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Reviewing the regulators: scrutinising final fitness to practise decisions

In the summer edition we updated you about the 11 cases that were either waiting to be heard or where we had lodged an appeal. Seven of these cases have now been resolved: three of those cases have been settled by consent with the Authority’s appeal being upheld; and four cases were contested and warranted a court hearing. The Authority’s appeal was upheld in each of those cases.

Cases settled by consent orders

A HCPC case about a social worker who breached confidentiality

This was an appeal against a decision by the Health and Care Professions Council to find none of the facts proved against a social worker who was alleged to have breached confidentiality by taking a photograph of a child of former service users. The child was attending the same nursery as her own child and she showed the photograph to nursey staff. Emails sent by the registrant to the nursery were the subject of breach of confidentiality charges that were not referred to by the HCPC’s Investigating Committee. No charges alleging dishonesty in relation to the false account of the involvement of social services with the child’s parents were brought. A Consent Order conceding the appeal and remitting the case for a fresh hearing with new charges was agreed between the parties.

An appeal against an NMC review following a successful appeal by the Authority

This decision related to a successful appeal against the Nursing and Midwifery Council's original decision to impose cautions on two nurses who had who failed to assess a vulnerable patient who went on to complete suicide (see the spring 2019 issue). At the review hearing, the ‘new’ panel was neither provided with a copy of the Consent Order, nor made aware of the basis on which the appeal had been resolved. The panel did not address the issues of concern when considering the registrants’ current impairment and simply repeated portions of the original panel’s decision – the same decision which was the subject of our appeal. A Consent Order conceding the appeal and remitting the case for reconsideration of impairment was agreed between the parties.

An appeal against an NMC case about a nurse who tried to cover up a medication error

This was an appeal against an NMC decision to impose conditions for 18 months in respect of a nurse who made a medication error and tore up the drug chart on which the error had been documented. The NMC Case Examiners had referred a charge of associated dishonesty. However, this charge was not included in the charges put before the panel and subsequently, the panel did not address the nurse’s dishonesty or lack of candour.

The hearing had been listed to take place on 20 November 2019, but a consent order was agreed the day before the hearing. The case will now be remitted for a new hearing. The new panel will be asked to consider the allegation of dishonesty and then reach a fresh view on impairment and sanction (if an impairment finding is made). Both respondents conceded the appeal and the registrant has agreed to comply with the conditions already imposed on her until the new case is resolved.

Court judgments

A GDC decision to restore a dentist – convicted of fraud – to its register

This was an appeal against the General Dental Council’s decision to restore a dentist to the Dentists Register with conditions. By way of background – the registrant was struck off the Dentists Register in 2011 as a result of convictions on indictment in the Crown Court for (i) conspiracy to defraud the NHS, and (ii) conspiracy to defraud patients. For these offences he was sentenced to 30 months imprisonment. The decision to restore him to the dental register was considered by us at a case meeting and we concluded that restoring the dentist to the GDC register was not insufficient for protection of the public. Whilst the Authority’s decision-makers disliked this decision, it was difficult to challenge the PCC’s decision as they had benefitted from assessing the former registrant's credibility. After we had communicated the outcome of our case meeting to the GDC, new information came to light – a High Court judgment from 2017 in which the trial judge stated that the dentist had given evidence which was untrue – the GDC’s panel had not received this information and we were also not provided with it. We considered this new information and took the view that the referral threshold was now met – as this judgment was relevant to the evidence he had given to the GDC Panel about his conduct since his conviction, the period of time which had elapsed since his most recent act of dishonesty and his insight. The Authority argued that had this information been before the PCC, it was likely it would have taken a different view as to the credibility of the dentist, or at the least the Authority could argue that the outcome could not be known.

The appeal was heard on 8 May 2019 and judgment was reserved and finally handed down on 18 October 2019. The outcome of the section 29 appeal is that the decision to restore the dentist to the register is quashed (and that he be removed from the register pending the outcome of the new hearing), the restoration application is to be considered by a new committee and that the new committee must have before it the 2017 judgment and the section 29 appeal judgment. The dentist has made an application to the Court to amend the order to remove the requirement that the restoration decision be quashed in order that he can continue to practise until the new hearing.

