As the second national lockdown comes to an end, to be replaced by a resumption of a ramped up and politically controversial tier system (which has placed the majority of England into the two highest levels of restriction), there does appear to be the slightest glimmer of light at the end of the Covid tunnel in the form of the vaccine developed by Pfizer. This vaccine has recently received regulatory approval and is due to be rolled out in the coming weeks.
Although the development of a vaccine is undoubtedly the most positive news the nation (and indeed the world) has had in the fight against Covid, it is clear that the effects of the pandemic will be felt for many years to come. As we slowly return to a life without social distancing, masks and unprecedented draconian limitations on liberty in peacetime, inevitably questions will be asked about how organisations that oversee and regulate the health and social care professions responded to the pandemic, and crucially, whether lessons can be learned.
In November 2020, the Professional Standards Authority (‘PSA’), the body responsible for overseeing the conduct of the health and social care sector’s regulatory bodies, announced a review into the responses of those regulatory bodies during the first stage of the pandemic up to July 2020. Specifically, the PSA is asking for responses to the following question:
‘What lessons can we [the PSA] learn from this first phase of the pandemic that can help us develop strategies to respond to the ongoing situation, learn for future crises and also just help with ‘business as usual?’
One of the most striking challenges presented to regulators in the early stages of the pandemic was the confines of existing legislation underpinning regulation across the United Kingdom. Some of this legislation is outdated and does not permit regulators to adopt a flexible approach to fast moving situations.
In response to these legislative restrictions the Government swiftly passed key legislation such as the Coronavirus Act 2020 in order to afford regulators the agility and flexibility needed to address the challenges presented by the virus.
As the effects of the pandemic took hold, health care regulators faced a number of unprecedented challenges to the overriding objectives of maintaining patient safety and professional standards. These challenges included ensuring that:
- professionals were supported to accommodate the sudden increase in demand;
- professionals continued to practise safely and in accordance with the relevant standards;
- fitness to practise concerns were investigated thoroughly and as expeditiously as possible;
- adequate steps were taken to protect the regulator’s staff;
- students and trainees were supported to continue with their training and/or educational courses and that educational standards were maintained.
By and large, regulators have responded quickly to these changes by issuing guidance to professionals, students and education providers, and by establishing and maintaining temporary registers to allow de-registered practitioners and students on the cusp of qualification to practise on a temporary basis to meet the increase in demand.
Virtual hearings have also allowed fitness to practise proceedings to continue and have been highly beneficial as far as effective case management and access to justice during the pandemic is concerned. It is likely that the regulators will also see a marked financial efficiency from having hearings conducted virtually rather than in person and may very well seek to utilise virtual hearings more frequently post-pandemic.
Of course, there will be examples where the interests of justice and fairness necessitate a hearing being held in person. Indeed, there have already been some judicial shots fired across the bows to ensure that any decision to proceed with a hearing virtually rests solely with the tribunal, and should not be a policy matter dictated by the regulator. But it is highly likely that virtual hearings (particularly in procedurally straightforward matters such as interim order reviews) will increasingly become the norm.
As with ongoing proceedings across all legal jurisdictions, the pandemic has created a significant backlog of cases. This understandably has led to frustration on all sides; as the age-old premise of ‘justice delayed is justice denied’ goes, delays to cases being heard is contrary to the principles of natural justice.
However, although delay is never desirable, there may be a benefit to registrants (that are not subject to an interim suspension order) facing fitness to practise proceedings listed at some far-off date. The additional delay not only allows them further time in which to undertake remedial work, but also adds weight to any argument that the registrant’s fitness to practise is no longer currently impaired due to the passage of time.
It is important to note that many health and social care regulators have recently granted their respective case examiners powers to use alternative methods of disposal. Until the last few years, many regulator’s case examiners were presented with a binary decision-making power of either taking no further action or referring the matter to a fitness to practise committee hearing.
However, it was felt by the PSA that this was resulting in too many cases being sent for a hearing that could be proportionately disposed of by way of a low-level sanction (such as a warning or undertakings) to mark misconduct or address deficiencies in skills. This frees up valuable tribunal time, saves the regulators significant sums, as well as demonstrating a sensible and efficient approach to case management. Registrants also avoid a protracted and drawn out wait for their matter to be addressed and the public can be assured that standards are still being maintained by imposing proportionate sanctions at earlier stages of the fitness to practise process.
One way the regulators could seek to address the backlog of cases waiting for consideration by fitness to practise committees is to consider whether any new remedial evidence is available that may mean a fitness to practise hearing is no longer necessary, and to refer matters back to case examiners for consideration of the new evidence, and whether it alters the previous decision to refer. This may result in a number of cases being addressed without a fitness to practise hearing.
One of the most common complaints by those facing fitness to practise proceedings is that their respective regulators are increasingly becoming detached from the reality of what day to day practise looks like, and the extreme pressures healthcare professionals face and that failures or mistakes are viewed by regulators through the prism of perfection, and not the gritty contextual reality.
The pandemic undeniably thrust the healthcare system into the spotlight and showed not only the commitment and dedication of those that work on the front line, but also served to highlight the lack of support available in certain professions or settings. While it is of course vital that high standards are demanded of all healthcare professionals, it is hoped that regulators will consider the difficulties those working in the professions face on a day to day basis when considering their approach to fitness to practise proceedings.
In conclusion, while it is highly likely that the PSA’s review will identify improvements that could be made in future, there are many positive aspects to the response that may have a lasting beneficial effect on the way that regulators operate when we eventually return to “normal”. The pandemic may also serve to refine the approach taken by regulators when responding to instances where standards have not been adhered to, and to consider more efficient case management options available to them.