Brownlie v Four Seasons Group
In introducing the Regulation of Health and Social Care Professions Etc. Bill (the Bill) the Law Commission, Scottish Law Commission and Northern Ireland Law Commission (the Commission) noted that it was a “matter of some concern” that the legal framework surrounding professional regulation in the UK was “fragmented, inconsistent and poorly understood”. The Bill at its heart is an attempt to address these issues and bring unity, consistency and clarity to the regulation of the health and social care professions.
The Commission noted that the regulation of health and social care professions impacts not only on the lives of registered and aspiring practitioners but also affects the lives of all those who use their services. Given the importance of maintaining a high quality health and social care service and a high calibre of health and social care professional, the Bill’s stated aim, to create a “clear, modern and effective legal framework for health and social care professionals”, is certainly commendable.
The Bill itself is concerned with unifying the legal framework by which the following regulators (the Regulators) perform their regulatory functions:
The Bill introduces a new overriding common statutory objective proposed for all of the Regulators, to “protect, promote and maintain the health, safety and well-being of the public”. This overriding objective is buttressed by general objectives placed on each regulator to “promote and maintain public confidence in that profession” and “promote and maintain proper professional standards and conduct for individuals registered in the professionals register for that profession”. It is by those fundamental principles that the work of all the Regulators needs to be guided.
The Bill has been much anticipated by those involved in this area of regulation and there is a shared aspiration amongst many of the Regulators and the Law Commission that the Bill will make the Queen’s Speech and now go off for pre-legislative scrutiny.
In this blog we hope to chart some of the more significant changes that will come into force if the Bill becomes law, and introduce the new framework for health and social care regulation that it articulates. There are 259 clauses in this Bill. We cannot cover them all here; watch this space for more detail about other Parts not covered here.
Striving For Clarity: the New Common Fitness to Practice Regime
The Commission was clear that the Bill was to bring clarity to the regulation of the health and social care professions and in pursuit of this aim, it introduces a number of important changes to the manner in which health and social care regulation operates. Fitness to Practise (FTP) proceedings are often seen as the most public facing part of a Regulator’s function and accordingly, are often the most high profile aspect of a Regulator’s operation: we focus on them here for that reason.
Direct removal/referral for certain convictions
In respect of convictions for a number of serious crimes listed in Schedule 4 (listed offences), as well as for situations where a Registrant fails to disclose a matter in his initial application that would have prevented him from being registered, there is no longer a requirement that the matter go before a Fitness to Practise panel. Rather, in the above circumstances, the Registrar must remove the Registrant’s name from the register. A statutory ground of appeal to the High Court (or equivalent) is provided for registrants who wish to challenge that decision, on the grounds that the determination is based on an error of fact or is wrong in law.
Further, in respect of convictions that are not listed in Schedule 4 but which are nonetheless defined as being “serious” (one where a custodial sentence has been passed), the matter must be referred directly to a FTP Panel, side stepping the need for scrutiny by an Investigating Committee (IC).
Preliminary decision maker
In respect of all other matters, the Regulators are required to have a preliminary decision maker to determine whether the matter should proceed to a FTP panel.
The starting point for this decision will be the new common limitation period. All Regulators are now to have the 5 year-rule, whereby unless certain exceptions are fulfilled (e.g. it is a serious criminal offence), matters that relate to events that occurred more than 5 years from the date of the allegation or from the date on which the Regulator was informed of the allegation, cannot be proceeded with.
The preliminary decision maker then has a range of diversionary powers: they may decide to take no further action, give advice to the Registrant, issue a warning letter in respect of the Registrant’s future conduct, agree that the Registrant will comply with any such undertakings as the Regulator deems appropriate or grant an application for the Registrant’s removal.
Where a preliminary decision maker determines that the matter should not proceed to a FTP hearing, the Regulator is empowered to review that decision and must review the decision if it considers the decision to be materially flawed or that a different decision may have been made on the basis of information that was not available when the decision was made.
Previously it has been the case that some Regulators could, by means of referral back to the preliminary decision maker, ask that a referral be cancelled if, by way of further investigation, it was revealed that it was proper to do so. The Bill extends this power to cancel a referral to all the Regulators. Such a cancellation may also be made if the Regulator no longer considers that there is a realistic prospect of impairment being found or that it is no longer appropriate to subject the Registrant to fitness practise proceedings.
Case to answer test
The realistic prospect test for onward referral of an allegation by an IC has now been codified in the Bill. IC Panels must also determine that onward referral is in the public interest.
The Bill makes it mandatory for FTP Panels and Interim Order (IO) Panels to have at least three members and for at least one member to be a non-registrant. Subject to that restriction and a number of restrictions as to who may sit on FTP or IO Panels (members of any regulatory body and members of the PSA etc.) the Regulators have sensibly been given the freedom to decide the details of their FTP and IO Panel’s rules of composition.
Expanded statutory grounds
It is noteworthy that the options of either implementing the Shipman report ‘two-stage decision making process’ and removing the statutory grounds altogether, were both rejected following discussion at the consultation stage. Instead, the statutory grounds have been expanded and made consistent across all of the Regulators.
