Professional Discipline: ‘The Burden Of Old Cases And Timeliness’

A Roundup of the Professional Standards Authority’s Performance Reviews for 2021/2022

It’s that time of the year again. The time when the Professional Standards Authority (“PSA”) completes its annual review of all ten statutory healthcare regulators for the preceding year and publicly critiques their performance. Essentially, highlighting the concerns which registrants and their legal representatives already share. Unsurprisingly in 2021/2022, COVID-19 still had a bearing on the regulators’ performance and overall, although some regulators faired better than others, the PSA’s criticisms centered, largely, on failures to meet Standards 15, 17 and 18.

As readers will be aware, the PSA oversees the performance of all statutory and voluntary accredited regulators and compiles annual reports grading the regulators performance against their required ‘Standards of Good Regulation’ (“Standards”). In connection with the relevant Fitness to Practise standards (“FTP Standards”) they are, in brief, as follows:

• Standard 14 – The regulator enables anyone to raise a concern about a registrant.
• Standard 15 – The regulator ensures cases are examined and investigated fairly, proportionately and expeditiously, and decisions are based on robust evidence and protect the public at each stage of the process.
• Standard 16 – The regulator’s decisions are fair, proportionate, consistent and made in accordance with processes and take into consideration the statutory objectives, the regulator’s standards, relevant case law, and prioritise patient safety.
• Standard 17 – Cases which suggest a serious risk to patient safety are identified and prioritised by the regulator and interim orders are sought.
• Standard 18 – Parties to the complaint are effectively supported throughout the regulator’s Fitness to Practise process.

Overall, and in brief, the statutory regulators were rated as follows:

Whilst the majority of regulators achieved full or nearly full marks, Social Work England, the General Pharmaceutical Council and the Health and Care Professions Council met the least amount of FTP Standards and overall Standards. Focusing on these three languishing regulators, the PSA commented, in brief, as follows.

• Social Work England

The PSA found that Social Work England (“SWE”) failed to meet Standards 15 (expeditious and proportionate investigation of cases) and 17 (Interim Orders). In particular, the PSA criticized SWE for the length of time taken to progress a complaint from initial receipt to Case Examiner (“CE”) decision (67.7 weeks), from initial receipt to final hearing (117.3 weeks), and the time taken to apply for interim orders (36.1 weeks from initial receipt to committee decision).

The PSA also noted an increase in the number of interim orders being applied for in connection with legacy HCPC cases, of which SWE had concluded 87% with the majority awaiting hearing, and although Standard 17 had not been met for the third consecutive year the PSA decided not to escalate the matter to the Secretary of State for Health and Social Care.

• General Pharmaceutical Council

The PSA determined that the General Pharmaceutical Council (“GPhC”) had failed to meet Standards 15 (expeditious and proportionate investigation of cases), 16 (fair, proportionate and consistent decision making) and 18 (parties supported during Fitness to Practise process). Whilst the PSA noted the GPhC had recently redesigned its triage function and introduced new initial assessment guidance to adequately reflect the GPhC’s triage process (which it did not before), the PSA concluded that its recent implementation had limited impact on the GPhC’s yearly performance.

Like SWE, the PSA found the GPhC had taken too long to progress FTP investigations (126.1 weeks from initial receipt to final decision) and the number of historic FTP cases had increased (298 cases over 52 weeks old). The PSA also held concerns regarding the GPhC’s documentation of risk assessments, with reference to interim orders, and the recent implementation of changes to improve customer service to parties within the FTP process. The PSA remarked that the GPhC’s changes “will take time to embed and [they] will assess their impact in detail next year”.

• Health & Care Professions Council

The PSA found that the Health & Care Professions Council (“HCPC”) had failed to meet Standards 15 (expeditious and proportionate investigation of cases), 16 (fair, proportionate and consistent decision making), 17 (Interim Orders) and 18 (parties supported during the FTP process). As per SWE and the GPhC, the PSA determined the HCPC had taken too long to complete cases overall (taking over 100 weeks from initial receipt to final decision) and the number of open cases over 52 weeks had steadily increased during the review period.

The PSA accepted however that the HCPC had introduced Senior Decision Makers and legally qualified ICP Chairs to improve the quality of decision making and the PSA concluded that they had “seen a noticeable improvement in the quality of panel decision-making in the cases we have reviewed when considering whether those decisions are sufficient to protect the public”.

Regarding Standard 18, and whilst the PSA acknowledged the HCPC had been improving their communication with FTP parties, the PSA noted individuals’ concern of “continued delay in receiving correspondence and difficulties in obtaining information from case managers’ and that a significant amount of correspondence had been issued to registrants in the week preceding Christmas. The PSA concluded that they would “assess in detail the impact of the HCPC’s improvement programme to see how this has affected performance in fitness to practise” next year.

With reference to the other regulators, the PSA noted that timeliness remained an issue across the board and in particular, the time taken from initial receipt to final hearing in addition to the increasing number of historic FTP cases over 52 weeks old. In connection with some regulators e.g. the GMC and the GOC as means of example, the PSA acknowledged the increase in FTP cases received within the period most likely owing to the COVID-19 reporting lag.

Regarding the GDC and NMC specifically, and given they had both failed to meet Standard 15 for the fifth and third year in a row respectively, the PSA determined to raise their concerns to the Secretary of State for Health and Social Care, under the PSA’s escalation policy, and have committed to monitoring the GDC and NMC’s progress going forward.

Lastly, and of interest, the PSA raised concern that the GCC’s legislation only provided, at most, for a two-month interim suspension order which led to them opining that the “GCC may not have the legal powers to protect the public…and we will be investigating this further in the coming months”. Going forward, it will be interesting to see how, and when the GCC’s statutory powers will be amended to increase the length of interim orders in-keeping with the other statutory regulators given the Government’s lack of appetite for amending healthcare regulators’ legislation.

Whilst each regulator has received its own individual score by the PSA, all regulators have faced and are continuing to face the same concerns. Namely, a backlog of historic FTP cases, a lag in the time taken to progress referrals, and on average, a delay in progressing interim order referrals. Thus, ‘the burden of old cases and timeliness’ continues to plague regulators which is nothing new to those working within this sector. Arguably, these problems stem from increased caseloads, the ability to attract and retain staff with the required FTP knowledge, unforeseen delays in obtaining relevant information for investigations, and the time taken by committees/internal staff to make the required decisions on the ground amongst others.

Whilst these are real problems facing healthcare regulators, it should always be born in mind that these problems have an adverse, knock on effect on registrants involved in the FTP process including their physical, mental and overall well-being. Let’s hope that by the end of the next review period (2022/2023), these problems are actively being managed and that defence representatives, registrants and the PSA alike all begin to see a noticeable improvement in regulators performance.

If you are a registrant facing a Fitness to Practise investigation and require legal assistance, please contact Ridouts Professional Services Limited on info@ridout-law.com or 0207 317 0340.