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Understanding the Fitness to Practise process
29 Plays1 month ago
In this episode our host, Steven Bettles, Head of Policy and Education, speaks with Sheleen McCormack, our Director for Fitness to Practise about GOsC’s fitness to practise (FtP) process and also addresses some of the most common misconceptions.
Sheleen shares information about the Independent Support Service (ISS) and how both complainants and osteopaths can be supported during the FtP process.
Visit our website to find out more about fitness to practise and our concerns process.
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Transcript
Introduction to Podcast and Guest
00:00:05
Speaker
Welcome to another episode of In Conversation with the General Osteopathic Council. I'm Stephen Bettles, Head of Policy and Education. and today I'm talking to GEOS colleague, Shaleen McCormack. Shaleen, do you want to introduce yourself?
00:00:20
Speaker
Thanks very much, Stephen. um Welcome, everyone. I'm really pleased to be here. ah My name is Shaleen McCormack. I'm the Director of Fitness to Practice, and I'm General Counsel at the General Osteopathic Council.
00:00:34
Speaker
So
Understanding 'Fitness to Practice'
00:00:35
Speaker
we thought it would be helpful to to talk through some aspects of the um fitness to practice process. Even fitness to practice is a kind of term that generates anxiety, I would ah imagine, for lots of but lots of people.
00:00:52
Speaker
um And we're really we're talking about concerns and complaints about osteopaths, aren't we, in terms of fitness to practice and the processes around them that. Yes. How would you describe it from that perspective?
00:01:06
Speaker
I think it's more about um whether you have the the the vast majority of concerns that we receive about osteopaths revolve around misconduct.
00:01:18
Speaker
And um within our um legislation, which is the act and the rules that we're governed by, um it defines misconduct as unacceptable professional conduct.
00:01:30
Speaker
And that means it's really serious. So not every breach of the osteopathic practice standards means that that's going to result in a concern and a fitness to practice investigation.
00:01:42
Speaker
It has to fall very far short of the standards expected of a registered osteopath, in effect. Yeah. Yeah. and So, so what, what's the process if a concern or a complaint is raised with us? And I guess it's usually by a patient.
Post-Pandemic Complaint Surge
00:02:00
Speaker
It is usually by a patient, and but one of the things that we found ah since the pandemic is that we have had a rise in concerns being brought to our attention by the police or by complainants who have told the police that they've had some concerns after seeing an osteopath.
00:02:19
Speaker
Okay. um So it does involve a ah usually a patient um or someone within practice where the osteopath works. And what happens is that we have to get that individuals, we take some information from them.
00:02:35
Speaker
We have to get the consent of that individual in order to be able to investigate the case. and to approach the registrant to get their feedback into the concern.
00:02:47
Speaker
um And we try to set ourselves ah performance targets. And what that means is timeframes in effect, because we don't want a concern ah to be open for a long period of time against an osteopath because we recognise that um that's very stressful.
00:03:06
Speaker
And what happens then with a concern or complaint? Because it's not, i think I think something obviously I, so I work on the professional standards team, yeah which sounds like I deal with concerns and complaints, but we don't, we deal with education and policy issues and things like that. And there is there is a ah real distinction between us and what we do on that on that particular team and the regulation team that processes concerns and complaints.
00:03:31
Speaker
But from talking to osteopaths, I think there's often an assumption that it's it's us, I say in the office, you know, us, the executive team who decide whether something is um pursued or not.
00:03:47
Speaker
But it's not it's not, is it? It goes, there is ah there is a sort of an objective process by which something is either... Yeah, that's right.
Screening and Investigation Process
00:03:54
Speaker
There is. um And osteopaths will know that ah because we've got lots of guidance um about the process on our website,
00:04:05
Speaker
um But effectively, when we receive a concern, when we feel or we consider that we've got enough information, ah we give it to um someone called a screener ah to determine whether there's power for the GOSC to investigate the case. And our screener is an independent member of an investigating committee and they're an osteopath.
00:04:27
Speaker
ah And so that when I say independent, it means that they're not an employee of the GEOSC and they're the ones that make those decisions as to whether a concern proceeds. And it's only when the registrant is given sufficient time to comment on the concerns um and they're provided with sufficient information and the regulatory concerns that it's it goes to an investigating committee, which is made up of independent laypeople and osteopaths, and they make a decision as to whether there there is a case to answer.
00:04:58
Speaker
think it's really important as well, not wanting to sort of talk too much about stats and percentages, but um we receive about 75 concerns about osteopaths a year, which is very low level of concerns.
