Regulatory Reform: Clyde & Co responds to the PSA’s latest Fitness to Practise consultation

Clyde & Co’s national Healthcare Team has encouraged the Professional Standards Authority (“PSA”) to place greater weight on the protection of registrants at the centre of regulatory investigations in their recent public consultation on the good practice guidance documents in support of regulatory reform.

The PSA’s Consultation first considers the guidance on the use of accepted outcomes in fitness to practise cases. The proposed guidance suggests that a number of ‘Factors’ should be considered when the relevant decision makers (Case Examiners) assess whether a case is suitable for an accepted outcome – this being a substantive decision to resolve the case in lieu of a hearing. Some of these factors include:

• whether the registrant under investigation has "failed to accept" the findings and/or that their fitness to practise is currently impaired;
• whether there is a dispute of fact or conflict of evidence that can only be fairly tested at a hearing; 
• an assessment of the complexity of a case;
• whether the insight demonstrated by the registrant at the Case Examiners’ stage has not been accepted and where it would be beneficial and proportionate to test insight at a hearing.

The guidance also considers alternatives to the model of having two Case Examiners to assess each case and the publication of Case Examiners’ decisions which currently remain confidential.

In response to the Consultation, Clyde & Co emphasised the need for clarity and/or amendment in respect of a number of these factors to ensure that registrants under investigation are not placed at a disadvantage. We highlighted the need to expressly consider unrepresented registrants as well as registrants with language barriers and/or health concerns. The proposed guidance is noticeably sparse in terms of what additional measures and protections are in place to ensure that these categories of registrants are not unfairly impacted by the proposals.

At the heart of all regulatory investigations is a registrant facing a distressing and often prolonged process. It is our sobering experience, reflected by that of other firms and professional colleagues, that the toll on registrants is significant and the link between adverse health conditions (including suicide) and regulatory investigations is grossly under-reported, with much more needing to be done by regulators. It is our view that the PSA’s draft guidance has failed to strike the right balance between the interests and expectations of complainants and those of registrants. Expedience must not be prioritised ahead of fairness and robust evidential scrutiny and we continue to be concerned that the voice of the registrant is being lost in the enthusiasm for reform.

We also commented that the proposed guidance presents inherent risks in respect of the Case Examiners’ increased discretion for resolving cases by way of accepted outcomes. The guidance is unclear as to when Case Examiners may impose a decision and what is required of the registrant to avoid the imposition of a sanction.  This central change to the current regulatory process requires detailed guidance and the wording in the PSA consultation remains unhelpfully vague.

The second aspect of the PSA’s consultation considered the proposed guidance for rulemaking. The guidance governs how regulators should exercise their rulemaking powers effectively.

In response, Clyde & Co commented that clarification was needed to ensure the guidance is utilised fairly and transparently. Clyde & Co encouraged consultation on all rule changes (beyond those that are administrative only) and again highlighted the need for registrants to be a central consideration.

Ultimately, we accept that there is a benefit to introducing accepted outcomes in some cases. However, the proposed guidance disproportionately focusses upon the interests of the complainant and fails to adequately address the expectations of registrants. Further work needs to be undertaken to correct this before the new regime is rolled out by the national regulatory bodies.

The PSA’s consultation closed on 15 April 2024. Our national Healthcare Team await the PSA’s response.

If you wish to contact Clyde & Co’s top ranked Healthcare regulatory team to discuss this matter or to speak about a case you are involved with, please get in touch.