When a patient or service user feels the need to complain or report a concern about a healthcare professional, they are suddenly immersed in a complex and potentially stressful process – the ‘fitness to practise’ process. (You can find out more about fitness to practise and our current role as part of that process here.)
When they receive a complaint, the regulator will investigate and the patient or ‘complainant’ – as they will become known throughout the process – will have to provide information to the regulator on what happened. They may ultimately have to attend a public hearing where an independent Panel will make a decision on what, if any, sanction the professional should face.
We (the Professional Standards Authority) currently have a key role scrutinising all final fitness to practise decisions which go to a Panel hearing and can appeal to the Court if a decision is insufficient to protect the public.
However, under Government proposals (outlined in general terms here but due to be consulted upon in 2021), the majority of cases could now be decided outside of Panel hearings through a process known as ‘consensual disposal’. In cases where the professional agrees with the facts of the case and the proposed outcome, the case can be agreed between them and members of the regulator’s staff called ‘Case Examiners’.
Whilst there are many benefits to the shift away from public hearings, there is the risk of the patient voice getting lost in a process which is by its very nature less transparent and does not include the complainant having their say in a public forum. There is also as yet no clarity from Government on what, if any, role the Authority would have in challenging cases settled outside of Panel hearings.
Exploring what the public and patients think
We wanted to explore the views of patients and the public in the light of this new emerging fitness to practise model proposed by government for health professional regulators. We therefore commissioned a piece of research into the patient and public perspective on future fitness to practise processes. This research was carried out by Community Research and the report was finalised in May 2020. The research objectives were to explore:
- the potential impact of the emerging future approach to fitness to practise on public confidence
- how complainants would wish to be involved in the emerging future fitness to practise model
- views on oversight of the new arrangements.
The research made use of both group discussions and in-depth interviews. The group discussions were held with members of the public who had no previous interaction with the current fitness to practise process or those who had considered making a complaint. There were also in-depth interviews with 13 individuals who had been directly involved in raising a complaint about a professional in the last two to four years.
What the report revealed
The report found that broadly members of the public were supportive of moves to reduce the number of public hearings and move to a more consensual model citing the benefits of reducing the stress and length of cases for all involved. However, there was some scepticism about the motivation for the proposed changes and about the plans for oversight of the new arrangements. Some participants were concerned that the primary intention was to cut costs or reduce the backlog of cases. There was also queries raised about the plans for monitoring and evaluation of the changes and the need to avoid any unintended consequences.
Some participants expressed concern that a reduction in public hearings could lead to less rigorous interrogation of the evidence. There were a range of views expressed about the kinds of serious cases which should go to a public hearing but little consensus on this point. There was a general view that for the changes to work, the whole regulatory system ahead of the final stages of fitness to practise needed to be robust.
Views were mixed about how patients and service users should have a voice in the process, with some citing the benefits of avoiding the stress for complainants of having to give evidence at a hearing. The majority of participants felt there were inherent risks in the move to a reduction in hearings and a corresponding reduction in scrutiny along with potential incentive for regulators to agree more cases with registrants.
The need for ‘checks and balances’
There was a general view that independent oversight should be retained and there was a clear need for ‘checks and balances’ within the system. Some participants viewed the Authority’s current role as a safety net and struggled to understand the thinking behind the changes which could remove this in some circumstances:
‘If you want to make it a more efficient process, by all means do that, have that panel, make some of the decisions and stop sending everything to hearing. Fine, but why does that come with removing the role of the PSA being able to challenge it? Why can’t they have the best of both worlds, why can’t they cut the process down, send less to hearings and still have the PSA challenge things?’ (General public/patients, Leicester)
Concerns were also expressed about the potential for professional interests to override public protection if there is no one checking the decisions made by the regulators:
’I think there still should be oversight. It should not be seen as a closed cartel, a gentleman’s club for dentists and by the way, “we’ll hush this up and sweep it under the carpet.”’ (Complainant 2, England)
Participants also expressed concern about trust in and safety of the system if the PSA wasn’t scrutinising final decisions:
‘I think that all decisions should be open to challenge. Especially when a hearing is not held, they need to be absolutely sure that all sides have be covered. And if not, the process should allow this to be challenged.’ (Patient/service user who has considered complaining)
‘If you start taking people out the picture, I feel as if the whole system’s just going to become very unsafe. It’s like when you have an extension, you get a qualified person to check it. Now that qualified person is also checked by a more qualified person for that reason, and that’s where I feel like the PSA is there as a double check.’ (General public/patients, Leicester)
‘If there is no Authority, like what we’ve just discussed, having the Authority scrutinising all the really severe cases, if that was completely abolished, they only get involved in the ones that do go to trial, I think that would lose public confidence.’ (Complainant 5, England)
Overall, the research demonstrated that the public recognise the issues with the current system and are supportive of change. Government has recently re-affirmed its commitment to reform in the recent announcement by Secretary of State Matt Hancock on the outcome of the Busting Bureaucracy call for evidence and a consultation on legislative change starting with reforms the General Medical Council is expected in the new year,
However, it will be important for Government to consider ways to maintain oversight of the new powers and ensure that public trust and confidence can be maintained.
You can read the full report can be found here or you can see a visual summary of key findings in this infographic.