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Fitness to practise: building capacity, ensuring fairness and improving timeliness

February 24, 2022

Our investigations and hearings into serious concerns are a vital part of the public protection framework we operate, but our performance in this area is often hampered by restrictive and outdated legislation. In the absence of immediate regulatory reform, we are looking to how we can make improvements within the current framework to build capacity and improve timeliness.

The time it takes to complete a fitness to practise investigation is an issue often raised with us. We agree that completing cases takes too long, creating uncertainty for all involved. Reducing case turnaround times without regulatory reform means taking a very close look at how we manage fitness to practise cases, and making improvements where and when we can.

Shifting to remote hearings due to the pandemic

Continuing to progress cases and operate our fitness to practise service during the coronavirus pandemic has meant holding almost all of our hearings remotely. Initially, we were left no choice but to postpone most of our hearings because of the threat of the pandemic. We were then able to quickly move to remote hearings for interim order cases and reviews, ensuring we continued to fulfil our purpose of protecting the public and patients.

By the summer of 2020, we were able to recommence our substantive hearings, albeit remotely using online meeting technology. We also started to consider how decisions would be taken when a request was made to hold a hearing in person.

Updating and modernising our preliminary meeting guidance

Preliminary meetings provide an opportunity for parties to seek further directions on a case in advance of a hearing. We identified the need to update our preliminary meeting guidance last year for a couple of reasons.

The first was to ensure preliminary meetings are used as an effective case management tool by our practice committees. Effective use of preliminary meetings means using them to narrow, refine, or resolve issues ahead of a full hearing. Changes made in support of effective case management include clarifying powers to give directions, enabling more effective use of the legal adviser on disputed issues on the admissibility of evidence, and clarifying the process and practice for requesting and listing a preliminary meeting.

The second reason was the ongoing need to hold all or most of our hearings remotely due to the ongoing COVID-19 pandemic. Practice committees needed guidance on the process and considerations for deciding the format of a hearing, whether it would be held remotely, in person, or a hybrid of the two, where parts of the hearing are held with all parties in person, and other parts remotely.

We publicly consulted on the changes made to the preliminary meeting guidance at the beginning of last year. Thank you to all those who provided views, particularly those representing dental professionals. We have now published the outcome of the consultation, and the updated Preliminary Meeting Guidance.

The changes made will support improved case management and timeliness.

Hearings will be held remotely, with flexibility for it to be held in person

It is important for us to protect our staff and those participating in hearings. We have had to adjourn a case due to COVID-19 infection, which meant staff were not available for other hearings. We have learned a lot since starting remote hearings, and there have been benefits which we are keen to hold onto, but there is more for us to learn before consulting on any permanent change. Our experience of managing remote hearings so far has told us:

Participants welcome the choice in format for the hearing.
There is no discernible difference in outcome from remote hearings.
We can accommodate an in person hearing when requested and agreed.
Remote hearings can reduce cost and any disruption to jobs and family life.
Moving back to in person hearings too quickly poses public health risks.
Flexibility means as many hearings as possible are heard in a timely manner.
Demand for in person hearings is low with just 8% of cases heard in person in 2021.

So, we will continue to hold hearings remotely, especially interim orders and review hearings, where there are clear benefits in expediting proceedings.

We’ll be asking for views from all parties about whether this needs to change for each hearing, well in advance and more frequently, to allow everyone to plan for whether the hearing is remote, in person or hybrid. Early agreement on the format up front, avoids the need for a decision from the committee members at a preliminary meeting and allows us to plan around the demand for in person hearings.

Where a consensus can’t be reached, parties will be able to request a preliminary meeting for an independent decision on the format of the hearing, in person or the hybrid approach. This helps us to manage the space we have effectively, while we continue to work under operational constraints, ensuring participants are comfortable and the public health risks are mitigated as far as is reasonably practicable. When it is agreed that the evidence would be best heard in person, the hearing will be held at our London hearing rooms.

We are also changing how we list certain types of hearings

Some of our hearings are completed ‘on paper’ only. There is no oral evidence provided, the dental professional concerned does not attend, and all decisions are based on paper evidence submissions. These types of hearings are held for interim orders, interim order review hearings, where an interim order is already in place, and registration appeals hearings, which deal with issues such as CPD compliance.

From 4 April 2022 we will be listing these on paper hearings more flexibly, to ensure we can maximise the capacity we have and reduce delays. These types of hearings will be allocated a listing widow of one week, as opposed to a specific date. Listing in this way will provide adequate notification to parties involved, and greatly reduce the risk of the review not being held. Oral hearings will not be affected.

Getting the balance right

As well as the impacts on individuals of these changes, we also have to consider the overall challenge of timely progression of hearings in the current circumstances – we believe we have found the right balance. Cases are heard in person where there is need, but are held remotely in most cases and, if circumstances require it, we’ll use a hybrid approach. 

Updated preliminary meeting guidance for practice committees will support improved case management in fitness to practise, and alongside the continuation of remote hearings and flexible listing will mean we’re making the most of our capacity and the time available to us.