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Perspectives

“You are not alone”

Protracted and stressful: AOP solicitor Shamma Masud explains to OT  the emotional toll of the fitness to practise proceedings process – and how this needs to change

man walking
Pexels/Umberto Shaw
‘Despair.’ ‘Anxiety and stress.’ ‘Retirement is the only way out for me.’ Having gone through a General Optical Council’s fitness to practise (FtP) proceeding, these comments are some of the first-hand views that AOP members have shared with me and other members of the legal team.

In my role as a solicitor, I support AOP members who suffer emotional trauma and sometimes long-term mental and or physical health implications following an investigation – even if no action is taken by the regulator. This comes in addition to the financial impact and reputational damage that an FtP investigation can cause a registrant.

Anxiety and stress

The public needs to be protected, and a fundamental aspect of this is to investigate FtP concerns – but this must be fair, proportionate and support those practitioners under investigation. Interim order hearings, for example, must be prioritised and heard punctually where there is a risk to the public, the registrant, or is in the public interest – not several months after the incident concerned is reported.

It is also important that registrants that are ill are treated, not punished. An investigation can often feel punitive, even if that is not the intended purpose. Suicide is a risk that needs to be addressed by the system in addition to the rising complaints of mental health conditions being found in registrants subject to an FtP investigation.

AOP members frequently cite feelings of acute anxiety, stress, depression and avoidance, and the legal team frequently hear statements to the effect of, ‘I’ve not been able to read the correspondence I receive because it causes me such dread and anxiety.”

In turn, and during FtP hearings, committees are now hearing an increase in mitigation concerning a registrant’s health status, which has been instigated or exacerbated by the duration of the investigation.

This is the case for registrants who are legally represented, but the impact on registrants without legal representation or legal assistance is even more concerning and should not be underestimated.

The regulatory system is already under strain – and it is unable to routinely adjust for registrants with mental health conditions either during the investigation or the hearing process. This was the situation both pre and during COVID-19, and we in the AOP team are seeing greater anxiety and stress being voiced by members given the uncertainties regarding employment, health and finances.

It is worth noting that complainants and witnesses in the FtP referral process also report that the investigation and hearing process can be protracted, difficult, and isolating.

The regulatory system is already under strain – and it is unable to routinely adjust for registrants with mental health conditions

 

Unfortunately, my casework experience suggests that most complaints could have been dealt with by employers at a local level, but are not, and are then escalated prematurely to the GOC and the NHS. This prevents matters being settled amicably outside of the regulatory setting to all the parties’ satisfaction.

The advent of remote hearings in 2020 creates further considerations to be mindful of. Signs of stress can be missed over a remote video link.

Potential for change

My experience reveals practitioners have no confidence in the regulatory processes. Hearings are viewed as highly contentious, public, dragging on for months, even years, and this can have a tremendous impact on mental health and have a longstanding impact on a practitioner’s reputation.

What, then, needs to change to reflect and respond to these concerns?

The Department of Health’s Promoting professionalism, reforming regulation consultation in 2017 poignantly highlights how the approach of regulators need to adapt: “A strong focus on fitness to practise and conducting cases in an adversarial way affects the outlook and culture of the regulatory bodies. The legalistic and defensive nature of the regulators can make them seem unapproachable and bureaucratic to both complainants and registrants.”

Data released in 2019 by the Professional Standard Authority’s performance review of the General Optical Council also shows that cases were open for 112 weeks on average, noting “the GOC’s performance against the dataset remains among the slowest of the regulators we oversee.”

Both are areas for improvement.

For those members reading this who are feeling stressed by a GOC investigation, your AOP solicitor is on hand to talk through your concerns. To feel daunted and helpless is understandable; the AOP Legal Helpline and AOP Peer Support Line provide a confidential service if you need it, and the Samaritans also provide expert assistance.

About the author

Shamma Masud is a solicitor for the AOP.