A nervous disposition
The Structure of Reform and Accountability
The overwhelming majority of consultees who expressed a view on this issue (31 of 35) agreed with the proposal that there be a single Act of Parliament to provide the legal framework for all the professional regulators.
There was resounding support for the proposal that the new legal framework should impose consistency to establish core functions and requirements but that otherwise regulators should be given greater autonomy in the exercise of their statutory responsibilities. Unsurprisingly, consultees were divided between those who supported greater autonomy and those who wanted greater consistency.
Role of the Privy Council
A significant majority agreed that the regulators should be given broad rule-making powers without Privy Council or Government oversight (42 of 51), with some citing difficulties in securing Department of Health resources or Parliamentary time as a hindrance to their evolution. The Department of Health agreed that the regulators should be given rule-making powers but also suggested an assessment (‘test for readiness’) of a regulator’s ability to take on its new powers before they were commenced and that perhaps the Professional Standards Authority be given a greater role in oversight of the regulator’s rules. It was broadly accepted that the status of rules would not be less clear without Parliamentary approval.
33 of the 47 who expressed an opinion agreed that the formal role of the Privy Council in relation to health and social care professional regulation should be removed entirely, however a number of concerns were raised. The Department of Health disagreed with the removal of the role, given that “its role indicates a clear intention for there to be a distance between these bodies and the Government”.
Duty to consult
An overwhelming majority supported the proposed duty to consult appropriate persons whenever issuing or varying anything which is binding or sets a benchmark or standard or competency. There was some concern expressed as to the prescriptive drafting of the currently worded duty which had the potential to make change cumbersome and too rigid.
Mirroring some of the recommendations of Robert Francis QC in the Mid Staffordshire Inquiry Report¹, the vast majority of consultees agreed that regulators should be required to provide information to the public and registrants about their work.
Role of Government and the Professional Standards Authority (PSA)
A surprising and significant majority agreed with the proposal that the Government should be given a regulation making power to abolish or merge any existing regulator, or to establish a new regulatory body, however a number suggested additional procedural safeguards before those proposed powers could be exercised.
Similarly, consultees were largely in agreement that the Government be given powers to issue a direction in circumstances where a regulator has failed to perform any of its functions and in default to give effect to that direction. However, it was stressed by several consultees that their support was contingent on it only be used as a last resort. Others, including the Nursing and Midwifery Council (NMC) and the General Optical Council (GOC) expressed concern that the power had the potential to erode the independence of regulators. Further, a significant majority of consultees agreed that the Government should be given powers to take over a regulator which is failing to carry out its functions
A large majority of consultees agreed that the PSA should be given a power to recommend a profession for statutory regulation, or conversely, the removal of a profession from statutory regulation. The PSA noted that this could be linked to its already existing power to provide advice to the Secretary of State. Some felt it was inappropriate for this power to be given to an individual regulator as they had a vested interest in extending its remit. The Association of Regulatory and Disciplinary Lawyers (ARDL) and the Department of Health disagreed with the proposal since such decisions would have “political elements”.
Main Duty and General Functions of the Regulators
Unsurprisingly provoking the biggest response at consultation was the consideration of the wording of the ‘paramount duty’ and whether it should be:
Many supported the second, maintaining confidence in the profession, option, on the basis that it is seen as an important aspect of professional regulation and to omit it would narrow the ability of regulators to intervene. A number of regulators provided examples of cases in which it would clearly be appropriate for a regulator to intervene, for example in cases where doctors are found guilty of rape, using child pornography or fraud. The Royal College of Nursing (RCN) supported its inclusion “reluctantly”, noting that the concepts of public protection and maintenance of confidence have become so interlinked that it would be difficult to extrapolate them.
On the contrary, there was also support for the first, public protection focused duty, with many arguing that maintaining public confidence in the profession was implicit and a natural consequence of ensuring proper standards. Others were critical of the extent of “regulation-creep” into the private affairs of individuals and UNISON provided a number of examples of what they considered to be inappropriate attempts by regulators to police private matters. Certain responses felt that the concept of maintaining confidence in the profession was an abstract concept, too vague to form the basis of a statutory duty.
