Reflection is important for any health and care professional to gain insight into the circumstances that led to things going wrong, and from this to demonstrate remediation.
In the second of three fitness to practise articles, we take an in-depth look at insight. You may be interested to read the first article on reflection. In article three, we will look at remediation.
What is insight in fitness to practise?
The reality is that sometimes things do go wrong in medical practice and mistakes are made. When this happens, reflection is important for any healthcare professional to gain insight into the circumstances that led to things going wrong and from this to demonstrate remediation.
Reflection is about serious thought or consideration of the circumstances that lead to a things going wrong. Insight is learning from this reflection to gain an accurate and deep understanding of steps necessary to, one, ensure mistakes are not repeated and, two, address the consequences (Duty of Candour).
Why does insight in fitness to practise matter?
Generally speaking, a health and care professional is fit to practise if they have the training, skills, knowledge, character and health to practice safely and effectively. Where a healthcare regulator has concerns about a health and care professional’s fitness to practise, they can take action including suspending, restricting or removing them from practice.
The level of insight demonstrated by a health and care professional can play a very important role in the outcome of a fitness to practise investigation. Healthcare regulators consider insight as a mitigation factor when considering fitness to practise. Conversely, persistent lack of insight into the seriousness of actions or the consequences may be considered an aggravating factor and more likely to lead to adverse findings and increased likelihood of sanctions.
Fitness to practise is in the present tense (also referred to as “current impairment”). In practice, “current impairment” considers the fitness to practise of a health and care professional at the point of consideration (i.e. case examiners or fitness to practise hearings) not the time in the past when, for example, something went wrong. Therefore, insight and remediation are important to demonstrate fitness to practise in the present.
How to demonstrate insight?
Where things have gone wrong, reassurances will need to be demonstrated that there will be a negligible risk and that any ongoing risk can be adequately managed.
Factors that can be relevant to genuine insight include evidence that the health and care professional has considered the concern, understood what went wrong and accepted they should have acted differently by for example demonstrating that they fully understand the impact or potential impact of their performance or conduct.
Insight can also be demonstrated through training and training courses. Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.
Demonstrating insight without accepting impairment
Health care regulators expect health and care professionals to show regret and apologise. For example, the MTPS guidance indicates that a doctor “is likely to have insight if they … apologise at an early stage before the hearing.”
It is important to understand that apologising to a patient does not mean that you are admitting legal liability.
Health and care professionals must carefully consider their approach to demonstrating insight without accepting impairment or liability (i.e. not willing to apologise). In common law and generally speaking, a health and care professional may be able to demonstrate insight without accepting the original findings, however, things are far from simple in this regard. It is highly advisable that you seek expert legal advice in the first instant to discuss your case and the best possible approach to addressing the concerns.
Insight and early resolutions of investigations
Insight can play an important role in the early resolution of fitness to practice investigations. Most healthcare regulator’s fitness to practise investigation process includes case examiners who assess whether a case can be closed on paper or should be referred to a fitness to practise hearing.
Case examiners can consider, in their assessment of a health and care professional’s fitness to practise, if they submit evidence, amongst other things, of insight. It is strongly advised that healthcare professionals subject to fitness to practise investigations seek expert legal advice at an early stage for advice on the most appropriate strategy for the best possible outcome.
Insight Works Training
Developed by leading legal representatives for medical professionals facing health and social care tribunals, Insight Works Training have designed unique and practical courses with focus on impairment, reflections and remediation.
Courses are delivered by both leading healthcare experts with years of experience in mentoring and coaching who also sit on regulatory tribunal panels and, leading legal experts in the field of defence at health and social care regulatory tribunals.
Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.