Response to the Professional Standards Authority consultation on the performance review process

Our response to the consultation, December 2021

Optometrist examining patient's eyes

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 October to December 2021. This builds on the points we made in our response to the previous PSA consultation on this topic submitted in March 2021.

Our response

Q1. Do you agree with our assumptions? Please provide reasons for your answer.

  • Performance reviews are designed to give sufficient, rather than total, assurance about a regulator. (Regulators have their own assurance processes and oversight from Councils)

We agree that total assurance is not necessary, however the PSA should have a role of scrutiny and oversight over the performance of healthcare regulators. This includes oversight over how well the internal governance, oversight and scrutiny functions at individual regulators are working.

  • We accept a certain level of risk. The longer the period between periodic reviews, the greater the risk of our knowledge of performance decreasing. This risk will be addressed by our monitoring work, Greater stakeholder engagement enhancing our understanding of profession-specific risks

Stronger annual engagement with stakeholders and understanding of professional specific risks and contexts is essential for PSA monitoring between review cycles.

  • Continuing our current approach of looking at every Standard in detail every year means that we may not be able to sufficiently target our resources to the areas of highest risk

This is reasonable.

  • The more we know through monitoring and previous reviews, the less information we should need to seek through a periodic review

The PSA must ensure that the quality, currency and verifiability of information about a regulator is sufficient before reducing the information gathering at the periodic review point. For example, it should ensure that information given by a regulators is consistent with that given by professional stakeholders.

  • Periodic reviews should be similar in intensity to a current annual review
    Individual regulators may receive greater scrutiny than others on the basis of risk

The intensity of the PSA review of individual regulator performance should be based on the level of risk identified through:

  • Previous reviews
  • Stakeholder feedback
  • Whether the regulator has made significant changes to its work
  • Any other issues identified between review cycles through PSA monitoring

Q2. Do you agree with our proposed approach to periodic reviews? Are there areas that should be looked at as part of every periodic review. Please provide reasons for your answer.

Although the PSA’s approach to periodic review should be risk-based, it is vital that it looks at all areas of a regulator’s performance at the three-year periodic review point. This is a significantly longer interval than the current annual cycle, so the PSA should take the widest view possible of a regulator’s performance as well as focus in on areas of particular risk.

Q3. Do you think the areas we will look at to form our evidence base are appropriate? Are there any other areas we should explore to enhance the evidence we collect? Please provide reasons for your answer.

A step-change improvement in the PSA’s engagement with professional stakeholders is welcomed and will be vital to identify risks, gather information between periodic reviews and to improve the PSA’s overall understanding of the context specific risks in regulated professions.

Stakeholder engagement must include a proper representation of registrant perspectives. As the leading membership and legal defence body for optometry registrants, the AOP would expect to regularly provide information to the PSA, and to hold meetings with it discuss areas of risk and issues that are specific to the context of optometric practice. For example, we would welcome the opportunity to meet with the PSA to improve its understanding about the mixed primary care retail environment in optics and the risks to patients that arise from illegal optical practice.

The PSA has rightly highlighted that its evidence gathering based on audit will need to account for a possible increase in fitness to practise cases resolved through an ‘accepted outcome’ disposal. The PSA should also make efforts to understand and monitor the risks that arise from new processes adopted by regulators following the pandemic and a more remote way of working ie notices to registrants being served electronically.

Q4. Do you agree with our proposed approach to monitoring performance in the years between periodic reviews? Please provide reasons for your answer.

As we have explained in answer to questions 1 and 3 and our response to the previous consultation on this topic, the following areas will be vital to monitoring of risks between the periodic reviews:

  • Improved stakeholder engagement including registrant perspectives
  • Continued focus on areas of weak performance
  • Agile response to emerging risks
  • Annual monitoring of changes at the regulator
  • Development of understanding of profession specific risks

We are concerned that the current approach outlined by the PSA does not sufficiently focus on the monitoring of emerging risk. The PSA should monitor regulator performance even in areas where a regulator has performed adequately at the previous periodic review. Risk areas can emerge quickly due to changes at a regulator or wider professional structural factors and the PSA must be agile to these between reviews. For example, the fast pace of development in the use artificial intelligence and technology in optics is creating both opportunities and risks for patient care. We are concerned that the GOC has not evolved its regulatory approach to meet these challenges and protect patients from online companies offering optical care without appropriate registrant involvement and/or standards of care. The AOP would welcome the opportunity to discuss these issues with the PSA to highlight the risks to patients and how regulatory oversight needs to adapt to maintain public protection.

Q5. Do you think we have identified the right factors to consider when determining the length of review cycle? Please provide reasons for your answer. Q6: Do you agree that a three-year cycle would be appropriate? Please provide reasons for your answer.

In our response to the previous consultation, we said that moving to a two-year review cycle would be an acceptable change, and that a three-year interval was the maximum length that could be safely implemented. It is right that that PSA continue to monitor the appropriateness of the performance review cycle length. However, we think that a cycle longer that three years would weaken the PSA’s ability to monitor regulatory risks and damage professional confidence in its work. Many of our members are already concerned that the loss of the annual performance review will weaken PSA scrutiny. The PSA may need to reintroduce annual performance reviews if the three-year interval is not allowing it to capture risks appropriately or if it weakens confidence in its work.

Any move to a longer review cycle should only be considered once the current three-year period has had time to be properly assessed and create confidence. Full public consultation and stakeholder engagement must be undertaken before the review cycle is lengthened.

As we explained in our previous consultation response, 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.

Q7. Do you agree that these are the right factors for us to consider when deciding the areas we look at during periodic reviews? Are there any that you would like to see added, removed, or amended?

These factors seem appropriate to determining the scope for the review. However, the PSA must ensure that that information from its stakeholder engagement and other evidence sources is properly incorporated into the process of scope determination.

Q8. Do you agree that these are the right factors for us to consider when deciding to look in more depth at particular areas outside of periodic reviews? Are there any that you would like to see added, removed, or amended?

The factors seem appropriate. The PSA should be ready to respond in a timely way to any concerns and emerging risks that are identified through its between cycle information gathering.

Q9. Do you agree that the factors for bringing forward a regulator’s periodic review should be similar to those for undertaking reviews out of cycle? Do you think this is an appropriate threshold? Are there any that you would like to see added, removed, or amended?

We agree that it is appropriate to use similar factors, but we think the threshold needs to be lowered. Significant deterioration of a regulator’s delivery of a core function such as registration, education assurance or fitness to practise could signal that there are other emerging risks in other functions that have yet to come to light.

Q10. Do you agree that these are the right factors for determining the order for regulators in the cycle? Are there any that you would like to see added, removed, or amended?

These factors seem appropriate.

Q11. 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.

Q12. Are there any aspects of these proposals that you feel could result in differential treatment of, or impact on, groups or individuals based on the following characteristics as defined under the Equality Act 2010?

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.

  1. Independent report of Williams review into gross negligence manslaughter in healthcare (2018)