In summary, 77 of the 100 consultees who expressed a view on this question agreed with an express reference to maintaining confidence.
It was generally agreed that the Statute should not include a statement setting out the general or principle functions of the regulators but that it should include both guiding principles and a general power for the regulators to do anything which facilitates the proper discharge of their functions.
There was a range of responses in relation the structure of Councils: some favouring their reform to be more board-like; some preferring reform by establishing a statutory executive board consisting of the chief executive and senior directors; with the remainder preferring their establishment as a unitary board structure moving away from a two-tier approach based on a Council and officials.
This question starkly divided opinion; most consultees also expressed equivocal positions, making points for and against each option. Many argued for flexibility, with the General Medical Council (GMC) and the NMC suggesting that the regulator should be able to establish a model that suits its particular situation. Others, including the HCPC noted that whilst structure was important, “competence, values and behaviour of those involved are likely to have a much greater impact on the effectiveness, efficiency and accountability of the regulators”. The PSA agreed with that sentiment.
An overwhelming majority supported the proposal that the regulators should be given broad rule-making powers to determine their own governance arrangements, including the ability to establish committees if they wished to do so.
The common thread running through the responses in this area is the need for flexibility and the importance of “substance over structure”.
Unsurprisingly, all consultees who expressed a view supported the proposal that the statute should set out a core duty on all regulators to establish and maintain a professional register.
There was no such consensus evident over the issue of student registers. A small majority agreed that the Government should be given a regulation making power to introduce compulsory student registers, including the GOC (who already has a compulsory student register), and a majority felt that student registration should be retained in the new framework. Several supported the registration of student social workers given their work with vulnerable people. The Medical Protection Society argued that a student fitness to practice regime is appropriate where students have contact with patients but that fitness to practice hearings should remain under the remit of educational establishments. A number of consultees expressed a view on how the legal framework could help to ensure that the principles and practices of professionalism are embedded in pre-registration training.
Opinion was divided on the question of the introduction of voluntary registers, with 50% of consultees agreeing that regulators should be given powers to introduce voluntary registers. Those that were in favour included the Department of Health and the HCPC. Many of those in support of the registers saw them as an interim measure leading to eventually to statutory registration. However, the PSA disagreed with the proposal, stating that in its view, voluntary regulation should be clearly distinguished from statutory regulation to avoid confusing the public and “undermining the validity of either model”. The GMC, The Patients Association and NMC were all opposed to this proposal.
A majority of respondents agreed that the statute should set a consistent time limit before which application for restoration (after erasure following FTP proceedings) can be made. Some made the point however that it should depend on the merits of each individual case.
A significant majority agreed that the statute should require all current sanctions, including interim orders, to appear on the public register, and that regulators should be required to publish information about professionals who have been struck off for at least 5 years after they have been struck off. There was less agreement as to whether regulators should be required to include details of all previous sanctions in their registers.
Education, Conduct and Practice
A large majority of consultees argued that the proposals should go further in encouraging a more streamlined and coordinated approach by regulators in the area of education. Rather contradictorily perhaps, many of the proposals in this area resulted in agreement between consultees that regulators should not have further powers, for example, to introduce a national assessment of students or in relation to the selection of those entering education.
On the issue of guidance, opinion was massively divided on whether too much guidance is already issued by the regulators: some (e.g. the GMC) arguing that the regulators’ approach is too prescriptive; others that there is a danger of ‘overload’; with others claiming that the standards were helpful to professionals who needed a point of reference. What was apparent from the responses in this area was that the concerns raised were specific to each area of practice, thus different regulators and bodies naturally held very different views.
Some called for a clear separation between ethics and standards while others (PSA) suggested that it is more appropriate to cover the issue of ethics within a framework of professionalism.
