On 1 September the Professional Standards Authority (PSA) issued draft guidance regarding the management of hearings during the COVID-19 pandemic for those regulators whose work they oversee. They are seeking comments on the draft guidance by 11 September and hope to publish the final guidance by the end of this month.
Fitness to practise hearings
Those of us working in fitness to practise regulation are well aware of the effect the current pandemic has had upon the ability of regulators to progress cases. Although this is most obviously seen in the pausing by most regulators of a large number of their hearings, it has also caused delay in progressing investigations either because individual regulators have decided not to progress some cases relating to those on the “front line” or where the particular circumstances of witnesses and registrants means that cases have had to be put on hold.
The PSA’s guidance reiterates what we all know: that delay in the investigation and hearing of fitness to practise cases is a problem for registrants and regulators. For registrants, it means that they have the worry and stress of regulatory intervention hanging over them for longer than would otherwise be the case. For regulators, it results in a backlog of cases and can, if not properly managed, affect their ability to protect the public, maintain public confidence in the professions and uphold appropriate and proper standards of behaviour and practise.
The COVID-19 pandemic
It is no surprise, then, that regulators have been carefully considering how they can continue to achieve these objectives during the pandemic. In our own experience, some regulators have advanced their thinking more quickly than others and regulators have responded in different ways to the challenge of progressing hearings without affecting the integrity and fairness of them.
We are seeing an increasing number of regulators moving away from undertaking only procedural, interim order and review hearings remotely to being prepared to consider undertaking more substantive hearings remotely, in person or a hybrid of the two. On the 2 September, the day after the publication of the PSA’s draft guidance, the NMC published its own route map to the holding of “in person” hearings from 14 September.
PSA guidance for regulators
The PSA guidance is helpful because it brings together in one place the current learning from experience of regulators and representative bodies.
Having just been involved in a five week contested virtual hearing which included lay and expert witnesses and some complex clinical issues we can say that it is possible to hold even long and difficult hearings remotely so long as very careful consideration is given to the management of the hearing, disclosure of evidence, witnesses, privacy, publicity, etc.
All of these things and more form the basis of the PSA’s proposed criteria to be adopted by regulators when considering virtual hearings. They will provide transparency to everyone involved in a hearing and promote consistency amongst the regulators. Both of these are welcome.
The PSA has made it clear that it will take this guidance into account during their performance reviews. It is important therefore that regulators consider responding to the consultation, because there is an opportunity to refine and shape the guidance before it is published. Representative organisations are also encouraged to respond, particularly if they feel that the guidance as currently drafted does not fully take account of the concerns their members have regarding the use of virtual hearings.
Perhaps the most interesting aspect of this conversation will be how regulators embrace this new way of doing things when the pandemic is over. It will be a missed opportunity if we simply go back to how things were. There are benefits in appropriate cases to both those regulated and the regulators in a more nuanced and modern approach to how fitness to practise regulation may be delivered in the future.
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