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 For some, public confidence is entangled with outdated concepts arising from previous systems of self-regulation – related to defending and upholding the reputation of the profession rather than protecting the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.