00:05:13
Speaker
And around 41% of those are closed by the investigating committee, which means they don't proceed any further. um And there's no findings made against an osteopath.
00:05:25
Speaker
So it's it's interesting so that there is that objectivity in terms of decision making as to what happens and that osteopaths are involved at every level of that and in forming a conclusion around every level whether something is progressed um or not.
00:05:42
Speaker
ah no What, I mean, it's quite stressful, you know, even in, any in you know, whether a um ah case it progresses or not, I guess, you know, certainly for the patient and and for the practitioner as well.
00:05:59
Speaker
ah Is there any support available for for any or all of those parties?
Support Services for Fitness Cases
00:06:06
Speaker
There is. We want to enable people um to be able to bring concerns to our attention um and we want to ensure that there's no barriers to doing that.
00:06:16
Speaker
um So we had we set up an independent support service, ah which is independent from the GEOSC, albeit that we fund it. um And effectively, what it is, is it's a free, dedicated support line um for anyone affected by a fitness practice case at GEOSC.
00:06:36
Speaker
So it's there for complainants, but it's also there for osteopaths. So if a come if a concern is raised about you as an osteopath, you can access the independent support service.
00:06:49
Speaker
You can decide that you want to approach them. You can ask the caseworker, GOSC, can I access the independent support service? Or the caseworker will say to you, actually, we've got this independent support service that you can you can talk to them.
00:07:05
Speaker
you know, confidentially about your feelings and how you how it's impacting you. Or when you're on the phone to one of the case managers in our team, we can, with your consent, pass you over to talk to the independent support service.
00:07:22
Speaker
And that's available throughout the whole investigation. But it's also available afterwards as well, because an outcome may actually have a significant impact on you. even if there's a decision in your favour.
00:07:36
Speaker
um So you can you can access that. And that's sort of emotional support rather than legal support, isn't It's emotional support, that's right. It's emotional, it's about discussing, processing your feelings.
00:07:47
Speaker
But it's bespoke to geosk, which means that when you are speaking to ah case manager, they know about the process. So if you're talking about screeners and investigating committees, they're going to understand what you're talking about.
00:08:02
Speaker
And is it is it usual for an osteopath to have to stop work if a complaint's raised ah about them? what What's the process there? It's not usual. No, no, it's not. It's very unusual.
Risk Assessment and Interim Orders
00:08:14
Speaker
When a concern is brought add to our attention, what we do is we risk assess it.
00:08:19
Speaker
And risk assess means we determine whether there's a potential impact on patient safety, a real ongoing risk to patient safety. And it's only in the really most serious cases that for example, sexual touching or sexual assault, or if the police inform us that an osteopath has been charged ah with ah with an offence such as a sexual assault, etc., that we would consider making an application for what's called an interim suspension order.
00:08:51
Speaker
um And I've sort of looked at the the caseload over the last three years to try and get a sort of feel for how many cases where we make ah an application for an interim suspension order.
00:09:05
Speaker
And out of our entire caseload, we make an application in about 11% of those cases. And it's only in 5% of cases where an interim suspension order is granted.
00:09:17
Speaker
So what that means in effect, is that if there's a concern brought against you, then it's not likely that we were going to make an application. So it means you can continue to practice ah throughout the fitness practice investigation process.
00:09:33
Speaker
It's also important to note that if you are brought to um a hearing for an interim suspension order, that you should get representation. And it is before a panel of independent people made up of osteopaths and lay people.
00:09:51
Speaker
And they make a decision on the risk that you may present, given the allegation against you. And I think the stats bear out that in half those cases, they don't make an interim suspension order. So It's very much an independent process and scrutinized as well.
00:10:14
Speaker
yeah And what, so ah concern is screened, it goes to an investigating committee if it's not determined that it's not something that we would deal with anyway. So, and the next phase, I guess the the the investigating committee could actually say there's no case to answer.
00:10:35
Speaker
That's right, Or it goes to a professional conduct committee for a sort of hearing. That's right. I mean, what what we do is we've got, um there's there's only in those cases where the concern reaches a threshold of seriousness that it will proceed forward.
00:10:55
Speaker
So there may be, as as as we said, if you've breached the osteopathic practice standards, then it doesn't necessarily mean that that's going to result in a case brought against you and referred to a hearing.
00:11:08
Speaker
um It's only where the investigating committee decide that actually, if this, that that there's a realistic prospect of making findings and also that there's a realistic prospect that those findings could amount to misconduct or what I referred to earlier as unacceptable professional conduct, that it will be referred to a hearing.
00:11:27
Speaker
And it's only at that hearing stage where they make findings of fact. um So once again, as i said, if you think about the screener screens out about half of the concerns brought to them and then the investigating committee close about 41% of those cases.
