COVID-19: does the response of the regulators call for a fresh approach?

During the first wave of the COVID-19 pandemic, healthcare regulators reviewed their processes and made a joint commitment to take human and environmental factors into consideration when determining whether a complaint/incident reached the threshold for fitness to practise action.

In addition, the country saw an outpouring of support and affection for healthcare practitioners working hard to treat patients in hugely pressured and trying circumstances.

Alongside the guidance on relevant factors to consider during the life of an investigation, emergency registration was granted to recently retired practitioners under emergency powers granted by the Coronavirus Act 2020. Notably,  the GMC introduced guidance for decision makers on requests to relax or revoke sanctions or IOT orders in response to COVID-19 which allowed those whose registration was subject to restriction to apply for an early review of that restriction.

Do these changes reflect a change in what may be determined in the public interest and can healthcare professionals be reassured that such changes will remain in place once the impact of the pandemic has subsided? It may be more apposite to ask whether they should remain in place.

A Freedom of Information Act request made of the GMC reveals that during the first wave, as of 27 May 2020:

  • Of nine applications made for review, five cases in which undertakings had been imposed were reviewed by the Case Examiners with the outcome being variation in all cases.
  • Of eight applications, four cases were referred back to a Medical Practitioner’s Tribunal for an early review, resulting in a change in the terms of conditions in one case, revocation of suspension in one and suspension being lifted and replaced with conditions in a fourth.
  • Of eleven applications, five cases involving a sanction or interim order were reviewed which led to the variation of conditions in three cases and suspension being replaced with conditions in another.

The Joint statement from Chief Executives of Statutory Regulators of Health and Care Professionals issued in March 2020 stated “we recognise that in highly challenging circumstances, professionals may need to depart from established procedures in order to care for patients …Our regulatory standards are designed to be flexible and to provide a framework for decision making in a wide range of circumstances” and “Where a concern is raised about a registered professional it will always be considered on the specific facts of the case, taking into account the factors relevant to the environment in which the professional is working”. Other factors to be taken into account include information about resource, guidelines or protocols in place at the time.

Although context has, to a degree, been of relevance in past investigations, has it carried appropriate weight in the minds of experts judging the actions of their fellow professionals and reaching conclusions on the seriousness of any concern, as well as and in the minds of those reaching a decision on whether formal action on registration is required?

Certainly the enduring argument on the part of regulated professionals is that the public interest references a reasonably informed individual. Comments on press articles relating to regulatory cases often highlight an absence of proper reporting, with articles frequently focussing on the more salacious aspects of any given case where journalists often depart after the opening and do not therefore hear the totality of the evidence or submissions made by either party.

Being reasonably informed certainly should mean that the background, context and particular challenges faced by the individual at the time of the event in question carry weight, irrespective of whether the events arose during the pandemic.

It may be too early to assess the extent to which this bears true by reference to case outcomes and the detail of decisions taken at the conclusion of investigations but one queries whether it needed a pandemic to issue guidance on context and relevant factors for decision makers.

Practitioners should be reassured by the content of the decision making guidance published by their regulators individually but recent research undertaken by Dental Protection suggest that GDC registrants, in particular, fear being the subject of a fitness to practise investigation arising from the consequences of the pandemic, with 40% of those who responded to Dental Protection’s questionnaire reportedly being ‘fearful’. The fact that most dental practices were forced to cease face to face consultations and could only provide treatment in limited circumstances during the first wave has resulted in 19 million fewer dental treatments being provided between March and October 2020 compared to the previous year.

The guidance and directions on what could be provided during lock down is clearly going to be a relevant factor in determining the extent to which there may be a fitness to practise issue and certainly the Joint Statement confirms that will be the case. But does the joint statement go far enough?

Although it is clear that the GDC is one of the regulators who signed up to the Joint Statement, calls are made for specific guidance on handling complaints arising from the pandemic. The GMC’s new guidance for decision makers  confirms that context will be taken into account. Arguably, more could (and should) be said in relation to experts, investigators and decision makers obtaining copies of relevant local and national guidance to ensure that more than passing reference to context is made.

Research has just been commenced by the Professional Standards Authority looking at the response of the regulators to the pandemic. One of the questions raised in the review is whether any of the changes made should become ‘the new normal’. The response it seems, should be ‘yes’.

With a greater emphasis on the circumstances in which a concern arose, perhaps it is time that regulators review and revise their decision making guidance to reflect recent events and to shape the fitness to practise process in the future, whether a complaint arose during the pandemic or not. The public interest would seem to call for it and this may provide reassurance to registrants that the particular challenges faced and guidance that they are required to adhere to at any given moment will not be overlooked.

Clare Chapman, Partner, BLM

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