Our culture of curiosity

Overview

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As an independent regulator we need to understand what happened when we receive a concern about someone’s fitness to practise. Understanding what happened and why helps us decide if there is any action we need to take to protect the public, or if a referral can be closed. We will listen to and fairly consider the accounts of relevant people involved where this is appropriate, reasonable and proportionate to understand what happened; for example, this may include a person receiving care or a family member, the professional, a Director of Nursing or employer. This guidance seeks to encourage a culture of curiosity and to clarify when we can seek information and when we cannot.

What is a culture of curiosity?

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Having a culture of curiosity means we consider who has information that can assist us. We won’t accept a single source of information at face value where it is appropriate, reasonable and proportionate for us to make other enquiries.

We’ll listen carefully to what people tell us about their experience and will take their account seriously. Sometimes we will be told very different accounts of what happened from the person receiving care, the professional being investigated or the professional’s employer. Where necessary we will have the confidence to ask sensitive questions or respectfully challenge what we’re being told.

We avoid making assumptions and take steps to ensure that bias (whether conscious or unconscious) doesn’t impact our decision making. We will consider all the evidence without preconceived ideas of whose account is most likely to be accurate. We may need to scrutinise the conclusions others have reached. Where necessary we’ll consider if there are other reasonable and proportionate investigative steps we’re able to take to clarify what happened.

We seek advice from our clinical advice team where this is necessary to understand the concerns raised and any response to those concerns. Understanding if similar concerns have been raised in relation to the same organisation can help us weigh up the concerns and the wider context. For example the risks identified may be caused by systemic issues or as a result of group norms or culture and our guidance on context explains why it’s important to understand this.

By following this approach we can be satisfied we have fairly assessed the concerns that have been raised.

Who it’s important we hear from

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As set out in our guidance on engaging with your case and insight and strengthened practice where we’re dealing with a referral which may require regulatory action by us it’s really important that we hear from the professional involved. This is so we can understand the professional’s perspective, including any wider context issues, to fairly assess if they pose a risk to people in the future.

We know that listening to the experience of people receiving care and their wider families can be essential to make sure we protect the public. It is important they are heard and their perspectives are understood, and also because their accounts can be crucial in understanding what happened and provide insights about the culture within a particular organisation. It’s therefore important that where it’s relevant to our investigation we make all reasonable efforts to contact people receiving care or their families.

People receiving care and their families are less likely to have access to all of the documentation that may be relevant and therefore it’s really important we listen to what they have to say and consider if there’s any documentation or information we’re able to request which may help us assess the information we’ve received. For example, people receiving care and their families won’t usually have access to staff rotas which may support their version of what happened. Equally, they may not have access to information which explains the care provided and why this was appropriate. We should clearly explain the conclusions we have reached as a result of assessing the various sources of evidence so those involved can understand our decision.

Organisations and professionals must comply with the duty of candour which includes being open and honest with people receiving care and their families and embracing a culture of learning from mistakes. Where organisations aren’t listening to the experience of people receiving care and their families, they are missing the opportunity to learn from this. This may be something we need to investigate further or refer to other organisations, such as systems regulators including the Care Quality Commission, Care Inspectorate Scotland, Care Inspectorate Wales and Regulation and Quality Improvement Authority in Northern Ireland or another regulator. If we find the experiences of people receiving care and their families are being dismissed or ignored, this may reflect a poor culture within an organisation.

Most organisations and employers make sure concerns are appropriately dealt with and assist our investigations. There may be occasions where an organisation seeks to assure us that there isn’t a serious issue for us to consider. These assurances may not always be reliable. This could be for a number of reasons; for example, they have investigated but, as they have a different remit to us, this doesn’t cover everything we would need to consider. Whilst less frequently the case, there are occasions where organisations are aware of concerns and want to avoid outside scrutiny. This means we cannot always be satisfied there is nothing for us to investigate solely on the assurance of an organisation. Where another organisation or body has carried out an investigation, our guidance on Findings of other organisations and bodies explains how we should approach the evidence and any findings of the other investigation. However, where we have made enquiries and are satisfied that there isn’t a fitness to practise issue we need to investigate, we cannot make further enquiries in order to respond to complaints or wider concerns raised by parties that don’t relate to any individual’s fitness to practise as that isn’t our role. Where appropriate, we may refer concerns to other organisations, such as the systems regulator for the relevant country¹ or another regulator.

Our legal framework

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When we’re considering a referral relating to a professional’s fitness to practise we have specific legal powers to carry out appropriate enquiries and investigations. These include the power to require information from someone other than the professional concerned where that information appears relevant for the purpose of our fitness to practise proceedings. Where a person fails to supply that information they are committing a criminal offence². We cannot require disclosure of information which is prohibited by other legislation including the General Data Protection Regulation.

We’re obliged to exercise these powers fairly and proportionately. We must therefore restrict our enquiries to what is appropriate and relevant to the assessment of whether the professional’s fitness to practise is impaired.

Screening concerns

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Closing straightforward referrals

Some concerns raised with us will be straightforward. It will be clear that they do not require regulatory action to protect the public and further enquiries will be neither necessary nor proportionate. Where this is the case, it is in everyone’s best interests that we close these referrals as soon as possible. For example, where concerns are raised which are not sufficiently serious to suggest a concern about a professional’s fitness to practise, we should not make further enquiries. A culture of curiosity does not mean looking to see if there is any evidence of other alleged wrongdoing by a professional regardless of what has been raised in the referral. This would be unfair, unreasonable and disproportionate.

