is how the regulators will be held accountable for the outcomes from the Case Examiner process. The DHSC consultation proposes that those decisions can be reviewed though a ‘registrar review process’, provided that certain criteria are met. I have heard a comment that this might amount to the regulators marking their own homework. The Authority would not have the same right to refer decisions made by case examiners to the High Court under Section 29, as they do with panel hearing outcomes, although they would be able to make use of the ‘registrar review’ process. PSA colleagues have indicated that they are concerned that without independent oversight, public protection, transparency and accountability may be reduced.
The NMC has indicated that it intends to support this proposal, on the basis that ‘accepted outcomes’ will tend to involve cases involving a restriction on a professional’s practice, providing a safeguard. The NMC expresses the view that a PSA right of appeal may not help realise the aim of the new process in reducing delays and tackling the perception of professional regulation being legalistic.
This is where our own experience of PSA appeals comes in. Often, although we can understand from a legal point of view why the PSA has appealed, we have been dismayed by the decision to do so. A registrant will have been through the process over a number of years and will have thought that the ordeal is over. They then find themselves, due to a potential fault of the regulator, the subject of another lengthy set of proceedings, and the considerations are even more complex.
It is difficult to persuade somebody who has recently been through days of hearing in front of a panel that it may be better to concede an appeal, when it is evident that the panel gave thought to the outcome and came to a different conclusion. It is my, admittedly anecdotal, perception that our members who achieve outcomes that attract the PSA’s attention are often impressive at their hearing. They give a good account of their reflection and learning; they arrive at the hearing armed with supportive testimonials about their recent work. It may be that the panels reward them with a lesser sanction in recognition of these qualities, but do not necessarily explain this well in their reasons.
I have reviewed five of our recent PSA appeal cases (received since 2018). On average, there were a further 17 months of process following the outcome of the substantive hearing, even though some of the cases were settled by consent. One member had 25 months of further proceedings. No registrants were subsequently struck off (although one is still waiting, 18 months later, for her case to be relisted at the NMC). The most serious increase in sanction was from seven weeks to six months of suspension.
In summary, one outcome of the regulator’s error is that the practitioner endures further process, sees further disruption to their career and in the end incurs a somewhat more serious sanction. In our experience the NMC rarely defend, so in addition the RCN or other union or the non-union registrant can bear the costs if the appeal is fought and lost.
I would hasten to add that my colleagues dealing with these cases have told me that the lawyers at the PSA are always approachable and willing to work on sensible consent orders, and do express empathy for the position of our individual members.
Clearly a mechanism is required to ensure that the regulators’ outcomes adequately protect the public, but it does seem to me that the impact on the lives of registrants who are unlucky enough to be the subject of an appeal case is disproportionate. The fact that there is a person trying to conduct their life at the heart of these cases can be lost. At the RCN, we are not supporting a PSA right to appeal Case Examiner outcomes in our consultation response, because we are concerned that introducing this process could reduce the effectiveness of this new route to early and fair resolutions. The focus should be on a registrant accepting responsibility and everyone learning from events as early as possible, and the new proposals offer that opportunity.
There is a registrar review process built into the new proposals and this will be available to the PSA if they do not consider that the outcome satisfactorily protects the public. Through this route, the PSA could request that the case be reconsidered and sent back for a panel hearing by the regulator if necessary and ultimately the PSA could appeal if still unsatisfied. We would expect the regulators to take any such request very seriously. In our view, with appropriate safeguards, this is a preferable route for protecting the public.
What happens when a regulator's panel gets a decision wrong? – the complainant perspective
Every now and then a case stands out and reminds me how valuable our power to appeal the regulators’ cases is to protecting patients and service users. One such case recently, was a case involving verbal sexual misconduct. The Authority takes all forms of sexual misconduct seriously, whether the victim is a patient, service user or a registrant. (You can read more about our work on sexual misconduct here).
As part of our usual check on final fitness to practise panel decisions, one of our legal team reviewed an HCPC panel decision about a social worker who was said to have sexually harassed his colleagues. Our team were concerned that, despite the panel accepting the accounts put forward by the witnesses, the panel did not go on to find that his behaviour amounted to harassment or sexual misconduct. We looked at this case in more detail and decided to exercise our discretion to appeal. On 15 January 2021 our appeal was upheld.
Around the time we were carrying out our initial review of the case, one witness, we will call her ‘Mary Smith’, emailed our Concerns and Appointments Officer. Mary Smith had attended the HCPC fitness to practise tribunal and given evidence. It had been a difficult process, but she had wanted to do this because she and her colleagues felt strongly that the behaviour they had been subjected to was unacceptable. But the panel had not felt the same, and it was not clear to her why not. This is what she has told us about her experience.
Our power to appeal fitness to practise decisions – ‘Section 29’: As told by Mary Smith
"When I found out about the PSA and then looked at the website, I realised that there was a process that was all about public safety. I was able to read previous section 29 minutes which gave me some insight into the process, the expertise of those involved in these meetings, the information they relied on to inform their decision-making and their powers to access information and ultimately refer to Court if necessary.
"I recognised that it was probably our last hope. I knew how I felt about the hearing and the HCPtS decision, but I could see that the PSA would look at all of the information through an independent, public safety lens.
