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Avoiding the FtP bear traps

With the GPhC reporting its highest ever backlog of fitness to practise cases, it is important pharmacists ensure they are adequately covered for any professional indemnity issues.

At a recent meeting of its Council, the GPhC revealed that its current backlog of 701 open fitness to practise (FtP) cases is the highest it has ever had. The trend in the high number of FtP concerns received continues, it added, “particularly at the initial assessment stage”.

Perhaps this is one reason why the regulator’s processes in this area of its work are coming under intense scrutiny. Last month, the Professional Standards Authority wrote to health secretary Steve Barclay over the GPhC’s continuing failure to conduct FtP cases in a “timely” manner, something it said that it would address as an “absolute priority”.

 The GPhC saw an increase during Q1 2023/24 in the number of new FtP concerns received (1,277), making this the highest number of concerns received in the past year “by some margin” (Q3 2022/23 was the second highest at 1,117), with particularly high numbers of concerns received in May and June.

Analysis by the GPhC shows an increase in concerns raised by members of the public compared to other groups which, it says, “reflects what we have seen in terms of increased pressures on frontline pharmacy coupled with limited resources and pharmacist shortages, as well as instances of supply chain disruption”, resulting in “unexpected pharmacy closures, as well as delays in patients receiving medication”. 

Other data from the report show the FtP Committee (FtPC) imposed seven interim orders during Q1 – restricting or suspending a pharmacy professional’s ability to practise – with the number of cases referred to the investigating committee increasing to 16 from the previous quarter. 

How does the FtPC operate?

The FtPC operates and makes decisions independently of the GPhC. If a fitness to practise concern is referred to the FtPC, it will write to the professional to explain the process. There will usually be a hearing held by a panel of three people (chair, registrant member and lay member). Other people may also attend, including legal advisers, medical advisers, GPhC staff, witnesses and other representatives. 

If the committee decides a pharmacy prof-essional’s fitness to practise is impaired, it can:

  • Issue a warning
  • Agree ‘undertakings’ (promises by the pharmacy professional on things they will or will not do in the future)
  • Impose conditions on the pharmacy professional’s practice
  • Suspend the pharmacy professional from practising
  • Remove the pharmacy professional from the register in the most serious cases.

Professional indemnity requirements

As a condition of registration (under article 32 of the Pharmacy Order 2010) the GPhC requires practising pharmacists and pharmacy technicians to have appropriate indemnity cover in place before they start to practise. 

This is to make sure that, where a person has suffered harm through the negligence of a registrant, they will be able to receive any compensation and costs of litigation to which they are entitled following a successful claim.

The indemnity arrangement could be:

  • An insurance policy
  • An arrangement made by an employer
  • An arrangement obtained through a professional body, trade union or defence organisation
  • A combination of these.

The regulator stresses that it is up to the registrant to make sure that the professional indemnity arrangements they choose provide appropriate cover. The GPhC says it cannot advise about the level of cover needed, since what is appropriate cover for an individual registrant may depend on a combination of factors, including, for example:

  • The practice area(s) they work in
  • The services they provide to patients and the public
  • The risks involved with their practice.

As a result, the regulator places the onus on the registrant to “make sure that you consider the risks which may arise from your practice and make sure that you have a professional indemnity arrangement in place which provides cover which is appropriate to those risks”. 

In order to work out what cover this would require, they suggest registrants get advice “as appropriate from your professional body, trade union, defence organisation or insurer, to make reasonable, informed decisions about the level of cover appropriate to you and your practice”, stressing that, “you need to be able to justify your decisions”.

“It is up to the registrant to make sure that the professional indemnity arrangements they choose provide appropriate cover”

Grey areas

Although registrants must have a professional indemnity arrangement in place to cover their practice in the event of any potential claim for compensation, they are not required to have it in place for fitness to practise investigations into themselves. While many will buy this additional cover, there are plenty more who do not realise that their professional indemnity cover may not kick in under this circumstance.

Professional conduct solicitor Deepika Raino is legal director at Brabners LLP and represents and defends healthcare professionals facing FtP issues. “One of main themes we see is that because professional indemnity cover for fitness to practise issues is at the discretion of the insurance provider, my clients find they are not always indemnified and so their policy does not always provide them with legal support and advice for the fitness to practise investigation they are facing,” she says.

The reason for this is because professional indemnity for fitness to practise can fall into two categories. If an issue is raised about professional conduct with regards to fitness to practise arising out of a registrant’s clinical practice, then professional indemnity cover normally kicks in and the professional indemnity provider will usually arrange for legal advice and representation. 

However, if the FtP issue is about personal misconduct, then cover might not be provided. Personal misconduct could be anything from inappropriate behaviour, such as a relationship with a patient, to something the pharmacist has done outside of work which could bring the profession into disrepute (e.g. a criminal conviction or caution).

“In my experience professional indemnity providers will say from the outset that it is discretionary,” says Raino, “but you might not know what is covered or not covered until the need arises – and at that point it can turn out to be a really stressful situation for the individual if the provider decides they are not covered.

“While not all FtP allegations are true, the take-home message is that when you are a registered professional you are never off the hook and you can get into difficulty for all kinds of things outside of your professional practice, which I don’t think is always understood.” 

Contemporary challenges

As the GPhC points out in its latest FtP statistics, an increase in concerns raised by the public reflects some of the professional challenges faced by pharmacists in contemporary practice.

“FtP complaints are more common as patients and the public [now] know how to make these kind of complaints,” says Raino, “so I think all professionals should have appropriate cover because if you lose your licence to practise or have restrictions put on it, this will restrict your ability to work, all over the UK”. 

While this seems to suggest that more awareness needs to be raised regarding the ‘discretionary’ aspect of professional indemnity cover, this doesn’t necessarily mean that pharmacists are not well-enough equipped to deal with these challenges, says Raino. “It’s more that people don’t fully understand what FtP means and what issues they can be investigated for, or they get profession indemnity cover and then assume it will cover them for everything without question – and of course it doesn’t.”

She offers the following guidance and advice for pharmacists to help avoid these potential ‘bear traps’.

“Number one is always read your code of conduct and any guidance updates. Any FtP allegation you are going to face arises from breaches of your professional code of conduct or professional guidance, so keep up to date with what the regulator puts out. 

“Secondly, if the complaint against you is about a breach of standards, and if you don’t agree with it, then get advice as soon as possible. I often see clients who don’t act quickly as they think their regulator will be on their side, but if this is not the case then things can escalate rapidly. The best thing to do is tackle it sooner rather than later.  

“The regulator has a statutory duty to investigate these complaints so – if it comes to it – it is important to have the right legal representation from a firm which understands professional conduct and regulation, and which specialises in the profession so it can deal with all the different investigative strands.” 

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