Reviewing the regulators: scrutinising final fitness to practise decisions
Covid-19 and its impact on regulators’ fitness to practise processes
All the regulators have had to make changes to the way they deal with complaints and concerns about their registrants – their fitness to practise processes. Most of the regulators have had to postpone or cancel fitness to practise panel hearings or run them remotely. It also means some investigations have been paused, though some of the regulators are continuing to act to restrict registrants from practising where they pose a significant risk to the public. Regulators continue to move cases forward where they can and are assessing risks for every new case they receive.
Workshop on fitness to practise
We are keen to understand how the regulators are moving on from the disruption caused by the initial crisis caused by the Coronavirus pandemic and adapting to new requirements. We held a (virtual ) meeting with Directors of Fitness to Practise from all the regulators to discuss their plans and understand the challenges. The meeting was very helpful and it is clear that all regulators are taking steps to address the concerns but faced different individual challenges. We are considering issuing more information about our approach to some of the challenges and are also seeking views from patient and registrant bodies.
In our Winter 2020 newsletter, we mentioned that we had lodged nine appeals and we have now resolved six of these appeals – four were settled by consent with our appeal being upheld. Two cases were contested and resulted in a Court hearing. One appeal was upheld and the other case was dismissed.
Cases settled by consent order
An HCPC decision involving a social worker who had submitted counterfeit documents for a student loan
We appealed the HCPC’s decision about a social worker who had applied for student finance using counterfeit documents. The HCPC suspended the registrant, to be reviewed in six months. However, it was also alleged that the registrant had allowed her partner to use her council-issued laptop. This contained confidential data about service users. Her partner then used the laptop to produce headed-paper, including made up contact information and references. The case was settled by consent and the six-month suspension was replaced with a 12-month suspension order.
An NMC decision involving a nurse who asked one of her former patients for a loan
We appealed the NMC’s decision to suspend a nurse who visited the home of an elderly former patient and asked for a loan of £3,000. The patient loaned £1,000 and the registrant then asked for a further loan at which point the patient complained. The panel found that the registrant had acted in an intimidating manner to get the loan and had failed to repay the full amount. The panel considered this to be overstepping boundaries and lacking in integrity. When deciding what sanction was suitable, the panel took into consideration the registrant’s difficult financial circumstances and imposed a 12-month suspension order. We appealed this decision because we felt that the panel placed too much weight on the registrant’s personal circumstances and not enough weight on her limited insight and lack of remediation when deciding the sanction. This argument was particularly strong because the registrant did not attend the hearing and therefore the panel was less able to make judgements on these factors. The registrant had also tried to blame the patient. These issues were not addressed at the sanction stage and no consideration was given to any attitudinal failing. This case was settled by consent with the original sanction of a 12-month suspension order being quashed and the registrant being struck off instead.
An NMC registrant working in a care home who repeatedly failed to ensure her patients received the correct doses of their medication
We appealed the NMC’s decision to impose a six-month suspension on a nurse employed by a care home. The nurse failed over a period of months, to ensure that two patients in her care received their correct dose of warfarin and that they were monitored appropriately. Those failings were compounded by her subsequent failure to seek medical advice once she became aware that neither patient had received the drug regularly and in the correct doses. Consequently, both patients were placed at grave risk and one of the patients died. The panel found (based on expert evidence) that the registrant’s failings had contributed to the patient’s death. During the fitness to practise process, the registrant neither appeared nor was represented at the hearing and she did not submit any evidence or response to the charges. A consent order was agreed between the parties whereby the Court upheld the appeal, quashed the suspension and the registrant was struck off the register.
