Response to the GOC consultation on remote hearings protocol
Our response to the GOC remote hearings protocol consultation, September 2021
The GOC started holding hearings remotely in early 2020 and issued a remote hearings protocol later that year. This consultation is on updates to the protocol. Although the GOC still expects that most non-substantive hearings should take place remotely, it has confirmed that it will now arrange a face-to-face hearing if the registrant wants one. Overall we welcome the updated protocol and have responded supportively, while highlighting some areas where the new policy should be clarified.
Q. To what extent do you agree that the updated protocol achieves our aim of balancing fairness to registrants while maintaining the focus on public protection?
AOP response: Agree
We welcome the key changes that the GOC is proposing to make to the current protocol, and particularly the assurance that if the registrant would prefer the event to be held in person, a physical hearing will be arranged. Overall we think the revised protocol strikes a more appropriate balance between fairness to registrants and public protection than the previous version, which gave insufficient weight to registrants.
Q. To what extent do you agree with our expectations that most non-substantive events should be conducted remotely?
AOP response: Agree
Overall we agree it is reasonable to assume that most non-substantive events can be conducted remotely. This could help to speed up the FTP process thereby lessening the amount of time a registrant spends in uncertainty. However, it is vital that the needs and preferences of all the parties, including registrants, and the particular circumstances of each case are always taken into account in deciding how any given hearing should be conducted.
Section 5.10 of the revised protocol says “we expect all non-substantive hearings .. to take place remotely”. This is inconsistent with the approach implied in this consultation question (“most non-substantive events should be conducted remotely” and should be amended to make it clear that the GOC will take a more flexible approach if appropriate.
In our response to the GOC’s autumn 2020 consultation on its COVID statements, we argued that if the GOC’s then statement on facilitating hearings during COVID was going to apply in the red, amber and green phases of the pandemic (ie until all COVID restrictions are completely lifted), it should set out a more flexible approach which recognises the need for face to face hearings in some cases, as well as support of registrants who aren’t comfortable with using the necessary technology.
We are therefore pleased that the draft protocol commits the GOC to considering “with both parties” how a case should be heard. We think the new category of “blended” hearing, which could include some face-to-face elements (eg evidence from key witnesses) and some virtual elements, could provide helpful flexibility in making arrangements that are both efficient, and fair for all the parties involved.
In section 3 of the updated protocol which sets out the approach to deciding suitability if there are only “minimal restrictions” in place because of COVID, we welcome the assurance in paragraph 3.2.1 that “if the registrant would prefer the event to be heard in person, a physical hearing will be arranged”. This is helpfully clear and reassuring for our members.
The parties’ access to and understanding of the technology required to participate in a remote hearing is an important consideration in deciding whether a hearing can fairly be run remotely, and we are pleased this is recognised in the protocol (section 4: suitability factors [4.2.1]) and will be taken into account when determining what mode of hearing is appropriate for each case.
As well as the technical issues we note that access to an appropriate environment to enable registrants to take part effectively in a remote hearing, including having access to advice, will also be a consideration when deciding upon a remote hearing.
Q. Is there anything unclear or missing in the updated protocol?
AOP response: Yes
We note that in the updated protocol, if parties disagree about how a case should be heard then the decision will be made by the adjudication committees and that a separate policy is being developed for this purpose. We will comment on this once it is available.
We think the definition of ‘minimal restrictions’ in paragraph 3.1 of the protocol is potentially confusing and should be revised. The definition refers to ‘situations where all participants are able to travel freely but must socially distance when at our hearing venue’ but legal requirements for social distancing in England were lifted in July 2021. It may be more future-proof to refer to ‘situations where formal restrictions may be reduced or removed, but where the parties to a hearing may reasonably still want to manage the risk of infection by practising social distancing or other measures’ or similar.
Section 5.6.1 includes a reference to the temporary amendments made to the GOC’s fitness to practise rules by the 2020 Coronavirus Amendment Rules, but we note these Rules are due to expire on 1 October 2021.
Are there any aspects of the updated protocol that could negatively impact on stakeholders or users with specific characteristics? (Please consider age, sex, race, religion or belief, disability, sexual orientation, gender reassignment, pregnancy or maternity, caring responsibilities or any other personal characteristic(s).)
AOP response: Yes
The draft guidance (section 4: suitability factors [4.2.7]) acknowledges that there could be cases where a registrant is at greater risk if they fall within the groups likely to be at high risk of serious adverse effects if they contract Covid-19. The draft guidance says that these circumstances ‘may dictate the necessity of a remote hearing’.
In these cases, and where the registrant would prefer the event to be held in person, the lack of an option for a postponed hearing could have a negative impact.
Q. Are there any aspects of the updated protocol that could have a positive impact on stakeholders or users with specific characteristics? (Please consider age, sex, race, religion or belief, disability, sexual orientation, gender reassignment, pregnancy or maternity, caring responsibilities or any other personal characteristic(s).)
AOP response: Yes;
The new category of “blended” hearing (outlined at 1.5.4) which could include some face-to-face elements (eg evidence from key witnesses) and some virtual elements, could be beneficial to registrants who would find a lot of travel problematic - if they have caring responsibilities for example.
The draft protocol says that the impact of any disabilities or other vulnerability of any of the participants [4.2.5] will be a consideration as to which mode of hearing will take place. We also welcome the provision in section 7.27 which refers to ‘any other need’. This is potentially helpful to our members whose needs might not be covered by equality legislation.
Q. Is there any other feedback about the updated protocol that you would like to tell us about?
AOP response: No