On 4 March 2021, the HCPC was granted an amendment by the Department of Health and Social Care to existing Rules which gave it the express provision to hold hearings remotely during an emergency. Currently, the Coronavirus emergency provisions are due to expire on 30 September 2021.
Since then, the HCPC have held 1,110 remote hearings, made up of the following different types of hearings:
- Interim Order applications – 110
- Interim order reviews – 463
- Substantive reviews – 144
- Final hearings – 318
- Other hearings – 75
“We would like to continue to hold hearings remotely once the emergency period ends, where it is fair and practical to do so.”
The HCPC said it is now consulting on proposals to “continue to hold hearings remotely once the emergency period ends” and are therefore “seeking an amendment to our Rules to give us permanent powers to hold hearings remotely.”
The HCPC said this was necessary to “ensure that we were able to continue to fulfil our statutory duty to protect the public, progress fitness to practise investigations without unnecessary delay and conclude hearings as efficiently and safely as possible.”
Remote hearings only where it is fair and appropriate
It would appear from the consultation that the HCPC are proposing to rely on remote hearings only where this would be “fair and appropriate”.
The current HCPC guidance state that it will:
“consider whether a case is most suitable to be heard remotely, physically or as a hybrid. The approach taken will be considered on an individual basis, taking into account the relevant factors in each case.
“We will seek the views of registrants and/or their representatives on our initial assessment of the type of hearing to be held, and their reasoned views will be taken into account as part of our overall consideration of the relevant factors. However, there may be a number of competing factors that we need to assess when deciding the method of holding a hearing, and these may override a registrant’s preferences. As such, a registrant’s preferred means of holding of hearing cannot be the determinative factor in deciding how to proceed.”
The guidance goes on to say that:
“If a party disagrees with our approach to listing a case as a remote or hybrid hearing, we will ask a Chair of the relevant practice committee to give directions on how the case should proceed.”
Why permanent remote hearing for the HCPC?
The HCPC commented in the consultation that it has “seen benefits to holding our hearings remotely” and want to use the opportunity to “improve and innovate… to embrace new ways of working where it can bring advantages to us and those involved in the process.”
“Our learning from holding remote hearings over the last year or so, is that remote hearings can offer greater flexibility when listing hearings and makes the process more efficient. There have been advantages for all those involved in a hearing in not having to incur the time and financial costs associated with travelling to hearings and staying away from home. Our Tribunal Services team have also reported increased engagement from registrants who have been supported to participate in the process by the remote nature of the event.”
However, remote hearing are not for everyone and every case. Criticism and concerns about the use of remote hearings include:
- Privacy of registrants and witnesses and the danger that those observing virtual hearings may record extracts from those hearings and release them via social media
- Difficulties around the identification of witnesses and how far the panel can assess that their evidence is genuine when witnesses are not before them in person, or ensure that they are not being coached
- Some parties, many of whom are vulnerable or have protected characteristics, may find it difficult to engage with the technology and this may affect the quality of their evidence
- The technical stability of the platforms
- Whether the hearings will be recorded and, if so, the arrangements for ownership, retention and storage of the recording
- Lack of guidance about the processes for deciding whether cases should be heard virtually.
HCPC’s fitness to practise record
The HCPC’s fitness to practise record is poor. It has failed to meet the majority of the PSA’s fitness to practise Standards of Good Regulation.
This inevitably will raise questions about how the HCPC will ensure equality and fairness in what is being proposed through this consultation, and respondents should give careful though to this in their responses.
The consultation is open from 31 August 2021 to 23 November 2021.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.
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