College responds to consultation on fitness to practise and rulemaking guidance

Q1. Please describe your organisation or role.

Professional association

Q2. Please give the name of your organisation, or your name if you are responding as an individual.

The College of Optometrists

Q3. Are you happy for your name/your organisation’s name to be included in any published reports?

Yes

Q4. Do you think that our fitness to practise guidance will help regulators to make best use of accepted outcomes, and use them in a way that is fair, transparent and protects the public?

This is not currently clear, as explained in the subsequent responses, and summarised in Q20.

Q5. Factor 1: ‘Has the registrant failed to accept the findings and/or impairment?’ Do you agree that regulators should consider this when deciding whether to resolve a case using an accepted outcome? 

Yes

Q6. Do you have any comments on this factor, or the bullet points listed in our guidance under this factor?

It is important that registrants have insight into their behaviour and actions, and are able to recognise and accept where they are at fault, and seek to make amends (where possible, and where given the opportunity). 

Failure to accept findings and/or impairment is important because it may show that a registrant has failed to show remorse or learning, or failed to recognise a factor impairing their practice, and therefore may repeat their action(s). Conversely, there may be situations where a registrant has not articulated their case well in their written evidence, and thus do not accept the resultant findings/impairment.  In these circumstances, the opportunity for cross-examination, or to explain further at a hearing, may help resolve the matter and ensure an appropriate outcome.

In addition, as per PSA bullet point 10.6 and 10.7, we agree that impairment is not always well understood by registrants; and although they may accept fault, they may not interpret this as being personally impaired. As “acceptance of impairment is a legislative requirement for disposal of a case by way of an accepted outcome”, we are concerned that many cases will result in a panel hearing anyway, as registrants will naturally want to argue that their fitness to practise is not impaired – something which they can only do at a panel hearing. 

Furthermore, registrants may accept that their fitness to practise was impaired temporarily at the time of the complaint, but may argue that it is not currently. Assuming that there is no option of accepting a ‘partial or temporary impairment’, this should be made clear to the registrant from the outset.

We also believe it will be important to clearly communicate any changes with registrants. In particular, registrants should be fully informed of what it means to agree to an accepted outcome, and the implications of doing so. There is a risk some registrants will accept the outcome in order to avoid a full hearing, without fully understanding the potential risks and benefits, and therefore not make an informed decision. 

Conversely, if a registrant fails to accept the outcome at case examiner stage, it is possible that this will result in a more serious sanction should they still be found to be impaired at the hearing stage – because this could be seen as evidence of the registrant’s lack of insight. This may prompt more registrants to accept the outcome at case examiner stage in order to avoid a perceived harsher sanction, and thus prevent their access to a fair, fully evidence-based panel hearing. 

Although The College of Optometrists does not deal with matters of insurance and legal defence, it has been raised with us that if a registrant accepts their impairment and the accepted outcome, this could have negative consequences on their ability to obtain future legal support and advocacy, should an appeal, or future action against them need to be taken.

Q7. Factor 2: ‘Is there a dispute of fact/conflict of evidence that can only be fairly tested at a hearing?’ Do you agree that regulators should consider this when deciding whether to resolve a case using an accepted outcome?

Yes

Q8. Do you have any comments on this factor, or the bullet points listed in the guidance under this factor?

In optometric practice, there will be occasions where the registrant will accept some of the findings of a case examiner, but reject others, and this may particularly occur in cases involving complex clinical issues. This may occur where there is conflicting evidence, such as when a patient/complainant says one thing and the registrant another. We believe that in these cases, an accepted outcome is not appropriate, and that a panel hearing involving experts in the field is the fairest way to reach a decision, as these matters may only be resolved when a wide range of opinions and evidence are considered. This is particularly important if the case examiner is not a registrant of the same profession. 

Furthermore, as a case examiner is only able to make a decision based on written evidence, there are clearly occasions where a hearing to receive and test extended oral evidence would be more appropriate, and where additional follow-up questions can be asked.

PSA bullet point 10.19 states: 

We do not seek to spell out circumstances or types of cases where a hearing may be required to test the evidence, but would expect case examiners to be able to identify these. We believe that in matters of clinical dispute, a lay case examiner may not have the knowledge to identify whether a hearing is necessary.

Q9. Factor 3: ‘Does the complexity of the case suggest that a hearing may be beneficial?’ Do you agree that regulators should consider this when deciding whether to resolve a case using an accepted outcome?

Yes

Q10. Do you have any comments on this factor, or the bullet points listed in the guidance under this factor? 

