Reviewing the regulators: checking final fitness to practise decisions
Our recent response to the Government’s consultation on reforming regulation reminded us how valuable our power to double-check fitness to practise decisions is and how the impact of our appeals often extends beyond a specific case. You can find out more about the value added here or read some case studies which demonstrate our power to appeal in practice.
Since our last newsletter, we have concluded several appeals by Consent Order – this is when all the parties involved (the Authority, the regulator and the registrant come to an agreement about how to proceed with a case).
Consent orders (all upheld)
A GMC case involving a male doctor who breached sexual boundaries
We appealed this GMC decision which concluded that a doctor who had breached sexual boundaries with two younger, junior female colleagues was not currently impaired. Though the panel did impose a warning, it did not go into detail about why a finding of impairment was not required in the circumstances specific to the case. The appeal was settled by consent with the warning being quashed and instead substituted with a finding that the doctor was impaired and he was suspended from practising for one month.
An NMC case involving a nurse who lied about passing an assessment
We appealed this decision by an NMC panel to impose conditions of practice for 18 months. This was a case involving a nurse who had dishonestly claimed he was able to undertake intra-venous procedures by passing an assessment when in fact he had failed it. The panel did not explain how conditions of practice were adequate enough to address the public interest associated with the registrant’s dishonesty, nor did it appear to treat the dishonesty and the registrant’s attitude and partial insight into his behaviour seriously enough. The appeal has been settled by consent. The case will be remitted to a differently constituted panel to re-determine the sanction.
An NMC case involving a nurse who forged a senior colleague’s signature to allow her to sit an exam
We appealed this NMC decision that found no impairment in the case of a nurse who dishonestly forged a senior colleague’s signature on three occasions to confirm that she had been assessed as having completed activities to allow her to sit a viva examination to gain a mentorship qualification. The panel found that the registrant’s fitness to practise was not currently impaired but gave weight to the nurse’s personal mitigating circumstances, but did not adequately address the seriousness of the misconduct in terms of maintaining public confidence and upholding professional standards. A Consent Order was agreed between the parties quashing the decision and substituting a finding of impairment and imposing a caution for three years.
An NMC decision involving a nurse viewing sexual images of children and animals
This was an appeal against an NMC decision to find no impairment in respect of a nurse who admitted accessing/viewing sexual images of children and animals. The registrant was not subject to a .criminal prosecution. The panel gave very few reasons why it was not in the public interest to find the registrant not impaired. A consent order has been agreed between the parties quashing the decision of no impairment and substituting it with an impairment decision and remitting the case to a newly-constituted panel to consider the appropriate sanction.
A Social Work England decision where the process was not followed
This was our first appeal against a Social Work England decision. There is an anonymity order in place, so the registrant’s name cannot be published. We were concerned that the panel did not undertake its duty of inquiry and, as a result of this, the panel reached conclusions that were not open to it. The appeal has been settled by consent order. The case is being remitted to the original panel for re-consideration of the issues of misconduct and impairment, and if necessary sanction.
An NMC decision involving a nurse who made repeated medication errors
This was an appeal against an NMC decision to impose conditions on the registrant in relation to repeated medication errors. The case was considered at a meeting and was a Consensual Panel Determination. The panel did not impose any condition which restricted the registrant’s ability to administer medication, except indirect supervision which only entailed another nurse working somewhere on the premises at the same time. The registrant had previously undertaken training in respect of medication errors, but further mistakes resulted in the case being referred to the NMC. We were concerned that in the circumstances, a greater degree of supervision was required to achieve remediation and prevent recurrence of potentially harmful errors. After discussion with the NMC, an early review hearing was held addressing the registrant’s further error and the required supervision. After hearing evidence from the registrant’s employer, the review panel did not consider direct supervision was required. We therefore decided to withdraw our appeal, however the NMC agreed to make a contribution towards our costs.
Court Hearings: section 29 Appeals (all upheld)
A doctor who sexually harassed a nurse on an isolated hospital ward
This was an appeal against an MPTS decision to impose a 10-month suspension order (with review) in respect of a doctor who followed a nurse down a corridor, placing his hand on her hips as she passed through a door. He then followed her into a consulting room and pulled her towards him, grabbing her by the hips and clamping her legs between his, then pushing his body towards her as she tried to leave. The assault took place at 03.00 when the registrant was aware that the nurse was working alone on the ward. The registrant did not attend the hearing or provide any documentary evidence to explain his behaviour. The High Court has upheld our appeal and the registrant has now been struck off the GMC register.
