Step 2d: consider how the PA or AA has responded to the allegation(s)

81. To demonstrate insight, and insight which is genuine, the PA or AA will need to show they understand what happened and accept how they could have acted differently. This involves showing, where relevant, that they have: 
• considered the allegation, understanding what went wrong and accept they should have acted differently
• fully understood the impact or potential impact of their behaviour, performance, or health condition
• empathy for any individual affected, for example by apologising
• taken, or are taking, steps to remediate and to identify how they will act differently in the future to avoid similar issues arising
• sought appropriate support for a health condition and are seeking and/or following treatment and advice and/or are engaging with local support and any steps put in place to manage any risks to patients
• complied with the professional duty of candour
• co-operated with earlier investigations into the allegation (if they had the opportunity to do so) and engaged with the GMC’s investigation, and/or
• self-referred to their employer and/or the GMC. 

82. Evidence of insight will usually come directly from the PA or AA in the form of a statement or other material demonstrating their reflection.  
    
    
83. During the investigation, the GMC cannot require a PA or AA to provide copies of material produced for the purpose of professional development or produced while reflecting on their professional practice to improve it (reflective notes), but they can be invited to provide evidence of insight and remediation as part of their response to the allegation. Whether the PA or AA does this, and the form it takes, is for them to decide. 
    
    
84. When assessing the PA or AA’s insight at hearing, the AT cannot require the PA or AA to provide reflective notes. However, if the PA or AA has chosen to provide them, they can be considered.  
    
    
85. The AT may be provided with objective evidence of insight in the form of a statement from a PA or AA’s supervisor. Further information about this can be found in the remediation section. 

86. When the associates tribunal (AT) is deciding what impact evidence of insight has on the assessment of current and ongoing risk to public protection, it will be relevant to consider how complete or developed the PA or AA’s insight is. 
    
    
87. While all evidence of insight is important when assessing risk, some factors will enhance the impact of insight which means they may carry more weight. The following are relevant considerations:
• the nature and quality – for example, a full acknowledgment of what has occurred and what the PA or AA needs to do differently, may carry more weight than a simple ‘...I’m sorry…’. And a detailed, voluntary self-referral and active engagement may carry more weight than a limited self-referral, made in response to a requirement by an individual or organisation to avoid a referral by them, with no onward cooperation.
• the timing – for example, an apology given soon after the relevant events to the appropriate person may carry more weight than if it were given following a delay and just before, or at, the decision point, and a self-referral may carry more weight if it is made voluntarily rather than to avoid a referral by a third party. 

88. To fully comply with the professional duty of candour, a PA or AA is expected to be open and honest with patients and people in their care when things go wrong. This includes apologising. However, where there is evidence that a PA or AA wanted to apologise sooner but has been prevented from doing so by systems or procedures, such as governance or ongoing litigation, or the culture in their place of work, this will be relevant to the weight the AT give to this information. 
    
    
89. A PA or AA has the right to advance a robust defence to an allegation. This includes requiring the GMC to prove their case and bring witnesses to hearings. As a result, an apology may not be forthcoming until after a witness has engaged in the hearing. In other cases, if the defence put forward by the PA or AA is not successful, it may be unrealistic to expect them to immediately accept every finding, in a fully sincere manner, or apologise. 
    
    
90. However, in these circumstances it may still be possible for the PA or AA to provide some evidence of insight without them having fully admitted the circumstances of the allegation. Where a PA or AA gives evidence at a hearing, the AT will be able to test evidence of insight through oral testimony to assess whether it is genuine.  
    
    
91. When deciding what impact evidence of insight has on the assessment of risk, the AT will need to consider how any differences in culture, faith and communication that are known about may have impacted on the quality of evidence, such as how the PA or AA has expressed insight, or framed and communicated an apology. Explanations about the relevance of differences in culture, faith and communication are set out in the section on ‘Being fair’ in the Introduction section of this guidance. 
    
    
92. In many cases, evidence of complete or well-developed insight will have the impact of decreasing the level of current and ongoing risk to one or more of the three parts of public protection posed by the PA or AA. However, where the allegation falls at the higher end of the spectrum of seriousness and therefore the starting point for assessing current and ongoing risk to public protection is high, the impact of insight and remediation and the weight it carries may be less because the risk to public protection arising from these concerns is generally more difficult to address. 
    
    
93. In some circumstances, it may be reasonable to conclude that a PA or AA lacks genuine, or any, insight. This may be because there is evidence they have: 
• repeated behaviour or poor performance where the circumstances of a previous complaint or concern are similar in nature or raise similar concerns to the current matter 
• tried to minimise the seriousness or impact of their behaviour, poor performance or health condition  
• provided an explanation after the event in which they have tried to minimise their own role or culpability, or otherwise sought to blame others 
• been blatantly dishonest or deliberately sought to mislead the GMC or AT. This may include, amongst other things, knowingly advancing a case of false primary fact or a defence at the unreal, unreasonable or ludicrous end of the spectrum, and/or 
• failed to comply with a direction to undergo an assessment or a requirement to produce information/documentation, or significantly delayed complying without any reasonable explanation. 

