Response to the Professional Standards Authority consultation on review of health regulators
Our response to the consultation, March 2021
This is our response to the Professional Standards Authority (PSA) consultation about its approach to reviewing the performance of healthcare regulators. The consultation ran from December 2020 to March 2021.
Q1. Are there other concerns about the current performance review process that we have not identified here?
We think the areas of focus listed in the consultation paper are appropriate. However, the challenge of assessing risk needs particular attention in this context. To be effective in its oversight of the healthcare professional regulators, we think the PSA should build and maintain a clearer understanding of the context within each regulator works and the nature of the risks to patients that they manage. This will require wide engagement with stakeholders including the regulated professions.
One example of the need for a good understanding of the optical sector’s professional context and patient risk profile is the PSA’s assessment of the GOC’s work in relation to illegal practice. The PSA has said that the GOC’s role is to regulate people and not products. However, PSA Standard twelve covers the risk of harm related to non-registrants undertaking a protected act. The GOC’s statutory overriding objective is to protect the public, and this requires oversight of a range of activities, including the sale and supply of optical appliances by non-registrants, in order to manage risks to patients and the public.
In our view the PSA’s past criticism of the GOC’s work on illegal practice is based on an overly narrow view of the GOC’s functions, which overlooks risks to patients that the GOC is both entitled and well placed to help manage. If anything, we think the GOC should do more to manage the risks that flow from unregulated suppliers deliberately evading the legal restrictions on supply to UK patients, working where appropriate with other regulatory bodies, such as Trading Standards or the Advertising Standards Authority.
Another weakness in the PSA’s current approach to assessing risk relates to large-scale projects, such as the GOC’s ongoing Education Strategic Review (ESR), which have the potential for significant long-term impact on the sector, and ultimately on patients. In our past evidence to PSA annual reviews of the GOC, we and other optical sector stakeholders have repeatedly raised concerns about the risks associated with the GOC’s approach to the ESR and the way in which those risks were being managed. However, the PSA’s annual review reports have not dealt with this major issue in any depth. It seems likely that the nature of the PSA’s current review process - an annual check of performance against a relatively limited set of standards – has been a factor in this, although the recent addition of a set of general standards may have enabled the PSA to take a wider view in its 2019/20 review of the GOC, which has not yet been published.
Q2. Do you have any comments on our role or the broad approach that we take to performance review as we have set out here?
For reasons explained in our response to question 1, we think the factors considered by the PSA as set out in paragraph 3.2 of the consultation paper should include not only the risks to the public posed by its registrants, but also risks relating to the restricted functions or practice that registrants are able to carry out, including illegal practice by non-registrants.
We agree that the PSA should consider how each regulator is working and engaging with others to address risks. Paragraph 3.2 gives the examples of engaging with patient groups and employers; we think the PSA should also specifically consider how the regulator engages with its registrants and their representative bodies.
Q3. Do you think we should continue to look at the regulators’ performance against all of the Standards every year or could the scope of our reviews be more targeted?
The current annual review cycle helps keep scrutiny on regulators’ performance in weaker areas, and it is vital that that the PSA maintains frequent assessments of the performance of regulators against Standards where there are established or emerging concerns. For instance, the GOC has performed poorly in recent years on the timeliness of its fitness to practise processes, causing unnecessary stress and delays for patients and registrants, and annual oversight from the PSA has helped to highlight this.
However, we can see the logic of assessing regulators’ performance less frequently where there are no existing or emerging concerns about a regulator’s performance, or previous patterns of under-performance. A more targeted and risk based approach to performance review would save resources and/or free up PSA capacity for other methods of risk assessment. Any reduction in the frequency of PSA reviews of the regulators should be done in a way that ensures emerging risks about a regulator’s performance are identified quickly. As discussed in our answer to question 5, this should involve annual PSA engagement with the registrants overseen by each regulator and the bodies that represent them, even if formal reviews take place less frequently than this.
Q4. If we were to change our approach, are these the right factors for us to consider in determining the scope of reviews? Is there anything else we should be considering?
The list of factors that might indicate a lower level of review in paragraph 3.10 includes “evidence that the regulator is reviewing its own performance regularly and taking action against concerns”. We think this should also include consideration of whether the action being taken is dealing effectively with the relevant concerns. This evidence should include feedback from stakeholders.
The list of factors that might indicate a need for a closer review set out in paragraph 3.12 seems sensible. We think the first bullet point should be expanded to include risks relating to the professional education and training of registrants, given regulators’ responsibilities in that area.
Q5. If we implemented a system as described above, do you agree that there should be a presumption that the Authority should actively review all of the Standards at regular intervals? What do you think an appropriate timeframe would be?
Yes, it is essential that the PSA should actively review all of the standards on a regular basis. In our view a maximum interval of 4 or 5 years would be too long to give confidence that a regulator’s performance had not deteriorated since the most recent review; the culture and operational performance of organisations can change significantly in a shorter space of time than five years. A maximum interval of 2 years would provide a reasonable level of confidence, and 3 years should be the longest maximum interval the PSA should consider for this purpose.
Whatever maximum interval is set for reviewing all performance standards, the PSA must ensure that it responds with agility where concerns about a regulator’s performance emerge. Feedback from stakeholders will become even more important if all performance standards are not automatically reviewed each year. The PSA should therefore engage with stakeholders, including registrants and their representative bodies, at least annually to seek feedback about the regulator’s performance. This should allow the PSA to investigate in a timely way where reasonable concerns have been raised.
Q6. Do you agree that we should introduce monitoring processes as described above? Do you have any comments on these suggestions?
