STREAMLINING FTP PATIENTS

29^th August 2024

PRASIS underwriter, CFC writes:

Streamlining Fitness to Practice regulation

The Government is in the process of reforming the way that health and care professionals are regulated; giving them an increased level of freedom in deciding how they develop their specific regulatory processes and how they reach decisions.

The changes will also create an entirely new process for handling Fitness to Practice (the process by which concerns about health and care professionals are dealt with). Under the new system, it may be that more cases will be dealt with on paper via a process called ‘accepted outcomes’ as opposed to proceeding to a formal hearing.

It may not be widely known that the medical regulators – including the General Medical Council (GMC) – are themselves regulated by another body called the Professional Standards Authority (PSA). One of the roles of the PSA is to review the decisions of a regulator’s Fitness to Practice panel.

The PSA’s proposed reforms to address managing Fitness to Practice cases will affect medical regulators, including the GMC. The consultation period opened on 22 January 2024 and there were no restrictions placed on who could comment.

The ‘accepted outcomes’

Where a regulator has investigated a concern and determined that there is a case to answer, it will usually refer the case to a Fitness to Practice panel for a hearing. As a result of these reforms, it is likely that in future more concerns about professionals will be resolved by Case Examiners without the need for a panel hearing. Case examiners will be empowered to carry out a detailed assessment of the case from the written information and evidence and where possible, make a decision on impairment and whether action is needed to protect the public. Where impairment is found, Case Examiners will be able to impose a sanction on the registrant and will have the power to conclude a case using an accepted outcome where the registrant accepts both the findings (including impairment) and the proposed sanction.

The proposed guidance suggests that a number of ‘factors’ should be considered when the Case Examiners assess whether a case is suitable for an accepted outcome. These factors include:

Has the registrant failed to accept the findings and/or impairment?
Is there a dispute of fact/conflict of evidence that can only be fairly tested at a hearing?
Does the complexity of the case suggest that a hearing may be beneficial?
Would it be beneficial and proportionate to test insight at a hearing?

Given how stressful and lengthy the GMC investigation process often is, the accepted outcomes process may be favoured by some for expedience.

Legal practitioners have however, raised concerns about a streamlined process and have encouraged the PSA to place greater weight on the protection of registrants.

Specifically, it has been noted that the accepted outcomes process will limit a registrant’s ability to show remorse or learning which can be determinative of the conclusion of an investigation. As such, there are occasions where a hearing may serve as a more beneficial forum for registrants to be provided the opportunity to explain and orally document remorse / learning.

Further, it appears the needs of unrepresented registrants as well as registrants with language barriers and/or health concerns have not been expressly considered by the PSA. The proposed guidance is noticeably scarce in terms of what additional measures and protections are in place to ensure that these categories of registrants are not unfairly impacted by the proposals.

It has also been noted that the proposed guidance presents risks in respect of the Case Examiners’ discretion for resolving cases by way of accepted outcomes. The guidance is unclear as to when Case Examiners may impose a decision and what is required of the registrant to avoid the imposition of a sanction.

As such, the general consensus among legal practitioners is that the current ‘accepted outcomes’ factors require amendment to ensure that those registrants under investigation are not disadvantaged. It must not be forgotten that at the centre of all regulatory investigations is a registrant facing a distressing and often lengthy process. The right balance between the interests and expectations of complainants and those of registrants must be struck in the interests of fairness.

The PSA’s consultation closed on 15 April 2024. Their response is awaited.