"I was so relieved that another party could take over the responsibility of looking into this. By the time I had contacted the PSA with my concerns I was really worn out.
"I was still dealing with the effects of a serious health issue which combined with the nature of our complaints and how I had been treated when trying to report this previously, really impacted my ability to seek a review/appeal. I just couldn’t keep going over it anymore but needed someone else to. I will never forget how I was treated by a person in authority, when I first sought help, and this gave me huge anxiety when dealing with other agencies. I am no longer an HCPC/SWE registered social worker, but I imagine that for someone else to challenge their own professional body and request an appeal would be inconceivable.
"The final HCPtS decision when published online felt like being humiliated all over again…
"When I received an email from the PSA saying they had referred it to Court I was so shocked that finally someone had seen and understood the issues. I was able to email the PSA to ask questions about processes moving forward and what the potential outcomes of the Court hearing might be. So, the referral to the PSA ensured that any errors and omissions that were part of previous processes had another opportunity to be examined and reviewed."
The PSA as a safety net
Our Section 29 process is a safety net – we look proactively at all final decisions. We don’t rely on others to raise concerns about a decision. We do this on behalf of the public.
Mary continues:
"There are so many levels at which things can and did go wrong – it is just essential that an independent body can examine everything that has led to a Panel decision and take action if needed. If any parts of the regulatory process were not open to review, I think the public and other professionals (both in the UK and those overseas) would lose confidence and respect for the profession and the regulators.
"I was not fully aware at the time, exactly what the UK law was on sexual harassment. I just knew what all women know. A grope is a grope and you know when someone’s behaviour toward you is sexually motivated. I had no idea that verbal sexual harassment was not seen as serious. I am really pleased that this case will help other people who may have to report misconduct to a regulator to have their case heard with clearer parameters about this now. It brings the law more in line with society’s values.
"When I read the High Court decision it felt as if many of the injustices along the way had been rectified. The way the judgment was written was amazing – it was logical, sensible, explained the law and spoke about the women complainants as if we were adults. The decision outcome was huge of course in what it meant in terms of protecting the public, clarifying the law. But it was the way it was worded that gave us our dignity back that I am so grateful for.
"I wonder if there is an over emphasis on what processes are best for regulation but perhaps the problem is with the people within the processes. When I look at what went wrong in our case, it wasn’t that there weren’t processes or guidelines, it’s that they weren’t followed. The lack of transparency about what parts of people’s complaints had actually been investigated, meant that it was way down the track before that was evident. What are the guidelines for sanctions and why are these not transparent to the public? What training do Panel members have? This should also be transparent especially when hearing sensitive cases. Who was the Social Worker on the panel – was her background Adult Social Care? What background did the Panel Chair have? When giving evidence, I felt I was sitting in a room full of people who came from a different planet. I knew after I finished giving evidence that they didn’t really understand."
An inadvertent gap in public protection - reform proposals
Under the proposals for regulatory reform, this is potentially a case that could have been disposed of using the new approach put forward in the Government’s consultation on reforming regulation – accepted outcomes – where the regulator and registrant will agree the outcome with no need to go to a panel. However, what the current proposals do not allow for is any independent oversight of the sanction agreed between the regulator and the registrant. These decisions would not come to us for our double-check.
We are concerned about the possible impact on public protection that reducing our oversight will have on members of the public as well as patients who will have concerns about the outcome of a case. The government has proposed a registrar review process, but what would this mean in reality? In this case, Mary Smith would have had to write a document setting out what she considered to be the material flaws in the decision and how the decision may not be sufficient for public protection. We are concerned about the burden that this would place on complainants and actually whether they have the expertise to identify the problems in a decision.
Mary continues:
"When I was emailed a copy of the HCPtS decision a week after it had appeared online, somewhere, it stated that the registrant could appeal. There was no information provided to us as witnesses/complainants as to whether we could appeal or challenge the outcome. There was so much about the decision that was upsetting and I wasn’t sure who to go to with my concerns.
"I emailed the law firm the regulator had used, to ask them if I could have copies of all of the information held, as I wanted to get an independent legal opinion. I was annoyed with myself for trusting all the parties involved in the process. I was very confused about who had what powers and I was worried about offending the law firm or the Panel. I suspected I would not be allowed all of the information on which the Panel relied, which made me wonder how on earth I could get an accurate legal opinion. I made a request to the law firm who passed this on to HCPC. In the end, I didn’t end up reading it because I couldn’t face it. After giving evidence, for a number of weeks I couldn’t think about the whole saga without feeling as if I would be sick. Re-reading the decision or my statements would not have been helpful. Neither the law firm, nor HCPC told me about the PSA. I’d never heard of the PSA either. I knew there would be a short time frame in which to seek an appeal, I just had to find out who could tell me what the process was. I think I flailed around a bit.
"I tried to find a law firm that could help. I had no idea how I would pay for it, but I was prepared to take out a loan if necessary. I tried a number of firms who either never responded or I couldn’t get through to. One firm told me about the PSA."
This is of course just the story of one person, but it is a useful reminder of the value of our power to check and appeal decisions. It hopefully illustrates why what we do, and the way we scrutinise all decisions, is important. The burden placed on members of the public to raise concerns, having sometimes been involved in a lengthy emotional process, cannot be underestimated.