HCPC consultation on permanent right to hold remote hearings

On the 31st of August 2021, the HCPC launched a consultation on proposals to permanently embed the right to hold remote fitness to practise and registration appeal hearings.

On 4 March 2021, the HCPC was granted  an amendment by the Department of Health and Social Care to existing  Rules which gave it the express  provision  to hold  hearings  remotely during  an emergency. Currently, the Coronavirus emergency provisions  are due to expire on 30 September 2021.

Since then, the HCPC have held  1,110 remote hearings, made up of the following different types of hearings:

• Interim Order applications  – 110
• Interim order reviews – 463
• Substantive  reviews – 144
• Final  hearings  – 318
• Other hearings  – 75

“We would like to continue to hold hearings remotely once the emergency period ends, where it is fair and practical to do so.”

The HCPC said it is now consulting on proposals to “continue to hold  hearings  remotely once the emergency period ends” and are therefore “seeking  an amendment  to our Rules  to give us permanent  powers to hold hearings  remotely.”

The HCPC said this was necessary to “ensure that we were able to continue to fulfil our statutory duty to protect the public, progress fitness to practise investigations without unnecessary delay and conclude hearings as efficiently and safely as possible.”

Remote hearings only where it is fair and  appropriate

It would appear from the consultation that the HCPC are proposing to rely on remote hearings only where this would be “fair and appropriate”.

The current HCPC guidance state that it will:

“consider whether a case is most suitable to be heard remotely, physically or as a hybrid. The approach taken will be considered on an individual basis, taking into account the relevant factors in each case.

“We  will  seek  the  views  of  registrants  and/or  their  representatives  on  our  initial assessment of the type of hearing to be held, and their reasoned views will be taken into account as part of our overall consideration of the relevant factors. However, there may  be  a  number  of  competing  factors  that  we  need  to  assess  when  deciding  the  method of holding a hearing, and these may override a registrant’s preferences. As such, a registrant’s preferred means of holding of hearing cannot be the determinative factor in deciding how to proceed.”

The guidance goes on to say that:

“If a party disagrees with our approach to listing a case as a remote or hybrid hearing, we will ask a Chair of the relevant practice committee to give directions on how the case should proceed.”

Why permanent remote hearing for the HCPC?

The HCPC commented in the consultation that it has “seen  benefits  to holding  our hearings  remotely” and want to use the opportunity to “improve and innovate… to embrace new ways of working where it can bring advantages  to us and those  involved in the process.”

“Our learning  from holding  remote hearings  over the last  year or so, is that remote hearings  can offer greater  flexibility when listing  hearings  and makes the process more efficient. There  have been  advantages  for all  those involved  in a hearing  in not having to incur the time and financial  costs associated  with travelling  to hearings  and staying  away from home. Our Tribunal  Services team have also  reported  increased engagement  from registrants  who have been  supported  to participate  in the process by the remote nature  of the event.”

However, remote hearing are not for everyone and every case.  Criticism and concerns about the use of remote hearings include:

• Privacy of registrants and witnesses and the danger that those observing virtual hearings may record extracts from those hearings and release them via social media 
• Difficulties around the identification of witnesses and how far the panel can assess that their evidence is genuine when witnesses are not before them in person, or ensure that they are not being coached
• Some parties, many of whom are vulnerable or have protected characteristics, may find it difficult to engage with the technology and this may affect the quality of their evidence
• The technical stability of the platforms
• Whether the hearings will be recorded and, if so, the arrangements for ownership, retention and storage of the recording
• Lack of guidance about the processes for deciding whether cases should be heard virtually.

HCPC’s fitness to practise record

The HCPC’s fitness to practise record is poor.  It has failed to meet the majority of the PSA’s fitness to practise Standards of Good Regulation.

This inevitably will raise questions about how the HCPC will ensure equality and fairness in what is being proposed through this consultation, and respondents should give careful though to this in their responses.

The consultation is open from 31 August  2021 to 23 November 2021.