00:11:44
Speaker
So it's only in a handful of cases that are referred forward to a hearing that kind of situates things a little bit more, I think. yeah in terms of the whole process as a whole. It's sort of filtered through.
00:11:56
Speaker
So the message the message is that you know if a concern or a complaint is is raised, that's that's not automatically the end of your career as an osteopath, as a professional, is it, I
Engaging with the Regulatory Process
00:12:08
Speaker
guess? No, it's not.
00:12:09
Speaker
um The message would be if a concern is raised about you, get some legal advice, you know approach your um membership body, ah speak to your insurers um and engage with us. engage with us give us um Because obviously there is an obligation to engage with your regulator, but that's because you we're not prosecuting people. werere trying to um We're acting in the public's interest and we're trying to see if there's any concerns that may impact on patient safety.
00:12:42
Speaker
um The profession itself is held in high regard. And so what part of the public interest in acting is to uphold those high standards of performance and conduct.
00:12:53
Speaker
So we're not after people. We're investigating concerns and we're obliged to do so by the Osteopaths Act. um And as professionals, I don't think...
00:13:04
Speaker
oh that it necessarily means that um there's going to be a bad outcome just because a concern is brought about you to GOSC's attention. um And I think professionals more and more realise that it's part of, it's just part of being a professional in all different walks of professions, such as doctors, lawyers, etc.
00:13:26
Speaker
what what What sort of outcomes might be the result of a professional conduct committee hearing then? What sort powers do have? So the professional conduct committee only um get to that point. and They may decide that the facts are improved on the balance of probabilities, which means it's more probable than not um that the event, the allegation isn't proved.
00:13:50
Speaker
they They can do that or they can decide that the facts are proved, but they don't amount to misconduct. um And it's only in those cases where they decide that there's misconduct or unacceptable professional conduct that they decide to impose a sanction.
00:14:04
Speaker
And the sanctions, it's the least serious sanction up to the most serious. So an admonishment, it's like a caution. ah They can impose or ah discuss conditions on your practice to enable you to practice safely.
00:14:21
Speaker
They can suspend you for a period of time. And it's only in very rare cases where you can be removed from the register.
00:14:30
Speaker
And we publish those decisions, don't we? I do look at i do look at those. We do publish those decisions and we only publish them, um actively publish them ah for period for for set periods of time.
00:14:43
Speaker
um So, for example, an admonishment would um only last for six months. And so it would only be on our um website for six months. We do produce, because we're required to, under the Act, an annual fitness to practice report.
00:14:57
Speaker
um And I would encourage everyone to have a look at that. That's on our website. and But what we do is we archive um those previous annual reports. So people would probably need to make an application to our comms team if they wanted to have a look at them.
00:15:14
Speaker
Was there anything else that we've, we've, we've kind of, met we've done a whistle stop tour of the fitness to practice process and the support that's available for, for patients, for, for, for complainants and, and for osteopaths as well, I guess, um, uh, in, in that, uh, and the, the message that I've got from talking to you about this today is that, you know, there,
00:15:37
Speaker
There is a filtration process of concerns and complaints come to us they're screened, they're potentially then investigated, and then they they may or may not go to a professional conduct committee and the committee may and impose or not a sanction.
00:15:53
Speaker
um And if they do, it might range from, call it an admonishment to removal from the register in and the worst case scenarios.
00:16:05
Speaker
but ah it ah it's not every concern or complaint that goes through that entire process and lots of them are kind of ruled out along the way, I guess. So, um yeah. So I think, I think the the thing, a couple of sort of takeaways are that if a concern is brought ah to your attention by Giosk, please do, you know, engage with us.
00:16:32
Speaker
um We're not out to get anyone. but we're out to get information and evidence to present to our independent decision makers to decide whether there's concerns, there are regulatory concerns that need to be investigated.
00:16:47
Speaker
um we
Conduct Hearings and Appeals
00:16:48
Speaker
You are involved in the process. It's confidential up until a matter is referred to a hearing. So the investigating committee, these are the individuals that decide whether a case is referred or not.
00:17:01
Speaker
It's made up of five people. They meet in private um in a meeting. They have what is called an independent legal assessor available to them. um So when they're discussing cases and they actively scrutinize the case to see whether there's a case to answer, they have the legal advice to assist them to ensure that it's fair um and they produce reasons for the decision.
00:17:28
Speaker
So if you're being investigated, then you will know why a decision has been made to get it to to refer your case, ah because it's not just enough for investigating committee to say, yeah, there's a case to answer and refer it.
