Andrea James is a Solicitor Partner in the Manchester legal firm of Brabners, and for over 15 years has represented healthcare professionals (doctors, dentists, pharmacists, paramedics etc) statutorily regulated by 10 separate bodies. Listen to her views on the length of time it takes to bring professionals before regulatory tribunals, the effect on their mental health and the inadequacies of the current fitness to practise regime.

Barry Baines: Welcome. This is Barry Baines from Baines Law, a legal miscellany, where we regularly podcast about cases and legal issues, as well as talking to professionals and others who have experience of our legal system.

Today's guest is a solicitor partner, leads the professional discipline and healthcare regulatory team at Brabners LLP, and is qualified to practise in England and Wales, as well as the Republic of Ireland. She is a well known expert in the field and specialises in defending professionals at fitness to practise proceedings before their regulatory bodies. Her clients include doctors, dentists, pharmacists, paramedics, veterinary surgeons, teachers, and police officers. She has appeared on their behalf before the General Medical Council, the General Pharmaceutical Council, the Health and Care Professions Council, the Royal College of Veterinary Surgeons, the Teaching Regulation Agency and Police Misconduct Panels. In addition, she represents healthcare providers and professionals in connection with a wide range of non-disciplinary matters. She is a member of the Association of Regulatory and Disciplinary Lawyers and an Honorary Fellow of the College Of Paramedics. Please welcome Andrea James. Andrea, thank you for talking to me today.

Andrea James: Pleasure. Thanks for inviting me.

Barry Baines: We know you have extensive experience of healthcare regulation. Most of it's been defending medical practitioners for more than 15 years I understand, but you've also spent three years with the doctors’ regulator, the General Medical Council. At present, there are 10 statutory regulators each with their own rules. What would you say about that, and the various attempts to reform the system over the years?

Andrea James: First of all, thank you very much for having me, for inviting me. It's a pleasure to speak with you.

So, to answer your question about having 10 separate regulators, it's got to be a very inefficient way of going about health care regulation and the regulators each operate separate pools of staff, separate hearing locations, which are often in very expensive real estate areas in central London. Each of the regulators has different rules, it's bad from a cost perspective, but it also seems to me that it's very bad from a perspective of getting consistency on the question of what is good regulation of health care staff, and there's no consistent benchmark. And I think that it would be much more helpful, both for the public to understand and for regulated professionals to understand if we had a single regulator. And actually I'm going to rephrase that - if we even had a single adjudication function for each of the regulators, so that the fitness to practise complaints that were brought before regulators were determined by similar panels of similar experience and competence applying similar, if not in fact, the same legislation.

And I think the way in which we go about things at the moment, nobody could argue really that it's efficient or the most efficient way that we could be going about it.

Barry Baines: And I suppose really some of these things take place in a multidisciplinary context, don't they?

Andrea James: Yes, they do. And one of the things that we see a lot of which I'm sure you've seen over the years in regulations as well, is professionals involved in the same incident, getting wildly different fitness to practise outcomes. A very common one that we used to see would be a nurse getting struck off and a doctor getting what we would consider to be a lower level sanction, such as a warning or conditions for the same clinical incident, where you could argue that certainly in terms of NHS bandings, the doctor, the more senior professional, and therefore arguably more culpable or more responsible for managing the situation. So, there's a real lack of consistency. And because we do work before all of the health and care regulators, we see them take wildly different approaches to the same things. A good example of that would be that the General Medical Council, for example, has guidance on doctor's use of social media.

This guidance is reasonable. It takes account of and refers to a doctor's human rights, entitlement to freedom of expression. The HCPC for example, also has guidance on its registrants’ use of social media. Its guidance includes no reference whatsoever to human rights act entitlements to freedom of expression. And so we commonly see the HCPC pursuing fitness to practise cases arising from the reasonable expression of views, which the GMC wouldn't touch. So it's a fact that each of the regulators has its own set of guidance and its own ethos, and it really does create a total lack of consistency but I think is very unhelpful for the regulation professionals.

Barry Baines: And all this takes place in a healthcare setting, doesn't it?

Andrea James: Exactly, exactly. Either something is acceptable in healthcare or it's not. You can't say that it's OK for a doctor to treat a patient badly, but it's not okay for a paramedic to treat a patient badly or vice versa. It becomes nonsensical really.

Barry Baines: Yes, and interestingly, I was talking to our colleague David Gomez the other day, you know, David?

Andrea James: Oh, yes, the author. Yes, of course.

Barry Baines: Yes. And he made precisely the same point about the different treatment of doctors and nurses, for example. So, it's a real problem.

Andrea James: I absolutely agree with you that the lack of consistency is a perennial problem.