Clinical concerns will be caught under the ground of deficient professional performance and misconduct is now to be known as disgraceful misconduct. New grounds have been added and include: impairment on the grounds of insufficient proficiency with the English language for competent practice; inclusion on a barred list; and on the basis of having been bound over to keep the peace.
In respect of deficient professional performance, this has been partially defined in legislation for the first time to include either “an instance of negligence”, a breach of an undertaking agreed with the regulator, or a breach of an undertaking agreed with a FTP panel. The level of seriousness that the single instance of negligence must meet is not provided and the principle in Calhaem as to the requirement of a ‘fair sample’ appears to have been washed away in a pen stroke.
Should the matter progress to a FTP hearing, much of the conduct of any such hearing remains as it was prior to the Bill.
FTP Panels have a number of options for disposal under the Bill, some of which are new and others simply serve to codify existing arrangements. In respect of the sanction options, a FTP Panel may make the following orders, pursuant to a finding of impairment:
Following a finding of no impairment, a Panel will be empowered to:
The procedure for voluntary removal has now been codified. Where a matter is to be dealt with by way of voluntary removal, a statement of facts must be agreed so that it can be published on the regulators website and/or disclosed to any third parties where it is in the public interest to do so.
Additionally, FTP Panels now have the option of agreeing undertakings with a Registrant without the need for a hearing, if the Registrant admits impairment. It is mandatory for the Regulator to disclose the details of the undertakings (excluding those relating to the health) to the Registrant’s employer, future employer or anyone with whom the Registrant has an agreement to do so.
IO hearings may now be dealt with on the papers alone provided that the parties and the Panel agree to that course. If a Panel determines a preliminary legal argument in IO proceedings, this determination is binding on the subsequent Panel unless that Panel thinks that there has been a material change in circumstance and that it is in the interests of justice to reconsider the matter, or if it is otherwise in the interest of justice to do so.
The Registrant’s and the Professional Standard Authority’s (PSA) right to appeal/refer a decision of a FTP Panel to the High Court (or equivalent) are preserved and the PSA’s power to refer had been extended to encompass consensual disposals.
The Secretary of State may make rules giving Regulators the power to refer to the Court a decision of the FTP Committee if the Regulator has created a separate adjudication body (i.e. potentially allowing the MPTS to appeal decisions). If the Regulator is empowered to do so it may make a referral where is considers the decision does not achieve sufficient standards of public protection and the PSA has not made such a referral.
Easing Operational Burdens & Barriers
There is obviously more to the Bill than the introduction of a common FTP regime. Some very sensible clauses have been introduced to deal with the operational barriers and burdens on regulators and to try and make Regulators more nimble and efficient in their operation.
A new (and much needed) rule-making power
The Commission was unreservedly critical of the role of Government (and indeed Parliament) in the pre-Bill regulatory landscape and specifically noted that even relatively minor changes to a Regulator’s rules required the Government to embark upon a process that could take over two years. In response to this concern, the Bill gives Regulators a new power to make rules “for any purpose for which provision of this Act, or of regulations under this Act, required or authorises…”
Before bringing in new rules, guidance, or standards regarding professional standards, education, training and experience, or continuing professional development, Regulators must carry out a public consultation and consult with the Secretary of State, other regulators and interested parties. The need for a public consultation can be dispensed with, with leave from the PSA, if it would be inappropriate or disproportionate.
During the consultation many Regulators stated that it would be desirable if they could undertake joint work with other regulatory bodies and with other bodies concerned with the provision of health and social care services, such as the Care Quality Commission. This theme of the consultation has been given expression in the Bill which provides that regulators may exercise their respective functions jointly if they consider it likely to lead to an improvement in the exercise of those functions: joint FTP hearings perhaps.
The Bill also imposes a positive duty on the Regulators to co-operate with each other in the exercise of their functions, as well as with the PSA and such other relevant persons as defined in the Bill. The positive duty to co-operate entails complying with any request made in the performance of the Regulator’s function in relation to a registered professional, as education and training provider or as a register keeper unless to do so would be incompatible with its own duties or would otherwise have an adverse effect on the exercise of its functions.
Consumer complaints services
A number of Regulators already have arms-length consumer complaints services, for example the Dental Complaints Service. The Bill gives support to such a practice and provides guidance as to how these complaints services should operate. A much needed incentive to set up diversionary schemes for suitable complaints.
A Brave New World
The other area of particular interest concerns the potential next steps in the march towards unification; there are a number of clauses that are waiting in the wings requiring secondary legislation to give them effect, a few of which are touched on below.
Licences to practice and entity regulation
The door has been left open for the Secretary of State to make regulations providing for: the possibility of introducing a licensing scheme including a mandatory requirement for revalidation (akin to that run by the GMC) and the registration of health and social care businesses and/or premises (entity registration a la the General Pharmaceutical Council).
A Unified Tribunal?
The Commission introduced the Bill by stating that it was concerned that the current legal framework surrounding professional regulation was “fragmented, inconsistent and poorly understood”. The Bill will no doubt reduce and ameliorate these concerns. Going forward it seems likely that further steps will be taken to seek to unify health and social care regulation. It is worthy of note that the Bill grants the Secretary of State power to create a separate adjudication body to deal with fitness to practise issues. In time this may lead to the creation of a single health and social care tribunal.
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