Health and Social Care Reform: the responses are in; the possible key features of a new unified system

On 20 February 2013, The Law Commission published an analysis of responses received to its Consultation Paper on the Regulation of Health and Social Care Professionals.  In advance of the Government response, Sarah Harris and Julie Norris look at the range of responses submitted and consider where the battle lines may be drawn. 

Introduction

The analysis document  details the responses received by the Commission during the consultation period (1 May 2012 to 31 May 2012) and describes the views of consultees in relation to each of the 111 provisional proposals and 66 consultations advanced. 192 submissions were received from a wide range of consultees, including relevant Government departments, professional regulators, the Care Quality Commission, defence organisations, unions, patient representative groups, local authorities, NHS Trusts, legal practitioners, individual health and social care practitioners and patients. The results make fascinating reading; although complete consensus is predictably absent, on certain topics, a clear majority view emerges, making predictions about the course that may eventually be proposed and even adopted, possible. 

Below we summarise each section of the lengthy report. For those wanting a snapshot of what the future of health and social care regulation might look like, and assuming the Law Commission adopt the majority view on the main issues consulted upon, reform is likely to bear the following features:

General

• Single Act of Parliament to provide the legal framework for all of the professional regulators;
• Formal role of the Privy Council removed;
• Duty to consult appropriate persons whenever issuing or varying anything binding or setting a standard or competency;
• Government given a power to abolish or merge any existing regulator, or to establish a new regulatory body;
• Government 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 (although probably only as a last resort);
• Professional Standards Authority (PSA) to be given a power to recommend a profession for statutory regulation or, conversely, the removal of a profession from statutory regulation;
• The “paramount duty” will contain an express reference to maintaining confidence in the profession;
• The current role, general functions and power to give directions of the PSA to be maintained.

The Statute

• Will not include a statement setting out general or principal functions but will include both guiding principles and a general power for the regulators to do anything which facilitates the proper discharge of their functions;
• Will give broad rule-making powers for regulators to determine their own governance arrangements, including the ability to establish committees if they wish;
• Will set a consistent time limit before which an application for restoration (following FTP proceedings) can be made;
• Will require all current sanctions, including interim orders, to appear on the public register;
• Will require regulators to ensure on-going standards of conduct and practice through CPD;
• Will enable formal partnership arrangements to be entered into between regulators and other organisations.

Registers

• Core duty for all regulators to establish and maintain a professional register;
• Government to be given a regulation making power to introduce compulsory student registers and student registration to be retained;

Fitness to Practise

• The current statutory grounds which form the basis of impairment will be removed and a new test of impairment of fitness to practise will be introduced, based on whether the registrant poses a risk to the public (Option 3 of the proposal);
• Regulators’ powers to require disclosures from the Independent Safeguarding Authority (ISA) to be improved;
• More flexible approach introduced whereby regulators can investigate any matter of concern to the public, without the current concept of ‘an allegation’ and without the need for a formal trigger complaint;
• Screening process for the weeding out of unmeritorious allegations; referrals being made in accordance with referral criteria established by each regulator;
• 5 year time limit preventing investigation after that period (likely to be subject to exceptions);
• Regulators have the power to establish investigating committees but are not compelled to do so;
• Diversionary schemes of mediation, warning and voluntary removal encouraged;
• Rule allowing anyone with an interest in the decision to conclude a case at the case to answer stage to be permitted to ask for a review;

One of the tensions most apparent in the responses is between the desire of consultees to preserve that which they regarded as good about their own current regimes and the obvious drive for more consistency between the operations of the regulators. Any Government response (whether in the terms suggested above or not) is likely to see some consultees having to accept new ways of functioning that are unfamiliar and perhaps even unwelcome. What is also apparent is that the wholesale root and branch reorganisation that some may have been expecting to follow the Consultation, looks unlikely to result.  Much good practise exists already in many of the regulatory authorities; it rather looks like it may just be a case of sharing and codifying it.

Co-authored by Sarah Harris, Barrister