Barry Baines: One of the principal drawbacks of fitness to practise proceedings is the enormous length of time it can take for some cases to go through the investigation process before they reach a panel hearing, sometimes taking years. This often has serious consequences for the mental health of the practitioner and indeed for the complainants. I have in mind, particularly the survey by the MDU, which has just come out, which indicates that one in four doctors are so tired that their ability to treat patients has become impaired. Would you have any comments to make in that context about fitness to practise?

Andrea James: I think that the profound impact of fitness to practise proceedings on healthcare professionals is something that we should all be ashamed of really, what we put people through for what are very often mistakes.

Last year, I was the co-author along with some healthcare professionals of a book on the mental health and wellbeing of healthcare professionals. And it is astonishing really the body of evidence we have about the negative impact of fitness to practise proceedings on healthcare professionals. And yet we're not doing anything to change it significantly. So you'll be aware the same as me about the Horsfall Review into the number of doctors who died by suicide whilst under GMC investigation. It was a major study of thousands of UK doctors who found that they were, I believe the figure was 76%, more likely to experience a serious adverse mental health, if they had been through a complaint or fitness to practise process.

I recall there was a study done on social workers that found that five eighths of social workers going through the fitness to practise process, experienced suicidal ideation, or actually attempted suicide. The figures, when you look at them, are really very disturbing and I would be lying if I said I knew a good answer. I think it's very important for us to signpost people, to sources of support at the outset of a fitness to practise investigation. I think it's very important for us to reassure people that the level of distress that they're feeling at being subject to a fitness to practise investigation is completely normal. I also think it's very important for people to appreciate how common it is to go through a fitness to practise investigation. The reality is that they may at least be the subject of a fitness to practise inquiry, as opposed to a matter that goes all the way to a substantive hearing.

You're very unlikely to get through an entire career as a health care professional without being the subject of an inquiry at some point during that career. But as representatives, fundamentally, we can't change the nature of the fitness to practise process. That's only within the gift of the regulators and the government. It seems to me that it's got to be made less adversarial. I also think that regulators should be less quick to levy the most serious allegations of for example, dishonesty, unless there's compelling evidence to support them.

I think sometimes there is an attitude of well, we'll put the allegation to them and see what they say. I just don't think that's a proper approach for a regulator to adopt. In the old solicitor's code of conduct handbook, it had very black and white rules about the fact that as solicitors, we weren't permitted to draft serious allegations such as those alleging fraud or dishonesty, unless we had concrete evidence to support them. I think regulators should adopt that approach too, because of the catastrophic impact on healthcare professionals of going through the fitness to practise process.

Barry Baines: Yes, an allegation of dishonesty is very serious. So often I've seen allegations of dishonesty put in when it wouldn't be classed as dishonest by the standards of ordinary people.

Andrea James: You're absolutely right. And although often these allegations of dishonesty get excluded following the Rule 7 submission, if we're talking about the GMC or the investigation committee, if we're talking about the HCPC or whatever, that filtering process is, as you know, by the time a case gets to Rule 7 or IC, you can be years down the track at that stage. And the person has had that allegation of dishonesty knowing that that's coming, hanging over them for a very long period of time. All healthcare professionals know that really dishonesty is the most likely to be career ending out of all allegations. So, it really should only be levied in those situations where it's justified, where there's concrete evidence for it.

Barry Baines: Usually with health professionals - and always in our profession.

Andrea James: Yes. I agree with you entirely.

Barry Baines: I wonder if we can come on to talk about equality of arms and fitness to practise hearings. Usually, but not always of course, doctors, dentist, pharmacists, for example, will be able to afford subscriptions to professional bodies who will ensure they're properly represented. At the other end of scale, we see many who are regulated for example, by the Health and Care Professions Council, paramedics, and the like who can't afford such representation and will have to speak for themselves. Do you consider this to be a fair procedure when the regulator may always choose to be represented by a barrister if it wishes?

Andrea James: The honest answer is that I think it can be a fair procedure because as you'll know, as solicitors, we often are involved in cases, for example, in civil litigation where there's a litigant in person on the other side, and it doesn't automatically render a process unfair because one side is represented and one side is not.

Where I do have concerns is in relation to regulators taking advantage of the lack of legal knowledge of unrepresented registrants. And that troubles me greatly. For example, with the HCPC, the statistics show that the most likely outcome for a registrant who's unrepresented as a conduct and competence committee hearing is to be struck off and being struck off being the most common outcome is an anomaly as you'll know, because obviously strike off is supposed to be the sanction of last resort for the most serious cases. What troubles me is when I see regulators doing things in cases involving unrepresented registrants, which they know are not legally permissible.

