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Will regulatory reforms make fitness-to-practise processes swifter and fairer?

Proposals to overhaul the GPhC include changes to the fitness-to-practise (FtP) process  but change is not going to happen overnight, says Susan Hunneyball

The Department of Health and Social Care (DH) has issued a response to its consultation on reforming the regulation of healthcare professionals.

The consultation covers all nine health and care professional regulators, including the General Pharmaceutical Council (GPhC). It also looks at four key areas of regulation – FtP, governance and operating frameworks, education and training, and registration.

Read more: DH rubberstamps plans giving GPhC power to set own practices

It is a huge programme of reform. A headline change is that regulators will be given greater autonomy to set out the details of their regulatory procedures in legislation they themselves publish.

The aim is for a consistent approach across regulators, with variation only where necessary to reflect substantive differences in their roles or specific regulatory requirements for the professions they regulate.

Regulatory reform has been in development a long time. Quite some time ago, I recall sitting in a room with colleagues and law commissioners who were seeking views about the system of regulation for the pharmacy profession. The Law Commission reported in 2014 and they suggested that healthcare professional regulation be streamlined and modernised.

Read more: GPhC could be given power to set practices without parliament approval

Meanwhile, 2017 and 2018 saw the start of a consultation process and the Williams Review into gross negligence manslaughter in healthcare.

The review referred to, among other things, the patient safety impact of concerns among healthcare professionals that simple errors could result in prosecution for gross negligence manslaughter and the negative impact on openness and transparency this causes.

Consequences arising from, for example, a dispensing error are still a very real concern for pharmacists.

Some of the recommendations from the review are picked up in the recommendations for changes to FtP arrangements.

In its response to the consultation, the government says its “proposed changes will deliver a FtP process that is swifter, fairer and less adversarial”.

It goes on to say the changes “will benefit all parties involved in FtP proceedings and, most importantly, will ensure swift public protection where needed”.

Given the emphasis on swiftness, it is ironic that one of the changes looked at is how to deal with cases that are more than five years old.

The GPhC’s current legal position is that if more than five years have elapsed, the registrar can only refer a case if necessary for the protection of the public or other public interest reason.

Read more: GPhC must ‘hugely improve’ fitness-to-practise processes, chair says

The proposed change is that any current restrictions on regulators being able to consider concerns more than five years after they came to light should be removed from legislation.

This may mean older cases are referred, with the ultimate decision on the registrant’s FtP not being made until after the full process has been played out – which could be some considerable time after the previous five-year limit.

A more significant change for the GPhC is that all regulators should have a three-stage FtP process. This should include an initial assessment, a case examiner stage and a FtP panel stage.

At the moment, the GPhC has four stages – initial assessment, investigation with an opportunity for registrant input, and – in the most serious cases – referral to the investigating committee and possibly a final referral to the FtP committee – both with opportunities for the registrant to make representations.

The suggestion is also that the case examiners will have access to a full range of sanctions including suspension and removal orders.

The hope is that these changes lead to swifter, less adversarial outcomes.

Read more: Watchdog unsure GPhC would have improved ‘timeliness’ of FtP cases without pandemic

There are also proposals to introduce automatic removal orders, to reduce the administrative burden on a regulator to find impairment where a registrant has been convicted of certain serious criminal offences.

It was highlighted by consultation respondents that it is important this power is only exercised if there is sufficient written evidence and a registrant has had the opportunity to make representations.

Interestingly, the consultation felt it was necessary to discuss notification to the registrant who is subject to a FtP process.

It says “regulators will be required to notify registrants whenever a substantive decision is being made”.

“The registrant would also have a right to request updates from the regulator about case progression. It is essential that both registrants and people who raise concerns are kept up to date on the progress of a FtP case,” it adds.

It could be considered surprising that a requirement to notify was not already in place but it is a positive move to see it included here.

In summary, the response outlines important steps towards an improved system of healthcare regulation.

Read more: GPhC must ‘hugely improve’ fitness-to-practise processes, chair says

For current pharmacy registrants however, the main concern is that the regulation of healthcare professionals is timely, fair and proportionate.

As the GPhC is not the first regulator on the list for reform, we will have to wait some time to see whether the reforms fulfil the promises made.

This is a general overview. Independent legal advice should be sought for any specific concerns.

 

Susan Hunneyball is a solicitor at Gordons Partnership LLP

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