The Future of Fitness to Practise – DHSC Consultation Response

The Department for Health and Social Care has published its response to proposals to reform fitness to practise in the UK.

In what has been seen as an important step, the Department for Health and Social Care (DHSC) has published its response to the 2022 consultation to reform the legislative framework for regulated health and care professionals across the UK.

Brief overview of the consultation

Between 24 March and 16 June 2021, the DHSC sought views on proposals to reform the regulation of healthcare professionals.

The consultation sought views on proposals to modernise the legislation of the healthcare professional regulators. The proposals have been developed in partnership with the professional regulatory bodies, the Professional Standards Authority for Health and Social Care and tested with key stakeholders across the health and care system.

The proposed reforms cover 4 key areas:

governance and operating framework
education and training
registration
fitness to practise

The Future of Fitness to Practise – DHSC Consultation Response

In its response, the DHSC outlined the Government’s approach and roadmap for reforming fitness to practise in the UK.

Identical powers through broadly similar legislation – The Government will replace regulators’ current legislation, through a series of statutory instruments, giving each regulator near identical powers through broadly similar legislation. The new legislation will provide each regulator with greater autonomy to set out the details of their regulatory procedures in legislation that they themselves publish, called rules. Regulators will be required to consult on their rules but will not need to secure the approval of Parliament or the Privy Council to make their rules, giving increased flexibility to rapidly adapt their processes and procedures to changing requirements.

Different approaches to regulating different professions – The DHSC acknowledged that regulators may wish to take different approaches to regulating different professions. It said “much of this flexibility to be achieved through regulators’ rules” created under the new flexible powers provided to each regulator.

Variation between different regulators’ legislation – Whilst the overall aim is “giving each regulator near identical powers through broadly similar legislation”, there will be some scope for variation between different regulators’ legislation. The DHSC said this will only be permissible “where this is needed to reflect substantive differences in their roles or specific regulatory requirements for the professions that they regulate” giving the following examples:

the different professional titles protected in law
any regulated activity which restricted professions can undertake, such as ‘the practise of dentistry’ or ‘attending a birth’
a regulator’s role in regulating businesses or premises

Sequencing of legislative reform – GMC first

Replacing regulators’ current legislation, through a series of statutory instruments, to give each regulator near identical powers will no doubt be a complex and long-term project, likely taking years to complete. Heath and care professionals should therefore not expect this to be a quick process.

The DHSC has however indicated that General Medical Council (GMC) reform is top of its agenda. It announced more detailed proposals that will provide the GMC with the powers needed to regulate anaesthesia associates (AAs) and physician associates (PAs).

It also said that “reforming the GMC’s wider regulatory framework for doctors remains a key priority and we will continue to progress legislative drafting during the consultation period on the draft order to enable the swift implementation of the changes in relation to medical practitioners.”

Regarding the remaining regulators, the DHSC said it will “work as swiftly as possible to deliver reform for each regulator and profession” and it will “prioritise delivery of regulatory reform based on criteria including the size of registrant base, the need for reform, and regulators’ readiness to implement the changes.”

“Taking into account the aforementioned criteria, we intend to start working with the NMC and the HCPC, alongside the GMC, to develop reformed legislation for their professions over the next couple of years.”

Identical powers through broadly similar legislation – what this might look like

The DHSC said fitness to practise reform was necessary “to provide greater consistency between regulators’ fitness to practise functions” and create “a fitness to practise process that is swifter, fairer and less adversarial”.

They will achieve this through “broadly similar legislation” that will act as a “template” for all regulators to follow. Their response has given some indication of what this “template approach” might look like:

The initial assessment stage will enable regulators to determine whether a fitness to practise case should be referred to a case examiner to make a determination
More cases to be resolved without the need for a Fitness to Practise Panel hearing by introducing accepted outcome decisions made by case examiners
The introduction of “a broad range of measures” which will be available to both case examiners and Fitness to Practise Panels to help ensure that restrictions to practise are proportionate and appropriate
Introduction of an automatic “removal orders”, to reduce the administrative burden on a regulator to find impairment where a registrant has been convicted of certain serious criminal offences
Retaining a 3-stage fitness to practise process including an initial assessment, a case examiner stage and a Fitness to Practise Panel stage

Removing the “5-year rule” (that restricts regulators from being able to consider concerns older than 5 years)

Is legal representation the answer?

It is widely accepted and proven that legal representation makes a real difference to the outcome of investigations and results in lesser sanctions for doctors.

What is also unquestionably clear is that GMC investigations and MPTS hearings are complex, daunting, prolonged and legalistic leaving doctors stressed and anxious. Where legal advice and representation can have the biggest impact on this, is helping doctors understand the process, what to expect and how to engage with the GMC during an investigation and hearing.

Research has shown that registrant’s engagement and legal representation can impact on decisions about seriousness, and that the lack of legal representation has been identified as being associated with more severe sanctions outcomes in fitness to practise cases, stating:

“Legal representation was seen as important by participants because legal advice could support and guide registrants through the FtP process, which is complex and legalistic. Legal advice was seen as important in aiding registrants to understand regulators’ expectations, especially in terms of the need for registrants to demonstrate insight and perhaps to show evidence of remediation activities. Lack of legal representation was, therefore, seen to potentially have an impact in terms of the seriousness of the outcome for registrants who are perhaps unaware of how to present their case to best effect.”

A compassionate approach to legal representation

The right legal advice and representation is not just about the legalities and technicalities of a case. Our barristers fully understand the stress and anxiety that doctors experience during prolonged GMC investigations.

We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.

We never lose sight of the human aspects of FtP investigations and hearings. We will always give an open and honest assessment of cases, but we will marry that with an approach that also supports health and care professionals through the duration of a case.

“I was not optimistic about the case, I felt that it is a lost case that we couldn’t do much about and especially just before the start of the trial I lost my confidence and was very nervous. Mr McCaffrey was there to prove me wrong. He turned everything around in a victorious , panegyric manner. I was stunned.” – CL

Catherine is professional, empathic and very knowledgeable. She provided all the necessary assistance throughout the long thorough investigation. – AR

A colleague recommended me to Catherine. She was very experienced , professional, empathetic , non-judgemental and listened to me. – Mel

I found myself consumed with dark thoughts, isolated and afraid. Stephen worked with me and slowly but surely formulated a plan not to just to fight my case and win, but to build me back up bit by bit so as to prepare me to face external scrutiny and present with confidence to panels where this was necessary. – FJ

What you can Expect when Instructing Kings View

All clients are entitled to an initial, no obligation and free telephone consultation about their case. During this consultation, we will outline the stages and next steps, including indicative timeframes and fixed price quotations for preparation and representation and confirmed in writing at each and every stage.

We understand that timescales are entirely dependent on the stage you are at in proceedings, what work needs to be done and dictated by internal investigations or hearing dates. We always meet those timescales however should more time be needed, then we will apply for such on your behalf and with your permission.

Contact us today for a no obligation and free telephone consultation about your case in the knowledge that you are speaking to one of the best in the business.

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.