A very simple, but very common example of that is that you'll be familiar with the case of Enemuwe v Nursing and Midwifery Council. This case says that regulatory panels should not see the final decision, the conclusions and outcome part of any investigation undertaken by an NHS trust into the same allegations that are before them, that they can see the evidence, but they should be forming an entirely independent view as to the registrant’s actions, motivations and the appropriate outcome. I routinely see some regulators putting the entire NHS trust or other employer investigation, including the conclusions and findings before regulatory panels. And the unrepresented registrant does not know to say, "Oh, excuse me, that's not legally permissible. There's a very detailed high core judgment called Enemuwe v NMC that says you're not allowed to do that. That troubles me because the burden shouldn't be on the unrepresented registrant to develop an in depth knowledge of fitness to practise case law and legislation.

The reality is that the regulators shouldn't be doing that in the first place. And they know they're taking advantage of the unrepresented registrant by doing so. So in circumstances where registrants abuse their position of having almost unlimited, one could say, legal resources and certainly being represented by some of the best solicitors and barristers in the country, when they take advantage of that to get in evidence that they know is not permissible or to conduct a process that they know is not truly fair, simply because a registrant is unrepresented, that really, really bothers me.

I don't like to see unrepresented registrants because apart from anything else, even if it's a case where there are no facts in issue, we've just spoken about the mental health impact of fitness to practise proceedings on registrants. It's a devastating experience to go through, absolutely awful. And I hate seeing people going through it on their own.

I think it's a real. I have to admit that the three years that I spent conducting cases for the GMC, the cases that stick out in my mind the most are those cases where I saw people in absolutely dire straits coming along to try and represent themselves. It was often in some very sad circumstances and it definitely impacted on my wish to go back to doing defence work.

I don't know if I've answered your question more than giving a bit of a commentary on what troubles me about unrepresented registrants. I think the short answer would be that it can be a fair process but there is a burden on regulators not to take advantage of unrepresented registrants.

One thing that is good is that there are few professions nowadays that don't have representative bodies. I sit on the HCPC stakeholder engagement forum, and all of the professions regulated by the HCPC have a representative body there, whether it's the Royal College of Speech and Language Therapists or the College of Paramedics, or the British Association of Social Workers before they went off to Social Work England or Unite - the Unions are on there too.

So really the issue nowadays is registrants being aware of the fact that they would be well advised to have some kind of cover for fitness to practise proceedings. It is available, and it is there for them. In a way it wasn't even 15 years ago. 15 years ago, some of the professions, as you know, the HCPC is a newerregulator than for example, the GMC, 15, 20 years ago, some of these processes didn't exist for certain professions, but they do now. And they do all have representative bodies, which I would really encourage people, all health and care professions to be in membership with their representative body.

Barry Baines: Do you think legally qualified chairman would help an unrepresented registrant in particular?

Andrea James: I think that's a really difficult one because the rules become so blurred in circumstances where somebody is supposed to be the decision maker in the case. How can they effectively provide legal guidance to the registrant? So I don't feel that legally qualified chairs are the answer really. I think this is more about how regulators conduct themselves in the cases they present. I think that's what's the key to this, that there should be a commitment to never take advantage of an unrepresented registrant.

Barry Baines: During the COVID pandemic, there have through necessity, been many remote hearings conducted by regulators in their disciplinary processes. The Health and Care Professions Council is consulting on holding the majority of its hearings remotely in the future, while Social Care England is considering holding all of its hearings remotely. What do you consider to be the advantages and disadvantages of these proposals from a defence perspective?

Another advantage of remote hearings is the fact that they're significantly less expensive in that you don't incur the cost of all the panelists, registrants, lawyers, witnesses, going down to London for a hearing. Thus, if it's an interim orders review hearing, for example, you could assemble all the panelists lawyers, the registrant for a half day hearing, and the costs are grossly disproportionate to what's in issue. So I think remote hearings have been great for shorter hearings, and they're great for preliminary legal arguments where witnesses aren't involved.

I have had one registrant who was having their fitness to practise case based solely on impairment. They had had a very difficult time with addiction and had then gone through a process of rehabilitation and their final big hurdle was to get through their fitness to practise hearing. And at the end of their hearing, they said, "That was far less unpleasant than I expected it to be."

So, there are certainly cases in which remote hearings have worked very well, but I would have a big concern about regulators acquiring any right to impose a remote hearing on a registrant. I feel that if a registrant consents to an interim order hearing taking place, and they're happy for their hearing to proceed in that manner, that's fine. It can be done by consent, but what shouldn't happen is regulators imposing remote hearings on people who feel very strongly, that they want to go along in person and see the witnesses or speak to the panel in person.

We have had people who have had conditions, for example, a client who was on the autistic spectrum, who said that the number of faces on the screen, they find it particularly difficult to cope with, or we've had several clients with severe dyslexia who have really struggled with having to both follow proceedings on a screen and try to follow the evidence bundle in front of them. They say they find it much easier in person. And then also we have those cases where probity is in issue, where it really becomes an issue where people want the witnesses to come along and give evidence in person so that demeanor can be fully assessed. And they feel that demeanor can only be fully assessed in person.

