Response to the PSA’s consultation on good practice guidance documents

NHS Employers has made a submission to the Professional Standards Authority's latest consultation.

25 April 2024

The Professional Standards Authority (PSA) recently sought feedback on two draft guidance documents that will support regulators in using their new powers around rulemaking and fitness to practise.

Government reforms will give professional regulators much greater flexibility both in how they develop their regulatory processes but also in how they make decisions about individual healthcare professionals. 

The guidance documents are intended to encourage a robust approach to make regulation better, fairer, simpler and more consistent.

The consultation closed on 15 April and a findings report will be published in due course.

Our response can be read in full below.

  • General comments 

    We are pleased to have the opportunity to respond to the Professional Standards Authority (PSA) consultation on the good practice guidance documents: 

    • Guidance on the use of Accepted Outcomes in Fitness to Practise 

    • Guidance on Rulemaking.

     We look forward to seeing how the PSA will use its unique role to help regulators to make best use of accepted outcomes, and use them in a way that is fair, transparent and protects the public. 

    Feedback to the consultation questions gathered from employers in the NHS 

    From the feedback we have gathered from employers within the NHS we can state that yes, they agree that the PSA fitness to practice 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. However, they do make note of the following concerns which are given as direct quotes: 

    • “That there will be no consistency across the different regulators and the process is subject to regulators interpretation.” 

    • “The fairness of the process is all dependent on how it is shared on 'paper', and who is filling it in.” 

    • “The guidance relies on paper review for accepted outcomes and where this is not effective, they proceed to full hearing. Effective agreed outcome processes usually include a face-toface meeting to assess facts, acceptance and insight/learning. This middle ground may improve the uptake of accepted outcomes where some clarity / negotiation is required. This would be beneficial to include rather than simply revert to a full hearing.” 

    “Alternatively, a mediated session may be an effective middle approach to further explore the issues prior to a full hearing. Similar to judicial mediation this could reduce adversity and defensive responses. Thereby still achieving the aim of reducing duration and impact on individuals and witnesses while also protecting patient safety.” 

    • “It does not discuss the need or how to ensure equity of approach by differing bodies. There is a discrepancy between the way medical professionals are treated compared to other professions and this will potentially increase the opportunities for those differences in outcomes.” 

    • “This does not address the oversight of voluntary/unregistered groups and how they should be overseen.”

     From the feedback we have gathered from employers within the NHS we can state that yes, employers in the NHS agree that regulators should continue to ensure lay representation at some point in the fitness to practice decision-making process and that some fitness to practise cases may benefit from more than one decision-maker. 

    The feedback also highlights that yes, employers do feel worried that there are aspects of the proposals that could result in different treatment of, or impact on, groups or individuals based on characteristics as defined under the Equalities Act 2010. 

    NHS Employers would be interested to know what work the PSA has done or plans to do to evaluate any potential impact of the strategy or actions within it on people with protected characteristics. Employers’ concerns stated as direct quotes: 

    • race – “potentially as decision is dependent on what is put on paper with potential impact on outcome”. 

    • sex – “more men are employed as medics compared to other professions. As they tend to be legally represented earlier in the processes could this result in a disparity of implementation and outcome for women in other professions”. 

    • neurodiversity – “some people may not be able to fully appreciate this process. By accepting ‘fault/guilt’ they can lose face or be extremely fearful of repercussions that in turn stop them from being eligible for an accepted outcome. How to communicate and offer this process to everyone to aid understanding of the situation and possible consequences will be essential”. 

    To help mitigate the concerns identified, employers stress that creating an inclusive and safe culture at work is essential. 

    From the NHS employers that we engaged with we can state that yes, they do think the PSA guidance will help regulators exercise their rulemaking powers effectively. However, employers feel that: 

    • As this is guidance it still relies on each regulator’s interpretation. The fitness to practice process needs to be fair across all healthcare groups and have consistency. 

    • Similar referrals could be managed differently by different regulators and no fair or consistent approach and outcome across different staff groups. 

    • While it provides some clarity, there are no standard definitions of rule examples that would provide consistency. 

    • It does not include assistance in implementing the guidance so all professional bodies will continue to apply it individually dependent on the strength of their stakeholders and desire to change. 

    Overall, employers are pleased to see this regulatory reform. However, concerns exist that the proposed system appears to be quite arbitrary and dependent on individual team managers making a decision with no consistent criteria or central grip.

    NHS Employers is very grateful for the opportunity to submit a response to this consultation, while our respective remits are different, we have a shared interest in supporting health and care professionals and services to provide the saftest possible care. 

    We support the three strategic aims identified in the PSA’s strategy and welcome the commitments to equality, diversity, and inclusion, to facilitating better information sharing and a more joined-up approach to developing standards. These are all things that employers want from regulation going forward. 

    We look forward to seeing how the PSA will use its unique role as a positive force to drive change and to facilitate shared approaches across professional regulators.