Professional Discipline & Regulatory Team – Quarterly Update – Spring 2022.

Welcome to the Professional Discipline and Regulatory Law Team Spring 2022 update

Guidance Updates

Crucible's professional disciplinary team have experienced some reluctance on the part of the healthcare regulators in moving towards in person hearings, as standard. We would be interested to hear your experiences.

In the latest Joint Statement from the chief executives of statutory regulators of health and social care professionals seeks to assure Registrants that context will be properly considered when concerns are raised about their practises during the pandemic.

The General Medical Council ("GMC") has produced some helpful guidance on assessing risk to the public protection posed by a doctor as a result of concerns about their practise during the pandemic. The GMC has also committed to publishing, annually, data showing the number of doctors who have died while under GMC investigation. The data for January 2018 to December 2020 reveals that five doctors sadly took their own lives whilst awaiting an outcome. The GMC has further announced a wider drive to reduce the impact and stress of its fitness to practise processes.

The General Dental Council ("GDC") and Nursing and Midwifery Council ("NMC") have commissioned a joint report considering The concept of seriousness in fitness to practise - across regulator research. The research concluded the following:

• There is a general presumption of seriousness in relation to allegations of sexual misconduct, dishonesty and convictions, especially those attracting a custodial sentence
• The involvement of Registrants is a key factor in determining seriousness at impairment and sanction
• Legal advice and representation was also demonstrated to have a positive influence on outcomes
• Environmental issues, including evidence about interpersonal relationships; staffing and resources; workplace culture; supervision and management; organisational and process issues were more likely to be accepted as mitigation when corroborating evidence was presented.
• Panels provided inconsistent interpretations of the meaning of public confidence.

The report concluded that public confidence was a nebulous and ill-defined concept. The Crucible Professional Discipline and Regulatory team will be considering this topic in our summer webinar series.

The GMC and NMC have jointly created Duty of Candour Guidance encouraging doctors and nurses to be open when things go wrong. This is essential reading for those practising in healthcare regulation.

In inquests, practitioners should be aware that Guidance Notes 35-38 have been absorbed into Guidance Note 34, which was updated and revised on 16 December 2021.

The Covid 19 inquiry is consulting on the draft terms of reference, published in March 2022. The consultation closes on 7 April 2022.

Laura Bayley and eight barristers from the inaugural Bar Council Leadership Programme launched the Bar’s first ever Equality, Diversity and Inclusion Directory.

In the news

The long awaited final report from the Ockenden Independent Review of maternity services at the Shrewsbury and Telford Hospitals NHS Trust has been published this week. The review is the largest of its kind in NHS history, considering 1592 clinical incidents. The report provides invaluable guidance to maternity services across the country, recommending 15 Immediate Essential Actions be rolled out across England (page 160), with an emphasis on safer staffing levels. This, at a time when the NHS has identified a shortage of some 2000 midwives nationally, will require significant further investment, estimated at between £200m-£350m.

The controversy surrounding compulsory vaccinations continues, with the Department of Health and Social Care now consulting on Revoking vaccination as a condition of deployment across all health and social care.

We continue to await a response to the DHSC consultation, Regulating healthcare professionals, protecting the public, which Crucible responded to in June 2021.

Case Law Updates

Claire Robinson has published a case law update considering the perils of social media.

Briony Molyneux considers a controversial SRA case.

Laura Bayley highlights a recent authority considering good character, dishonesty and rejected defences: Sawati v GMC

The Court of Appeal, in the recent case of DBS v AB [2021] 11 WLUK 1, provided guidance on the powers of the Upper Tribunal on appeal. The Court of Appeal interpreted s4(6) of the Safeguarding Vulnerable Groups Act 2006 to mean that the Upper Tribunal may only direct the removal of the name of a person from a barred list where that is the only decision that the DBS could lawfully reach in light of the law and the facts as found by the Upper Tribunal. In all other cases, the matter must be remitted back to the DBS for a fresh decision based upon the findings of fact as decided by the Upper Tribunal.