The vast majority of consultees agreed with the principle that the statue would require regulators to ensure on-going standards of conduct and practice through Continuing Professional Development (CPD) (including the ability to make rules on revalidation). Some, including the Patient’s Association, argued that revalidation should be enshrined within the statute as part of the CPD process. Some regulators, like the HCPC, are concerned that any introduction of revalidation should be subject to a formal impact assessment and public consultation.
Fitness to Practise: Impairment
As one of the most fundamental proposed changes, this issue prompted many responses and was the subject of much consideration in the paper.
Option one (the retention of the exiting two-stage approach for determining impaired fitness to practice) was supported by a number of regulators who felt that there was no need to change the existing system. ARDL pointed out the pitfalls of a new test that will need to be interpreted and judicial guidance given on its application and the GDC suggested any change would be “disruptive”. However, a number of consultees were opposed to option one. The HCPC feels that the existing system is “difficult to understand for complainants and the public”.
Option two (implementing the recommendations of the Shipman report) had limited support, with some noting that it is “legalistic”. The main source for concern in relation to this test is the difficulty in establishing satisfactorily how someone is liable to act in the future.
Opinion three (removing current statutory grounds which form the basis of impairment and introduce a new test of impaired fitness practice based on whether the registrant poses a risk to the public) was supported by the HCPC, GMC, General Pharmaceutical Council and the Patient Association.
Whilst the small majority favour option 3, there is still widespread concern as to the effect of changing the test at all.
The majority disagreed that the statutory grounds should include a broader range of non-conviction disposals.
A majority agreed that the regulators’ powers to require disclosures from the Independent Safeguarding Authority were inadequate, with a number of the large regulators noting that the current arrangements are “patchy”.
Fitness to Practise: Investigation
Commencing an investigation
The appropriateness of the existing gateway to the commencement of an investigation divided opinion. The majority considered that the current concept of ‘an allegation’ being investigated by a regulator was unduly restrictive and favoured instead a more flexible approach whereby regulators could investigate any matter of concern to the public. Those in opposition were concerned about a possible lack of consistency in the approach to investigations if the concept of an allegation was removed.
On the question of whether an investigation could be commenced without a formal complaint, a substantial majority of consultees (42 of 51) agreed that regulators should be permitted to commence investigations without a formal complaint. The RCN, whilst in support of the proposal, raised concerns about “overzealous” and “disproportionate digging” by regulators. Most consultees agreed that complaints need not be committed to writing before they were considered by the regulator and that the statute should expressly provide that there is no set format for the receipt of allegations.
The majority of consultees agreed that regulators should have a screening process for weeding out unmeritorious allegations; that referrals should be made according to referral criteria established by each regulator; and that regulators should have a power to prevent certain people undertaking the screening exercise. Views were split about whether in certain cases (convictions for example) allegations could be referred directly to a Fitness to Practise Committee. The HCPC in opposition of this proposal noted that the investigating committee stage provided an “important procedural safeguard”. The GMC conversely stated that it is seeking powers to give the Registrar the authority to remove people from the register convicted of certain serious offences.
As to the inclusion of a time limit preventing investigations being commenced after a certain period of time, most consultees agreed that there should be a limit, and that 5 years was the appropriate time frame. The GMC pointed out that it was “difficult to conduct and effective investigation many years after events…” Bodies against a time limit most notably included the NMC and the (now defunct) GSCC. Many consultees, including GDC, HCPC and ARDL, considered that any time limit should be subject to exceptions.
Consultees broadly agreed that regulators should have the power to establish investigating committees should they wish, but should not be compelled to do so. Many defence organisations (e.g. MPS, UNISON, and RCN) disagreed, arguing that the investigating committee stage should be obligatory. The test for referral to an FTP committee should be the real prospect test (43 out of 44 agreed).
So far as investigatory powers are concerned, consultees were in broad agreement that regulators should have the power to request disclosure in FTP investigations, although in the main, defence organisations argued that this power should not extend to the regulated person subject to the investigation. As to sanctions for non-compliance with disclosure, the GMC favoured the imposition of interim suspension orders, the GDC a scheme of fines, the NMC a separate FTP allegation and the HCPC pointing out that its power of discourse carries a criminal penalty or failing to comply. Defence organisations in the main were opposed to regulators being granted enforcement powers.
