It's been a very busy year and we have reviewed more final fitness to practise panel decisions than in previous years: 4,285 for 2016/17 compared to 3,756 in 2015/16. Read more about it in our highlights report and key statistics for the year.
On 28 April 2017, the Court of Appeal delivered its decision in the case of Doree. This is only the second time that the Court of Appeal has considered an appeal under section 29 of the NHS Reform and Health Care Professions Act 2002.
Mr Doree’s fitness to practise was found to be impaired by a Panel of the HCPC’s Conduct and Competence Committee. The Panel found that Mr Doree had deliberately driven his car at a colleague and sought by his actions to bully and intimidate a male colleague in the workplace including by the use of sexually explicit and homophobic language; and that Mr Doree had demonstrated inappropriate sexual behaviour towards a female colleague, and that this behaviour was sexually motivated. Mr Doree received a five-year Caution Order as sanction. The Authority appealed on the basis that this sanction was unduly lenient.
The Authority’s appeal was not successful. However, in its judgment, the Court of Appeal provided some very useful clarification which is of general importance to regulatory Panels and Tribunals.
All healthcare regulators have in place Indicative Sanctions Guidance to assist their fitness to practise Panels. The Court held that whilst this guidance is not prescriptive nor akin to a statutory code, a Panel must pay ‘proper regard’ to the guidance and is ‘not at liberty to disregard it.’ Further, a Panel may only depart from the guidance where it has sound reasons for doing so, in which case it must provide ‘adequate reasons’ and state those clearly in its decision.
The Court clarified that a Panel is entitled to make necessary amendments to the allegations before it, so as to avoid undercharging and that there will be cases where a late amendment of the allegations faced by a registrant will be justified, even after the evidence has been heard and findings of fact have been made.
The crucial question is whether it can be said that if the allegations had been amended to fit the panel’s findings of fact, and had then been found proved, this might have made a significant difference to the panel’s conclusions on misconduct and fitness to practise, or led them to impose a more severe sanction than the one actually imposed.
The Department of Health and the NMC recently asked the Authority to conduct a ‘lessons learned’ review into the way in which the Nursing and Midwifery Council (NMC) has handled fitness to practise cases arising out of the concerns about the midwives at the Morecambe Bay Foundation Trust Hospital. We have published our terms of reference and have begun the review. The review is being led by Mark Stobbs, Director of Scrutiny and Quality.
The background to these concerns surfaced in 2008 and have been the subject of reports by coroners and, most recently, by an enquiry led by Dr Bill Kirkup, which reported in 2015. That report identified major concerns about the system generally, but also about the practices of the midwifery team and their managers at Morecambe Bay.
If you would like to give evidence to us, please do so via our dedicated email address email@example.com or contact Nez Siameja on 020 7389 8030.
The Authority’s appeals in the cases of Sharma, Sadio and Rajkumar were upheld by consent. The Authority’s appeal in the case of Muir was upheld by the Court.
Since our last newsletter, the High Court has given its judgment in the first GMC Appeal; this was a case where we joined as an interested party to provide the Court with assistance in interpreting the new legislation and to ensure consistency with our own Section 29 jursidiction (to examine all final fitness to practise panel decisions to ensure that they are sufficient to protect the public). The High Court quashed a finding by the Medical Practitioners Tribunals Service (MPTS) and agreed with the Authority and the GMC that the doctor’s actions were sexually motivated and he had not treated his patient with dignity and posed a potential risk to the public. You can read the full judgment or find out more about the Appeal from our website.
There are currently three appeals awaiting hearing before the High Court. Following receipt of advice by Counsel, the Authority decided to withdraw its appeal in Hutchinson. The parties agreed to withdrawal with each party bearing its own costs.
Reviewing regulators’ performance
The Authority has issued a consultation paper seeking views on how we should change our Standards of Good Regulation.
We have a duty to report to Parliament on how far the health care regulators are complying with their duties to protect the public. The Standards of Good Regulation are the criteria that we use in assessing this and cover the four main areas of the regulators’ work:
- Standard setting
- Fitness to Practise.
The Standards are now 10 years old and we think that, having changed our process for assessing the regulators’ performance, it is time to look again at the Standards. There have been many changes in the field of professional regulation: the approach to continuing professional development has evolved significantly and there have been significant moves towards alternative ways of dealing with fitness to practise issues. We need to be sure that our Standards continue to address the key areas of work. This is why we have issued the consultation paper.
Essentially, the paper looks at three questions:
- Are there areas that the Authority should be looking at which the Standards do not currently cover? Key examples that we suggest include the organisation’s governance (by which we mean how the Council oversees executive performance and remains independent) and diversity (to ensure that the regulator is aware of the diversity of its community and ensures fairness). There may be others.
- Are there areas where our focus can be changed or some Standards which could be omitted? Obvious examples include the fitness to practise and CPD areas mentioned above, but there is learning from the Francis Inquiry and others which could be incorporated.
- Are the Standards currently expressed in the right way? At the moment, they deal with particular activities and some might well be thought to duplicate others and some may not fit with the way in which all regulators operate. There may be ways of setting out broad principles that regulators should follow which could provide greater flexibility for regulators to adopt the approach that is most suitable for their environments.
We are keen to hear from anyone with an interest in health care regulation. We set out a number of questions in the consultation paper but would be happy to hear from individuals and organisations who may not wish to delve into the detail of these questions but who may have thoughts about what good regulation looks like or about particular areas of health care regulation.
The consultation closes on 12 September 2017. Once we have analysed the responses we will issue a further consultation paper which sets out our decision on the way forward and seeks views on a detailed draft of the new Standards. We expect the new Standards to come into effect from 2019. Find out more about the consultation.
Please feel free to send your thoughts to Teena.Chowdhury@professionalstandards.org.uk
We have just published our report providing an overview of professional regulation and registration in the UK. As mentioned, this past year has seen us review the highest number of final fitness to practise panel decisions to date – 4,285, although the number of cases we went on to refer to court remains steady at around 13. The report also details how the Regulators are trying to innovate within their existing legislation, such as using consensual disposal but their disjointed, outdated legislation makes it harder for them to do so. It also provides an overview of how the regulators are protecting the public based on the nine individual performance reviews we have published through the year. You can read the full report, the highlights or key statistics for the year.
The next round of regulators’ performance reviews is under way and the first one to be published was for the GOsC. The GOsC is continuing to meet all of our Standards of Good Regulation. You can read the full report or a summary in our snapshot.