94. Where there is a lack of insight, this may have the impact of increasing the level of current and ongoing risk to public protection posed by the PA or AA. 

95. For a PA or AA to successfully remediate, it’s important they have insight into the allegation. This is because to actively address an allegation about their behaviour, performance, or impact of a health condition, a PA or AA must first recognise there is a concern and try to understand how it arose.  
    
    
96. Where the allegation relates to a PA or AA’s behaviour or performance it is crucial that they have taken, or are taking, steps aimed at reducing the risk of similar allegations occurring again. Where the allegation relates to the impact of a PA or AA’s health condition and they are presently working, to reduce the impact, or likely impact, on their ability to provide safe and effective care, it is important the PA or AA is seeking and following treatment and advice and taking steps locally to manage any potential risk to patients. 
    
    
97. In many cases, evidence of remediation can address, or have a significant impact on, the assessment of current and ongoing risk to public protection. 

98. There isn’t a set way to demonstrate remediation and so the way in which a PA or AA can show they have actively addressed the allegation(s) will depend on the individual circumstances of the case. Evidence that shows the nature and quality of the steps the PA or AA has taken to remediate the allegation(s) is key to assessing the impact it has had, or can have.  
    
    
99. Remediation can take several forms, including, but not limited to: 
• passing an objective assessment related to performance, health, or language  
• where the allegation relates to performance, participating in training, supervision, coaching and/or mentoring relevant to the matters raised and putting that learning into practice 
• where the allegation relates to behaviour, attending courses relevant to the nature of the matters raised and showing that the learning has been applied 
• evidence that shows what the PA or AA has learnt following the events that led to the allegation, and how they have applied this learning in their practice 
• evidence of good practice in a similar environment to where the allegation arose – this will often be evidence from a PA or AA’s employer showing that they were aware of the allegation and have evaluated the PA or AA’s practice 
• treatment or rehabilitation for a health condition resulting in the PA or AA now being able to practise safely and effectively with or without supportive measures in place  
• steps taken to manage a health condition such that any potential impact on their ability to provide care to a sufficient standard is mitigated, and/or 
• action taken to address language deficiencies which shows the PA or AA can now communicate effectively in the workplace. 

100. Objective evidence of remediation is likely to have more impact and carry more weight than personal statements (self-certification). Objective evidence may include, but is not limited to:  
• certificates from completed training modules 
• continued professional development documentation, including evidence of participation in a college or faculty run ‘Continuing Professional Development’ scheme or a personal development plan 
• reports from supervising medical professionals, and/or 
• a report from the PA or AA’s treating healthcare practitioner. 

101. The length of time between attendance at a course and the decision point will have an impact on the extent to which the PA or AA can demonstrate how they have put any related learning into practice. Some methods of training, such as trainer-led, where available, can support this better than others. 

102. Evidence that a PA or AA has taken steps to remediate may be provided in the form of a statement from their supervisor and will contain a factual account of the PA or AA’s response to the allegation.  
     
     
103. If available, the statement will detail any factors the author considers relevant, and may include the following: 
• details of any expressions of regret or apology made 
• information about the PA or AA’s involvement and cooperation with any local investigation  
• details of practical steps taken to address the allegation, including attendance on professional courses and/or other learning, and/or 
• an update in relation to the PA or AA’s current practice. 

104. The information contained within the statement may assist in determining whether a PA or AA has shown insight and/or whether the allegation has been addressed. The content of the statement should be weighed appropriately against the nature of the allegation and other available evidence. 
     
     
105. In some cases, a statement may not be available as evidence because the supervisor hasn’t provided this information. An adverse inference should not be drawn in cases where a statement is not available. 

106. When deciding what impact evidence of remediation has on the assessment of current and ongoing risk to public protection, the AT should have regard to the quality of the steps taken, or put in place, by the PA or AA. 
     
     
107. The following should be considered when assessing the impact of remediation: 

a) Is the allegation easily remediable?
b) Has the allegation been remedied or is it being remedied?
c) Is the allegation highly unlikely to be repeated? 

a) Is the allegation easily remediable? 

108. Allegations about poor performance, the impact of a health condition or insufficient knowledge of the English language are generally more easily remediable than others.
     
     
109. Cases involving the following features can be more difficult to remediate: 
• there is a high risk of harm to patients due to the PA or AA’s deliberate, reckless, persistent, or repeated behaviour 
• the nature of, or circumstances giving rise to, the allegation suggests there is an underlying issue with the PA or AA’s attitude, and/or 
• the allegation falls at the higher end of the spectrum of seriousness and is capable of damaging public confidence in the professions. 

b) Has the allegation been remedied or is it being remedied?  

