Fostering learning and understanding: Chairs of Fitness to Practise panels conference
We thought it would be helpful to bring together the regulators’ Fitness to Practise (FtP) panel chairs. The idea behind this was to get us all in one place to facilitate discussions on the common issues faced by these panels, as well as increase our understanding of their work. There was no intention to train the panel chairs – that role belongs to the individual regulator. However, as part of our scrutiny role, we review every decision made by the regulators' panels about registrants' fitness to practise and this means we get a real insight into the issues affecting panels and the decisions they make. We often feedback learning points to the regulators if we consider that a decision has been problematic.
The day was built around three sessions. Mark Stobbs, the Authority’s Director of Scrutiny and Quality, started by outlining our work and the points we take into account when reviewing panel decisions. Every year we review almost 4,000 decisions – of those decisions, only about 5 per cent are considered in detail and from that 5 per cent, we go on to appeal between 10 and 20 decisions. This year we have reviewed over 4,000, the highest number to date.
We then looked at the subject of dishonesty by health and care professionals. The basis for the discussion was the research we published last year on public attitudes to dishonesty. There is a real debate to be had on how far dishonesty and misconduct in private life should affect a professional’s ability to practise and the research highlighted some interesting differences between how members of the public and regulated professionals viewed dishonest behaviour in health and care professionals’ private lives.
Finally, we looked at some of the difficult questions facing panels:
Dealing with vulnerable witnesses and registrants representing themselves
The pros and cons of legally qualified chairs
Managing panel discussions and
The extent to which panels have a role as 'panels of inquiry'.
Feedback from attendees was positive. Panel chairs found it useful to get together and meet each other and to learn about the work of the Authority – there was a lot of lively discussion in the breaks. It provided us with an excellent opportunity to meet the chairs and gain further understanding of their work and the issues they face.
We hope that this is just the first in a series of such events and that we can extend invitations to other groups, such as legal assessors.
Protecting the public: appeal case study – Judge a registered nurse with the Nursing and Midwifery Council
Ms Judge was employed as a staff nurse working at a specialist unit for adults with learning disabilities and challenging behaviour. The patient at the heart of this case (Patient A) had a diagnosis of autistic spectrum disorder, severe mental impairment and challenging behaviour. He was able to use basic vocabulary but he was unable to retain information and much of the time he was non-verbal. Overall, he was extremely vulnerable and he did not have the ability to make staff, carers or family aware of any improper behaviour or abuse.
By chance, one witness observed Ms Judge poking Patient A four or five times in the chest, and hitting him on the side of the head, with a broom or mop handle. The witness saw Ms Judge cuffing Patient A around the head with enough force to cause him to flinch and pull away. This witness described Patient A as agitated and becoming increasingly distressed. She was extremely concerned about what she had witnessed and went and told her manager who came and observed the incident continuing. The second witness observed Ms Judge brandishing a mop handle close to Patient A’s head. At this point, a doctor entered the room. Ms Judge stopped and put the mop down, but once the doctor had left the room, Ms Judge continued to brandish the mop, striking Patient A two or three times on the head. Patient A was becoming increasingly distressed.
Ms Judge appeared before the Nursing and Midwifery Council's (NMC) Conduct and Competence Committee panel. She disputed all of the charges, claiming variously that she used a broom to place a pillow behind Patient A’s head because she did not want to get too close; that she was sweeping toys as a distraction and the broom may have made contact with Patient A accidentally; and that she touched Patient A’s head to calm him down or straighten his protective hat.
The Conduct and Competence Committee panel suspended Ms Judge for 12 months.
Why we appealed this decision
We appealed the decision because we believed that the only appropriate outcome was for Ms Judge to be removed from the register. A suspension of 12 months did not seem an appropriate sanction, given the facts of this case, and we believed it insufficient to protect the public, declare and uphold standards, and maintain public confidence in the profession. We argued that:
Ms Judge’s conduct was fundamentally incompatible with continued registration
The panel had not given adequate weight to the wider public interests
The panel failed to consider relevant parts of the NMC’s Indicative Sanctions Guidance
The conclusion that there was no evidence of a harmful deep-seated attitudinal problem was perverse
There was no evidence to conclude that Ms Judge could gain insight
The panel erred in its approach to aggravating and mitigating factors.
The Court upheld the Authority’s appeal and substituted the decision made by the panel for one of strike off. You can read the full judgment to find out more.
Since our last newsletter in January 2017, we have:
Referred a decision of the Nursing and Midwifery Council (NMC) to Court under section 29 of the NHS Reform and Health Care Professions Act 2002; and we have also become an interested party in an appeal brought by the General Medical Council (GMC), in accordance with section 40B of the Medical Act 1983. This is the second time we have used the power under section 40B to become an interested party
Withdrawn one case against the Health and Care Professions Council following counsel’s advice on the merits of the case
Settled one appeal (NMC/Varghese) with the parties agreeing that the registrant be subject to a conditions of practice order for 18 months with a review hearing
Had two appeals considered at hearings (one appeal has been upheld (NMC/Judge), and the registrant was struck off the register (see the case study); the second appeal was heard (NMC/Mason) before the Court of Sessions and we are still waiting for the outcome of this case. We are also awaiting the outcome (either by hearing or settlement) of five appeals.
We are also an interested party in two GMC appeals and are waiting for the outcome (either by hearing or settlement) of five appeals.
Performance Reviews published
Since our last newsletter, we have published three more performance reviews:
All the reports are available on our website along with a two-page snapshot summarising how we reached our conclusions.