The Professional Standards Authority, which oversees all the statutory healthcare regulators in the UK, has just published a report on improving Fitness to Practise in relation to cases including allegations of sexual misconduct.
Definition of sexual misconduct
The PSA defines sexual misconduct as including:
- Unwelcome sexual advances or propositions
- Inappropriate comments relating to appearance
- Suggestive gestures or remarks
- Intrusive questioning about personal relationships
- Sending sexually explicit communications
- Physical contact or assault.
Particular issues in decision-making
Particular issues in decision-making that the PSA identify are:
- Bias, where cases hinge on testimony, recollection of events, and credibility assessments. This can unintentionally shift the emphasis onto the victim/survivor’s conduct and their ability to account for it, rather than the alleged perpetrator’s, with a risk of introducing cultural biases or ‘rape myths’ that implicitly question why the victim/survivor did not prevent the incident or react in a certain way.
- Inconsistent categorisation of misconduct (failure to charge sexual motivation or sexual harassment), leading panels to understate the seriousness of the conduct.
- Lack of consideration by panels as to the patient safety risk associated with sexual misconduct involving colleagues. It is increasingly recognised and understood that harassment or abuse within healthcare teams erodes performance, impacts effective teamworking and therefore can create a risk to patient and service-user safety.
- Similarly, lack of consideration of impact on public interest in sanction decisions.
- Inadequate reasoning in panel determinations. Some FtP determinations lack clear, structured reasoning tying findings to each charge and fully articulating why misconduct is or is not considered impairment, and why a given sanction is warranted and others are not. Some FtP determinations also fail to consider the allegations holistically, instead only addressing each charge in turn when assessing overall seriousness. The combined impact of the allegations may be greater than the sum of the individual parts.
Outcomes and sanctions
The PSA says regulatory outcomes across the board show a shift towards more severe sanctions. Approximately 70% of substantive hearings involving sexual misconduct result in suspension or striking off. Striking-off orders have increased in recent years, and are the most common outcome in sexual misconduct cases. There has been a decline in findings of no impairment or no misconduct since 2021/22.
Potential improvement actions
Amongst its suggested potential improvement actions, the PSA gives this specific advice to Fitness to Practise panels:
Recognise that sexual misconduct undermines public trust and can create a risk to patient and service-user safety no matter who the victim is in relation to the registrant.
- Take into account that sexual misconduct often stems from sustained attitudinal problems – such as abuse of power or lack of empathy – which can be difficult to remediate.
- Weigh factors like sexual predation, multiple incidents or victims, or refusal to recognise/ denial of the harmful impact of behaviour as strong aggravating factors requiring more severe outcomes.
- Consider the public interest and public confidence in the profession, including the impact on the profession and colleagues coming forward to raise concerns.
- Emphasise and prioritise public protection, deterrence, professional values and the message sent to professionals and the public.
- Have regard to the relevant sanctions guidance, and the seriousness such guidance places on sexual misconduct, when making and explaining decisions.
- When a sanction is imposed which allows the registrant to remain on the register, be clear as to what steps remain in terms of the registrant journey to full insight and remediation.