00:17:42
Speaker
They'll tell you why and they'll provide a written record of those reasons to you. um And it's in those it's that situation where it's referred to a hearing, you will have time to prepare for that hearing.
00:17:55
Speaker
You can get legal representation. It's before a panel of three. It's chaired by a lay person, so not an osteopath. And at least one osteopath has to be on the ah panel and they have a legal assessor to advise them as well.
00:18:12
Speaker
And it's it's a process whereby they hear live witnesses. So witnesses come to give evidence, they're questioned. um So it's forensic and there's a scrutiny of the allegations.
00:18:24
Speaker
this could be in person or online these days as well. can be in person or online. And throughout this whole process, the osteopath, the complainant, all the witnesses can access our independent support service.
00:18:39
Speaker
And it's case manager led, which means you have your the same case manager throughout the process. um But if you need urgent access to the independent support service, it's available.
00:18:51
Speaker
It's there 24 seven. So it wraps it wraps around the whole process so that you have that kind of access to support should you need it. So you're not alone. um Most of our hearings, it's a really important point you raised there, do actually take place remotely, online.
00:19:09
Speaker
So we make decisions individually on cases. So it's not automatic or default that a case is remote. So we look at the type of case it is, ah we work out whether it would be better for it to be in person.
00:19:25
Speaker
Say for example, it requires a plinth and a demonstration because it's a clinical concerns. ah If the osteopath would prefer for it to be in person or the complainant, we take all of that into consideration when deciding ah what kind of platform ah the hearing should be conducted on.
00:19:45
Speaker
And the osteopath has input into that. and' So it's very important. They are actively involved in that process. And the hearing is set down, it can it may be set down for a day or two days, depending on the nature and type and number of the allegations.
00:20:04
Speaker
And it's only after that process is followed. So findings of fact, calling witnesses or maybe experts, and then they make a finding. It's only then that they proceed to the other stages.
00:20:16
Speaker
And even if a finding is made against you, you can actually appeal it as of right to the High Court. um So you can appeal against the findings of fact and the decision to impose UPC, which is unacceptable professional conduct and the sanction.
00:20:33
Speaker
And the High Court would be where you live, the jurisdiction where you live. So if you live in Manchester, would be the High Court Manchester, for example. It's not all in London.
00:20:45
Speaker
And it it it sounds like I'm asking these questions as ah as a device to extract information from you. But in fact, I'm not always aware of all of this stuff because there is such a a kind of distinction between the work that the regulation team does and the other work that goes on in Gio. We don't know. we get we We can't access the folders and find the information or anything. This is all very confidential, isn't it? I think it's worth...
00:21:08
Speaker
It's worth, um you know, point pointing out. Absolutely. So um everything is confidential up until that point where a case is referred to a hearing. So if you receive a concern about you, it goes to a screener, it's screened in, it goes to the investigating committee.
00:21:23
Speaker
It's confidential. um And we have a retention policy. ah which means that we only retain information in our case systems, electronic case systems, for a finite period of time.
00:21:38
Speaker
So it's only um and to ensure that we can fu fulfill our regulatory ah functions and objectives. It's not something that we retain indefinitely. So I want to assure osteopaths that process is confidential and you are given sufficient time ah to respond to regulatory objectives.
00:21:58
Speaker
We are not the prosecution. And it does sometimes feel like it's adversarial, but it's not meant to be. It's meant to be inquisitorial. And inquisitorial simply means that it's determined as far as you're able, what happened.
00:22:14
Speaker
It's to get to ah the the the kernel of the the case. And we are not going to pursue that. We are going to present. That's why people, when we ah we engage Elizabeth Whitsitt- Independent to present the case for us they're called presenting officers, not the prosecution very different than a criminal jurisdiction, for example.
00:22:38
Speaker
Elizabeth Whitsitt- the feel and the makeup of the case itself should have a culture of inquiry, as opposed to a prosecution.
00:22:50
Speaker
Excellent. That's really it's really helpful. Thank you. well Does that make sense? Yeah, no, it definitely does. It definitely does make sense. and As I say, you know you know, I obviously work in the organization and I'm aware of processes and I can access, you know, the the policies and procedures.
00:23:07
Speaker
But it's it's still helpful to understand. And I talk to a lot of osteopaths because I you know do a lot of engagement work with regional groups and students and things like that. And and people do have concerns. And there is that um there is that sense you know that if ah if if ah if someone complains about you, the you know that that's it, you know your career's
Outcomes of Conduct Hearings
00:23:28
Speaker
over. And and and it that very much is not is is is not the case. And obviously, there are some, you know, and I look at the published decisions um in the same way that any other member of the public can look at those published decisions to see what um what sort of cases have gone before the professional conduct committee and what the outcomes of those were. and they're kind of, you know, I sometimes use them in presentations to, as they're kind of useful cases to think about in terms of what's happened and what's gone wrong and how it might have been avoided.
