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Insights

06 May 2020

Fitness to Practise hearings under lockdown

Healthcare regulators have a statutory obligation to protect the public, uphold proper standards in the profession and to maintain public confidence in the profession. 

There are various tools in the regulators' armoury to enable them to meet their statutory obligations - the regulation of entry into the profession, publication of standards and guidance, inspecting premises and requiring some form of continuing professional development or revalidation.

Ultimately all statutory healthcare regulators have the power to sanction those whose conduct is found to have fallen below appropriate standards through a fitness to practise process.

The specific mechanism for the fitness to practise process varies depending on the particular regulator. Looking at the General Pharmaceutical Council specifically (which regulates pharmacists, pharmacy technicians and pharmacy premises), a concern is initially investigated by a team of inspectors and case workers. Evidence may be gathered, including questions raised of the registrant. Where the concern is sufficiently serious and supported by evidence, the concern will be referred to the Investigating Committee, which acts as a screening committee.

For the most serious cases, concerns will be referred on to a fitness to practise committee (FtPC) to hold a hearing. Those hearings are adversarial in nature - the Council presents the case against the pharmacist, the pharmacist presents his or her case in response and the FtPC deliberates and makes appropriate findings. The process often involves cross-examination of witnesses and submissions to the FtPC.

In light of the coronavirus outbreak, it is therefore unsurprising that the GPhC, along with other regulators, has announced that most FtPC hearings will be postponed until participants can be present in the same room as each other. 

However, some types of hearing are continuing, including hearings to consider applications for restoration to the register and interim order hearings.

I recently represented a client who had made an application for restoration to the GPhC register. The former pharmacist had been struck off the register some years ago in respect of an admitted fraud, The GPhC proposed that a FtPC hearing should be held to consider the restoration application and that this should take place via video-link. The proposal was that we would all join the hearing remotely, including the three FtPC members who would be in their individual homes. 

The client and I shared some concerns about how this would work in practice, for example how would I take my client's instructions when making representations on his behalf, and, given the importance that the pharmacist demonstrated insight into his previous misconduct, how well would he come across on a screen where it is more difficult to "look the Committee members in the eye" and express sincere remorse and insight?

In fact, the hearing passed without any difficulties. The technology worked well (everyone could see and hear each other) and my client and I were able to participate fully and appropriately in the virtual hearing. The client was restored to the register, so, obviously, was particularly happy that we had decided to proceed.

More recently we represented a different client at an interim order review hearing. There was no choice to delay the hearing - there are statutory review periods for interim orders - so it had to go ahead using remote video-conferencing technology.

There was an additional challenge with this hearing because we instructed counsel to represent the client (who was absent due to ill health). For those who have instructed counsel in a traditional hearing setting, you will be accustomed to the flow of information between client, solicitor and counsel, and the whispered instructions or scribbled notes as a question is posed or a statement given by the opposing party or committee member. A particular challenge, then, where counsel and instructing solicitors are both at their own homes many miles apart! The solution? Text messaging between me and counsel seemed to work, and the FtPC were tolerant of counsel breaking off to read his phone whilst he and I texted each other.

All in all, the use of video-conferencing for FtPC hearings has been a reasonable option where hearings cannot be delayed. The technology has been up to the task, allowing all parties to participate effectively, and solutions have been found to the particular challenges that remote attendance represents. Committees have been tolerant and the hearings have been approached in a spirit of acceptance that holding remote hearings is not ideal but may be the best option for the time being.

Having said that, I do not think that a remote hearing would be suitable for all types of FtPC cases. If hearings are likely to involve detailed cross-examination of witnesses, for example, an adjournment is probably going to be preferable if possible to allow a "traditional" hearing to take place. 

Hopefully, those adjournments will not be for too long, though, because people facing fitness to practise proceedings have a heavy weight hanging over them, and it is in no-ones interests for fitness to practise cases to take too long to reach a conclusion.

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