Council on Licensure, Enforcement and Regulation (CLEAR)

Baltimore, USA, 16-19th September 2024

Professor Louise Wallace, Professor Rosalind Searle and Dr Annie Sorbie report on their presentations on the Witness to Harm project and their learning at this muti-regulator international forum.

Based in the USA, with members including government agencies and private/public sector regulatory bodies, within and beyond health and social care, CLEAR’s purpose is to promote education, the dissemination of information and networking among a global international community of professional and organisational regulators. In doing so it recognises the vital contribution to public protection that can be made by these regulatory actors. 

Given the patient safety focus of our NIHR funded ‘Witness to Harm’ project, and the international resonance of its findings, this provided a perfect opportunity to present three key parts of our research, alongside Dinah Godfree (Head of Policy) of the Professional Standards Authority (PSA) as moderator.  We also exhibited two posters which set out details of the web analysis we had conducted in relation to 15 of the professional regulators’ websites in relation to the presentation of information to the public on regulators’ websites. See more in our publications.

Professor Louise Wallace gave a short overview of the Witness to Harm research and recommendations. She presented on the interview study of health and care employers. This showed that the support provided by employers to registrants (whether subject to a Fitness to practise (FtP) concern or while being a witness for the regulator) was often like that provided during employer’s complaints or disciplinary investigations.  However, this support often ran out long before a FtP case was resolved, and before a hearing.  It was notable that those who had personal experience of FtP and knew that it would be a difficult experience. They offered in-person senior support for employees attending  hearings. Support for the people who go on to be engaged in FtP and who use health and social care organisation’s services was mainly minimal; confined to that required by a local complaint process.  Employer contact with regulators was sporadic, and then demanding, although GMC, NMC and SWE (which have employer liaison staff) were praised and it was suggested that this liaison role helped to reduce inappropriate complaints being raised and to keep employers abreast of developments. Employers felt regulators should provide better information for registrants and the public. They welcomed the Open Learn resources we have now created.

Dr Annie Sorbie presented work that she and Lewis Garippa had conducted which explored how the legal and policy frameworks of the statutory regulators of social work and social care professionals in the UK approach the question of whether a witness at a FtP hearing should be considered as ‘vulnerable’, and the steps that may be taken in response. As she explained, this novel socio-legal comparison between the four countries of the UK draws on literature that critically considers how vulnerability is used in the social work and welfare context and feminist vulnerability theory to analyse how witness vulnerability is constructed in these texts.  Some of the findings were that these constructions can be too broad (when diverse groups of people are labelled as vulnerable in ways that remove agency and are stigmatising) and too narrow (when texts overly focus on the attributes of individual witnesses and do not pay enough attention to how environmental factors may make people vulnerable, including the process of giving evidence). This research calls for a holistic textual approach to how witness vulnerability is framed in policy and law to better support witnesses and was able to point to various encouraging examples that indicated that this was the current direction of travel in the UK. The presentation made further concrete policy recommendations which were also applicable to CLEAR’s international membership, and to regulators beyond the social care sector. These included the importance of ensuring that regulation is in line with best practice for regulates, and also the value of collaboration with people with lived and learned experience when evaluating regulatory rules and procedures.

Prof. Rosalind Searle then explored the specific case of sexual harassment and abuse. She outlined how these types of cases were distinct from other forms of harm and the key groups who were disproportionately targeted. She outlined the distinct journey to reporting in these cases, which involved a sense-making process to realise that an abuse had occurred – admitting it to themselves with the corresponding sense of shame and self-blame, before they were then able to formally report. She raised how these events also included wider social betrayal as others sided with the perpetrator against the target. These networks of silence were likely to lead to other forms of misconduct going unreported. She argued it created a ripple of potential trust breaches from the dyad of the two parties to the wider profession and FtP.  Review of the decision documents published by regulators after hearings, known as determinations, revealed important differences between the various health and social care professions. They all reflected power imbalances between the different parties, and that formal reporting arose once other informal strategies had failed. A further observation was that the FtP process actually echoed the original event, involving a process that was intimidating and emphasised the good character of the registrant compared to the witness, who was then challenged as to their nefarious and malicious intentions based on erroneous or impeded recollections. Thus, they were positioned as an unreliable witness in contrast to the registrant.  These experiences of reporting included epistemic injustices that left the witness disrespected and silenced. Finally, Prof. Searle identified recommendations that centred on supporting and believing the witness and avoiding the adding of unnecessary further traumas. She concluded with upstream regulatory suggestions such as better screening in the training of doctors and in the identification of different types of vulnerabilities with efforts to raise awareness of abuse within the wider workforce.  

During the conference, we all made the most of the opportunity to speak with colleagues from across the globe, and to reflect on the similarities in relation to the challenges that many faced about the experiences of public witnesses.  We benefitted from presentations, for example on the topics of applying trauma-informed approaches with registrants, and in the conduct of sexual misconduct investigations. There were important synergies with other papers to better understand how people can be supported to raise concerns, and for these concerns to be heard and acted on. We also heard about efforts to humanise investigations and bring them to an earlier conclusion, as outlined by the New Hampshire Department of Safety, and the Nursing and Midwifery Board of Ireland.   

We attended the PSA’s lively debate on professional safe spaces as promoted by HSSIB to encourage full disclosure in organisations when things go wrong versus the need to address professional short comings transparently. Needless to say, there are arguments on both sides, and participation by the audience revealed a revealed a range of views on this important topic!

A theme that we observed throughout the conference was a renewed focus on how regulation can be made to work better for everyone engaged in this endeavour.  In presentations there were acknowledgements that ‘regulatory spaces’ can be daunting, exclusive and even harmful to people, but also a determination to do things differently, and ultimately to do better.

Our aim in attending CLEAR was to disseminate our research to an international audience, and to extend the reach of our findings across and beyond health and social care professional regulation. We were encouraged by the interest in our work at the conference, as well as the many follow up requests we have received for more information about our research and use of our Open Learn resources. These discussions are ongoing, and we look forward to continuing to expand our networks, and to working with UK and international partners to embed the findings of our research in policy and practice.

Wallace, LM & Greenfield M Employer support for health and social care registered professionals, their patients and service users involved in regulatory fitness to practise proceedings in the UK. BMC Health Services Research (Vol. 24 article no. 1268)

View our Open Learn Resource on FtP