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How is public confidence maintained when fitness to practise decisions are made?

01/07/2019
On 11 June the Professional Standards Authority for Health and Social Care published its response to the Williams Review. The Williams Review had considered the law surrounding gross negligence manslaughter in healthcare and was triggered after the highly controversial case of Dr Bawa-Garba.

On 11 June the Professional Standards Authority for Health and Social Care published its response to the Williams Review. The Williams Review had considered the law surrounding gross negligence manslaughter in healthcare and was triggered after the highly controversial case of Dr Bawa-Garba. The Professional Standards Authority's response considers the concept of public confidence in fitness to practise proceedings and notes the differences between the nine healthcare professional regulators; it considers the themes across the professions, including the importance of consistency across regulators and the importance of diversity in order to ensure that the views of the public are represented. However, it also highlights the difficulty in having consistent decisions when the regulators each have their own legislation.

One of the recommendations of the Williams Review was for the Professional Standards Authority to review how the impact on public confidence in the profession is considered as part of fitness to practise proceedings. The resulting report takes into consideration the regulators' statute and guidance, as well as the resultant fitness to practise decisions, interviews with panellists and staff from the regulators, and existing research. Three key themes emerge from the report.

Firstly, that in order to maintain public confidence, panels must reflect and understand the broad range of public opinion. This is particularly the case after the Bawa Garba decision attracted such high levels publicity and strong reaction. The report highlights that there is often not one single public opinion, and whether public confidence in the profession is damaged may depend on the particular section of the population being looked at, including their background, knowledge of the case and understanding of the role of the regulators. The report calls for regulators to ensure that their panellists are drawn from a diverse background as possible to ensure that their decisions really do reflect public confidence. However, this is likely to be a challenging task, given the availability of diverse panellists and constraints on the size and constitution of panels.

The report notes the importance of consistency across the professional regulator as to how public confidence is considered and implemented, particularly given that there is no consistent definition of public confidence. However it also notes that whilst decision documents may contain a large amount of standard wording, they may not reflect the full breadth of the panel's discussions in private; the degree to which this is captured may vary between regulators. Interestingly, it also discusses the different concepts of fitness to practise between regulators, including the various definitions used in guidance (for example by the GMC and NMC) and that some regulators do not use the typical three stage impairment of fitness to practise test, but a two stage 'misconduct' process. The report's conclusion on the use of a two stage test was that "Whilst it is not clear that this leads to material differences in FtP outcomes, this may lead to differences in the way that Panels consider public confidence as part of the process." It also notes that the perceived importance of public confidence in the profession may vary between professions, reflecting those that are patient-facing and those that have a high degree of autonomy.

At its core, the report emphasises that having different legislation for each regulator means that they each have different guidance, which in turn may lead to different approaches and different decisions being made. These differences include whether regulators apply a two stage or three stage test, the sanctions available to them and the options for consensual disposal.

These differences in legislation have been a point of contention for some time. The Law Commission published its Draft Bill to regulate all of the healthcare professions in April 2014, and the Government published its initial response accepting the majority of the Commission's proposals in January 2015. The Department of Health ran a second consultation at the end of 2017, but has yet to publish a response or propose any legislation. Many of the regulators have also struggled to get Parliamentary time for desired changes to their existing legislation, and this is unlikely to improve while Brexit and the UK's ongoing relationship with the EU is still being finalised.

In summary, the report highlights the differences between the regulators on their approach to public confidence in their respective professions, and the importance of hearing as wide a range of views as possible to get a contemporary understanding of the public's view of the professions. This should reflect the public's changing relationship with the healthcare professions, as seen in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 which emphasised the more informed role of patients now. However, root and branch reform to ensure consistency, as previously recommended by the Law Commission, appears to still be a long way off.

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