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Health professional regulation needs radical modernisation, not just tinkering at the edges

Peter Walsh, Chief Executive of Action against Medical Accidents (AvMa), guest blogs - setting out the key priorities AvMa would like to see as part of regulatory reform to ensure patients have a voice.

It sounds as if legislation to make health professional regulation fit for the twenty-first century may finally be on its way this year, but it remains to be seen whether it will be a radical change which really benefits both patients and the professions. As a patients’ charity focused on patient safety, Action against Medical Accidents (AvMA) has long called for reforms, as have the regulators themselves. However, what we hear again and again from the regulators in this context is their desire to see reform that makes their systems more flexible rather than what would make them better and safer. Even more rarely in discussions about health professional regulation, do we hear any reflections on what would give patients and the public more confidence in the system. Now, as we get nearer the long-awaited legislation, it is a great chance to put that right.

Here are some of the things we are arguing for from a patient perspective which in my opinion would really make the system better and safer.

1. The regulators should no longer be judge and jury over their own decisions

The role of the Professional Standards Authority (PSA) in challenging fitness to practise adjudications at the end of the process is important and must remain. However, in reality, the risk to patients and the public from poor decisions by regulators is much greater at the other end of the process. People who raise concerns about the fitness to practise of a health professional should have a statutory right of appeal to the registrar over decisions not even to investigate, or refer to a panel. If they are unhappy with the registrar’s decision there should be a right of appeal to the PSA about that decision and the PSA should have the power (and the required extra resources to apply it), to challenge these decisions in the same way they do adjudication decisions. This is probably the most serious gap in the system which could allow dangerous and unfit health professionals to slip through the net.

2. Independent advice should be funded to help people make decisions

Independent advice should be funded to assist people make decisions and submit concerns to regulators. This was a unanimous recommendation from the Tackling Concern Locally report (Department of Health, 2009 - see recommendations 8.12 and 8.13) which has never been actioned. Fitness to Practise procedures are incredibly complex and intimidating processes for members of the public to try to navigate when they have concerns about a health professional. Yet, there is no provision in the system for independent advice to be provided to people who are considering raising concerns. Ironically, the Government recognises the need for independent advice and advocacy for people who want to make any complaints about the NHS (including car parking, rudeness, waiting times etc) and pays for this, but absolutely nothing is funded to help people with the most serious concerns about health professionals. Independent advice would help ensure people are not put off raising concerns (thereby allowing a dangerous or unfit professional to evade attention), and reduce the number of cases that regulators have to deal with which are not appropriate for fitness to practise procedures.

3 The GMC's five-year rule should be removed

The ‘five year rule’ currently used by the General Medical Council is a dangerous anomaly and should be scrapped. Every fitness to practise case should be assessed objectively, just as most regulators currently do. There have already been some egregious failures of the system whereby doctors whose fitness to practise was still very much in question, have managed to evade even investigation due to this rule.

4 Regulators should have the flexibility to deal with fitness to practise issues more quickly

Regulators should have the flexibility to deal with fitness to practise issues more quickly and efficiently, without referring to a formal hearing if appropriate, but only within adequate safeguards. (What some regulators inappropriately, but perhaps tellingly describe as consensual ‘disposal’ of cases). There must be full transparency and no possibility of ‘plea bargaining’. Health professionals should be advised that they have to take full part in an investigation and provide any relevant information including mitigating circumstances at that stage. The person raising concerns should be able to see and comment on information provided where it is in contradiction to their own. The health professional should be advised of the recommended sanction (if any) and be able to either accept it or continue to a full hearing. There should be no meetings behind closed doors which could alter the proposed sanction.

5 Regulators should be required to do more to ensure right of redress for injured patients

Regulators should be required to do more to ensure injured patients are not deprived of redress because health professionals are not properly indemnified. Sadly there have been quite a few cases where this has happened. It should be a requirement for registration with any regulator for health professionals to have adequate and appropriate indemnity cover in place and the regulators need to take responsibility for doing as much as reasonably possible to ensure this is the case. Each registrant should be required to provide details of their indemnity cover at registration and update this each year. It should be made clearer by regulators what is appropriate and adequate cover and also that a failure to have this in place is a serious breach of standards likely to lead to fitness to practise action.

6 Register of doctors interests

Baroness Cumberlege’s recommendation from her Independent Review of Medicines and Medical Devices Safety (2020) for a register of interests of doctors be kept by the GMC (and by other regulators for other professions) should be put accepted and put into place.

7 Safeguards to protect patients/families from inappropriate cross examinations during hearings

Last but not least, there need to be safeguards to protect patients or families from being inappropriately cross examined/attacked at fitness to practise hearings by defence lawyers seeking to call their integrity into question. This is a major inhibitor of people raising concerns and participating in the process. There are better and less confrontational ways of challenging evidence.

If we saw these measures put in place, I think regulation of health professionals would be much more fit for the twenty-first century and patients would be safer.

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Please note the views expressed in these blogs are those of the individual bloggers and do not necessarily reflect those of the Professional Standards Authority.