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?
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:
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:
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.
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 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:
A final word on reflection. The focus of this article has been on reflection and insight when things go wrong however, reflective practice should be part and parcel of everyday life for healthcare professionals.
In 2019 the UK’s healthcare regulators issued a joint statement on “reflective practice”, stating:
“Reflection is the thought process where individuals consider their experiences to gain insights about their whole practice. Reflection supports individuals to continually improve the way they work or the quality of care they give to people. It is a familiar, continuous and routine part of the work of health and care professionals.”
I am a leading Fitness to Practise Defence Barrister vast experience defending healthcare professionals facing fitness to practise proceedings before all of the UK’s healthcare regulators:
If you have been notified by your regulatory body that you’re under investigation or are facing difficulties with your registration, contact me today for an initial free and no obligation consultation on 0207 060 1983 or Stephen.McCaffrey@kingsviewchambers.com.