Fitness to Practise & Criminal Convictions – Reforming Healthcare Professional Regulation

April 9, 2015

fitness-practise-criminal-convictionsEvery few years, usually following freedom of information requests, the General Medical Council (GMC) publishes figures on the number of doctors with criminal convictions that continue to practise. The most recently reported request, made by the MailOnline, shows that as of 28th August last year, 1,025 registered doctors found guilty of serious offences, such as possessing indecent images of children, sexual assault and dangerous driving, were still able to provide healthcare.

The fact that patients are sometimes not informed when an allegation has been made against a healthcare professional (HCP) who is treating them, or that healthcare professionals may avoid being struck off following a criminal conviction, tends to attract public criticism. Couple this with the publication of the Government’s response to a review of the complex legislative framework governing the regulation of healthcare professionals earlier this year, and it seems that the nuanced cross-over between criminal and fitness to practise proceedings may shortly be re-set. But as ever, particularly in an age when there is a tendency to champion the rights of the public over the individual, it is vital to ensure changes are fair, proportionate and reasonable.

Here we look at the Government’s plans to reform healthcare professional regulation in the UK. For more information on the current fitness to practise process and representation for healthcare professionals subject to the GMC, HCPC, GCC, or any other Regulator, please click here. You can also find out more about risk management for clinicians here and a list of five things all healthcare professionals should be most aware of, here.

Patient Safety & Public Protection

At the end of January, the Government published its response to the UK’s Law Commissions’ 125 recommendations for reforming the law on the regulation of health professionals, including the regulation of social care professionals in England. The current law is certainly in need of reform, with the complex and intricate legal framework estimated to span across 200 pieces of secondary legislation. A single statute applicable to all the regulatory bodies and the Professional Standards Authority (PSA) has therefore been proposed, in order to provide a far more simplified and flexible approach to healthcare professional regulation.

Although the Government stated an intention to make sure changes to professional regulation legislation is ‘right, not only for the regulatory bodies, but also for the public, patients, and registrants’, the new focus is very much on patient and public safety. To this end, it is proposed that all regulatory bodies and the PSA, as well as fitness to practise panels, be subject to the overarching objective of public protection, which will also operate as a public statement of the purpose behind professional regulation. In pursuing this objective, each body will be expected to give equal consideration to the following three objectives:

  • to protect the public;
  • to maintain confidence in the profession; and,
  • to uphold proper standards of conduct and behaviour for individual registrants.

Reactive to Proactive

Building on the 2013 Francis Inquiry, both the Law Commissions and the Government agreed that where a risk to public protection is identified, it is necessary for Regulators to take active steps and co-operate with other organisations. Systems of continuing fitness to practise have therefore been highlighted as ‘key to changing the regulatory model from reactive to proactive, improving quality of care and ensuring that safety is an absolute’.

There are no plans to introduce models of revalidation, similar to that of the GMC, for all other Regulators, nor to remove the Regulators’ powers to issue their relevant standards of conduct and set the rules specifying the investigation process. Instead, the Government proposes a more flexible approach that seeks to grant Regulators greater operational autonomy. This includes imposing a broad obligation on each Regulator to seek assurance of the ongoing fitness to practise of their registrants, which will be linked with register maintenance.

Proposed Changes to Fitness to Practise Procedures

Although Regulators can expect more freedom in terms of how they operate, it is the fitness to practise procedures themselves that are likely to see substantial reform. Mediation as an alternative method of resolution has been ruled out, with the Government preferring a more prescriptive, and arguably adversarial, approach for determining whether a healthcare professional’s fitness to practise is impaired (the phrase used at the GMC and other Regulators, such as the HCPC) or there has been unacceptable conduct, as well as how fitness to practise proceedings are to be carried out. Below we highlight some of the key areas of the procedure that the Government intends to reform.

Fitness to Practise Referrals

  • Registrants convicted of certain serious criminal offences should be automatically removed from the register. Which offences will be included is to be subject to further consideration, although the Law Commissions proposed that the following offences result in automatic removal: murder, trafficking for exploitation, rape and other sexual offences, and certain offences against children;
  • Any healthcare professional subject to automatic removal following conviction will have the right to make representations to the regulator and to appeal to the courts.

Investigations

  • In fitness to practise proceedings, regulators should be granted the power to require disclosure by any person, including the registrant. They should also have the power to apply for an order for disclosure from the courts where necessary;
  • Where a registrant becomes involved in an investigation concerning another registrant and action may be required against them, a separate fitness to practise allegation should be made.