00:24:02
Speaker
um but But also it's it's it's clear from that, that the number of people removed from the register, you know the the the most severe sanction, i guess, the most serious sanction, um is is is pretty low relative to the number of cases that the that the that the committee considers. And those have all gone through that kind of filtration process anyway. so um it It looks to me like the system works.
00:24:31
Speaker
and But I understand why people, you know, it's we're we're never, ah you know, if we're something's gone wrong now Absolutely. If you receive a concern about you, um then don't despair.
00:24:45
Speaker
Engage. get legal advice, um provide a full response. And if the case is screened in and it goes to the investigating committee and they close it, then that is the system working um because it means that we are responding to complaints brought to us by members of the public.
00:25:05
Speaker
um we have ah appointed independent decision makers to scrutinise the evidence and the information to to decide whether there is a case for that osteopath to answer.
00:25:19
Speaker
And it's only in those cases where they decide that there is, that it goes to a hearing. And even then, We've appointed fresh, independent panelists to make those decisions.
00:25:31
Speaker
We've got the safeguard of the legal assessor, who's an independent lawyer, um generally always of seniority within the field, and they ensure that the proceedings are fair and that they're conducted in a fair manner.
00:25:50
Speaker
And understand that underpinning all of that, you have the Independent Support Service if you need to talk about the impact on you. And please don't don't be reluctant to speak with them. It's entirely confidential. We are told nothing.
00:26:05
Speaker
It's there to enable you ah to engage with the system. And when you're giving evidence, if you choose to give evidence at a hearing, then the panel and the chair will ensure that you're enabled to give your best evidence, just like with complainants.
00:26:21
Speaker
It's not all about the complainant. We want to ensure that the system is fair for the osteopath as well, because that's in the public's interest. interest And the hearings generally take place in public, but sometimes they take place in private if it impacts on your health or there's matters that require it to be dealt with confidentially.
00:26:43
Speaker
because we do deal with ah cases involving the health of registrants in a number of small a small number of cases, and those cases will always ah take place in in private because of the nature of the the allegation.
00:26:57
Speaker
um Thanks,
Significance of Fitness to Practice
00:26:58
Speaker
Shalene. That's been really, really interesting, and I hope people find this helpful just to kind of through I just threw throw a bit of light onto some of the processes that we take for granted to some extent, but and not always.
00:27:11
Speaker
we try and so We try and talk to people a lot about kind of what happens, but it's not it doesn't you know I think it's just helpful to sort of use different ways of getting that message out there. but and i And I think one of the things that we did during lockdown, Stephen, was ah we ran as a number of webinars where we sort of did this myth busting.
00:27:29
Speaker
um and common misconceptions about fitness to practice. And they were really well attended. And we ran it live because we wanted to hear the voice of the profession asking us questions.
00:27:43
Speaker
And we did, we produced a series of newsletters because we couldn't get to all the questions within the timeframe. And what we're thinking of doing is restarting some webinars to encourage people to, from across the whole country, to attend.
00:27:57
Speaker
in the evenings um and ask those questions that sometimes we don't know what you want to know, but we're ready and there to to answer those questions and engage with the profession around fitness to practice um and to see how we can make it clearer to people throughout their journey in their in the profession.
00:28:20
Speaker
it's It's actually, i think, ah something that I talk to osteopaths and to students about as well is the is the fact that you know you know the the that having that process is what makes us a profession, really. you know having Having a means of dealing with it with with with issues when things go wrong, when people haven't met the standards or there is unprofessional um conduct in some way, it adds credibility to to everyone else within that profession.
00:28:50
Speaker
Yes, and it's recognised um by the High Court and the judges that osteopaths set themselves very high standards of conduct and performance. And as a consequence, the profession has a a very good reputation amongst the public.
00:29:07
Speaker
um And that means that if you're a member of that profession, that you're held in high regard. And the title osteopath has great of weight attached to it and gravitas.
00:29:18
Speaker
And membership of profession has many ah privileges and benefits. And that's part of the price, which is that when there's an allegation brought against and osteopath about their fitness to practice, that we need to investigate that and scrutinize it.
00:29:34
Speaker
But there's proper checks and balances and independence and transparency and fairness in the process. Yeah, that's excellent. Well, thank you very much, Shaleen.
00:29:46
Speaker
Thank you very much.