The Court referred to this “a calculated and deliberate abuse of power which foreseeably caused real harm to a fellow healthcare professional. Someone who has engaged in conduct of this kind poses a danger to the ‘health, safety and wellbeing of the public’ (which includes co-workers), unless there is a proper basis for concluding that the conduct is unlikely to be repeated. The Tribunal should have focused on the question whether there was such a basis.”
It should also be noted that the Court held that suspension might potentially have been appropriate if there had been strong mitigation providing a basis for concluding that repetition was unlikely. But no such basis was put forward or made apparent.
You can find out more about this appeal in case study.
A GPhC case involving a pharmacist who made offensive statements
This was an appeal against a GPhC decision that offensive statements made by a pharmacist at a political rally were not anti-Semitic. The panel identified the need to take an objective approach to whether the comments were anti-Semitic but was given advice to take into account other factors such as the context and registrant’s good character. The panel then referred to the registrant’s intentions when deciding whether or not the statements he made were anti-Semitic. The panel found current impairment and imposed a warning. The appeal was heard on 9 June 2021. The Court upheld the appeal and the case was remitted to the GPhC panel. The High Court agreed that the panel’s approach was flawed and the finding that the statements were not anti-Semitic was quashed. The case has been sent back to the GPhC for the panel to re-determine whether the registrant’s statements were anti-Semitic and make findings on misconduct, impairment and sanction.
A case involving a doctor convicted of assault
This was an appeal by the GMC that the Authority joined under section 40B. The GMC panel suspended a doctor for five months with review. The doctor had been convicted of two counts of assault by beating. The criminal offences related to two occasions when the registrant had inscribed his initials on the livers of patients using an argon beam coagulator. The appeal was heard on 13 July 2021 and upheld in a reserved decision handed down on 27 July 2021. The High Court agreed with the GMC that the panel’s approach was flawed and with the Authority’s argument that the GMC should have placed additional relevant material from the Trust investigation before the panel. The case has been remitted to the GMC for the panel to redetermine a sanction. The registrant has agreed to pay a proportion of our costs.
Find out more about our power to check and appeal the regulators' final fitness to practise decisions.
Reviewing regulators’ performance
The approach we take to performance reviews
We published the report on the responses to our consultation in August. Since then, we have continued to develop how we will carry out our performance reviews – ahead of its proposed implementation during 2022. Our proposals include moving away from an annual review against all Standards to a longer, multi-year cycle. We will maintain our oversight of the regulators’ performance in the years in between these reviews, but will focus our resources on areas where we identify risks to public protection.
In addition to updating our overall approach to performance reviews, we also plan to introduce other improvements that should help us encourage more input from stakeholders on the regulators’ performance, improve the clarity of our reports, and allow us to publish our reports sooner so they better reflect current performance.
We recently launched our follow-up consultation, and welcome responses until 21 December. We are asking for feedback on specific aspects of the approach, including the length of a cycle of reviews and how we approach monitoring performance. Please do respond to this consultation and provide your feedback on our proposals. You can find out more on our dedicated webpage including the consultation document and a summary of questions (in both English and Welsh). Or get in touch with us at PRconsultation@professionalstandards.org.uk
Performance Reviews published
Social Work England
We published our first annual performance review of Social Work England at the end of September. This review covers Social Work England’s first year operating as the regulator of social workers in England (from December 2019 to November 2020). Social Work England is a new organisation with some new powers as part of its fitness to practise process – we therefore adapted our oversight to respond to new risks that might arise. For this review period, Social Work England met 15 of the 18 Standards.
Social Work England did not meet Standard 3 because it had made limited progress in its first year on gathering data about the diversity of its registrants and on developing and implementing its strategy for equality, diversity and inclusion. It did not meet Standard 11 because it was taking too long to deal with applications for registration. It met four of our five Standards for fitness to practise: not meeting Standard 17 because we had concerns about risk assessments; we also recommended some further improvements to support people involved in the fitness to practise process. Social Work England has already made progress to address the issues we identified, including starting to implement its strategy for equality, diversity and inclusion; and improving its risk assessment process at the first stage of dealing with fitness to practise cases. We will continue to monitor its work and report on progress next year.
