Introduction
Reform to professional regulation in the UK continues with the recent release of the guideline Using accepted outcomes in fitness to practice: guidance for regulators by the Professional Standards Authority (PSA). The PSA oversees regulation of healthcare professionals throughout the UK. The PSA’s guidance addresses reforms to how regulators should approach outcomes in regulatory matters. These reforms are expected to fundamentally change how the complaints and discipline process works in the UK. For Canadian regulators, these reforms are of particular interest because they may influence discipline and complaints processes in Canada.
The Accepted Outcome Process
An “accepted outcome” can be defined as an agreeable resolution of a complaint proceeding. A complaint proceeding commences with the filing of a complaint or report against one or more of that regulator’s registrants. These complaints are usually filed with the governing regulator and raise concerns about professional misconduct and/or incapacity.
According to the new guidance, accepted outcomes must be reviewed by a “case examiner” and occur where:
- The registrant agrees to a penalty proposed by the case examiner;
- The regulated professional accepts that they have committed an act of professional misconduct and/or have incapacity; and,
- The registrant accepts the case examiner’s findings.
The guidance goes on to suggest that if a registrant fails to respond to a case examiner’s offer of an accepted outcome within a specific period of time, the case examiner may proceed to impose a penalty and close the matter without the registrant’s agreement. These powers are somewhat broader than those afforded to most complaints committees in Ontario, as further discussed below.
Notably, accepted outcomes are a largely paper-based form for resolving complaints. A “case examiner” will hold decision-making authority and determine the appropriate outcome of the complaint proceeding.
Factors to Consider in Determining Accepted Outcomes
The PSA’s guidance indicates that regulators should consider the following three questions when determining whether to apply an accepted outcome in a complaint proceeding as opposed to referring the matter for a hearing:
- Is there a dispute of fact or conflict of evidence that can only be fairly tested at a hearing?
- Is there complexity in the case or evidence suggesting that a hearing may be beneficial?
- Would it be beneficial and proportionate to test insight at a hearing?
If the answer to all the above is no, then the guideline recommends an accepted outcome as an appropriate approach to resolving the matter. However, if the answer to any of the above questions is yes, the guideline recommends that the case examiner consider referring the case for a discipline hearing.
Key Differences in the Ontario Approach
There are key differences between the usual Ontario approach and the UK with respect to how complaints proceedings are handled by regulators. To begin, in Ontario, decision-making powers for complaints proceedings are usually allocated to a committee, rather than a specified individual, and committee members must be selected through a prescribed process. Notably, the decision-making authority of a “case examiner” has not yet been prescribed or proclaimed into UK law.
Under the governing legislation for health regulators in Ontario, health regulators must have a screening committee (the Inquiries, Complaints and Reports Committee) that is comprised of at least three members, where at least one of the three members has been appointed by the Lieutenant Governor in Council.
In the broader Canadian context, while there have been some regulators with analogous authority to impose disciplinary sanctions without a hearing, in British Columbia, for example, the accepted outcomes approach remains relatively rare.
Takeaway
The PSA’s guidance creates food for thought for reforms to professional discipline and complaints processes in the Canadian context. The PSA reminds regulators that any approved outcomes reforms should be accompanied by safeguards to ensure that the public interest is fully served.