110. In all cases, the quality of the remediation will inform the weight that the AT attaches to it when deciding if the allegation has been remedied or is being remedied.  
     
     
111. Assessing the quality of remediation involves looking at whether it is: 
• relevant – in that the steps taken to remediate have directly addressed the allegation 
• measurable – in that there is objective evidence available that shows what has been done and what, if anything, is left to be done, and 
• effective – in that there is enough information available to see how any learning has been assessed and/or applied in the PA or AA’s practice.  

112. The AT should be satisfied that remediation addresses any risk of harm to patients. A risk of harm will usually still be present where the PA or AA’s poor performance or behaviour is not being, or cannot be, safely managed locally, or local management has been tried and has failed. 
     
     
113. Remedial steps that have been completed will usually have a greater impact and carry more weight than actions started by a PA or AA that have not yet concluded.  

c) Is the allegation highly unlikely to be repeated?

114. The extent of the PA or AA’s insight, and whether the allegation is remediable and has been remediated, will inform the AT’s assessment of how likely or unlikely it is that the allegation will be repeated. The environment in which the PA or AA has been practising may also be relevant.  
     
     
115. Where the PA or AA has been practising in a similar environment to the one in which the allegation arose and they have been exposed to situations where there was a risk of them repeating the behaviour or poor performance giving rise to the concern, the absence of repetition will be relevant. However, where they have not been practising in a similar environment to the one in which the concern arose, either because restrictions have been placed on their practice, they have been out of work, or for any other reason, the absence of repetition will be of little or no relevance. 
     
     
116. The AT needs to make sure that a low risk of repetition is carefully distinguished from identifying no risk of repetition. This is because a low, but nonetheless real, risk of repetition might be significant and/or have a very serious outcome where the case involves behaviour or poor performance which falls at the higher end of the spectrum of seriousness and therefore the starting point for assessing current and ongoing risk to public protection is high.  
     
     
117. Whether the allegation is highly unlikely to be repeated and the impact of this will need to be assessed based on the individual circumstances of the case. In many cases, a conclusion that the allegation is highly unlikely to be repeated will have the impact of decreasing the level of current and ongoing risk to public protection posed by the PA or AA. However, where the allegation falls at the higher end of the spectrum of seriousness and therefore the starting point for assessing current and ongoing risk to public protection is high, a conclusion that an allegation is highly unlikely to be repeated may be given less weight and therefore have less impact on the assessment of current and ongoing risk.  
     
     
118. Where there is no evidence of a PA or AA having completed or started any remediation, it will often be reasonable to conclude that a risk of repetition exists. This may increase the level of current and ongoing risk to public protection posed by the PA or AA. 

122. Evidence that a PA or AA has kept their knowledge and skills up to date can come in different forms, including, but not limited to: 
• documentation showing the PA or AA has passed an objective assessment related to their performance, health, or knowledge of the English language  
• certificates from completed training modules 
• continued professional development documentation, including evidence of participation in a college or faculty run ‘Continuing Professional Development’ scheme or a personal development plan 
• where the PA or AA has been working, competency reports from supervising medical professionals, and/or 
• a report from a clinical attachment programme. 

123. Objective evidence of knowledge and skills being up to date may also be available in the form of a statement from a PA or AA’s supervisor . Further information about this can be found in the remediation section. 

124. Where a PA or AA has not been working for a period since the circumstances giving rise to the allegation arose, either at all or in a specific speciality, the AT may consider that this creates a risk that the PA or AA’s knowledge and skills have deteriorated. It’s therefore important that the PA or AA can evidence they have taken steps to mitigate this risk.
     
     
125. Where the PA or AA can show that their knowledge and skills are up to date despite any break from practice, this will not usually directly impact on the assessment of current and ongoing risk to public protection because being competent in all aspects of their work and able to provide a good standard of practice and care is a key requirement of the professional standards.  
     
     
126. If a PA or AA has been working (with or without restrictions) since the circumstances giving rise to the allegation arose and can show their knowledge and skills are up to date and that they have been working within their area(s) of competence, this will not usually directly impact on the assessment of current and ongoing risk to public protection for the same reason.  
     
     
127. An exception to this may be where the circumstances giving rise to the allegation are historical, there have been no further concerns raised about the PA or AA’s behaviour or performance at work and there is evidence they have kept their knowledge and skills up to date and been working within their area(s) of competence. In these specific circumstances, the AT may consider that the combination of these factors can decrease the level of current and ongoing risk posed to public protection. 
     
     
128. However, where the allegation falls at the higher end of the spectrum of seriousness and therefore the starting point for assessing current and ongoing risk to public protection is high, these factors may carry less weight and therefore have less impact on the AT’s assessment of current and ongoing risk.
     
     
129. Where there is information that casts doubt over whether the PA or AA’s knowledge and skills are up to date, regardless of whether they have been working since the circumstances giving rise to the allegation arose, this may have the impact of increasing the level of current and ongoing risk they pose to public protection.