A case involving a paramedic who sent text messages to a vulnerable patient

This was an appeal against a HCPC decision to impose suspension for six months in respect of a paramedic who sent text messages to a vulnerable patient in an attempt to arrange a meeting for sexual activity. The HCPC did not bring charges and the panel did not address the potential for the registrant to have groomed the patient once he became aware of her particular vulnerabilities. The appeal was heard on 22 October 2019. The judgment was handed down on 25 October 2019, the Authority’s appeal was allowed. The Judge agreed with the Authority’s argument that the HCPC had not brought charges to address all the registrant’s potential misconduct and remitted the case to the HCPC for a fresh hearing with new charges.

An appeal against NMC registrants who acted dishonestly

This was a successful appeal against an NMC decision in relation to two registrants. The case against the registrants was that the first registrant had dishonestly produced and signed certificates for the second registrant relating to manual handling and basic life support (when she had not delivered the training and did not have authority to sign the certificates); and (ii) the second registrant had dishonestly sought to rely on those certificates by submitting them to an employment agency. A critical issue in these cases concerned the date on which she had submitted the basic life support certificate to the employment agency. The panel refused to admit late evidence of an email sent to the agency attaching the certificate (which was consistent with the NMC’s case) and proceeded to find the allegations of dishonesty not proved. It held that the remaining facts (which were admitted) did not amount to misconduct. The hearing took place on 7 November 2019 and the appeal was upheld on the basis that the decision of the panel to refuse to admit the email sent to the agency was wrong.

Appeals

Since the last newsletter we have lodged nine appeals and we will update you about these in the next newsletter.

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

New Standards of Good Regulation

The Standards of Good Regulation are the Standards against which we annually measure the performance of the 10 regulators that we oversee. The Standards have been in place since 2010 and cover the four core regulatory functions:

guidance and standards;
education and training;
registration; and
fitness to practise.

In 2016, we started a process to review and update the Standards. Following a two-year process of consultation and revision, the new Standards were approved by our Board in November 2018. The review reduced the number of Standards from 24 to 18, and made these more outcomes-focused and streamlined. In addition to the four core regulatory functions, the new Standards also introduced a section of General Standards, which go across a regulator’s functions.

Since the Standards were approved, we have been working to prepare for their introduction in the 2019/20 performance review cycle (our initial assessments for the 2019/20 cycle begin in January 2020 and run throughout the calendar year). In early 2019, we worked with the regulators to develop the evidence framework to sit alongside the Standards. This framework outlines the evidence we may review against each Standard in making our assessment.

We used the evidence framework to determine the information we collected and analysed through a pilot of some of the new Standards from May to October 2019. This pilot enabled us to develop our benchmarking for decision-making against the new General Standards, enabled us to test and further develop the evidence framework, and informed updates to our performance review process for the 2019/20 cycle.

We are now putting the new Standards into practice and will use these for all performance reviews from the 2019/20 cycle onwards, beginning with the HCPC, whose assessment process begins this month (January 2020). We will monitor the impact of the introduction of the new Standards throughout the first cycle of their use. You can find out more about the Standards and the evidence framework on our website or watch our short video.

Latest performance reviews

Since the last newsletter we have published performance reviews for:

the General Optical Council: this report is for the 2017/18 review period and the GOC met 22 out of 24 of the Standards of Good Regulation. You can find out more in the full report or read a summary in in our snapshot
the General Chiropractic Council: the GCC’s report covers the 2018/19 review period and they also met 22 out of 24 of the Standards – you can read more in our full review or a summary in the snapshot
the General Dental Council: we have just published the GDC’s 2018/19 report. The GDC met 22 out of 24 of the Standards. Find out more in the full report or glance through the summary in our two-page snapshot.

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.