PSA guidance on hearings

The COVID-19 pandemic

It is no surprise, then, that regulators have been carefully considering how they can continue to achieve these objectives during the pandemic. In our own experience, some regulators have advanced their thinking more quickly than others and regulators have responded in different ways to the challenge of progressing hearings without affecting the integrity and fairness of them.

We are seeing an increasing number of regulators moving away from undertaking only procedural, interim order and review hearings remotely to being prepared to consider undertaking more substantive hearings remotely, in person or a hybrid of the two. On the 2 September, the day after the publication of the PSA’s draft guidance, the NMC published its own route map to the holding of “in person” hearings from 14 September.

PSA guidance for regulators

The PSA guidance is helpful because it brings together in one place the current learning from experience of regulators and representative bodies.

Having just been involved in a five week contested virtual hearing which included lay and expert witnesses and some complex clinical issues we can say that it is possible to hold even long and difficult hearings remotely so long as very careful consideration is given to the management of the hearing, disclosure of evidence, witnesses, privacy, publicity, etc.

All of these things and more form the basis of the PSA’s proposed criteria to be adopted by regulators when considering virtual hearings. They will provide transparency to everyone involved in a hearing and promote consistency amongst the regulators. Both of these are welcome.

The PSA has made it clear that it will take this guidance into account during their performance reviews. It is important therefore that regulators consider responding to the consultation, because there is an opportunity to refine and shape the guidance before it is published. Representative organisations are also encouraged to respond, particularly if they feel that the guidance as currently drafted does not fully take account of the concerns their members have regarding the use of virtual hearings.

Perhaps the most interesting aspect of this conversation will be how regulators embrace this new way of doing things when the pandemic is over. It will be a missed opportunity if we simply go back to how things were. There are benefits in appropriate cases to both those regulated and the regulators in a more nuanced and modern approach to how fitness to practise regulation may be delivered in the future.