We agree with the response from a ‘healthcare professional regulator’ in PSA bullet point 10.20:

‘there may be some types of cases that might be more appropriately dealt with by a panel hearing. This could include cases involving more complex or challenging clinical issues, where there is a difference of opinion that needs to be explored.’

In such circumstances it would be essential that the case is heard at a panel, and we would therefore disagree with PSA bullet point 10.22: 

We would expect case examiners to be generally capable of dealing with complex cases without the need to refer to a panel. 

This would be particularly challenging if there is only one case examiner.

Q11. Factor 4: ‘Would it be beneficial and proportionate to test insight at a hearing?’ Do you agree that regulators should consider this when deciding whether to resolve a case using an accepted outcome?

Yes

Q12. Do you have any comments on this factor or the bullet points listed in the guidance under this factor?

As stated in question 6, it is important that registrants have insight into their behaviour and actions, and are able to recognise and accept where they are at fault, and seek to make amends (where possible, and where given the opportunity).

However, we believe that it many cases it would be difficult for a case examiner to fully assess insight from written evidence alone, and therefore many cases would need to be referred to a panel hearing. Furthermore, a registrant may submit extensive CPD and written evidence, but the quality may not be good, and the case examiner may not be confident that they are able to assess whether the registrant has shown insight. This may be more likely for certain groups of registrants, for example where English is not their first language, or where they have dyslexia or other disorders that impact their reading and writing skills. This could lead to discrimination and bias against particular groups of registrants, including those with protected characteristics. Overall, the guidance should give a stronger steer on how to ensure accepted outcomes processes are inclusive and can be adapted to meet individuals’ needs.     

Fitness to practise proceedings are very stressful for registrants, and they may accept the case examiner’s outcome in order to avoid a longer process.  However, this increases the risk that a registrant unnecessarily accepts fault when a panel may ultimately decide that no sanction is required after considering the full evidence.

Q13. Factor 5: Lay representation in decision-making. Do you agree that regulators should continue to ensure lay representation at some point in the fitness to practise decision-making process?

Yes

Q14. Factor 6: The use of single decision-makers. Do you agree that some fitness to practise cases may benefit from more than one decision-maker?

Don’t know

Q15. Do you have any comments on the bullet points listed in the guidance relating to the composition of decision makers? (See paragraph 7.29)

We believe that all fitness to practise cases - not just some - would benefit from more than one decision-maker (hence we have answered ‘don’t know’ in Q14 above). Currently, GOC case examiners work in pairs, and do so when making Agreed Panel Disposal decisions, which are similar to accepted outcomes.

There is a significant risk that bias – both conscious and unconscious – could adversely affect a single person’s ability to make a fair decision and ensure consistency of outcomes, both within a profession and across the professions. Whilst we do not have data or case studies to present, bias in decision making is well-documented, and can lead to unfair and unequal decision outcomes.  

In addition, we believe that it is important that clinical complaints should be considered by a case examiner who is of the same profession as that of the registrant. This would be the appropriate way to proceed both in terms of efficiency and fairness to the registrant, particularly where complex and disputed clinical aspects need to be understood. 

Another option would be to have clinical case examiners deal with clinical complaints, and non-clinical case examiners (perhaps with a special interest e.g. fraud) deal with non-clinical complaints – which would also help to improve consistency in decision making. However, as the duty of health regulators is to protect the public, we believe that lay case examiners have an important role in considering the public/patients’ best interests, and should not be overlooked. It is possible (and has been recognised in the guidance) that, because the case examiners are not independent from the regulator, there will be inherent bias in their work – due to factors such as training, culture and internal targets, among others. The involvement of joint lay case examiners will help mitigate this risk.

As per our response to question 13, we believe it to be important that regulators continue to ensure lay representation as a critical aspect throughout the fitness to practise decision-making process – regardless of whether the complaint is clinical or not, or at what point in the process a decision on sanctions is made. This would act to prevent positive and ‘favourable’ bias from a registrant case examiner to a registrant of the same profession, and also act to further uphold public confidence in the process.

Q16. Factor 7: publishing case examiner decisions. Do you agree that the bullet points in the guidance under this factor are the right ones?

Yes

Q17. Do you have any comments on the bullet points listed in the guidance under this factor?

None

Q18. Factor 8: Promoting a fair and effective accepted outcomes process. Do you agree that the bullet points listed under this factor in the guidance are the right ones?

No

Q19. Do you have any comments on the bullet points listed in the guidance under this factor?

While the bullet points do acknowledge the risks related to the independence of decision-makers and the impacts of the suggested revisions to the accepted outcomes process on people who hold shared protected characteristics, we do not feel they go far enough. We would like the guidance to make clear the steps regulators should take, particularly with ensuring that the accepted outcomes process is inclusive, fair and accessible to all registrants.