Find out more in the full review or read our two-page snapshot for a summary.
Review of Social Work England's use of accepted outcomes
We also published our review of Social Work England’s process for ‘accepted outcomes’ in fitness to practise cases. As Social Work England has adopted a new process within its fitness to practise procedures which we refer to as ‘accepted outcomes’, we decided to review how the process was working in practice during Social Work England’s first year of operation. Under this process, Case Examiners can decide that the facts of a case are likely to be found proved by a panel of adjudicators and that those adjudicators are also likely to find that the facts amount to misconduct and that the social worker’s fitness to practise is impaired. The case examiners can then invite the social worker to accept a sanction which addresses the impairment without the matter being heard in public by a panel. We carried out a review of the process because (a) it was new and (b) to identify any learning for the regulators. You can find out more about the review here.
Health and Care Professions Council
We published the HCPC’s most recent review at the end of July. The HCPC has continued not to meet the majority of the fitness to practice Standards. HCPC has invested significant resources in its fitness to practise process and developed a fitness to practise improvement programme in response to the concerns we identified in our previous reports. The programme got underway in late 2020 and continues into 2021. We realise that the programme will take some time to embed and to see tangible benefits.
We keep in regular contact with HCPC to monitor progress and have been impressed by their commitment to the programme. We believe that, if successfully implemented and embedded, the programme should lead to improvements in the HCPC’s fitness to practise process.
Read the full performance review to find out more our a summary in the snapshot.
Other recent reviews
Since our last newsletter, we have also published performance reviews for:
General Medical Council: the GMC met all 18 Standards of Good Regulation for its 2019/20 review. The full review or snapshot give more details, including information about the GMC’s patient charter designed to help patients effectively report concerns. As part of this review, we also looked at how the GMC monitors the work of expert witnesses as part of its fitness to practise process.
Nursing and Midwifery Council: the NMC met 17 out of 18 Standards for its 2019/20. We were concerned about how long the NMC was taking to reach decisions about fitness to practice cases, potentially exacerbated by additional delays caused by Covid-19. We also identified continuing concerns about the NMC’s drafting of charges and failures to investigate or obtain and present relevant evidence. In some cases, we considered that the decision reached was insufficient to protect the public. While we found these issues in a small number of cases in the context of the NMC’s caseload, they have significant implications for the fairness of the process – the NMC therefore failed to meet our Standard on ensuring its fitness to practise process is fair and proportionate.
We also reported on how the NMC is continuing its work to address the concerns we identified in our Lessons Learned Review in 2018 and improve support for parties involved in the fitness to practise process. The NMC has put in place resources to support complainants, witnesses and registrants under investigation and the evidence available indicates that these have been well received.
You can find out more in the full review or read through a summary in the snapshot.
General Optical Council: for its 2019/20 review, the GOC met 16 of our 18 Standards of Good Regulation. It did not meet Standard 10 (about the Register) because its systems did not appear to have been robust enough to ensure that only appropriately qualified people were added to its register; and that registrants suspended from the register were clearly marked. The GOC also failed to meet Standard 15 because it was still taking too long to deal with fitness to practise cases, although we recognise it is committed to tackling its backlog. Find out more in the full report or read through the snapshot for a summary.
Pharmaceutical Society of Northern Ireland: in its 2019/20 report, the PSNI met 15 of the 18 Standards of Good Regulation. It did not meet Standard 3 because it does not collect or analyse EDI data about its Council and Committee members, who make key decisions within the PSNI’s statutory and non-statutory functions. In our previous review, we reported concerns about the PSNI’s fitness to practise process. We noted the PSNI’s commitment to address these concerns, but we need to see tangible evidence of the impact of the changes before we could say the Standard is met. We also remarked on a deterioration in the timeliness of case progression. For this review period, we concluded that. Find out more in the full review or the the summary. The PSNI did not agree with our conclusions – you can read their statement here.
Find out more about how we carry out our performance reviews.