The End of an Investigation

  • Investigating Committees can suggest that no further action need to be taken, however, where they believe that there is a realistic prospect of a Conduct Committee finding facts proved against a registrant, the matter is referred for a hearing.

Fitness to Practise Panels & Hearings

  • Generally, there should be consistency throughout healthcare profession regulation in relation to due process, the right to representation and the powers available to fitness to practise panels;
  • The current practice of consensual disposal following consideration of a case on the papers available to the NMC, GOsC and other Regulators should be extended to all Regulators. This will allow a fitness to practise panel to consider a case on the papers, without the need for a full hearing, in certain circumstances, and provided it is fair and there are safeguards in place. What these circumstances may be are yet to be decided, although they are likely to include where the parties consent to the outcome and the panel agrees a hearing isn’t necessary, as well as where the healthcare professional does not request a hearing;
  • Fitness to practise panels should not allow evidence that would not be admissible in civil proceedings, unless it is fair and the evidence is relevant;
  • The civil standard of the balance of probabilities should apply;
  • Full hearings should be heard in public unless it is not in the public interest. Interim order hearings should be heard in private, unless the healthcare professional requests otherwise;
  • In cases involving allegations of sexual misconduct that would not amount to a sexual offence under the Youth Justice and Criminal Evidence Act 1999, the registrant subject to the hearing should not be allowed to personally cross-examine the complainant unless consent is given in writing.

Interim Orders, Fitness to Practise Decisions & Sanctions

  • Members of interim order panels should not be allowed to sit on a fitness to practise panel in relation to the same case;
  • An interim order should only be made if it is necessary for the protection of the public or in the interests of the registrant, and it must be reviewed at least every six months;
  • A registrant should only be allowed to request an early review after three months have passed since the first review. However, if new evidence arises, it should be possible to request a review earlier;
  • All fitness to practise panels should have the same powers to impose sanctions;
  • Advice and warnings should only be available where there is no finding of that a healthcare professional’s practise is impaired;
  • Where impairment is found but conditions, suspension or removal sanctions are inappropriate, there should be a distinct sanction similar to that available to the NMC and HCPC of a ‘caution order’;
  • Conditions and restrictions imposed on a healthcare professional by a fitness to practise panel should be reviewed before they expire, unless the original order, such as a short suspension, doesn’t require review.

Rights of Appeal

  • Registrants will continue to have a right of appeal against decisions made by fitness to practise panels;
  • Where a registrant is removed from the register, the only route to return to the register will be by way of a restoration hearing before a fitness to practise panel. A health care professional applying for restoration may have their fitness to practise reinvestigated prior to the restoration hearing.

New Legislation

So when can these changes be expected? Although the Government is committed to bringing forward new legislation to change healthcare professional regulation, any wide-reaching reforms are unlikely to be implemented until after the General Election in May. In the meantime, secondary legislation is being taken forward ‘to improve the regulatory bodies’ processes in order to enhance patient protection and improve public confidence’. These include:

  • The Health and Social Care (Safety and Quality) Bill, which seeks to increase ‘public safety, professional standards and public confidence by proposing that regulatory bodies and the PSA have public protection as their over-arching objective’;
  • The General Medical Council (Fitness to Practise etc.) and the Professional Standards Authority for Health and Social Care (Referrals to Court) Order 2014, which establishes the Medical Practitioners Tribunal Service (MPTS) and amends some of the procedural rules and undertakings relating to the fitness to practise proceedings for the GMC;
  • The General Dental Council (Fitness to Practise etc.) Order 2015, which seeks to improve the GDC’s fitness to practise processes;
  • The Health and Care Professions (Public Health Specialists and Miscellaneous Amendments) Order 2015.

Defending Healthcare Professionals

At Tuckers Solicitors, we stay up to date with the legal developments relevant to healthcare professionals. We have vast experience providing advice and representation for those working in the medical profession that find themselves facing allegations concerning their fitness to practise, or criminal behaviour that may call into question their ability to meet professional standards.

Available 24 hours a day, seven days a week, our fitness to practise lawyers ensure that every aspect of a healthcare professional’s life is robustly defended. For more information, please e-mail meyerj@tuckerssolicitors.com, or contact Jim Meyer on 0797 322 6586.

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