Q20. Please set out any impacts that the guidance would be likely to have on you and/or your organisation, or considerations that we should take into account when assessing the impact of our proposals.

Regulators should be able to resolve fitness to practise concerns in a way that is fair to all parties, proportionate and as swift as possible; and seek to have fewer cases unnecessarily proceeding to full hearings, which will save time, stress and costs for all parties. We therefore broadly agree with the intentions behind the proposals outlined to address these matters, and are aware that similar decisions are already being made via Agreed Panel Disposal decisions by the General Optical Council. However, unintended consequences must be considered before finalising any changes to the process, and the principle of a fair process for all registrants must be upheld, alongside stringent protection of the public.

If accepted by the General Optical Council, the proposed changes to the guidance will clearly have an impact on optometrists who are subject to fitness to practise proceedings in the future. In particular, the proposal to deal with more cases at case examiner stage, and the proposal that one case examiner is sufficient to deal with most cases, will be a departure from the GOC’s current model. As stated in our responses above, we do have concerns that a single case examiner model may not be the most appropriate approach for most cases, particularly in matters of complex or disputed clinical matters. Furthermore, we have concerns about potential bias, and a lack of consistency in decision making if using one examiner.

An unintended consequence of the proposed changes is that more written information (and possibly all the information relating to the case) will be required at the early stage of investigation, regardless of its severity. The review of greater volumes of evidence by clinical (optometric) advisers to aid the case examiners could result in delays, even if the case is relatively simple. In addition, there could be an over-emphasis on the quality and quantity of the information required, which could result in further and unnecessary delays in relatively simple cases.

It is also important to ensure consistency between regulators by providing clear guidelines (and powers) to decide what to investigate, how to investigate concerns, and who is the best person(s) to investigate and reach a decision. A lack of clarity could result in different regulators applying different thresholds at case examiner stage, resulting in different outcomes, which will impact on equity of healthcare regulation and the overall public perception of how healthcare professionals are regulated. Nevertheless, we do still believe each regulator should maintain the ability to adapt processes to suit their own professions needs and nuances.

Q21. Are there any aspects of our proposals that you feel could result in different treatment of, or impact on, groups or individuals based on the following characteristics as defined under the Equality Act 2010?

Yes

As highlighted in our response to Q12, the move to increasing the number of accepted outcomes at case examiner stage through the reliance on written evidence, may negatively impact some registrants. The suggested new process could lead to discrimination and bias against particular groups of registrants, including those with protected characteristics. For example, this is more likely for registrants where English is not their first language, or who have dyslexia or other disorders that impact their reading and writing skills. Overall, the guidance should give a stronger steer on how to ensure accepted outcomes processes are inclusive and can be adapted to meet individuals’ needs.

Q22: Do you think our guidance will help regulators exercise their rulemaking powers effectively?

Yes, with caveats. Rulemaking powers are the most significant changes brought about by the Government’s regulatory reform. As no regulators have yet adopted the rulemaking powers as laid out in the AAPA Order, they will benefit from clear guidance. However, we feel that further guidance will be needed to better support regulators in exercising certain rulemaking powers, e.g. consistency of regulatory practice between regulators. See our responses to Q23, Q24, Q25, Q26, Q27 and Q28 for more details.

In addition, we recommend that this guidance should provide each regulator enough flexibility to fulfil their functions and duties, and to adapt to the needs and specificities of each profession they are regulating. We also recommend that this guidance is regularly reviewed and updated as and when further information and learning on good practice is available.

Q23. Do you think that the principles outlined are the right ones?

Yes, with caveats.

Q24. Do you have any comments to make on the principles listed or any additional principles to suggest?

We are supportive of a process that aims to deliver a consistent and flexible system of regulation for health and care professionals across the UK. We understand that the PSA may choose to look at how regulators are making use of their new rulemaking powers under performance reviews by taking this guidance into account. However, while we welcome the consistency steps outlined in Annex A, we recommend that the PSA provides more guidance on what would happen in a situation where the PSA disagrees with a regulator in justifying disparity under these performance reviews. For example, would the rule be suspended? Would the regulator be asked to amend it? We are concerned that this may create uncertainties for both registrants and the public, and potentially damage the overall public perception of how healthcare professionals are regulated. 

We also recommend clarifying when this principle of consistency will be reviewed by the PSA. For example, would it be before or during the development or amendment of a rule, only after a rule has been approved, or during performance reviews, after rules have been approved and implemented?

