Reflection and demonstrating insight are important in fitness to practise proceedings but what is the significance of these and what does insight look like in practice?
When things go wrong
Fitness to practise investigations and sanctions exist to protect the public and maintain public confidence. It does not exist to punish healthcare professionals and equally not to act as a complaints resolution service.
The reality is that sometimes things do go wrong. 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.
It is important to remember that impairment can be found for range of circumstances which are not limited to clinical errors or misconduct. It can also include, amongst other things, adverse health and/or language proficiency.
Generally speaking, reflection, insight and remediation could be applied to any of these.
For example, adverse health, in some cases, can be managed to allow a healthcare professional to continue to practice and can language proficiency issues be addressed through training. The aforementioned still requires a level of reflection and 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.
It is a well established fact that simply saying sorry is not enough. Insight and remediation must be genuine and demonstrable.
When evaluating the strength of insight, healthcare regulators will consider, for example, whether a healthcare professional has:
- recognised what went wrong, why their actions, behaviour, or decisions are concerning;
- recognise and understood the potential public safety risks;
- fully engaged with the investigation process, including completing a reflective statement and action plans; and/or
- taken demonstrable steps and actions to remediate.
Practical considerations – Reflection & Insight
Reflecting on the circumstances that might have led to alleged impairment of your fitness to practise will vary based on the circumstances but you must be able to demonstrate you have gained real and genuine insight.
Some things to consider when undertaking a reflective piece:
- Read any guidance issued by your regulatory body
- Where things have gone wrong, this should be accepted (where appropriate – seek legal advice in the first instance)
- Think about the circumstances that lead to something going wrong (personal, organisational etc.)
- Consider the wider impact/consequences (colleagues, reputation and public confidence in medical profession and on your reputation)
- Consider the lesson(s) to be learnt from the reflection above. This must demonstrate a genuine understanding of how/why things went wrong.
- What steps are necessary remediation? There is no single answer for this because each case will be determined on its own merits. It could, for example, include further training or development requirements or engagement with counselling or other professional support services.
- Showing remorse is an important remediation step. Without feeling and showing remorse, healthcare regulators are unlikely to be persuaded that you are capable of genuine remediation.
Demonstrating insight without accepting impairment
Healthcare professionals must carefully consider their approach to this. Case law, in the case of Yussuff v General Medical Council, found that a healthcare 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.
Fitness to practise in the present tense
Reflection, insight and remediation is important because 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 healthcare 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, the remediation steps taken since the time in the past is important to demonstrate fitness to practise in the present.
Insight in fitness to practise 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 healthcare professional’s fitness to practise, if they submit insightful reflections in writing. 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.
The same applies to healthcare regulators that operate a preliminary enquiry stages as part of their fitness to practise process such as the GMC.
Likewise, at a fitness to practise hearing, a reflective piece can assist a panel in their determination on fitness to practise.
As leading fitness to practise defence barristers, we are often instructed to advise clients on the right strategy to respond to fitness to practise investigations or proceedings. Below are a number of recent fitness to practise cases Kings View Chambers dealt with demonstrating the significance of genuine insight and remediation:
- GMC harassment case for doctor – Dr VB was accused of harassing a junior doctor. We worked with Dr VB over a long period to ensure that he put himself in the best possible position before the MPTS. The insight gained and remediation put in place resulted in a finding of no impairment.
- No further conditions of practice for nurse in NMC case – We represented a nurse at a NMC conditions of practice review hearing. In this case, we worked with the nurse over the term of the order to ensure that no other conditions would be put in place by the time of the review. The review hearing went to plan, and the order was lapsed.
- MPTS to lift suspension order for doctor – We represented a doctor who was subject to a 12-month suspension for allegations of dishonesty relating to matters of fraud. At the substantive hearing (before we were instructed), the Tribunal noted that the doctor had yet to develop full insight into the misconduct. We worked with the doctor and assisted in putting in place a strategy to ensure that the doctor had developed sufficient insight into the misconduct and had sufficiently remediated to ensure that the risk of any repetition would be low.
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.