Viewpoint: Covid-19 has caused regulatory corners to be cut

MDDUS CEO Chris Kenny spoke at a recent Professional Standards Authority symposium, looking at some of the key changes that regulators have made in response to the pandemic.

CUTTING corners is sometimes necessary and sometimes dangerous. On holiday in Corsica many years ago, I was given a fine example. Talking to a local about the number of cars that were seen wrecked having fallen off mountain roads, the local explained that this was only logical: narrow unfenced mountain roads with hairpin bends were the most dangerous conditions possible. Therefore, the faster one drove, the faster you are out of the danger!

Covid-19 has caused some regulatory corners to be cut. But how many of those have been a necessary pragmatic response to problems? How many actually are genuinely a creative and new way forward? And how many have mimicked the result of the apparently logical Corsican driver?

On the whole, I’d say the balance is very positive. We have seen genuinely agile and inclusive policy-making. In particular, I’d single out how well the GMC dealt with the reregistration of those retirees who wanted to re-join the workforce to do their bit in the early days of the pandemic. There was a clear, objective and genuine engagement around the details and therefore rapid and effective delivery.

There has been genuine care for registrants going through the fitness to practise (FTP) process. The importance of recognising the stress of these events for the registrant has grown in recent years. However, there is no doubt that the experience of Covid-19 had brought it front and centre of regulatory attention.

Finally there have been rapid and pragmatic changes to operations and protocols to recognise the unprecedented times in which we have found ourselves.

Many of these are changes we would like to embed. The quality and agility of policy-making by regulators in the last seven months is in stark contrast to the inexcusable delay in tackling the many agreed flaws in statutory professional regulation that have been well documented for the best part of a decade. Yes, due process in policy-making is important. But that value is lost when it gets in the way of agility, genuine engagement and practical problem-solving.

Procedural flexibility matters as well. From our perspective, remote Interim Orders Committees run by the GDC have worked very well and could be continued. Likewise, some procedural review matters can be handled without the cost and stress of full hearings.

But we do pause at the idea that substantive hearings should be run remotely. As a general rule, we would start from the proposition that the greater the jeopardy to the registrant, the stronger the presumption that the hearing should be in person.

This is not, as perhaps might have been argued a decade or so ago, so that the panel can "see the cut of a fellow’s jib". There is little or no evidential value to be given to conclusions drawn simply from somebody's demeanour, whether that person is the complainant, expert or registrant. But the nature of the conversation on examination is different when body language can be seen, and are judged and therefore different lines of questioning pursuit as a result.

In other words, demeanour is not evidence, but it can help in the generation of a wider and more nuanced set of evidence which a tribunal needs to ensure that it has the full picture available to it. The loss of that is one too many corners being cut – and one that not only brings potentially appalling consequences for the registrant, but also a potential loss of faith in the process as a whole.

To end on a positive note, I heartily applaud the GMC's recent guidance on matters to be taken into account in considering cases raised in relation to Covid-19, which seems to us to absolutely capture the importance of a fully nuanced understanding of context as part of the rich evidence needed to inform FTP decisions.

It really is vital that professionals and public alike do not simply have a realistic understanding now of the constraints and difficulties and management of the pandemic presents to professionals – but that this collective memory is retained now, so that it can be reflected in hearings taking place in perhaps four or five years’ time.

The work that the GMC has started in beginning to categorise Covid-19-related issues that would not normally trigger action (those that might cause reflection rather than formal action) and the narrower consequences where, making every allowance for context, firm sanctions are needed is enormously helpful. It will, I hope, be replicated by other regulators.

That seems a fine example of a corner taken with due care and attention, which will help get to an outcome that commands wide professional, patient and public credibility.

This blog was first published on the Professional Standards Authority website on 19 November 2020. Access here.

Chris Kenny, CEO of MDDUS

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