We recently attended an event at the Faculty of Advocates in Edinburgh. It posed some very interesting questions around public interest and fitness to practise. In this blog, Director of Scrutiny and Quality, Mark Stobbs and Policy Manager, Dinah Godfree, recap some of the main discussion points.
The Faculty of Advocates in Edinburgh recently held a very interesting conference on fitness to practise issues. One of the major discussion points there was the concept of the public interest in the fitness to practise process and where this fits in the light of the recent Bawa-Garba case and the pressures on health care professionals in the present environment.
In assessing a registrant’s fitness to practise, regulators look at three factors:
- Public protection
- Upholding professional standards
- Maintaining public confidence in the profession.
The first point is uncontroversial. Regulators need to assess whether the registrant poses a risk to the public because there is a likelihood that, because of deficient clinical skills, adverse health conditions or a poor attitude, the registrant will cause harm to patients.
The second and third points are more difficult, particularly in cases, such as that of Dr Bawa-Garba, where a panel is satisfied that the clinical concerns have been addressed.
The purpose of those factors is (a) to send a signal to the profession as a whole that conduct is unacceptable and (b) to let the public know that serious concerns are dealt with appropriately by the regulator, in order to maintain their confidence in the profession.
Public interest sanctions
These public interest elements are, in many ways, akin to criminal sanctions and, while the mantra of the courts and regulators is that sanctions in fitness to practise processes are not punitive, the sanctions imposed in such cases tend to have a punitive effect in that the registrant is prevented from earning a living in that profession for a period or has an adverse finding on their record.
Typically, public interest sanctions are imposed where the registrant has received a criminal conviction or the behaviour has been particularly bad:
- it has involved dishonesty or breached professional boundaries
- has been ongoing over a considerable time
- had very serious consequences, or
- has involved seriously bad practice.
There is little guidance from the courts on what this involves and panels have to consider what an intelligent, informed member of the public, aware of all the facts would feel about the conduct. This, as one of the speakers pointed out, is a high bar. It is also a subjective one. We have written about the lack of clarity on the meaning of public confidence and how this test should be applied in a recent report.
How can regulators deal with a wide spectrum of criminal offences?
There are a number of interesting questions arising out this concept.
Firstly, how should regulators deal with the wide spectrum of criminal offences? Should drink driving offences (where there are no health issues) or minor ‘Friday night’ criminal damage offences attract the attention of a regulator? Does the answer depend on the status of the profession? The Authority’s research on attitudes to dishonesty and the research conducted for Leslie Hamilton’s review provides some evidence of the public’s attitudes to these questions, both suggesting that the public is particularly interested in issues surrounding harm and abuse of position.
Secondly, how should regulators deal with other matters that happen outside practice – offensive tweets or disputes that get out of hand or dishonesty in a private dispute? There hasn’t been significant research on this but, again, it may well be that the public are concerned about issues which are clearly relevant to practice in health and social care.
What about contextual factors?
How should these sanctions work in the context of a health and social care system where there are significant pressures on staff? Is it right to deprive the health and social care system of competent practitioners because of non-clinical concerns? These questions are brought up particularly starkly in the Bawa-Garba case where the registrant had been practising safely for four years after the events that gave rise to her case and was generally agreed to be a better than average doctor. Many people, including the parents of the child who died in her care would say that she should not be allowed to practise again. Many parents might be concerned about entrusting the care of their child to someone who has been convicted of gross negligence manslaughter. Others might say that there is strong evidence that she won’t make the mistakes again, the country needs good doctors and that, as a result of the fitness to practise proceedings she has become deskilled to the extent that she agreed that conditions of practice were appropriate to assist her return.
Panels frequently refer to the public interest in returning competent practitioners to practice and the balance to be drawn in these cases is difficult.
With that in mind, it was interesting at the conference to hear of the NMC’s fitness to practise strategy which aims to address clinical problems locally, where the registrant accepts that there is a problem and is willing to address it. The Authority supports this, subject to two caveats. Firstly, there is a public interest in serious matters being addressed openly rather than behind closed doors. Secondly, there is an incentive for busy regulators to get rid of cases at an early stage without necessarily investigating all aspects. We will watch this development with interest.
What do the public think?
There is no doubt that there are some actions which, whether as part of clinical practice or outside it, are so serious that a regulator will need to take action simply because it needs to signal to the profession that such conduct is unacceptable and to show the public that it is taking it seriously. What is much less clear is the point at which conduct engages these concerns. More work on public attitudes may assist. The conference did not provide any answers but it did a service by identifying and discussing the issues.
Find out more about all our work on dishonesty and our views on reforming fitness to practise.