We must be clear we understand the concerns before deciding not to investigate

However, when we’re considering referrals which may concern us, we want to be satisfied we have an accurate and complete understanding of the concerns raised before we make a decision that we do not need to investigate further. This includes making sure we have a full understanding of the perspectives of the person raising the concern with us. Where we’re considering closing a referral we will consider if we’ve been sufficiently curious and whether there are any further enquiries we should make. This may include seeking clinical advice where this might assist the decision maker to understand the nature of the concerns raised.

Deciding to close a referral where we can’t get further information

We should close the referral where the following set of circumstances apply:

• it isn’t clear what the concerns are, and therefore if there could be a fitness to practise concern, and
• we have made numerous attempts to contact the person who raised them by various means without success, and
• there are no other potential sources of information.

Concerns investigated by employers

Where a concern has been appropriately managed by an employer or where the employer is still dealing with the concerns, it’s unlikely we will need to open our own investigation unless we need to take immediate action to protect the public. There will be some concerns which can only be appropriately managed by our wider regulatory powers.

Where an allegation is serious enough to suggest there may be a risk to the public but the employer has investigated, we will need to consider the concerns and the employer’s investigation and may need to ask further questions before we can decide if a concern has been appropriately managed; this may be where they have upheld all of the concerns and have taken action, or where some or all of the concerns have not been upheld.

Where the employer is still dealing with the concerns, we’ll carefully consider the ongoing risk and whether it is necessary to apply for interim restrictions on the professional’s practice.

Extent of enquiries and managing risk

We must take care to get the balance right. We can make appropriate, reasonable, proportionate enquiries based on concerns raised with us and any information in our possession. We should not go beyond that. We will consider what is appropriate, reasonable and proportionate based on the nature and seriousness of the concerns raised; the more serious the concerns are, the more likely it is that more extensive enquiries will be appropriate, reasonable and proportionate. We will also keep in mind that fitness to practise is about managing the risk a professional poses to people, not punishing them for past events.

Steps we might take when we decide to close a referral

Where we decide not to investigate, we may still need to take steps to alert others of the situation. We’ll consider³ if there is a need to refer to others, for example:

• another regulator where other health care professionals are involved,
• a systems regulator where we feel there a wider organisational issue,
• the police,
• safeguarding services such as local authority social services teams.

Investigating concerns

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Getting a holistic perspective

Where we decide to investigate a concern, we’ll need to make appropriate enquiries so we’re in the best position to understand what happened and why. We want to have a holistic picture. This will mean looking at available sources of evidence, asking questions, following up on answers and reflecting on the information we’ve received. Having “a culture of curiosity” means that when we consider the concerns raised with us, we:

• weigh up what the information is telling us,
• assess whether there are further enquiries we need to make,
• consider who may be able to assist us in providing information about what happened,
• make reasonable attempts to contact them to ask about the concerns raised,
• listen carefully and ask appropriate questions, which may include asking sensitive questions or challenging some of the answers provided when this is necessary and proportionate,
• Consider the information and any views or perspectives about what we’ve obtained and what they tell us about what happened and what we need to do to keep people safe,
• are open, alert to and follow up on information suggesting other concerns or risks that we haven’t previously identified,
• use our context commitments to help us identify what other enquiries or actions we might need to take.

The examples set out in the screening section may also be helpful once we’ve decided to investigate a referral.

People we may need to speak to

When concerns are raised about a professional, we may need to speak to a number of people. This is particularly important in cases where there is a dispute of fact between the parties; for example, where someone else involved in the case provides a different version of events to that provided by the professional. Where we have contradictory information from different sources, we do not make assumptions about the likely accuracy of what we’ve been told based solely on who has provided the information. We seek to assess what the information tells us by appropriately considering all sources of information. The people we may need to speak to could include:

• their employer,
• any person who was receiving care who may be involved,
• any family members of the person receiving care,
• colleagues who were working alongside the professional at the time,
• any person who may have witnessed or have knowledge of the matter(s) that have been alleged
• other organisations who may have investigated the concerns raised, such as the police or social services.

We will also consider if it will be appropriate for us to get clinical advice from one of our internal clinical advisers so we’re satisfied we understand the concerns raised and any response to those concerns. They may also be able to suggest additional enquiries that we need to make.

Support for people

We recognise that people may need support so they are able to provide the information we need. We will consider if we need to offer support and may ask people what support they need or how we can best support them.

If we have made enquiries with a member of the public or referrer and have not received an appropriate response, we’ll want to consider if we need to try another approach; for example, we may want to try to speak to the person concerned rather than send them an email, we may want to ask if there is support they might need in order to engage with us.

We may also consider if we might be able to find the information we need from another source.

Extent of enquiries

We will assess what enquiries are appropriate, reasonable and proportionate. This will vary depending on the circumstances but appropriate considerations include:

• the seriousness of the allegations,
• the likely relevance of the evidence the witness can provide,
• the likely weight of the evidence and whether there are other sources of evidence,
• if there are other more serious allegations where we have obtained sufficient evidence.