The Professional Standards Authority for Health and Social Care (PSA) has released detailed guidance for health and social care regulators on conducting fitness to practise hearings during the Covid-19 pandemic.
The PSA oversees regulators such as the General Medical Council (GMC), General Dental Council (GDC), Nursing and Midwifery Council (NMC) and the Health and Care Professions Council (HCPC) and the guidance acknowledges that such regulators now face significant backlogs of fitness to practise cases as a result of the disruption caused by the Covid-19 pandemic. While the guidance is aimed at regulators and sets out the PSA’s expectations in terms of the conduct of virtual and hybrid hearings, it should also prove to be a useful tool for defence practitioners who will need to ensure that their clients’ interests are protected when their hearings are dealt with virtually.
Why is there a backlog of fitness to practise cases?
It goes without saying that the Covid-19 pandemic has caused significant disruption to the normal operations of statutory healthcare regulators. That said, most of these regulators were quick to make use of technology allowing for hearings to take place virtually. During the first wave of the pandemic, the hearings which took place were, for the most part, those which regulators had a statutory obligation to deal with. The obvious examples are interim orders hearings and reviews of substantive orders. In recent months we have also been involved shorter hearings which require only limited witness evidence, such as restoration hearings. However, most regulators suspended the majority of their substantive hearings in response to the pandemic. These cases have created a backlog of substantive hearings which now need to be dealt with.
The PSA guidance acknowledges that a number of regulators have powers to resolve cases by consent as a means of avoiding substantive hearings. The PSA have cautioned against using such powers as a means of addressing these backlogs of cases and have stressed that this will not be appropriate where a hearing is required in the public interest or the case is otherwise not suitable for consensual disposal. Such cases may involve very serious misconduct, such as sexually-motivated misconduct, dishonesty or violence. The PSA’s position is that where there is a clear need for a substantive hearing to take place, regulators ought not to depart from their normal approach as means of addressing the issues caused by the pandemic.
What concerns have been raised?
Before publishing its guidance the PSA opened a brief consultation and invited the views of interested parties. A wide range of concerns were raised on behalf of registrants which include the following: that hearings may be recorded and recordings may be posted on social media; issues regarding the identification of witnesses who are giving evidence remotely; issues faced by vulnerable parties who may struggle with the technology; the technical stability of applications such as Teams, Zoom & Skype; and a lack of guidance about the process for deciding whether or not cases should be heard virtually.
The Guidance issued by the PSA does seek to address some of these concerns.
What is the PSA’s recommended approach?
The PSA has set out detailed guidance in two key areas: the matters which should be considered when determining the type of hearing; and the conduct of hearings which take place remotely.
Determining the type of hearing:
The PSA has indicated that ultimately each case needs to be considered on its own facts on a case by case basis. That said, there are a number of considerations which should be taken into account by a regulator when deciding what type of hearing is appropriate. Defence practitioners should be mindful of these considerations when making representations behalf of their clients. These include the following:
- Whether registrants and other participants have sufficient access to and understanding of technology; and a suitable environment from which to engage with the hearing. The PSA’s view is that if the answer to either or both of these questions is negative then it is unlikely that a fully virtual hearing can be held fairly
- Risks regarding breach of privacy. These risks are likely to be amplified in cases involving intimate medical matters and/or allegations of sexual misconduct
- Any features of a case which make it challenging to conduct the case virtually, for example difficulties in presenting evidence
- The impact of disabilities or other vulnerability on the part of registrants and/or witnesses
- The health of participants, particularly if they are members of high-risk groups in the context of Covid-19
It is important to note that whilst the PSA has acknowledged that there may be differences of opinion in terms of the suitability of virtual or hybrid hearings, it has concluded that it is not appropriate for regulators to require the consent of registrants before a hearing is dealt with by these means. That said, the guidance stresses that the regulator’s preference should not be determinative and that a registrant’s views need to be taken into account and carefully considered when these decisions are made.
Conduct of virtual hearings:
The PSA has made clear that regulators should provide their own guidance on the conduct of remote/hybrid hearings so that registrants have a clear understanding of the process. The PSA has indicated that this guidance should include processes for testing connectivity prior to hearings; encouragement for the parties to engage prior to the hearing so that an agreed bundle is available to the panel; public access to hearings; arrangements for private discussions between registrants and their lawyers; procedures for taking oaths and affirmations; a recognition that technology may impact on the smooth running of hearings; guidance on the need for regular breaks during hearings.
The PSA has also stressed that regulators should have in place arrangements for ensuring that the decision making criteria for holding hearing in particular formats is kept under review moving forwards and modified should the need arise.
Defence practitioners should ensure that they review the guidance which is published by regulators in the coming weeks and months. Such guidance notes are likely to prove to be valuable tools, particularly where registrants have genuine concerns about the format proposed for their hearings.
During the course of the pandemic our regulatory team has dealt with a wide range of virtual hearings. These include interim orders hearings; reviews of substantive orders; restorations hearings; and a limited number of substantive hearings. If you require assistance with a hearing which is due to take place in the coming months, or you have concerns about what is being proposed by your regulator in your case, please feel free to contact our specialist lawyers on 0161 696 6250.