An NMC registrant who failed to take steps to safeguard a child
This case involved an NMC registrant working as a health visitor. The NMC’s panel imposed a conditions of practice order (this meant that the registrant would be restricted from practice for up to three years and the conditions would need to be reviewed by a fitness to practise panel before the order expires). However, we felt that the panel had not included charges against the registrant for her failure to make a timely record of the consultation or of her reckless acceptance of an explanation for the child’s injuries. Nor did they include other evidence about prior efforts made to improve the registrant’s performance before this incident occurred. There was no expert evidence about the standard of care that would be expected of a health visitor in such circumstances and the panel did not seek such evidence. Despite the panel finding a lack of remediation, the conditions imposed did not prevent the registrant from returning to practice without first undertaking remediation. The hearing had been listed for 20 May 2020, but a consent order was agreed between the parties whereby the court upheld our appeal and imposed additional conditions of registration including training that must be completed before returning to practice and supervision for six months.
Recent Court judgments
Appeal involving an HCPC registrant who used racist language
We appealed an HCPC panel’s decision to find no current impairment in respect of a paramedic who used racist language when discussing a patient with colleagues. The panel considered matters more relevant to risk of repetition when considering whether the wider public interest required a finding of impairment to be made. The hearing took place on 3 March 2020 and our appeal was dismissed. The High Court did not agree with us that the seriousness of the registrant’s behaviour or the approach taken by the panel meant the finding of no impairment was wrong.
A MPTS decision about a doctor who was found in contempt of court for submitting a misleading medical report
The GMC appealed against a decision by its Medical Practitioners Tribunal Service and we joined them in their appeal. This related to an MPTS decision to impose a suspension for 12 months in respect of a doctor who was found in contempt of court for submitting a misleading medical report in legal proceedings for a personal injury claim. The doctor was sentenced to suspended imprisonment. After the doctor had been found guilty of contempt of court and sentenced, the insurance company appealed against the sentence on the grounds that it was unduly lenient. The Court of Appeal found that the doctor should have been given an immediate sentence of imprisonment, and for longer than six months. The GMC was in possession of this judgment but did not provide it to the MPTS panel. The Authority was also concerned that the panel did not have regard to the case law in relation to dishonesty on the part of professionals. The Authority joined the GMC’s appeal and it was heard on 11 March 2020. In a reserved judgment, the High Court upheld our appeal, quashed the suspension and imposed erasure.
We have lodged four appeals since January 2020.
You can also see how our power to appeal regulators’ final fitness to practise decisions contributes to protecting the public in these two case studies: one about a nurse who mistreated a vulnerable patient in her care; and a dental nurse who turned a blind eye to unhygienic practices and put her patients at risk.
Reviewing the regulators
Performance reviews and Covid-19
As we have a statutory duty to report to Parliament on the performance of the regulators’ we will be carrying out assessments this year. However, we will be making changes to ensure that our approach to these is proportionate. We are aware of the impact the Covid-19 crisis is having on the regulators. While we are continuing with our annual performance reviews, we are mindful that the current crisis places a significant burden on regulators’ resources. We recognise that this places limitations on the time regulators can commit to engaging with the performance review process and so we are making adaptations for each regulator based on their circumstances. We are underpinning our approach to performance review during Covid-19 with a set of principles. These are:
- We will be flexible and proportionate on the timing of our reviews and the provision of information by the regulators, to take into account Covid-19 associated pressures.
- We will be consistent and fair in our approach to performance reviews across all regulators.
- We will assess each regulator against all Standards.
- We will take a considered approach to assessing regulators against Standards affected by the pandemic, for example fitness to practise timeliness.
- We will seek assurance that responsive approaches taken by regulators, for example postponing fitness to practise hearings, were risk-assessed, equality impact-assessed, proportionate, well-managed and focused on public protection, and will not unduly criticise regulators if this is the case.
In line with these principles, we will keep our approach under review to ensure it remains proportionate and appropriate with the changing circumstances.
Recent performance reviews published
Since the last newsletter, we have published reports for:
Look out for our next performance review. We will be publishing our review for the General Osteopathic Council – it will be our first carried out using our revised Standards of Good Regulation.
You can find out more about how our performance reviews can help the regulators improve performance and contribute to public protection in this short case study. As part of our reviews, we also invite people to share their experience of a regulator. This helps us to understand how well they are protecting the public, read about how sharing experience with us highlighted concerns about regulators creating barriers to vulnerable people raising potentially serious concerns.