Health and social care regulation: one size fits all?

12 July 2013

This week, Frances Patterson QC gave an early indication as to the likely outcome of the recent Law Commission Consultation  on the future of the health and social care regulatory regime. Julie Norris was at the Lexis Nexis Disciplinary Law Conference and can report on what is likely to be contained in the new consolidating Act. Regulators planning their activities over the next few years may wish to read on…

You may remember our report on the responses to the Consultation published in February. Much has happened since then and the final report of the Law Commission is due for publication in February 2014. After that, all indications are that a new Healthcare Bill will go before Parliament at the last session next May with the new regulatory framework coming onto the statute book by the close of 2014/early 2015. 

The Law Commission has big ideas for the shape of the regime created under the new consolidated statue. Its vision is that the new Act will bring about a culture of cooperation and consistency between regulators, with “high level principles” that will facilitate a more “enlightened approach” to regulation. The Medical Practitioners Tribunal Service (MPTS) was praised and will remain, partly as a model for other regulators to aspire to.

Of course, it is too early to tell whether these laudable aims will be achieved in the provisions of the new Act. From what we are told, much that we know and recognise as being ‘good practice’ is set to remain, with the welcome introduction of consistency across the regimes as well as a renewed emphasis on working together to achieve the common aim of the overriding objective:

“the protection, promotion and maintenance of the health and safety and
well-being of the public.” 

Perhaps the most surprising of all the probable reforms is the likely recommendation that voluntary registers be removed. Conversely, there were no surprises in the sweeping away of Section 60 Orders and the removal of the role of the Privy Council as the “post box for the Department of Health”. This should enable regulators to respond much more quickly and enable them to exercise more autonomy in the carrying out of their functions. 

It is in the field of Fitness to Practise that most of the reforms will be focused:

  • The current test of impairment is to remain and so the existing case law will still be applicable; 
  • The Law Commission is likely to recommend that it would be too complicated to sweep away the current statutory grounds and thus, these are likely to be retained;
  • There will be an additional statutory ground of language deficiency;
  • There will be a clearer distinction made between deficient professional performance and misconduct. Therefore, although the grounds will remain, they will be more sharply defined; 
  • A more proactive culture is sought by the Law Commission (in the wake of the Francis report in particular) and regulators will not only be under a duty to investigate after a formal allegation is made but also now when information comes to their knowledge from other sources (Panorama, written media etc.) that reveals concerns in relation to regulation;
  • The requirement to have an Investigating Committee will be optional rather than mandatory. It will be for the individual regulators to determine the system that is most efficacious;
  • Regulators will have a power to require disclosure of relevant documentation including from the Registrant. The Registrant will have certain (unspecified) protections however; 
  • The power to refer an allegation on after investigation will remain so that the regulator may refer a matter if there is a realistic prospect of an adverse finding, although this will not mean that they must automatically do so. For example, early disposal may be considered as a suitable option;
  • The disciplinary sanctions available to Regulators will be aligned so that there is a common suite of sanctions available to them all, introducing commonality across the field; 
  • The reviews of sanctions will remain;
  • A new power is likely to be introduced so that if other regulators want to emulate the MPTS model they may do so;
  • The Government may be given powers to establish procedures to recruit and train panellists and refer unduly lenient cases to Court;
  • It will be clear on the face of the statute that joint hearings for professionals regulated by different bodies may take place. The Law Commission hopes that there will be more conjoined hearings with 3, 4 or potentially more different professionals, all having fitness to practise cases heard together; 
  • The civil burden of proof will attach to findings of fact across all regulators;
  • All hearings will be held in public except Interim Orders and Health cases (with certain exceptions);
  • Cooperation and joint working will be provided for in an express power to enable this to happen.

This new Act, whatever its precise terms may be, will herald a new era in health and social care regulation. The question that looms large is whether this represents the thin end of the wedge. Will more commonality be sought; what about the rules of evidence; what about a single tribunal…

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On July 12th 2013 Dominic Williams commented:

There is a key issue of appropriate access to records of service users, pursuant to investigations. The balance of competing provisions or lack thereof, is currently weighted heavily towards the interest of small independent private practitioners. It is to be hoped that the new act clarifies and re-balances the various rights, duties and responsibities.

A radical additional measure would be to empower a Panel to tag the Registrant's professional indemnity insurance with a specific marker, to reflect persistent specific conduct or competence issues. Too harsh, or too vague? Financial implications get noticed...

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