So in those cases I would have a significant concern about a remote hearing being imposed on the registrant, because the reality is that the President of Tribunals said when the initial assessment of remote hearings was published "Though, telephone and video hearings have helped us maintain access to justice in this extremely testing time, we must acknowledge that for many people, and in many cases, they are not going to provide the best form of hearing we can offer."

I think it's really that simple that if a remote hearing is the best option in a case, great, I'm all for it. But if it's not appropriate, either because the registrant is very opposed to it, or for some other reason, then they shouldn't be imposed on people. They should only be done by consent.

Barry Baines: And I suppose it's fair to say that if it's not suitable for a criminal trial, for example, then it certainly isn't fit for fitness to practise either.

Andrea James: Well, yes, because often the reality is that registrants facing the fitness to practise process have a lot more at stake than people going through a criminal process, which might sound like an odd thing to say. But as a professional, if you lose the profession from which you get your livelihood, from which you get a lot of your professional identity, from which you get your good character, you actually have an awful lot more at stake than somebody who is going to accrue say their fifth burglary conviction in the past 10 years. And I think we've got to be mindful of that, of just what is at stake for people in fitness to practise processes.

Barry Baines: It is important to spell these things out for everyone I think. Finally, I wonder if I can turn to something we've probably already touched on in a way. When the Medical Practitioners Tribunal was established by the General Medical Council to hear cases against doctors, there was some talk of it being extended to cover other healthcare professions. Now that hasn't happened. Do you see any advantages in that happening, or do you think it's better that each regulator maintains its own panels?

Andrea James: I think it's difficult to argue that it's better for each regulator to maintain its own panels. I just don't see how we could say it's superior for them, even from a cost perspective, from a consistency perspective, from a complexity of legislation perspective, I can't think of an argument in favour of them all maintaining separate panels provided that any new combined regulator would ensure that the panels hearing any particular kind of case included are people with relevant expertise.

So, I would never advocate, for example, in favour of a social worker being the panelist on a case for a doctor or vice versa, indeed. You'll be familiar yourself with the fact that regulators do try to ensure that panelists - well, if not they try to – in fitness to practise cases are from the same specialism as the regulated professional appearing in front of them.

And they also, if they can, try to ensure that they have people from the same background in terms of gender or ethnicity. So provided the panels were still going to be made up carefully, then I see no reason why we shouldn't have a single adjudicator, whether that be the MPTS or some other adjudicator, I'm quite neutral on that.

Personally, I feel the MPTS as an adjudicator is highly efficient and would get my backing as the adjudicator of choice to take over from other regulators.

I did some work on the legislation for it. It had a board, it had premises, it had millions spent on it. And the new coalition government came in, in 2010, and they scrapped it.

I sit on some committees, for example, the Pharmacy Law and Ethics Association, and we've done responses to the current consultations that are ongoing, but I don't get very excited about it because I am very much of the view that when it actually happens, of course, I will respond to it.

We will all gen up on what the new legislation and the new arrangements are, but it's very difficult when reform has been talked about for so long. And when we got as far as OHPA actually being established and abolished, it's very hard to have a great deal of confidence that the big change is going to happen anytime soon. I'm interested in what you think about that actually, because you actually work for regulators. So you have a much more inside track than I do on how likely real change is coming.

Andrea James: Because I remember in 2014, and I was all thinking, "Well, this is definitely happening. There's a draft bill, there's 125 recommendations." As I said, I remember organising the event for the chap, from the Law Commission to come up and present. We all thought this was definitely happening. And we're sitting here now in 2022, and it hasn't happened unfortunately. So, I think you and I are of one mind in terms of the probability of major change happening anytime soon.

Barry Baines: I think we are. Andrea, we've covered a lot of issues today. Thank you ever so much for your contribution. I'm sure the listeners will be really pleased to hear what you have to say. Would you like to leave any contact details for anyone wishing to get in touch with you?

Andrea James: Yes, sure. I'm a partner at the law firm Brabners in the Healthcare sector group, and people can always find me@www.brabners.com. I also use Twitter where my name is @healthreglawyer. Although on Twitter, a lot of my commentary relate to dogs and cats, frankly, rather than strictly legal matters. So Brabners is probably a better bet for anyone in need of serious legal content.

Barry Baines: Thank you very much Andrea.

Thank you for listening to Baines Law. Listen out for future podcasts where we will continue to discuss issues of interest to the legal community. If there is a professional perspective that you would like to share, get in touch via our website@wwwbarrybaines.com. You can also follow us on Twitter @baineslaw. We look forward to presenting fewer game very soon on Baines Law.