Furthermore, we cannot expect regulators to work in dialogue with nine other regulators to ensure consistency of approach and transparency about why variation exists, without additional support. We are concerned that this would lengthen the rulemaking process and hamper the regulators’ capacity to swiftly respond to changes in the external environment – which is one of the others PSA’s proposed principles for good rulemaking. The PSA should set up a forum to enable best practice sharing and learning between regulators.

We also recommend that the PSA should add some examples on how regulation will:

• Facilitate multi-disciplinary team working and innovative practice. Examples could include:
  • Publishing post-registration qualifications on the register will help maintain professional and public confidence in registrants providing additional services beyond their core scope of practice/competences. 
  • Be agile. Examples could include:
    • Allowing education providers to adapt to a period of emergency and understand the changes needed in education delivery, and to quality assurance activities of regulator-approved education during that emergency.
    • Clarifying the possibility for regulators to allow registrants to work in different settings, outside their usual scope of practice. For example, during the COVID-19 pandemic, the NHS invited registered healthcare professionals, such as optometrists, dispensing opticians and students, to support the wider COVID-19 response by using their professional skills and experience in different settings, back-filling other roles in the health and care sector to fill workforce gaps. This could include clinical roles outside of their usual setting (e.g. in a pharmacy or in a hospital, such as monitoring blood pressure, or providing vaccinations).

Under 4.3, we recommend that the process should be “underpinned by transparent, robust and clear internal governance”. It is important to ensure that decisions are consistent, as well as being made with the right level of independence, fairness and impartiality.

Finally, we recommend that the PSA provides more information on what is meant by “meaningful consultation” or refers to relevant guidance on this. Any consultation process should be timely, accessible, transparent and provide enough information to consultees, and any decisions/changes to rules should be communicated and implemented with enough notice. Due to the complexity of some processes, i.e. fitness to practise, it is important to ensure appropriate professional knowledge is utilised in the process so that sector specific needs and differences are considered. It is vital therefore that any new system ensures regular and sufficient input from representatives of the professions regulated on all points. This input should reflect the skills, experiences and insights which the regulated professions can bring to the work of their regulators. 

Q 25. Do you think that the guidance on consistency between regulators (avoiding unjustifiable difference) is helpful?

No

Q26. Do you have any comments to make on this section of the guidance?

See our response to Q24.

More detailed guidance is needed to support regulators to ensure as much consistency as possible. Guidance should answer, as a minimum, the following questions:

• How will regulators ensure consistency with nine other regulators, besides following the consistency steps outlined in Annex A?
• Who will regulators consult to ensure consistency? Will it be the PSA as the only organisation overseeing all health regulators? Will it be each of the other nine regulators?
• When will consistency be assessed, e.g. before or during developing/amending rules, or during PSA’s performance reviews?
• What will happen if regulators cannot justify disparity before or during developing/amending rules, or when a rule is already being implemented?

As mentioned in Q24, we are concerned that this would greatly lengthen the rulemaking process and therefore may lead to different interpretations of what consistency would entail.

Q 27. Do you think that the guidance on consultation is helpful?

Don’t know

Q28. Do you have any comments to make on this section of the guidance?

See our response to Q24.

Consultation will be an increasingly important accountability mechanism for rulemaking with the removal of the Privy Council approval stage and we welcome more detailed guidance to support regulators. The Cabinet Office consultation principles published in 2018 also provide useful clear and concise guidance to all organisations in formulating and carrying out effective and meaningful consultation. We recommend signposting regulators to this guidance, as well as the Scottish Government guidance.

Q29. Do you think that the guidance on governance is helpful?

Yes

Q30. Do you have any comments to make on this section of the guidance?

See our response to Q24.

We think that this section on governance is helpful as it appropriately signposts regulators to existing guidance.

Q31. Please set out any impacts that our guidance would be likely to have on you and/or your organisation, or considerations that we should take into account when assessing the impact of the proposals.

See our responses to Q23, Q24, Q25 and Q26.

Although this guidance will not have any official status or be binding on regulators, those regulators that are first to be subject to reformed legislation will effectively create a template for other regulators to consider when their relevant legislation is reformed. It will be vital for the PSA to encourage learning and good practice to be shared, and to facilitate such collaboration between regulators, and to keep ensuring that this guidance continues to provide each regulator enough flexibility to fulfil their functions and duties, and to adapt to the needs and specificities of each profession they are regulating.

Q32. Are there any aspects of these proposals that you feel could result in different treatment of, or impact on, groups or individuals based on the following characteristics as defined under the Equality Act 2010

Don’t know

We do not have the necessary data to inform a view.

If you have responded ‘yes’ about any of the above, please provide further details, explain why and what could be done to change this.

N/A