The introduction of Accepted Outcomes in Fitness to Practise cases

The Government is currently reviewing legislation relating to healthcare regulators. As part of planned reforms, it intends to introduce a quicker way for some fitness to practise cases to be resolved where it is accepted that fitness to practise has been impaired.

The Accepted Outcome process is designed to be a paper-based process where a case examiner can conclude a fitness to practise case where:

The registrant has accepted their fitness to practise is impaired;
The registrant has accepted the case examiner’s findings; and
The registrant has agreed to a final measure (sanction).

Where a registrant does not respond to a case examiner’s offer of an Accepted Outcome within a certain period of time, the case examiner can impose a final measure without their agreement.

This mirrors the provisions in the recently-enacted Anaesthesia Associates and Physician Associates Order 2024, specifically in Article 10.

The current process for a registrant who admits the facts of the allegations and impairment is that they have to wait for a case examiner to make a case to answer decision, refer the matter to a Final Hearing and then disposal by consent can be considered. Even then, if a consensual disposal is agreed between the registrant and the regulator, the matter has to be referred to a hearing for a panel to sign it off. It is a lengthy (and many consider unnecessary) process. It is however worth noting that the GDC does have a process of a registrant agreeing undertakings with a case examiner which is similar to the new process.

Guidance published by the Professional Standards Authority (the oversight regulator for the healthcare regulators) has also set out clear examples of when an Accepted Outcome would not be appropriate. This includes where:

There is a dispute of fact/conflict of evidence that can only be tested at a hearing
There is complexity in the case or evidence suggesting that a hearing may be beneficial
It would be beneficial and proportionate to test insight at a hearing.

Further, where the allegations are of a serious nature, such as dishonesty or sexual allegations, it is unlikely to be appropriate for a case to be concluded by way of an Accepted Outcome (even where the facts and impairment are admitted by the registrant), as the public interest may demand a hearing in any event.

This change is greatly welcomed, as it would mean suitable cases can conclude much quicker than they currently do, which is beneficial to both registrants and anyone impacted by the registrant’s actions. In relation to most healthcare regulators, even where a registrant admits the facts of the allegations and impairment, they have to wait for the case to proceed through the case examiners for a case to answer decision to be made and then to be referred to a Final Hearing. This new process would eliminate the need for a Final Hearing to take place. Often it takes years from first reporting to Final Hearing. Recent research shows theprofoundly negative impact ongoing fitness to practise proceedings can have on practitioners (see for example, a 2022 report on GDC fitness to practise cases or a 2014 report on doctors who commit suicide while under GMC fitness to practise investigation). This is particularly so when registrants have admitted the facts and impairment, are prepared to face the consequences and just want to move on with their lives but are unable to do so until the fitness to practise proceedings are over.

It also helps to shift the focus away from fitness to practise being adversarial, as the GDC report noted: “This is misaligned with the Fitness to Practise process being concerned with establishing a finding of fact about a registrant’s potential impairment, as set out in the legal framework governing the process.” The main purpose of fitness to practise proceedings is protection of the public; it is unnecessary for the process to be adversarial to achieve that.

It is also likely to make the fitness to practise process more effective overall. Given the lengthy delays, witnesses often disengage by the time the Final Hearing actually takes place. This negatively impacts the case the regulator has, sometimes resulting in allegations having to be discontinued. Long delays also mean that in some cases, the registrant has been allowed to continue to practise (potentially unrestricted) for years since the incident(s) in question. As the main purpose of a regulator is protection of the public, the benefit of a registrant being sanctioned for something that happened years ago with no issues since is questionable.

It is also hoped that this will save money for regulators and registrants alike, as the fitness to practise process is extremely expensive. In 2021, the GMC spent over £46million on fitness to practise, accounting for almost 40% of their total expenditure. By reducing the need for all cases to proceed to a Final Hearing, it is expected such expenditure will greatly reduce.

The only controversial proposal is for a case examiner to have the power to impose a final measure following an offer of an Accepted Outcome where the registrant does not respond. There are a whole host of (often legitimate) reasons why a registrant does not engage (or stops engaging) with the fitness to practise process, most of which would make it unfair to impose a sanction on them without them having the opportunity to respond. This often includes poor mental health. The literature is not clear on whether it would be a prerequisite to a case examiner making an offer for the registrant to accept the case examiner’s findings and that their fitness to practise is impaired. If not, that could risk registrants having findings made against them and sanctions imposed on them that they have not had the chance to contest at a Final Hearing. This could, in turn, result in more appeals to panels, which would ultimately defeat the purposes of the Accepted Outcomes process.