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Does our power of appeal matter?

This blog explores the views of one person who was sexually harassed and was a witness to a case we appealed and Kisha Punchihewa, our Senior Solicitor explains more about our power to appeal.


What happens when a regulator's panel gets a decision wrong?

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.


Related material

  1. Find out more about our power to check and appeal final fitness to practise decisions and the added value this can bring to the process itself. Or read this case study where we appealed a decision about  a doctor who sexually assaulted a nurse
  2. Read our research Sexual behaviours between health and care practitioners: where does the boundary lie?
  3. Find out more about our concerns around the proposed introduction of accepted outcomes to settle some fitness to practise cases but without independent oversight in our short report: 
  4. We have also recently published Three things to get right for public protection - government consultation on reforming regulation
  5. Find out more about our thoughts on the consultation's proposals from our dedicated web page or from our FAQs.

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Disclaimer

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.