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Regulatory News

Performance Review 2014/2015
The performance review is our annual check on how effective the regulators have been in protecting the public and promoting confidence in health professionals in the UK, in social workers in England and in the regulators themselves.

In our Performance Review Report 2014-2015 we concluded that all of the regulators are performing well or adequately against most of the Standards of good regulation. However, we had greater concerns than noted previously about the performance of some of the regulators in relation to the Standards for registration and fitness to practise.

In each of the individual regulator’s performance review reports, we identified where the regulators had or had not met the Standards of Good Regulation. In summary, we considered that:

  • Three regulators met all 24 of the Standards: the HCPC, the GMC and the GOsC 
  • Two regulators met all but one of the Standards: the GPhC and the PSNI
  • Four regulators did not meet three or more of the Standards of Good Regulation. The GOC did not meet three of the Standards, the GCC and the NMC did not meet five of the Standards and the GDC did not meet seven of the Standards.

We have noted in the individual reports where the regulator’s performance has improved compared to the previous year.

Performance Review consultation
We are planning to change the way in which we carry out performance reviews in future. Our public consultation about this closed on 27 July 2015. Thank you to all those who responded to that consultation.  Our Board will be considering those responses when it meets on 17 September 2015.

Protecting the public
Since the date of our last newsletter the High Court has issued judgments in two Authority appeals.  In both cases the Authority’s appeal succeeded.  We have included a summary of one of the cases below.

A recent successful appeal 
Case: Professional Standards Authority v HCPC (1) Williamson (2) [2015] EWHC 2420 (Admin)

Summary
On 10 July 2015 the High Court upheld the Authority’s appeal against a decision made by a Conduct and Competence Committee (the panel) of the Health and Care Professions Council (HCPC) in the case of Gemma Williamson (the registrant), a social worker practising in England.

The panel had decided that the registrant’s Student fitness to practise 2010 was impaired as a result of her misconduct in dishonestly providing misleading information to an employment agency and to a potential local authority employer about her previous employment and its termination. The High Court referred the case back to the panel for it to reconsider the appropriate sanction.

Background
Gemma Williamson was working as an agency social worker for a local authority when an incident occurred in her private life that resulted in the police being called.  After her employer contacted the police for further information about the incident, her employment was terminated.

Very shortly afterwards Gemma was contacted by a recruitment agency about a potential job opportunity.  The recruitment agent updated her CV over the telephone – during that conversation Gemma made no mention of her recent employment or its termination, and those details were therefore not included on the updated CV. The recruitment agent then sent the updated CV to her and she made some further amendments to it, but she did not add in details of her recent employment.

At interview for the role, Gemma did not mention her most recent employment or its termination during the discussion about her career history – instead she referred to having taken a career break. The potential employer only became aware of the true position once pre-employment references were requested – when a reference from Gemma’s previous employer revealed information about her involvement with the police.

When the matter was referred to the HCPC Gemma denied dishonesty and said that the recruitment agency had wrongly submitted an old CV.  She also claimed that she had disclosed her previous employment during the job interview.

The panel’s approach
The panel rejected Gemma’s account of events and decided that she had been dishonest.  The panel decided to impose a two-year caution order. This meant that a record of the incident would appear on her record for two years but would not have restricted her ability to practise as a social worker.
The panel decided to issue this two-year caution because:

1. Gemma’s misconduct was an isolated episode of dishonesty
2. Gemma was going through very difficult personal circumstances at the time of the police involvement – and those circumstances no longer existed
3. Gemma had reflected to some extent on the circumstances leading to her dishonesty and that she had engaged with the regulatory proceedings
4. Gemma said that she now includes full employment details on her CV and has since informed other professionals that she left her employment for personal reasons. 

The panel did consider imposing a more severe sanction. This could have been a ‘conditions of practice order’ which may have prevented Gemma from working as a social worker or would have required her to take preventative action or a combination or both. However, the panel decided it was unnecessary to do so because either of these could not address dishonesty and there were no public protection issues that required restrictions to be placed on her record.

The Authority’s appeal
The Authority was concerned that the panel had not treated Gemma’s dishonesty seriously enough. She had deliberately undermined the system of employment checks that are designed to protect the public and had put her own interests ahead of the interests of service users.

We were particularly troubled by the panel’s  failure to take account (as it was required to do by the HCPC’s Indicative Sanctions Policy) of Gemma’s ongoing lack of insight, and the potential risk that posed both to public protection and to the wider public interest in upholding professional standards and maintaining the reputation of the social work profession.

The Authority was also troubled by the panel’s description of Gemma’s dishonesty as an isolated incident. She had in fact been dishonest on at least two occasions (and in addition the panel had rejected her account of events).

The Authority asked the High Court to remove the panel’s decision to impose a caution for two years and either to make its own decision about the appropriate or to ask the panel to send the case back to the panel to reconsider the appropriate sanction. 

The HCPC resisted our  request on the basis that the appropriate sanction was a matter of judgement for the panel. The registrant did not attend or otherwise engage with the appeal (and had not attended the panel hearing).

The High Court’s decision
The High Court ruled that:

  • The panel had been unduly lenient in imposing a caution order in this case
  • The panel had not followed the HCPC’s Indicative Sanctions Policy, which explains how sanctions should be applied, without giving sufficient reasons for doing so
  • While the panel was not bound to follow the HCPC’s Indicative Sanctions Policy, there is a need for consistency and a primary need to uphold the reputation of the profession and to protect the public
  • Under the HCPC’s Indicative Sanctions Policy, a caution order is unlikely to be sufficient to address dishonesty relating to employment checks where there is no evidence of insight. Therefore,  the panel’s decision did not identify any factors that would be adequate to justify imposing a caution order in the circumstances of this case.

The High Court’s judgment focused on the importance of assessing Gemma’s insight. It noted that while she had explained the circumstances that had led to her involvement with the police, she had not addressed her concealment from the potential employer of her dismissal from her previous employment or the reason for it. 

The High Court highlighted that the lack of evidence of insight by Gemma into the subject matter of the misconduct and the fact that she had in fact continued to deny dishonesty should have been given weight by the panel not only when assessing whether her fitness to practise was impaired, but also in assessing the appropriateness of imposing a caution order, as required by the Indicative Sanctions Policy. Concluding that Gemma was unlikely to repeat her dishonesty was not the same thing as concluding she had insight into her misconduct – it just demonstrated her wish to avoid further disciplinary proceedings.

The High Court sent the case back to the panel for it to reconsider the appropriate sanction in this case.

Conclusion
The High Court’s decision in this case re-affirms that while fitness to practise panels are not bound to follow indicative sanctions guidance, there is a need for consistency.  If panels depart from such guidance, reasons must be given. 

It also highlights the importance of fitness to practise panels undertaking adequate assessment of registrants’ insight into their actual misconduct, rather than insight into either background factors or the potential consequences of such misconduct (i.e. the possibility of  further disciplinary or fitness to practise proceedings).

The facts of this particular case also reinforce how important it is for professionals to be open and honest in their dealings with employers and potential employers, and in information contained in their CVs.  

Rosalyn Hayles
Director of Scrutiny and Quality