In the main consultees were in favour of the diversionary schemes of mediation, warnings, cautions and voluntary removal, as well as the introduction of a rule allowing anyone with an interest in the decision being permitted to ask for a review (on certain specified grounds) of a decision not to refer a case to the IC or the FTP Committee.
The Professional Standards Authority
A slim majority felt that the PSA was effective, in particular, most of the regulators were positive about their role. Several consultees did raise the issue of the PSA’s failures in respect of the crisis at the NMC. Other concerns included that it failed to represent the interests of registrant (MDU) and potential ‘lack of accountability’ which is no longer under the ambit of the Department of Health (RCN). The vast majority agreed that the current powers and role of the PSA should be maintained, as should their general functions. A large majority of consultees agreed that the PSA’s power to give directions is still necessary, as it is an important means by which regulators are made accountable.
An important matter consultees were asked about was whether the PSA’s power to refer cases to the higher courts should:
Opinions were, on this important issue, divided. The GMC, NMC and PSA supported Option 1, claiming that it was an important tool which underlines the separation of function. The Department of Health agreed with this model but felt that the PSA appeal should only be exercised where the regulator has decided not to appeal. ARDL favoured Option 3 on the basis that it was ‘unnecessary to provide two routes to challenge a decision'. The HCPC preferred Option 3, stating that the PSA provides a level of independence in appeal that the regulators may not.
A majority of the consultees felt that regulation in a commercial context makes no difference to the task of professional regulation but opinion was divided over whether the law provides adequately for professional regulation in a commercial context with consultees expressing views on what could be improved. Many felt that the principles and focus of regulation remain the same in both individual and business contexts. The PSA raised specific concerns about whistle-blowing in the commercial context being addressed. It was pointed out by a number of consultees that the Care Quality Commission has regulatory functions in respect of commercial providers of healthcare.
The vast majority agreed that the existing systems for the regulation of bodies corporate, should remain but opinion was divided on the question of whether regulators should have powers to finance or establish a complaints service. As the HCPC stated ‘the role of professional regulation is to protect the public, not to provide general resolution to consumer complaints’.
The GOC, along with the majority, agreed with the proposal that the Government be given a regulation-making power to extend to any regulator the power to regulate businesses. The GDC and CQC also agreed.
A number of suggestions were put forward as to how the legal framework might encourage clearer interfaces between the regulatory systems, with many pointing to the need for greater co-operation and joint working. The MDU raised the concern that any sharing of information must take into account the rights of registrants and this must be clear in the legislation.
29 of the 192 submissions noted practical difficulties that arise as a result of parallel criminal and fitness to practise proceedings, with delay being the most widely reported problem. The NMC mentioned that the criminal proceedings agencies are reluctant to share information needed for their proceedings, causing delay.
All those who expressed a view agreed that the statute should enable formal partnership arrangements to be entered into between any regulator and on or more other organisations, indeed the NMC felt it should be encouraged. It was felt to be potentially beneficial in many areas, such as joint consultations, joint training of panellists, consolidated rules and shared hearing rooms. Others were more cautious, with the Department of Health querying whether formal partnership was necessary if there is already joint working power in the statute.
Cross Border Issues
A large majority agreed with the perhaps uncontroversial proposal that the statute should require the regulators to specify in the rules which qualifications would entitle an application to be registered, including overseas qualifications, but a number of consultees raised the issue of language testing for EEA nationals as a matter to be tackled by regulators.
A number of practical problems were highlighted in respect of quality assuring UK qualifications which are awarded by institutions based overseas, including ethical and legal differences, differences in ethical and legal issues and cultural contexts of healthcare delivery.
No conclusions have yet been reached about final recommendations and the Law Commission are said to be “on track” to publish the final report and a draft Bill in early 2014.
¹ See Recommendations 230 and 233; the Report recommended that regulators need to undertake more by way of public promotion, making the public aware “at the point of service provision of their existence, their role and their contact details” (Recommendations 230 and 233).
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