We agree that formal monitoring processes should be introduced if annual reviews of every standard are dropped. This should include targeting both existing areas of poor performance in regulators and emerging areas of risk. This monitoring should include reviews of feedback from stakeholders such as patients and patient groups, registrants and the bodies representing them, as discussed in our answer to question 5. We have explained in our answer to question 8 why it is important for the PSA to engage more with registrants, and how it might do this.
Q7. Have we identified the right areas of our approach that we need to develop in this area? Is there anything else we should be considering?
The options identified for gathering evidence in relation to risk seem sensible. We strongly agree that the PSA needs to understand profession-specific risks and the different context within which the various professions operate, as set out in paragraph 3.21. We have highlighted this as a weakness of the current PSA performance review system in our answer to question 1. This sector knowledge will be particularly important for effective PSA oversight of the less high-profile healthcare professions beyond medicine and nursing. For example, in the optical sector some risks to patients from registrants’ practice relate to the mixed commercial and healthcare environment (high street primary care optical practices which sell spectacles as well as providing clinical services) within which most registered optometrists and dispensing opticians provide care.
Q8. How could we best engage with stakeholders, to ensure that we are aware of key risks to public protection? Is there any other evidence that we should be seeking to inform our performance reviews?
As we have said in our answers to other consultation questions, the PSA should engage effectively with registrants and their representative bodies, as well as patient groups and other stakeholders, as part of the evidence it gathers on regulators’ performance and risk. It should do this annually even if formal reviews of regulators’ performance against the PSA standards take place less frequently in future.
From registrants’ perspective, more and better engagement from the PSA would also raise their confidence in the professional regulation system as a whole, given the high level of influence that the healthcare professional regulators have over registrants’ practise, and the limited accountability the regulators have for the way they use that influence. We have said in our answers to questions 3 and 5 that the PSA should engage with registrants and their representative bodies at least annually, even if formal reviews take place less frequently. The PSA could also periodically conduct surveys with registrants about their perspective of how they are regulated. This would provide valuable information about each regulated profession and healthcare environment, and promote a broader understanding of regulators’ performance and emerging areas of risk.
The PSA should also ensure that each regulator makes the role of the PSA clear to its registrants, to help them understand how the professional regulators themselves are held accountable. While it may not be realistic for the PSA to handle day to day casework about individual registrants’ or patients’ concerns about a regulator, greater visibility of the PSA’s role and periodic engagement efforts would help build confidence in the system.
Q9. Should we retain the binary system or adopt a more nuanced approach?
Moving to a review system that gives a richer picture of each regulator’s performance against the PSA standards would be helpful. The binary system may give more confidence in the overall level of a regulator’s performance than is actually justified. In particular, the system can fail to capture areas of emerging risk where a regulator may seem to be performing adequately but there are significant underlying risks. For example, we have explained in our answer to question 1 how the current performance review approach has not fully address the risks flowing from the GOC Education Strategic Review.
Q10. If we were to adopt a different approach, what alternative approach would you prefer and why?
Any new approach to assessing the performance of regulators against the PSA standards should focus on providing improved information about areas of weakness and regulatory risk, to give both individual regulators and their stakeholders a clear picture about issues of concern and what can be done to address them. The PSA should choose a performance measure that meets these objectives.
Q11. Would these changes support the regulators to learn from our work and that of other regulators, in order to better protect the public?
We agree it would be helpful for the PSA to share good practice and recommendations that it identifies in the course of its work with the regulators. However, this would need to take into account the different contexts in which the regulated professions operate. It will not always be appropriate to apply good practice identified within one regulator directly to others.
Q12. Do you think thematic reviews would assist us in our scrutiny of the regulators and enhance our public protection role?
Thematic reviews can play a useful role in the scrutiny of regulators. However, success will depend on how well the reviews are designed and carried out. Thematic reviews will not be able to make up for failings in scrutinising performance and risk within individual regulators.
Thematic reviews would need to be designed in a way that will provide useful information about the full range of different regulators the PSA oversees, taking into account the specific professional contexts within which they operate. Our answer to question 7 briefly discusses how the environment in which registrants work in the optical sector influences risks to patients; this could be an interesting area for further exploration through a PSA thematic review.
Q13. Please set out any impacts that the proposals set out in this paper would be likely to have on your organisation or considerations that we should take into account when assessing the impact of the proposals.
We are concerned that if the PSA’s planned changes lead to reduced or less frequent scrutiny of the GOC’s performance, there may be a reversal of the recent gradual improvements in the effectiveness and timeliness of the GOC’s fitness to practise work. That would cause delays and unnecessary additional stress for AOP members involved in fitness to practise cases, and additional work and costs for us as an organisation.
We have raised concerns about the GOC’s fitness to practise work and its impact on our members in our input to the PSA’s annual reviews of the GOC. Although we have seen some recent improvements, including the introduction of more effective processes to speed up casework, we remain concerned that GOC investigations, and the processing of older ‘legacy’ fitness to practise cases, are still taking too long. This is stressful for our registrant members under investigation, as well as for complainants. It also means that where an older case goes before a fitness to practise panel, registrants can be disadvantaged by the fading memory of witnesses caused by the passage of time.
As discussed in our response to question 4, when the PSA is considering how frequently it should review the regulators it should take account not only of whether a regulator is taking action to address concerns, but also of whether that action is proving effective. This should include consideration of feedback from stakeholders.
Q14. Are there any aspects of these proposals that you feel could result in differential treatment of, or impact on, groups or individuals based on characteristics as defined under the Equality Act 2010? If yes to any of the above, please explain why and what could be done to change this.
Evidence submitted to the Williams review on gross negligence manslaughter1 indicated that practitioners from BAME groups were disproportionately the subject of both criminal and fitness to practise investigations. Therefore, any failure of the PSA’s oversight of regulators’ performance in processing fitness to practise cases could also disproportionately and adversely impact registrants from BAME minority groups.